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1980 DIGILAW 236 (MAD)

KAMALAM v. ASHOKE TRANSPORT

1980-06-18

G.RAMANUJAM, SWAMIKKANNU

body1980
JUDGMENT : G. Ramanujam, J.—This appeal is directed against the award of the Motor Accidents Claims Tribunal, Salem, insofar as it restricted the compensation payable to the claimants/Appellants herein at Rs. 5,000/- as against their claim of Rs. 25,000/-. 2. On 5.10.1973 at about 12.45 p.m. one Manoharan while riding a bicycle from East to West along-Salem-Mettur Road at Chinnakonnur (Kuchikadu) was hit by a lorry M.D.S. 8222 belonging to the first Respondent which has been insured with the second Respondent and on account of the injuries sustained as a result of the impact, he received serious injuries and later died on the same day at Mettur General Hospital. The Appellants, who are the mother and the father of the deceased, had claimed compensation in a sum of Rs. 25,000/- towards the pecuniary loss sustained by them on account of the death of their son. The claim was resisted only by the second Respondent. 3. The second Respondent took up the stand that the accident was due to the rash and negligent act on the part of the deceased and that there was no negligence on the part of the driver of the lorry. It also claimed that the compensation claim was excessive. 4. Before the Tribunal the following two questions arose for consideration: (1) Whether the accident was due to the rash and negligent act of the driver of the lorry ? and (2) Whether the Petitioners (Appellants herein) are entitled to pay compensation and if so, what amount ? 5. On the first question, the Tribunal after analysing the evidence adduced by both parties, held that the accident, which has resulted in the death of the deceased, was only due to the rash and negligent driving of the lorry by its driver and that there was no negligence on the part of the deceased in riding the bicycle. On the question of compensation, the Tribunal after referring to various decisions relating to the fixation of compensation in the case of an infant, held the claimants are entitled only to a sum of Rs. 5,000/- having regard to the fact that the deceased was only 14 years of age at the time of his death. 6. On the question of compensation, the Tribunal after referring to various decisions relating to the fixation of compensation in the case of an infant, held the claimants are entitled only to a sum of Rs. 5,000/- having regard to the fact that the deceased was only 14 years of age at the time of his death. 6. As against the finding of the Tribunal that the accident occurred only due to the rash and negligent driving of the lorry by its driver, neither the 1st Respondent nor the 2nd Respondent has appealed and so the finding on that aspect has become final. As a matter of fact, even before the Tribunal neither the first nor the second Respondent had adduced any evidence either oral or documentary on the question of rashness and negligence. Therefore at this stage it is not open to the Respondents to challenge the findings of the Tribunal that the accident was caused due to the rash and negligent driving of the lorry by its driver. Therefore, the only question that arises for consideration is whether the award of compensation of Rs. 5,000/- by the Tribunal can be said to be fair and reasonable. 7. In this case the deceased was aged 14 at the time of his death and he was studying in the 8th standard as seen from the record sheet, exhibit A-6. It is true the deceased was not an earning member at the time of his death. The Tribunal has taken the view that if a child, not an earning member, is killed in an accident, only nominal damages have to be awarded, since the loss of pecuniary benefit would in such cases be a speculative one. In support of the award of compensation of Rs. 5,000/- in this case the Tribunal has chosen to rely on the following four decisions : Madhya Pradesh State Road Transport Corporation Vs. Sudhakar and Another, P.S. Kothandani and Others Vs. V.N.S. Pothi Naikar and Others, Madhya Pradesh State Road Transport Corporation Vs. Yasin and Others, and Perumal and Another Vs. State of Madras, . 8. It is true the above decisions lay down the principles for determination of the compensation in the case of the death of an infant child as a result of motor accident. However, these decisions cannot be said to have prescribed any scale of compensation depending upon the age of the child. State of Madras, . 8. It is true the above decisions lay down the principles for determination of the compensation in the case of the death of an infant child as a result of motor accident. However, these decisions cannot be said to have prescribed any scale of compensation depending upon the age of the child. They merely lay down the principle, by which award of compensation is to be guided. In this case, the deceased, who was 14 years old at the time of the accident, cannot be taken to be an infant child. He was an adolescent admittedly studying in a school. 9. In Perumal and Another Vs. State of Madras, Maharajan, J. has expressed the view that the compensation awardable for the death of an infant had varied from Rs. 1,000/- to Rs. 10,000/- according to the discretion of the 'judge concerned and the range of variation from one judge to another in fixing the amount of compensation is almost whimsical and bewildering. It is for that reason that he has suggested, that it will be desirable that the legislature lays down guidelines, which would enable the Courts to fix the quantum of compensation in such matters in the light of the prevailing sociological values. He has observed, as follows: In fact in England, the Council of Law Society to the Departmental Committee on the Alternative Remedies, recommended for the purpose of acquiring uniformity in fatal cases, that a statutory scale should be provided for the calculation of damages for the loss of expectation of life....In the absence of statutory guidelines, I think that for the purpose of securing uniformity some workable formula should he evolved, which can be usefully followed by the trial Courts, after making marginal adjustments in the light of the peculiar facts of each individual case. The learned judge has also referred to the fact that the Courts in England have been awarding 400 to 500 as compensation for the death of an infant child notwithstanding the earlier decision of the House of Lords in Benham v. Gambling 1941 A.C. 157 wherein 200 was awarded for the death of a child, on the ground that since the above decision of the House of Lords there has been a depreciation in the value of money. 10. 10. Here also the decisions referred to above, which have laid down the principles for fixing compensation in the case of a child and awarding somewhere about Rs. 5,000/- as compensation for the death of infants upto the age of 10 are all rendered between the years 1970 and 1974 and since then there has been a considerable depreciation of value of money. Having regard to this fact as well as the fact that the deceased herein was 14 years old and not an infant child at the time of his death, we are of the view that a sum of Rs. 9,000/- will be a fair and reasonable estimate of the compensation payable to the claimants. As a matter of fact, Mahajan, J. in a later judgment in the The Vanguard Insurance Co. Ltd. Vs. Padma and Another, has enhanced the compensation of Rs. 6,000/- to Rs. 10,000/- taking into consideration the age of the deceased, the status of the family in which he has been born and his academic attainments. In that case also the deceased was 14 years old and was a student studying in the 9th standard. Referring to his earlier case in Perumal and Another Vs. State of Madras, the learned judge has stated that it was a case of 8 years old girl losing her life and therefore the quantum of compensation given in that case cannot be a guiding factor in the later case. 11. In this case, the deceased has survived the vicissitudes of childhood and was 14 years at the time of his death. The claimants are the mother and the father of the deceased. The mother was only 32 years old at the time of the death of her son and the deceased if he had been alive might have maintained her at least for another 30 years. Taking these special facts into consideration, we think it correct to enhance the compensation awarded from Rs. 5,000/- to Rs. 9,000/-. It is true the appellate Court is slow to interfere with the quantum of compensation awarded by the trial Court, unless it shocks the conscience of the appellate Court. Taking these special facts into consideration, we think it correct to enhance the compensation awarded from Rs. 5,000/- to Rs. 9,000/-. It is true the appellate Court is slow to interfere with the quantum of compensation awarded by the trial Court, unless it shocks the conscience of the appellate Court. However, we find that the compensation awarded is so inadequate as to call for our interference having regard to the relevant facts such as the age of the deceased, the age of the parents, the status of the family and the likelihood of the deceased supporting and maintaining the claimants, if he were alive. 12. The result is the appeal is allowed and the compensation is enhanced to Rs. 9,000/- from Rs. 5,000/- awarded by the Tribunal. The quantum of compensation of Rs. 9,000/- fixed by us will carry interest at 6 % p.a. from this date till date of payment. There will be no costs.