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2008 DIGILAW 756 (MAD)

R. Logasamy v. K. Soundararajan and Others

2008-02-29

R.BANUMATHI

body2008
Judgment : R. BANUMATHI, J. Being dissatisfied with the quantum of compensation of Rs. 62,000/- for the death of the child Vigneswaran, aged 9 years, in a road traffic accident on 19.10.1999, father of the deceased filed this Appeal. 2. Brief facts, which are relevant for disposal of this Appeal are as follows: (i) On 19.10.1999-5.30 p.m., when the deceased minor Vignaswaran was standing in front of his house, at that time, a Tempo Van bearing Regn.No. TN-33/B-7083 driven by its driven in rash and negligent manner, dashed against the minor Vigneswaran, as a result of which, the deceased sustained injuries in backside hip, stomach, head and all over his body. After the accident, the deceased minor Vigneswaran had taken treatment in Arun Fracture Clinic, where he succumbed to injuries on 20.10.1999. A Criminal Case was also registered against the van driver in Cr. No. 1077 of 1999 under Section 304(A) I.P.C. Alleging that the death of the minor child was due to rash and negligent driving of the van driver, claimants filed petition under Section 166 of Motor Vehicles Act, claiming compensation of Rs. 4,00,000/-. (ii) Opposing the Claim, Insurance Co. has filed counter stating that the deceased minor child was playing with some other children and they were running hither and thither and the deceased came across the road without minding the on coming vehicle and the driver of the bus blowed horn and the deceased fell down and as such, he violently dashed against the vehicle. Hence, there was no fault on the part of the owner of the van, Insurance Co. is not liable to pay the compensation. The Insurance Co. has also disputed the age of the deceased and loss of dependency of the claimants. (iii) After the filing of the Claim Petition, First Claimant (Mother of the deceased) also died. Second Claimant examined himself as P.W.1. Exhibits P-1 to P-11 were marked. No evidence was adduced on the side of Insurance Co. Upon consideration of oral and documentary evidence and referring to admission of guilt by the driver of the van, Tribunal held that the accident was due to rash and negligent driving of the van driver and held that the insured and insurer are jointly and severally liable to pay the compensation. However, observing that the minor child was not earning any income, Tribunal has awarded only Rs. However, observing that the minor child was not earning any income, Tribunal has awarded only Rs. 50,000/- under “No Fault Liability” in terms of Section 140 of Motor Vehicles Act. For loss of Love and Affection, Rs. 10,000/- was awarded and for Funeral Expenses, Tribunal has awarded Rs. 2,000/- and awarded total compensation of Rs. 62,000/. (iv) The learned counsel for the Appellant-Claimant N. Manokaran has submitted that the Tribunal ought to have awarded “just compensation” for loss of dependency and the quantum of compensation of Rs. 62,000/- awarded by Tribunal is abysmally low and the same is to be enhanced. It was further submitted that at the time of death the Claimant was aged 9 years and was a bright student and the same was not kept in view by the Tribunal. 3. The learned counsel for the Third Respondent-Insurance Co. has submitted that the quantum of compensation awarded by Tribunal is just and reasonable and the same need not be enhanced, since, the .deceased was a non-earning boy, the compensation amount awarded is just and reasonable, and the same need not be interfered with. 4. The death of a child is a calamity of such magnitude that the Pecuniary Loss Rule is particularly outmoded when applied to actions brought forth for the wrongful death of children. Death of children is a real tragedy that most often the judiciary fails to recognize parents intangible harm arising from the loss of childs life. These are matters that cannot be ascertained accurately with precision and belong to the realm of conjecture. The child aged 9 years has surmounted the peril of childhood. Once they emerge into majority, they are likely to have earnings and support their parents, though at the moment, they are of course not receiving any benefit. It cannot be denied that the loss of child is ranged as one of the most emotionally trying experience in the life of parents. The emotional distress in general and the grip reaction in particular aroused by childs death are associated with individual expectations. 5. While quantifying and arriving at a figure for “loss of expectation of life, we have to keep in mind that this figure is not to be calculated for the prospective loss or future pecuniary benefits that has been awarded under another head- pecuniary loss. 5. While quantifying and arriving at a figure for “loss of expectation of life, we have to keep in mind that this figure is not to be calculated for the prospective loss or future pecuniary benefits that has been awarded under another head- pecuniary loss. Compensation payable under this head is for loss of life and not loss of future pecuniary prospects. The measure of lose is the loss of prospective happiness. Under this head compensation is paid for termination of life, which results in constant pain and suffering. This pain and suffering does not depend upon the financial position of the victim or the Claimant but rather on the capacity and the ability of the deceased to provide happiness to the Claimant. It is compensation paid for loss of prospective happiness which the Claimant/Victim would have enjoyed had the child not been snatched away at the tender age. It is payment for loss of company and companionship. The compensation payable under this head should normally be uniform and consistent and not upon the financial status of the dependants or the deceased. Non-pecuniary loss by its very nature cannot be equated with economic wealth of the party. 6. In S. D. Joshi v. Union of India , 1975 ACJ 51B, Punjab and Haryana High Court has observed as follows: “Human life is invaluable and like the beauty of the sun rise or the splendour of the stars, it is beyond the reach of the monetary tape measure. Therefore, determination of damages for the loss of human life has always been extremely difficult and when the deceased is a child, it becomes all the more baffling. The future of a child is uncertain.” 7. In United India Assurance Co, Ltd. v. Banksrappa Naicker (1993) 1 MLJ 399 , this Court has held as follows: “ 5. The paramount consideration of the claims Tribunal must be to protect the interest of the claimants so that the amount awarded to them by way of compensation serves the purpose and object of compensating them for the loss occasioned by the tragedy of the accident. As a general rule, parents are entitled to recover the present cash value of the prospective service of the deceased minor child. In addition, they may receive compensation for loss of pecuniary benefits reasonably to be expected after the child attains majority. As a general rule, parents are entitled to recover the present cash value of the prospective service of the deceased minor child. In addition, they may receive compensation for loss of pecuniary benefits reasonably to be expected after the child attains majority. How he would have turned out in life later is at best a guess. But there is a reasonable probability of the child becoming a successful man in life if he had been a bright boy in the school and his parents could afford him a good education. The thing to be valued is not merely the prospect of length of life, but the prospect of a predominantly happy life of the deceased. This undoubtedly would vary from case to case, depending upon the family environment, members of the family, health and age of the victim, his outlook in life, the interest which his parents were taking in the boy and the totality of circumstances tending to show whether the victim would have a predominantly happy life or lire of misery or a life of despondence or an insipid life, even though it depends upon very many uncertain factors, the Tribunal has to take an overall picture and form its estimate, though to some extent, it must be based upon speculation, A just and fair calculation of compensation would be what the beneficiaries would have received from the deceased as support for their maintenance had the deceased lived and earned.” 8. In , 2001 ACJ 1719 (SC) and , 2001 ACJ 1719 (SC), substantial amount has been awarded as compensation for the death of children. In the case of , 2001 ACJ 1719 (SC), 14 students studying in a public school got drowned in a river due to negligence of the teachers. On the question of quantum of compensation,. Apex Court held that the multiplier method was normally to be adopted as a method for assigning value of future annual dependency but what was emphasised was that the Court must ensure that a just compensation being paid. In the said case, compensation of Rs. 5,00,000/- was awarded to the claimants and the same was held to be justified. In the said case the Supreme Court had noticed that the students belonged to an affluent school as was apparent from the fee structure and, therefore, the compensation of Rs. In the said case, compensation of Rs. 5,00,000/- was awarded to the claimants and the same was held to be justified. In the said case the Supreme Court had noticed that the students belonged to an affluent school as was apparent from the fee structure and, therefore, the compensation of Rs. 5,00,000 as awarded by the High Court was found to be not excessive. It is no doubt true that the Apex Court in the said case noticed that the students belonged to an upper middle class background but the basis and the principle on which the compensation was awarded in that case would equally apply to the present case. 9. In the case of , 2001 ACJ 1735 (SC), several persons including children lost their lives after a fire accident. The said accident had taken place on 3.3.1989. The multiplier method was again referred to and adopted with approval. In cases of children between 5 and 10 years of age, compensation of Rs. 1,50,000 was awarded towards pecuniary compensation and in addition a sum of Rs. 50,000 was awarded towards ‘conventional compensation‘. In the case of children between 10 and 18 years compensation of Rs. 4,10,000 was awarded including Conventional compensation. While doing so the Supreme Court held that contribution of each child towards family should be taken as Rs. 24,000 per annum instead of Rs. 12,000 per annum as recommended by Justice Y.V. CHANDRACHUD Committee. This way in view of the fact that the Company in question had an unwritten rule that every employee can get one of his children employed in the said Company. 10. The Supreme Court in Manju Devi v. Musafir Paswan , 2005 ACJ 99 (SC), awarded compensation of Rs. 2,25,000/- on death of a boy aged 13 years in an accident on 2.7.1998. While doing so, Apex Court applied multiplier of 15 and as the deceased was a non-earning person, Rs. 15,000/- was taken as his notional income as mentioned in the Second Schedule. It appears in the said case, no deduction for personal living expenses was made. However, what is relevant is the figure of just compensation, i. e., Rs. 2,25,000/-. 11. Though the deceased was a student studying in 5th standard, aged 9 years and non-earning person, Tribunal ought to have taken atleast the notional income at Rs. 15,000/- p.m. Tribunal was not justified in awarding only Rs. However, what is relevant is the figure of just compensation, i. e., Rs. 2,25,000/-. 11. Though the deceased was a student studying in 5th standard, aged 9 years and non-earning person, Tribunal ought to have taken atleast the notional income at Rs. 15,000/- p.m. Tribunal was not justified in awarding only Rs. 50,000/- for Lose of Dependency in terms of “No Fault Liability”. Likewise, the compensation awarded by Tribunal for Loss of Love and Affection and future expenses also appear to be very low. Applying the ratio of the decision in Lata Wadhwa and Manju Devis case, the compensation amount of Rs. 62,000/- is to be enhanced. In the Appeal, Claimant-father of the deceased had restricted the enhanced compensation at Rs. 1,00,000/- and in my considered view, the enhancement of Rs. 1,00,000/- as claimed in the Appeal is to be granted as prayed for. The compensation amount of Rs. 62,000/- is enhanced to Rs. 1,62,000/-. 12. In the result, The compensation amount of Rs. 62r000/ passed by the Additional District Judge-cum-Fast Track Judge I, Motor Accident Claims Tribunal, Erode, dated 12.7.2002 in M.CO.P.No. 279 of 2000, is enhanced to Rs. 1,62,000/- and this CM.A. is allowed. The compensation amount of Rs. 62,000/- is payable with interest at the rate of 9% p.a. from the date of Petition. The enhanced compensation of Rs. 1,00,000/- is payable with interest at the rate of 7.5% front the date of Petition. The enhanced amount of Rs. 1,00,000/- shall be deposited by the Insurance Co. within a period of three months from the date of receipt of copy of this Order. On such deposit, Claimant is entitled to withdraw the entire compensation amount payable to him along with accrued interest, on necessary Application being filed before the Tribunal. In the circumstances of the case, there shall be no order as to costs.