1. Childhood is a phase of life that everyone passes through. The greatest of men, lawyers, judges, jurists, scientists, inventors, men of medicine, to name the important few, amongst others, who not only have made changes to the world, but often changed the world itself, for the betterment of humanity, have, at some point of time, been infants, toddlers and children. If men of eminence, who did so much for the humanity in the productive years of their life, had died as children, would it be no loss to the dependents?; or still more, to the humanity? To the dependents, in many a case, it would be irremediable loss, and likewise, to the humanity. In the event an adult were to die in an accident during the productive years of his life, there are standards to assess the loss of dependency. It includes the loss flowing from future prospects. If a child dies, not just the dependents, but the entire humanity does not know what treasure might have been forsaken forever in his/her untimely exit from the world. To think, therefore, that a child's life, snuffed out in a motor accident, has to compensated by the award of a token for the damages or the loss to the child's dependents, is the product of a very pedantic and mediocre understanding. This appeal under Section 173 of the Motor Vehicles Act, 19881 is about the quantum of compensation that a mother and father of a twelve year old boy, the victim of a motor accident would be entitled to.
2. The facts giving rise to this appeal are these :
In the afternoon of December the 30th, 2009 at 2 O' Clock, Aditya, the young son of the two appellants, Bheeshm Singh and his wife Smt. Kavita, was cycling on the Mavana- Falawada Road. A vehicle proceeding on the road from the direction of Falawada was being driven negligently and at a high speed. It bore Registration No. U.P. 15 B 8625. The rash and negligently driven vehicle hit Aditya. He suffered severe injuries in the accident and died on way to the hospital. Aditya was a few months shy of his 12th birthday. He was a student of Class VII and was reading at the Navjeewan Kishan Shikha Kendra. He would help his parents with the family's farming, dairy management and house-hold chores. It is said that he would earn a sum of Rs. 3000/- per month.
3. The appellants instituted a petition before the learned District Judge, Meerut (sitting as the Motor Accident Claims Tribunal) under Section 163-A of the Act of 1988. The petition was registered as M.A.C. No. 119 of 2010 on 02.02.2010. Summonses were issued to the respondents, returnable on 06.03.2010, fixing 17.03.2010 being the scheduled date for the framing of issues. The appellants claimed a total sum of Rs. 10,01,000/- in compensation under the following heads :
1. Compensation for pecuniary loss Rs. 5,76,000/-
2. Compensation for mental pain and agony Rs. 1,00,000/-
3. Compensation for loss of future prospects Rs. 3,00,000/-
4. Compensation incurred toward performing the deceased's last right Rs. 20,000/-
4. On the total sum of money claimed, interest @ 18% per annum, from the date of institution of claim petition, was demanded.
5. A written statement was put in on behalf of the first respondent-opposite party, Mangal Singh, before the Tribunal, who is the owner of the offending vehicle. He did not dispute the fact that he is the owner, but denied his vehicle's involvement. Not much is to be commented about the owner's defence, as the issue here arises between the appellants, who are the claimants and the Insurer, who have been ordered to pay the compensation awarded by the Tribunal. The second respondent, that is to say, the Insurance Company, also put in a written statement and took a wholesome defence, denying the appellants' entitlement to receive any compensation, and in any case, their liability to indemnify the claimaints. The petition came on for determination before the learned Additional District Judge, Court No. 12, Meerut (sitting as the Tribunal) on 20.03.2012. The petition was allowed in part and the Insurance Company, respondent no. 2 were ordered to pay in compensation to the claimant-appellants a sum of Rs. 77,000/- within four weeks of the date of the award. No interest for the period past and pendente lite was awarded by the Tribunal, for it was held that the claimant-appellants were guilty of delay in commencing action. It was nevertheless ordered that in the event the sum of compensation awarded remaining unpaid by the second respondent-Insurance Company within the time specified in the award, the Insurance Company would liable to pay interest @ 12% from the date of default till realization.
6. Dissatisfied with the impugned judgment and award passed by the Tribunal, the claimants have brought the present appeal seeking enhancement of the compensation awarded.
7. Heard Mr. Anurag Sharma, learned Counsel for the claimant-appellants and Mr. Pawan Kumar Singh, learned Counsel appearing on behalf of the respondent-Insurance Company.
8. The only issue that has been suited in this appeal between the claimant-appellants and the Insurance Company is about the quantum of compensation payable, besides the date with effect from which the claimant-appellants would be entitled to interest. Mr. Sharma appearing for the claimant-appellants submits that the fact that the victim was a child, who had no income in presenti, does not mean that his otherwise priceless life, is just worth the miserably low compensation that the Tribunal have awarded. He has drawn the Court's attention to the findings of the Tribunal, where there are remarks about the not very bright future prospects about Aditya, given his family background. These have been castigated by the learned Counsel as an insensitive approach by the Tribunal. He submits that Aditya could have blossomed into a young man with a highly productive life that would have been of immense support, assistance and satisfaction to his parents, the claimant-appellants.
9. On the other hand, Mr. Pawan Kumar Singh, learned Counsel appearing for the Insurance company, has supported the impugned award as one that orders a lawful, just and fair compensation to the claimant-appellants, for the loss of life of a child of the age that Aditya was. Learned Counsel particularly emphasizes that there is no proof to show that Aditya was, in fact, earning a sum of Rs. 3000/- per month. He also urges that from the gross uncertainties of what the future held for Aditya, in terms of his productivity, a quantification of the compensation cannot be built on the edifice of a mere fantasy or conjuncture about the victim's imagined productive future. He submits that there is no index objectively to determine how productive the boy, who was just about 12 years old or for the most, 14, would have been. In short, Mr. Pawan Kumar Singh says that this Court should refrain from enhancing the compensation on the basis of a mere optimistic guess work about Aditya's bright productive future, later in life.
10. This Court has keenly considered the submissions advanced and perused the impugned judgment and record. It is true that Aditya was a boy, who, by his school records, was still a few months away from the age of 12 years; going by his parents' assertions, he was 14 years old. In either case, Aditya was not yet in the age group, where an individual generally starts contributing to the nation's economy, exceptions apart. But, it does not mean that the victim of an accident, who is a child not yet in his productive years, is to be written off on account of the vagaries of an uncertain future and career prospects, as a life lost for which no compensation is payable to his heirs and survivors. There is little doubt that every human life is valuable and if the quantum of a child's productive contribution, later in life, lies in the womb of the future, is it good reason to think or presume about it pessimistically?; or, is it a valid objective assessment of the future prospects about a child, to go by the station of his parents in life or their socio-economic background? This Court says so because in our opinion, the Tribunal has precisely done that. This Court is constrained to say that on the quantification of the compensation payable, based on Aditya's expected future, there are some pessimistic, and, rather, as Mr. Sharma says, very insensitive remarks by the Tribunal.
11. The Tribunal has observed that appellant no. 1, Aditya's father, who has testified as PW-1, has acknowledged in his cross-examination that he is a home guard. He has three children, of whom, two survive. There is then almost an abominable remark by the Tribunal, where it said that there is no evidence to show that there was any possibility for Aditya to become an officer. This remark by the Tribunal is absolutely unpalatable. Should it be inferred from this remark that only an officer's son can become an officer; not a home guard's son, or a person placed still lower in the economic strata? This remark is repugnant to the constitutional creed of equality of opportunity to all citizens of the country. Also, the remark is unacceptable because it suggests that it is only officers who are well-off in life, and not others. A person may do well in any walk of life and contribute immensely in the country's economy. To say the least, the remarks of the Tribunal above referred are entirely misplaced and unsupportable by sound legal reasonsing.
12. At the same time, it has to be acknowledged that the future prospects of a child can lie anywhere in the broad spectrum, from utter failure to abounding success. While everyone envisions a good future for his child, there is no measurable scale by which the future prospects of a child may be judged and on that basis, compensation determined, by a workable and tangible formula. The Court, therefore, has to determine it by sheer estimation under the head of non-pecuniary damages. The compensation, nevertheless, ought to be a figure that is palliative of some kind to the parents and the survivors; and, not just an eyewash.
13. This Court is of opinion that what would be a just, fair and respectable compensation, to be granted under the head of non-pecuniary damages, requires some further consideration in an appropriate case. However, it is not that the issue is one about which there is no guidance. In Rajendra Singh & Others v. National Insurance Company Limited & Others2 , their Lordships of the Supreme Court were concerned about the quantification of compensation payable to the father of a school-going daughter, aged about 12 years. In the context of compensation determinable for the untimely loss of a child of that age, it was held in Rajendra Singh (supra):
12.The second deceased was a school-going child aged about 12 years. She had a whole future to look forward in life with all normal human aspirations. She died prematurely due to the accident at a very tender age for no fault of hers even before she could start to understand the beauty and joys of life with all its ups and downs. The loss of a human life untimely at childhood can never be measured in terms of loss of earning or monetary loss alone. The emotional attachments involved to the loss of the child can have a devastating effect on the family which needs to be visualised and understood. Grant of non-pecuniary damages for the wrong done by awarding compensation for loss of expectation in life is therefore called for.
13. Undoubtedly the injury inflicted by deprivation of the life of the child is very difficult to quantify. The future also abounds with uncertainties. Therefore, the courts have used the expression "just compensation" to get over the difficulties in quantifying the figure to ensure consistency and uniformity in awarding compensation. This determination shall not depend upon financial position of the victim or the claimant but rather on the capacity and ability of the deceased to provide happiness in life to the claimants had she remained alive. The compensation is for loss of prospective happiness which the claimant would have enjoyed had the child not died at the tender age. Since the child was studying in a school and opportunities in life would undoubtedly abound for her as the years would have rolled by, compensation must also be granted with regard to future prospects. It can safely be presumed that education would have only led to her better growth and maturity with better prospects and a bright future for which compensation needs to be granted under non-pecuniary damages.
14. The income of the minor girl child is incapable of precise fixation. We find no reason to interfere with the assessed notional income of the second deceased. In R.K. Malik v. Kiran Pal [R.K. Malik v. Kiran Pal, (2009) 14 SCC 1 : (2009) 5 SCC (Civ) 265 : (2010) 1 SCC (Cri) 1265] , considering grant of future prospects for the deceased child aged about 10 years it was observed as follows : (SCC p. 14, paras 32-33) "32. A forceful submission has been made by the learned counsel appearing for the appellant claimants that both the Tribunal as well as the High Court [R.K. Malik v. Kiran Pal, 2006 SCC OnLine Del 611 : ILR (2006) 1 Del 866] failed to consider the claims of the appellants with regard to the future prospects of the children. It has been submitted that the evidence with regard to the same has been ignored by the courts below.
33. On perusal of the evidence on record, we find merit in such submission that the courts below have overlooked that aspect of the matter while granting compensation. It is well-settled legal principle that in addition to awarding compensation for pecuniary losses, compensation must also be granted with regard to the future prospects of the children. It is incumbent upon the courts to consider the said aspect while awarding compensation."
15. In New India Assurance Co. Ltd. v. Satender [New India Assurance Co. Ltd. v. Satender, (2006) 13 SCC 60 : (2008) 1 SCC (Cri) 96] , the deceased victim of the accident was a nine year old school-going child. Considering the claim for loss of future prospects in absence of a regular income, it was observed that the compensation so determined had to be just and proper by a judicious approach and not fixed arbitrarily or whimsically. The uncertainties of a young life were noticed in the following terms : (SCC p. 64, para 12) "12. 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. 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."
16. The deduction on account of contributory negligence has already been held by us to be unsustainable. The determination of a just and proper compensation to the appellants with regard to the deceased child, in the entirety of the facts and circumstances of the case does not persuade us to enhance the same any further from Rs 2,95,000 by granting any further compensation under the separate head of "future prospects".
14. During hearing of this appeal, the decision in Rajendra Singh was relied upon by Mr. Anurag Sharma, and though as a principle the figure of Rs. 2,95,000/- in that case does not appear to be approved by their Lordships as a universal figure for a just compensation to be granted under the head of "non-pecuniary damages" in event of the unfortunate loss of a child, it was refused to be interfered with by assessing further compensation under a separate head of "future prospects".
15. My attention has been drawn to a recent decision by my esteemed brother Hon'ble Vivek Agarwal, J. in FAFO No. 3061 of 2007, Smt. Poonam v. Amit Kumar & Another, decided on January the 21st, 2021, where ,in, the claim that arose out of a motor accident, the deceased was a ten-years old boy and a student of Class V. Compensation in that case was enhanced from Rs. 39,500/- to Rs. 2,95,000/- following the decision of the Supreme Court in Rajendra Singh. The facts in Rajendra Singh, going by the age of the victim of the accident, are close to the facts here, but it must be said that these are decisions on facts, which do not lay down the law. Nevertheless, the principle in Rajendra Singh is clear that damages have be to be awarded in the case of death of a child under the non-pecuniary head.
16. In the totality of the circumstances, this Court is of opinion that ends of justice would be met by modifying the impugned award passed by the Tribunal to the extent that instead of the compensation of Rs. 77,000/- awarded to the claimant-appellants, the same shall stand enhanced to Rs. 2,95,000/-. The compensation payable shall carry Simple Interest @ 7% per annum from the date of institution of the claim petition, until realization.
17. This appeal succeeds and stands allowed in part, and, there shall be an order modifying the impugned award in the terms indicated hereinabove.
18. Costs easy.
Order Date :- August the 19th, 2021 Deepak / I. Batabyal