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2019 DIGILAW 38 (JK)

Rakesh Singh v. Shiv Kumar

2019-01-30

RAJESH BINDAL

body2019
JUDGMENT : Rajesh Bindal, J. 1. Unfortunate parents of the deceased child are in appeal before this Court against the award of the Motor Accident Claims Tribunal, Jammu (hereinafter referred to as 'the Tribunal') dated 30.04.2010, seeking enhancement of compensation. 2. Briefly the facts of the case as are evident from the award of the Tribunal are that Rohit Singh, son of the appellants, aged 14 years died in a road accident, which took place on 02.01.2007. He was a student of Class 7th. The accident was caused by negligent driving of Matador bearing Registration No. JK02AA-7374, while the deceased was standing on the side of the road opposite the Police Headquarters. The vehicle involved in the accident was fully insured with the Oriental Insurance Company Limited. The Tribunal while appreciating the pleadings of the parties, framed the following issues:- "1. Whether an accident occurred on 02.01.2007 near Police Headquarters near Panama Chowk, Jammu by rash and negligent driving of the offending Vehicle No. JK02AA-7374 in the hands of erring driver in which deceased Rohit Singh fatal injuries? OPP 2. If issue No. 1 is proved in affirmative whether petitioners are entitled to the compensation, if so to what amount and from whom? OPP 3. Whether driver of offending vehicle at the time of accident was not holding valid and effective driving licence and drove the vehicle in violation of terms and conditions of the insurance policy, if so how and what is its effect OPR-3. 4. Relief." 3. The finding on issue No. 1 was recorded in favour of the appellants/claimants, holding that the vehicle involved in the accident was being driven rashly and negligently, as a result of which the son of the appellants died. The liability of the claim was fastened on the Insurance Company, as it had failed to discharge the onus put on it that the driver at the time of accident was not holding valid and effective driving licence and further that the vehicle was being driven in violation of the terms and conditions of the insurance policy. 4. While assessing the compensation, learned Tribunal while taking the income of the deceased at Rs. 15,000/- per month and applying the multiplier of 15 awarded the appellants' compensation of Rs. 2,40,000/-, after adding Rs. 15,000/- on account of funeral expenses. 5. 4. While assessing the compensation, learned Tribunal while taking the income of the deceased at Rs. 15,000/- per month and applying the multiplier of 15 awarded the appellants' compensation of Rs. 2,40,000/-, after adding Rs. 15,000/- on account of funeral expenses. 5. Learned counsel for the appellants submitted that issue regarding award of compensation on account of death of a child has been gone into by Hon'ble the Supreme Court in Kishan Gopal & Anr. v. Lala & Ors., 2013 ACJ 2594 , decided on wherein it has been opined that with fall in purchasing power of rupee with the passage of time, the notional income of a deceased child deserves to be taken at Rs. 30,000/- per annum and after awarding compensation under other heads, a sum of Rs. 5,00,000/- was awarded as compensation. Hence, the appellant deserves to be granted same amount of compensation. It is further submitted that Hon'ble the Supreme Court in 2018 (3) JKJ 169 [SC] Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Anr., passed in Civil Appeal No. 9581 of 2018, decided on 18th September, 2018 had awarded compensation to the family of the deceased under the head of 'loss of filial' @ Rs. 40,000/- per person. Hence, even on that account, the appellants are entitled to receive compensation. As there is delay in payment of appropriate compensation to the appellants, they deserve to be awarded interest @ 12% per annum. 6. On the other hand, learned counsel for the respondents submitted that on account of death of the child, aged 14 years, sufficient compensation has already been awarded by the Tribunal while applying the schedule attached with the Motor Vehicles Act, 1988 (for short, 'the Act'). Hence, the same does not deserve to be enhanced any further. He was merely studying at that stage. Entire estimation is on presumptions only. 7. Heard learned counsel for the parties and perused the paper book. 8. The basic facts of the case, which are not in dispute in the present appeal are that in a road accident on 02.01.2007 with Matador bearing Registration No. JK02AA-7374, son of the appellants, namely, Rohit Singh expired. He was 14 years of age at that time and was studying in Class 7th. The learned Tribunal has assessed the compensation, considering the provisions of 2nd Schedule attached to the Act. While adding Rs. He was 14 years of age at that time and was studying in Class 7th. The learned Tribunal has assessed the compensation, considering the provisions of 2nd Schedule attached to the Act. While adding Rs. 15,000/- on account of funeral expenses, compensation of Rs. 2,40,000/- was granted alongwith interest @ 7.5% per annum. 9. The issue regarding award of reasonable compensation on account of death of a child, aged 10 years was considered by Hon'ble the Supreme Court in Kishan Gopal and another's case (supra). It was opined therein that value of rupee has come down drastically from the year 1994, when the notional income of the non-earning member, who died in an accident was fixed at Rs. 15,000/- per annum. Considering the contribution of the child to the family after he grew up, the notional income was taken at Rs. 30,000/- per annum and applying the multiplier of 15, taking the young age of his parents, compensation was assessed at Rs. 4,50,000/-. Another Rs. 50,000/- was added under conventional heads such as 'loss of love and affection, 'funeral expenses'. The total compensation of Rs. 5,00,000/- was awarded. 10. Loyal consortium is the right of the parents' compensation in the case of an accidental death of a child. An accident leading to death of child results in great shock and agony to the parents besides the family. It is one of the greatest agony for any parents to lose their child especially at the young age, during their life time. 11. In view of judgment of Hon'ble the Supreme Court in Magma General Insurance Co. Ltd.'s case (supra), besides compensation on account of loss of love and affection and funeral expenses, another head was added for award of compensation, namely, 'loss of filial'. An amount of Rs. 40,000/- each was awarded to two of the claimants therein. 12. Hence, the appellants, who are the parents of the deceased child deserve to be awarded another sum of Rs. 40,000/- each on account of loss of filial. 13. For the reasons mentioned above, present appeal is accepted. The amount of compensation payable to the appellants is revised as under:- (i) Income of the deceased is taken as Rs. 30,000/- per annum and applying the multiplier of 15, the amount comes out to Rs. 4,50,000/- (Rs. 30,000/- X 15). To this, another Rs. 13. For the reasons mentioned above, present appeal is accepted. The amount of compensation payable to the appellants is revised as under:- (i) Income of the deceased is taken as Rs. 30,000/- per annum and applying the multiplier of 15, the amount comes out to Rs. 4,50,000/- (Rs. 30,000/- X 15). To this, another Rs. 50,000/- is added under conventional heads for loss of love and affection, funeral expenses, last rites. Rs. 40,000/- each is awarded on account of loss of filial. The total amount of compensation would come out to Rs. 5,80,000/-. The appellants shall also be entitled to payment of interest @ 7% per month on the enhanced compensation from the date of filing of the claim petition, i.e., 01.03.2007 till the amount is paid. (ii) The amount be either transferred in the Joint Bank Account of both the appellants or be paid to them by way of demand draft in their joint names.