1. These two appeals, at the instance of the claimants – parents, were heard analogously, as they arise out of a common award passed by the Motor Accident Claims Tribunal(Main), Vadodara, in M.A.C.P. No. 182 of 1993 and 183 of 1993 in which the Tribunal awarded a sum of Rs.75,000/- each, in favour of the claimants for the death of two children aged 5 years and 8 years, respectively.
2. It appears that the offending bus had knocked down two children, while they were walking on the footpath, due to negligence on the part of the driver of the offending vehicle and that there was no contributory negligence on the part of the deceased, who lost their lives.
3. The parents of the victims lodged the claim applications, claiming a sum of Rs.2,00,000/- each for these two children.
4. It appears from the award impugned that the learned Tribunal has made the following observations, while passing the award;
“For computing the compensation in both these claim petitions, Ld. Advocate for the applicants have placed reliance on the decision reported in 2000 ACJ 730 and requested the tribunal to award Rs.75,000/- as compensation in each of the petition.
In support of their say, the applicants have also produced the P.M. Note of their deceased children. Looking to the untimely and unfortunate death of tender aged children, it is but natural that the parents would remain in trauma throughout their life and therefore, they cannot be compensated in any manner for this loss, saving the monetary compensation and therefore, the compensation is the only solace in reparation. Further, the loss suffered by the parents due to sudden demise of their tender aged children cannot be calculated in terms of money. So, after considering all the aspects of the matter, it would be just and proper to award Rs.75,000/- each in both the claim petitions. Accordingly, I award the same.”
5. Ms. Vasavdatta Bhatt, learned Counsel appearing on behalf of the owner of the vehicle, strenuously contended before me that the Tribunal below having accepted the suggestion of the learned Counsel for the claimant, it should be presumed that the award was passed on consent, and thus, after having given consent to passing of such an award, the claimants cannot challenge the same.
6. I find that the learned Counsel for the claimants, before the Tribunal, simply placed reliance upon a decision passed by a learned Single Judge of this Court as referred to herein above, and prayed for following the principle laid down therein. In the said decision, the learned Single Judge of this Court awarded a sum of Rs.75,000/- as compensation for the loss of child, aged 10 month.
7. It is, now, well settled law that concession made at the time of trial by a learned Counsel on a question of fact is biding upon the client, but, a concession made on the question of law by a Counsel is never binding, as there is no estoppal against law. The moment, a learned Counsel places reliance upon a decision of a High Court and asks the Court to follow the said decision, as a binding precedent, it necessarily follows that he has relied upon a proposition of law laid down by the High Court in the given facts. It is well known that there cannot be any precedent on the question of fact and it is the proposition of law, which is laid down in a decision in the binding precedent. Therefore, by relying upon the said decision , the learned Counsel for the claimant in the Tribunal below merely placed reliance upon a statement of law laid down by the High Court. I, therefore, find that if a learned Counsel mistakenly relied upon a decision, in the facts of the said case, such a concession must be treated as a concession of question of law and not of facts and cannot be biding upon his client if the law is otherwise.
8. Mr. Valmik Vyas, learned Counsel, with Mr. Rajni Mehta, learned Counsel, appearing on behalf of the Insurance Company has also supported Ms. Bhatt and has further relied upon a decision of the Supreme Court in the case of “KAUSHALYA DEVI VS. KARAN ARORA AND OTHERS”, 2007 11 SCC 120, wherein the Supreme Court observed as under;
“9. There are some aspects of human life which are capable of monetary measurement, but the totality of human life is like the beauty of sunrise or the splendor of the stars, beyond the reach of monetary tape-measure . The determination of damages for loss of human life is an extremely difficult task and it becomes all the more baffling when the deceased is a child and/or a non-earning person. The future of a child is uncertain. Where the deceased was a child, he was earning nothing but had a prospect to earn. The question of assessment of compensation, therefore, becomes stiffer. The figure of compensation in such cases involves a good deal of guesswork. In cases, where parents are claimants relevant factor would be age of parents.
10. In case of the death of an infant, there may have been no actual pecuniary benefit derived by his parents during the child’s lifetime. But this will not necessarily bar the parents’ claim and prospective loss will find 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 Rly. V. Jenkins, and Lord Atkinson said thus:
“ ... 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 my 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. There 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.’ (See Lata Wadhwa V. State of Bihar.)
11. This Court in Lata Wadhwa case while computing compensation made distinction between deceased children falling within the age group of 5 t0 10 years and age group of 10 years to 15 years.
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.”
9. In the case of death of an infant, the question of assessment of compensation is very difficult and it involves good deal of guess work. After going through the said decision, I find that a two-Judge-Bench of the Supreme Court in the said decision pointed out that in case of the death of an infant, there may have been no actual pecuniary benefit derived by his parents during the child’s lifetime. But this will not necessarily bar the parents’ claim and prospective loss will find a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived. According to the Supreme Court, in the said decision, in the case 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. It appears that in making the above observation, the Supreme Court also relied upon the earlier decision of the said Court in the case of “Lata Wadhwa Vs. State of Bihar”, reported in (2001) 8 SCC 197.
10. If we look at the decision of the Supreme Court in the case of Lata Wadhwa(Supra) relied upon in the case of Kaushalya Devi(Supra), a three-Judge-Bench of the Supreme Court, ultimately, arrived at the conclusion that the compensation amount for children between the age group of 5 to 10 years should be 1.5 lac to which a conventional amount or Rs.50,000/- is required to be added, and thus, the total amount which comes should be Rs.2,00,000/-.
11. In my opinion, in this case, when it has been found by the Tribunal itself that there was no contributory negligence on the part of the victims in the accident and the drivers of the offending vehicles were solely responsible, it will be appropriate to follow the view taken by the Supreme Court in the case of Lata Wadhwa(Supra) and the amount of compensation should be enhanced to Rs.2,00,000/- in both these cases. It appears that the claimants have also restricted their claims to Rs.2,00,000/- in each case. Such being the position, I set aside the award, so far as amounts of compensation in two cases are concerned, namely M.A.C.P. No. 182 of 1993 and M.A.C.P. No. 183 of 1993 and enhance the compensation to an amount of Rs.2,00,000/- in each case, with interest at the rate of 12 per cent per annum from the date of filing of the application till 31st December, 1999, and at the rate of 8 per cent per annum from 1st January, 2000, till actual payment on the enhanced amount.
12. At this stage, Ms Bhatt appearing on behalf of the owner of the vehicle and Mr Vyas appearing on behalf of the Insurance Company drew my attention to the fact that in the Memorandum of Appeals preferred by the claimants, the amount has been restricted to further Rs.50,000/- over and above the amount awarded by the Tribunal and, therefore, according to them, this Court cannot at any rate enhance the amount beyond Rs.1,25,000/-.
13. In my opinion, the aforesaid contention is not tenable in view of the following observations of the Supreme Court in the recent decision of “IBRAHIM VS. RAJU” and others reported in (2011) 10 SCC 634 :-
“21. We are conscious of the fact that in the petition filed by him, the appellant had claimed compensation of Rs.3 lakhs only with interest and costs. It will be reasonable to presume that due to financial incapacity the appellant and his family could not avail the services of a competent lawyer and make a claim for adequate compensation. However, as the Tribunal and the High Court and for that reason this Court are duty-bound to award just compensation, we deem it proper to enhance the compensation from Rs.1,89,440 to Rs.6 lakhs. This approach is in tune with the judgment in Nagappa vs. Gurudayal Singh. In that case, the Court considered a similar issue, referred to the judgments of the Bombay High Court in Municipal Corpn. Of Greater Bombay vs, Kisan Gangaram Hire, Orissa High Court in Mulla Md. Abdul Wahid v. Abdul Rahim and Punjab and Haryana High Court in Devki Nandan Bangur v. State of Haryana and observed: (Nagappa case, (2003) 2 SCC 274, p.282, para 21) “21. For the reasons discussed above, in our view, under the MV Act, there is no restriction that the Tribunal/court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/court is to award ‘just’ compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time-barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under sub-section (4) to Section 166, even the report submitted to the Claims Tribunal under sub-section (6) of Section 158 can be treated as an application for compensation under the MV Act. If required, in appropriate cases, the court may permit the amendment to the claim petition.”
14. Similar view is also taken in the case of “SANJAY BATHAM VS. MUNNALAL PARIHAR” and others reported in (2011) 10 SCC 665 where at paragraph 18, the Supreme Court has made the following observations:-
“18. It is true that in the petition filed by him under Section 166 of the Act, the appellant had claimed compensation of Rs.4,20,000/- only, but as held in Nagappa v. Gurudayal Singh, in the absence of any bar in the Act, the Tribunal and for that reason any competent court is entitled to award higher compensation to the victim of an accident.”
15. It is, therefore, apparent that in course of a proceeding for compensation under Motor Vehicles Act even if at an appellate stage, an Appellate Court finds that the claimant is entitled to have more amount of compensation than the one claimed either in the claim application or in the Memorandum of Appeal against the award of compensation and if the Tribunal or Court comes to the conclusion that the just amount of compensation would be more than the amount restricted by the claimant, such fact will not stand in the way of the Court in awarding just amount of compensation. However, in my opinion, in such case, the Court should pass direction for payment of additional amount of court fees.
16. Although, Mr Vyas drew my attention to an unreported decision of a learned Single Judge of this Court in the case of “ASHISHKUMAR GAJANANDBHAI JOSHI VS. MOHAMADSAFI USMANBHAI MEMON” and two others in Civil Application No.4013 of 2007 in First Appeal No.1482 of 2002 disposed of on 4th May, 2007, taking a contrary stance, in view of the specific law laid down by the Supreme Court, I am unable to follow the said decision.
17. The appeals are, thus, allowed to the extent indicated above, In the facts and circumstances of the case, the Insurance Company is directed to pay costs amounting to Rs.2500/- (Rupees two thousand five hundred) to the appellants to enable them to pay additional court fees.
18. It is needless to mention that the additional amount of compensation should be apportioned between the owners of the offending vehicles and the Insurance Company in the same proportion, as awarded by the Tribunal below.
19. The appellant is directed to pay additional court fees for enhancement of the claim upto Rs.2,00,000/- lac in this appeal. Such court fees be paid within one month from, today.
UMESH (BHASKAR BHATTACHARYA,CJ)