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1970 DIGILAW 109 (CAL)

P. N. Mookerjee New India Assurance Co. Ltd. v. Rajendra Nath Banerjee

1970-05-15

A.K.Mukherji

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Judgment 1. THIS appeal is directed against an award of compensation under the Motor Vehicles Act. The claim was made by the present respondents on account of death of their son Sankar Banerji, aged about 9 years, under an accident, in which he was run over by the bus of appellant No. 2. 2. THE claimant's case was that the accident was due to rash and negligent driving of the driver of the motor bus in question and the claim was laid at Rs. 20,000/ -. The learned Arbitrator made an award of Rs. 12,000/- in favour of the respondents and, feeling aggrieved by the same, the appellants, namely, the Insurance Company and the owner of the bus have come up on appeal to this Court. 3. IN support of this appeal, two points have been urged by Mr. Roy Chowdhury. 4. IN the first place, he has contended that the respondents' claim petition should have been thrown out on the ground of limitation as it was originally filed by the father Rajendra Nath Banerjee, who could not claim to be the legal representative of the deceased boy and although, later on, the name of the mother, who was the legal representative was joined and brought on the record, that was done at a time, when the period of limitation for the claim in question had expired. In our view, this objection should not be accepted in the facts and circumstances of this case. It is true that in the original claim petition, the name of the father alone appeared as the claimant, but, in the amendment petition, which was accepted by the court and allowed, the position was made clear that the father was really making the claim on his behalf and on behalf of the mother and a prayer was made for necessary amendment of the cause title of the claim petition. It was in our opinion, in the facts and circumstances of this case, a rectification of an error of description or mis-description and the amendment in that behalf, once made, will relate back to the original date of the claim and no question of the limitation on the date of amending the claim petition would arise. In this view, we would reject this submission of Mr. Roy Chowdhury. On the merits, Mr. In this view, we would reject this submission of Mr. Roy Chowdhury. On the merits, Mr. Roy Chowdhury very strongly urged that, on the materials before the tribunal, the award of Rs. 12,000/- as compensation in the instant case was much in excess of the proper amount. This submission of Mr. Roy Chowdhury has, in our opinion, a good deal of substance, as on the materials before the court, all that appears is that the death of the boy was due to an accident, caused by the rash and negligent driving of the bus in question; that the boy was aged nine years and that he was healthy and intelligent. On these materials, the compensation, in the instant case, should, in our opinion, be assessed on the minimum basis and, proceeding on that view, we would make the following calculations: To attain the earning capacity the boy had to reach at least the age of 20 years. Until then the parents had to maintain him and the average cost, roughly, of maintenance of the boy would have been in the neighbourhood of Rs. 40/-per month. That leads to a total sum for maintaining the boy during this interval, of Rs. 5,000/- in round figure. Taking the average span of the period of assistance to the parents from the earnings of the boy at 15 years on the basis of an income of Rs. 100/- per month, after deduction of the cost of his own maintenance of Rs. 40/- per month, the total would come to Rs. 11,000/- approximately in round figure. Taking from this amount the above amount of Rs. 5,000/- required to be spent by the parents for equipping the boy with the capacity of earning money we would be left with the amount of Rs. 6,000/ -. In our opinion, this should be the compensation to be awarded in the instant case. 5. WE would, accordingly, allow this appeal in part and modify the award of the learned Arbitrator by reducing it from Rs. 12,000/- to Rs. 6,000/ -. The appellants will pay the above amount of Rs. 6,000/- less and amount, which might have been paid in the meantime, within three months from this date. In default, the same will be realised by appropriate execution of this award in accordance with law. There will be no order for costs in this appeal.