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Rajasthan High Court · body

2007 DIGILAW 732 (RAJ)

Shyam Sundar v. Mahesh Prasad

2007-04-09

R.C.GANDHI

body2007
R.C. Gandhi, J.—This appeal has been directed against the award dt. 07.08.1999 passed by the Motor Accident Claims Tribunal, Beawer in Claim Petition No. 73/1996 whereby a sum of Rs. 2,15,000/- has been paid as compensation on account of death of a boy of fourteen and a half years, in a road accident. 2. The deceased Mithlesh, on 02.10.1995 at 7.30 a.m. near Gadhi Thoriyan Milk Dairy Booth was travelling in Jeep No. RJ. 14-1C-0867 being driven by its driver rashly and negligently. The driver of the Jeep started overtaking the Truck being plied parallel to the Jeep. On seeing another Truck coming from the opposite direction, the Jeep driver got perplexed and lost control over the vehicle, as a result of which the Jeep collided with the Truck nothing from the opposite direction causing serious injuries to Mithlesh Kumar and other passengers whereas Kusum died on the spot. 3. The injured Mithlesh Kumar was taken to the Beawar Hospital from where he was referred to Jaipur Hospital through a private taxi, scaling a distance of 225 Kilometers. He remained in the Hospital for 80 days. During treatment, the injured engaged the services of an attendant and also spent money on purchase of medicines and on other allied things such as prescribed diet and transportation. However, later on he expired. 4. The claimants filed a claim petition before the Tribunal for compensation of Rs. 7,85,000/- arraying the respondent driver and the owner. of the offending vehicle as party respondents, besides the Insurance Company. Claim petition was contested by the other side and on appreciation of evidence, the impugned award has been passed by the Tribunal. 5. Impugned award has been challenge on the grounds that the award amount is inadequate and the Tribunal has not applied the proper multiplier. 6. Heard learned counsel for parties and perused the memorandum ofappeal and the impugned award. 7. The Tribunal has awarded Rs. 500/- per day for remaining in the Hospital for 80 days which comes to Rs. 40,000/- . For transportation from Beawer to Jaipur i.e. 225 Kilometers Rs. 5,000/- has been paid. Rs. 15,000/­- has been paid for the attendant attending the deceased in the Hospital. For to and fro journey, Rs. 10,000/- has been paid. For funeral expenses Rs. 2,000/- and in addition to that Rs. 30,000/- has been paid for condolence congregation where the food was served. 5,000/- has been paid. Rs. 15,000/­- has been paid for the attendant attending the deceased in the Hospital. For to and fro journey, Rs. 10,000/- has been paid. For funeral expenses Rs. 2,000/- and in addition to that Rs. 30,000/- has been paid for condolence congregation where the food was served. The pecuniary loss of medicine has not been paid as the father of the deceased has stated that he has claimed this amount from the Railway Department where he is serving. The deceased’s income has been taken to be Rs. 1,000/- per month and the multiplier of 10 has been applied. The loss of dependency has been determined as Rs. 1,20,000. 8. Learned counsel for the appellant has submitted that the Tribunal was not right in calculating the loss of income and the dependency as the deceased boy was of fourteen and a half years of age and notional income would have been made applicable as the deceased was not having any monthly income. In support of his plea, he has relied upon the judgment of Supreme Court in case title Lata Wadhwa and Ors. vs. State of Bihar and Ors., 2001 ACJ 1735 wherein distinction has been made between the age group of 5 to 10 years and 10 to 15 years of the children and prayed that the whatever, compensation has been paid in the case (supra) the same should have been paid in the present claim petition also. 9. I have perused the judgment delivered in Lata Wadhwa’s case. No doubt, the Court has dealt with the age group of 5 to 10 years and 10 to 15 years of children but the multiplier applied and the compensation awarded cannot be made applicable to the present case for various reasons. In a case of age group of 10 to 15 years boy, the Company respondent therein made available employment to the one of the member of the family. The Court observed that the compensation would be Rs. 3,60,000/- and besides that conventional amount of Rs. 50,000/- has been added raising the total amount payable as Rs. 4,10,000/-. This is a different yardstick and cannot be made applicable to the present case, arising out of the Motor Vehicles Act. 10. Learned counsel for the respondent-company has also relied upon the judgments of the Supreme Court delivered in cases title New India Assurance Co. 50,000/- has been added raising the total amount payable as Rs. 4,10,000/-. This is a different yardstick and cannot be made applicable to the present case, arising out of the Motor Vehicles Act. 10. Learned counsel for the respondent-company has also relied upon the judgments of the Supreme Court delivered in cases title New India Assurance Co. Ltd. vs. Satender and Ors., 2006(8) SC 870 and Manju Devi and another vs. Musafir Paswan and Anr., 2005 (1) TAC 609 (SC). 11. In case title New India Assurance Company Ltd. (supra), the Court while dealing with a case of death of a child of 9 years, relying upon and distinguishing the judgments of the Supreme Court delivered in the case title State of Haryana and Anr. vs. Jasbir Kaur and Ors., 2003(7) SCC 484 and Lata Wadhwa and Ors. vs. State of Bihar and Ors. (Supra), granted compensation of Rs. 1,80,000/- and did not apply the ratio of the Judgment of Latha Wadhwa’s case wherein the Court observed as under- “So far as the award of compensation in case of children are concerned, Shri Justice Chandrachud, has divided them into two groups, first group between the age group of 5 to 10 years and the second group between the age group of 10 to 15 years. In case of children between the age group of 5 to 15 years. It uniform sum of Rs. 50,000 has been held to be payable by way of compensation, to which the conventional figure of Rs. 25,000/- has been added and as such to the heirs of the 14 children, a consolidated sum of Rs. 75,000/- each, has been awarded. So far as the children in the age group of 10 to 15 years, there are 10 such children, who died on the fateful day and having found their contribution to the family at Rs. 12,000/- per annum, 11 multiplier has been applied, particularly, depending upon the age of the father and then the conventional compensation of Rs. 25,000/- has been added to each case and consequently, the heirs of each of the deceased above 10 years of age, have been granted compensation to the tune of Rs. 1,57,000/- each. In case of the death of an infant, there may have been no actual pecuniary benefit derived by its parents during the child’s life-time. 25,000/- has been added to each case and consequently, the heirs of each of the deceased above 10 years of age, have been granted compensation to the tune of Rs. 1,57,000/- each. In case of the death of an infant, there may have been no actual pecuniary benefit derived by its parents during the child’s life-time. But this will not necessarily bar the parents claim and prospective loss will found a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived. This principle was laid down by the House of Lords in the famous case of Taff Vale Ry. vs. Jenkins [1913] A.C.I., and Lord Atkinson said thus: 12. All that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact there must be a basis of fact from which the inference can reasonably be drawn; but I wish to express any emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first, that the deceased earned money in the past, and, second, that he or she contributed to the support of the plaintiff. Those are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inference can I think be drawn from circumstances other than and different from them. 13. At the same time, it must be held that a mere speculative possibility of benefit is not sufficient. Question whether there exists a reasonable expectation of pecuniary advantage is always a mixed question of fact and law. There are servant decided cases on this point, providing the guidelines for determination of compensation in such cases but we do not think it necessary for us to advert, as the claimants had not adduced any materials on the reasonable expectation of pecuniary benefits, which the parents expected. In case of a bright and healthy boy, his performances in the school, it would be easier for the authority to arrive at the compensation amount, which may be different from another sickly, unhealthy, rickety child and bad student, but as has been stated earlier, not an iota of material was produced before. 14. In case of a bright and healthy boy, his performances in the school, it would be easier for the authority to arrive at the compensation amount, which may be different from another sickly, unhealthy, rickety child and bad student, but as has been stated earlier, not an iota of material was produced before. 14. Shri Justice Chandrachud to enable him to arrive at just compensation in such cases and, therefore, he has determined the same on an approximation Mr. Nariman, appearing for the TISCO on his own, submitted that the compensation determined for the children of all age groups could be doubled, as in his views also, the determination made in grossly inadequate. Loss of a child to the parents is irrecoupable, and no amount of money could compensate the parents. Having regard to the environment from which these children were brought, their parents being reasonably well placed officials of the Tata Iron and Steel Company, and on considering the submission of Mr. Nariman, we would direct that the compensation amount for the children between the age group of 5 to 10 years should be three times. In other words, it should be Rs. 1.5 lakhs, to which the conventional figure of Rs. 50,000/- should be added and thus the total amount in each case would be Rs. 2.00 lakhs. So far as the children between the age group of 10 to 15 years, they are all students of Class VI to Class X and are children of employees of TISCO. The TISCO itself has a tradition that every employee can get one of his child employed in the company. Having regard to these facts, in their case, the contribution of Rs. 12,000/- per annum appear to us to be on the lower side and in our considered opinion, the contribution should be Rs. 24,000/- and instead of 11 multiplier, the appropriate multiplier would be 15. Therefore, the compensation, so calculated on the aforesaid basis should be worked out to Rs. 3.60 lakhs, to which an additional sum of Rs. 50,000/- has to be added thus making the total amount payable an Rs. 4.10 lakhs for each of the claimants of the aforesaid deceased children. 15. In case title Manju Devi and Anr. Therefore, the compensation, so calculated on the aforesaid basis should be worked out to Rs. 3.60 lakhs, to which an additional sum of Rs. 50,000/- has to be added thus making the total amount payable an Rs. 4.10 lakhs for each of the claimants of the aforesaid deceased children. 15. In case title Manju Devi and Anr. vs. Musafir Paswan and Anr., 2005(1) TAC 609, the Apex Court while dealing with a death case of 13 years boy considered the judgment delivered in case title U.P. State Road Transport Corporation vs. Trilok Chandra reported in 1996 ACJ 831 and applied the multiplier of 15 as per the II Schedule annexed with the Motor Vehicles Act, 1988 taking notional income of Rs. 15,000/- being a non-earning person and awarded Rs. 2,25,000/-. 16. In the present case, the deceased was a non-earning person. He was within the age group of 10 to 15 years of age. The multiplier as per the II Schedule annexed with the Motor Vehicles Act, 1988 has to be made applicable. Where the deceased within the age group of 10 to 15 years, the multiplier of 15 has to be applied. The notional income of Rs. 15,000 multiplied by the multiplier of 15 comes to Rs. 2,25,000/- which the appellants are held entitled. The deceased injured was admitted in the Hospital and remained under treatment for 80 days. Though, he is not entitled to the non-pecuniary losses such as pain and suffering but the pecuniary losses suffered by the claimants, are required to be paid. It has been established before the Tribunal that the deceased was provided services of the attendant. He was brought from the spot of the accident to the Beawar Hospital and therefrom to Jaipur Hospital which is at a distance of 225 Kms. They have spent some money on the purchase of medicines etc. The Tribunal has paid Rs. 500/- per day for Hospital charges which are on higher side. Generally, this Court is granting Rs. 300/- per day to which the claimants are also entitled for 80 days, which amounts comes to Rs. 24,000/-. For the service of the attendant, the amount is calculated at Rs. 100/- per day which comes to Rs. 8,000/- The deceased was brought from Beawar Hospital to Jaipur Hospital which is at a distance of 225 Kms., therefore, for hiring private taxi, Rs. 24,000/-. For the service of the attendant, the amount is calculated at Rs. 100/- per day which comes to Rs. 8,000/- The deceased was brought from Beawar Hospital to Jaipur Hospital which is at a distance of 225 Kms., therefore, for hiring private taxi, Rs. 1,500/- would meet the expenses and Rs. 1,500/- are also paid for taking the dead body to home. The Tribunal has paid Rs. 10,000/- for funeral expenses which are on higher side and is reduced to Rs. 3,000/-. They are not found entitled to any compensation for the amount spent on condolence congregation, where food was served which is not a part of religious ceremony. However, the parents are paid Rs. 10,000/- each for love and affection as they have lost their young child. The total award accordingly comes to Rs. 2,83,000/-. 17. The appeal is accordingly allowed. The Tribunal has awarded interest @ 12% per-annum but looking to the present scenario of the market, rate of interest @ 8% per annum would be reasonable from the date of filing of the claim petition. The award amount shall be invested by the Tribunal in the Nationalized Bank in the fixed deposit and shall be spent in a manner so that it could be consumed by the parents throughout the life and shall not be permitted to withdraw without any necessity. * * * * *