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2012 DIGILAW 1956 (MAD)

Oriental Insurance Company Limited, Motor Third Party Claims Offices, Chennai v. K. Rathidevi

2012-04-18

K.RAVICHANDRA BAABU

body2012
JUDGMENT 1. The Insurance Company is the appellant. This appeal is directed against the award passed by the Tribunal in M.C.O.P.No.2394 of 1999, dated 06.09.2002. The appellant-Insurance Company has filed this appeal disputing the quantum alone and not the liability. The respondents are the father and mother of the deceased namely M.Hemanth Babu, a four year old boy. The case of respondents 1 and 2 before the Tribunal is that the said M.Hemanth Babu was only son and a student of L.K.G., at DAV Boys Higher Secondary School, Mogappair. On 13.09.1998, at about 20.00 hours, while the deceased boy was proceeding in an Autorickshaw, bearing Reg.No.TN 01 J 8647, in 100 Feet Road, from South to North, near Koyambedu Rountana, a Maruthi Van bearing Reg.No.TN 45 E 1013 was driven rashly and negligently and knocked the Autorickshaw behind its back. Consequently the said M.Hemanth Babu sustained multiple head injuries resulting in his death on the spot. Therefore, they filed claim petition before the Tribunal seeking for compensation of Rs.5,00,000/-, (towards loss of life Rs.4,00,000/- + expectation of love and affection Rs.1,00,000/-). 2. The appellant herein as second respondent before the Tribunal filed a counter affidavit and contested the matter. It is the contention of the appellant-Insurance Company that the driver of the Autorickshaw had violated the traffic rules in not allowing a vehicle coming from the right side and dashed against it and therefore, the driver of the Autorickshaw is solely responsible for the accident. 3. The claimants/respondents herein marked documents as Ex.P1 to P7 and also examined PW1, namely the first claimant as witness. On the other hand, there was no documents marked on behalf of the respondents therein and no witnesses were examined on their behalf before the Tribunal. 4. The Tribunal, after considering the facts and circumstances and also discussing the evidence let in by the claimants found that the accident had taken place due to the rash and negligent driving of the Maruthi Van resulting in the death of M.Hemanth Babu, the only son of respondents 1 and 2 herein. Moreover, the Tribunal has also found that the Van driver was having the valid driving licence and also the valid permit, apart from insuring the said vehicle with the second respondent-Insurance Company. 5. Moreover, the Tribunal has also found that the Van driver was having the valid driving licence and also the valid permit, apart from insuring the said vehicle with the second respondent-Insurance Company. 5. Insofar as the quantum of compensation is concerned, the Tribunal has found that the deceased M.Hemanth Babu was the only son of respondents 1 and 2 herein and he was only four years old at the time of the death and it has ultimately found that the respondents, namely the parents are entitled to a sum of Rs.2,00,000/- towards loss of life and further granted a sum of Rs.50,000/-each towards loss of love and affection. Consequently, a total sum of Rs.3,00,000/-was awarded as compensation to respondents 1 and 2 which the Tribunal has fixed the liability on the Insurance Company as well as the owner of the vehicle, jointly and severally. 6. The learned counsel appearing for the appellant-Insurance Company argued that while arriving at the quantum of Rs.2,00,000/-, the Tribunal has not assigned any reason for arriving at such sum. Therefore, the learned counsel contended that in the absence of any reason for arriving at such sum of Rs.2,00,000/-the award passed by the Tribunal is not justifiable. 7. On the other hand, the learned counsel appearing for respondents 1 and 2/claimants submitted that the deceased M.Hemanth Babu was four years old boy and he is the only son of respondents 1 and 2 and therefore, the quantum of compensation fixed by the Tribunal does not warrant any inference. 8. The learned counsel appearing for respondents 1 and 2 relied on the decision reported in 2009(1) TAMAC 593 (SC) [R.K.Malik and another v. Kiran Pal and others] and contended that in similar circumstances, the Hon'ble Supreme Court enhanced the compensation for the minor children, who died at the age of 10-15 years and 15-18 years. 9. Heard both sides. 10. In this appeal, the Appellant-Insurance Company has challenged the quantum of compensation awarded by the Tribunal and not its liability. Therefore, the only point, which arises for consideration before this Court is as to whether the Tribunal was justified in granting a sum of Rs.2,00,000/-towards loss of life of the deceased M.Hemanth Babu and another sum of Rs.50,000/-each to the respondents 1 and 2 towards loss of love and affection. 11. Therefore, the only point, which arises for consideration before this Court is as to whether the Tribunal was justified in granting a sum of Rs.2,00,000/-towards loss of life of the deceased M.Hemanth Babu and another sum of Rs.50,000/-each to the respondents 1 and 2 towards loss of love and affection. 11. Admitted facts are that the deceased M.Hemanth Babu is the only son of respondents 1 and 2. He was four years old at the time of the death. The date of occurrence was 13.09.1998. The deceased was also a student of LKG at DAV Boys Higher Secondary School, Mogappair. It is needless to say that respondents 1 and 2, being the parents of the deceased being the only son, admitted the child in a reputed school with high and fond hope of bringing him up in his life to a high position. Though in the case of death of a child of four years old, fixing the quantum of compensation cannot be done by any Arithmetical approach, one should always bear in mind that the loss of life of the only child that too at the tender age is undoubtedly a great loss for the parents, which cannot be compensated by any monetary means how soever high it may be. The un-healable wound caused in the minds of those poor parents, better not further be deepened by adopting a pedantic approach in arriving at the quantum of compensation. If done, in my considered view, it adds only insult to the injury. Better the Insurance Companies sit in the armed chair of the parents and then decide whether to file appeal of this nature or not. 12. At this juncture it is useful to refer the decision of the Hon'ble Supreme Court in the case reported in 2006(13) SCC page 60 [New India Assurance Co. Ltd. v. Satender and others] at paragraph 12 has observed as follows:- "In cases of young children of tender age, in view of uncertainties abound, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation." 13. It is also to be seen that while awarding the compensation, a just and fair quantum need to be granted to the claimants. Though the learned counsel appearing for the appellant-Insurance Company has contended that there was no discussion by the Tribunal while arriving at the quantum, the same is not correct since at paragraph No.8 of the order of the Tribunal, it had discussed the merits of the case and given the reasoning for arriving at the quantum of compensation of the deceased. Though in my considered view the quantum fixed by the Tribunal is in fact not adequate, as there was no cross appeal filed by the respondents 1 and 2 to enhance the same, I am not going into it. Consequently, I find no reason to interfere with the award passed by the Tribunal. 14. The Hon'ble Supreme Court in the case reported in 2009 (1) TN MAC 593 (SC) [R.K.Malik and another v. Kiran Pal and others] has also observed that while awarding compensation for pecuniary loss in respect of children regard must be had to the future of the children and in fact a Court would consider the same while awarding compensation. Further it was observed by the Apex Court in the said judgment at para 34 in respect of non-pecuniary damages as follows:- "Needless to say, pecuniary damages seeks to compensate those losses which can be translated into money terms like loss of earnings, actual and prospective earning and other out of pocket expenses. In contrast, non-pecuniary damages include such immeasurable elements as pain and suffering and loss of amenity and enjoyment of life. In this context, it becomes duty of the Court to award just compensation for non-pecuniary loss. In contrast, non-pecuniary damages include such immeasurable elements as pain and suffering and loss of amenity and enjoyment of life. In this context, it becomes duty of the Court to award just compensation for non-pecuniary loss. As already noted it is difficult to quantify the non-Pecuniary Compensation nevertheless, the endeavour of the Court must be to provide a just, fair and reasonable amount as compensation keeping in view all relevant facts and circumstances into consideration." Therefore, while considering the future prospects of the deceased, it cannot be said the quantum of compensation arrived by the Court below is either high or exorbitant, as claimed by the Insurance Company. Consequently, I find no merit to interfere with the award passed by the Tribunal. Accordingly, this appeal is dismissed. No costs. Consequently, the connected Miscellaneous Petitions are closed.