Hon'ble Ashwani Kumar Mishra,J.
(Delivered by Hon. Ashwani Kumar Mishra, J.)
1. The present first appeal from order has been filed challenging the judgment and order dated 26.7.2011, whereby the claim petition of the claimants-appellants has been rejected.
2. Smt. Rani wife of Ram Kumar and her husband Ram Kumar son of Lahori, are the appellants before this court, who lost their only child, namely Mamta, aged about 8 years on 4.3.2010. The claimants-appellants are resident of village Purebeju, Majra Chanda Balipur, Police Station Nazirabad, District Raebareilly. The claimant-appellant no.2 Ram Kumar had gone to his in-laws place and was returning along with his wife and daughter on 4.3.2010, and while they were at Purepandey Chauraha on Parsadepur Marg, a Bolero Jeep bearing registration no. UP 33M/6991, coming from Raebareilly side dashed/hit the claimants-appellants' daughter, who was standing on left road side at 4.15 PM, on account of rash and negligent driving, as a result of which she sustained serious injuries and died instantly. The vehicle and its driver were caught at the spot and a timely first information report was lodged at 4.45 PM on 4.3.2010 being Case Crime No.82 of 2010 under sections 279, 304-A I.P.C., in which postmortem examination was also conducted. After concluding the investigation, a charge sheet has been filed under sections 279 and 304-A I.P.C. The claimants-appellants, therefore, filed claim petition for payment of compensation on the ground that the deceased was only child and the appellants' life had been ruined due to loosing of their only hope, who could otherwise have taken care of the claimants-appellants in their old age. Amount of compensation under different heads were claimed, amounting in all to Rs.10,25,000/- .
3. Admittedly, the vehicle was insured with Reliance General Insurance Company Ltd., which appeared before the tribunal and filed its written objection. It was claimed that the vehicle was being run through a driver, who had no driving licence nor any route permit was available and, therefore, the insurance company claimed that it was not liable to pay any compensation by virtue of section 3 of the Motor Vehicles Act. It also claimed that the driver of the vehicle was drunk and, therefore, the provisions of the policy has been breached. Various other defence were also taken.
4. The defendant-respondent no.1 Pawan Kumar Yadav, who was the driver and owner of the vehicle did not appear before the court below despite receipt of notice and the proceedings were conducted exparte as against him by the tribunal.
5. On behalf of the appellants, oral and documentary evidence was led to prove their case. Copy of the F.I.R., postmortem report, charge sheet along with registration certificate and driving licence etc. were filed before the tribunal. The claimants also led oral evidence of appellant no.2 Ram Kumar and statement of PW.2 Mohan Lal. Both of them have been cross-examined. No oral evidence was led on behalf of the insurance company. The insurance company, however, brought on record a certificate to prove that the driving licence of Pawan Kumar Yadav was forged and actually no driving licence was issued to him and, therefore, the vehicle was being driven without a valid driving licence, which amounted to breach of the terms of the policy.
6. The tribunal framed four issues. The first issue was 'as to whether the accident was caused due to rash and negligent driving of the vehicle, which led to serious injuries and death being caused to 8 year old girl?' The tribunal on this issue came to the conclusion, namely relying upon the alleged admission of claimants' witness that vehicle was being driven at normal speed, that the accident caused was not on account of any rash and negligent driving of the vehicle and, therefore, the claim under section 166 of the Motor Vehicles Act was held not to be made out. The issue no.2, relating to the vehicle being insured, was answered holding that the vehicle was actually insured with defendant-respondent no.2. The issue no.3, relating to possessing of valid driving licence by the driver of the vehicle, was answered in favour of the insurance company holding that the driver of the vehicle had no valid driving licence. The last issue i.e. issue no.4, relating to grant of relief, was consequently answered by the tribunal holding that claimants-appellants were not entitled to any compensation and the claim for compensation under section 166 of the Act was rejected.
7. Aggrieved by the decision of the tribunal dated 26.7.2011, the present appeal has been filed before this court under section 173 of the Motor Vehicles Act.
8. We have heard learned counsel for the claimants-appellants, learned counsel for the insurance company and have perused the material available on record. The counsel for the defendant-respondent no.1 has not appeared in the revised call and as such we have considered the affidavit filed on his behalf, before this court.
9. The counsel for the appellants has argued that the finding of the tribunal that accident was not caused due to rash and negligent driving of the driver, is legally perverse and erroneous; that the alleged contradictions, which have been pointed out in the statement of the witnesses, were inconsequential and the statement of claimants witness that the vehicle was driven at normal speed could not adversely affect the claim for compensation, and the contrary view taken by the tribunal is legally unsustainable; that the tribunal completely failed to consider the evidence led before it in the form of first information report, charge sheet, postmortem report coupled with the statement of the witnesses, which clearly established the case for compensation of the claimants-appellants; that it was then submitted that the principle of res ipsa loquitur was clearly attracted in the facts of the present case and in view of the evidence available on record the claim for compensation under section 166 of the Act was clearly made out and claimants-appellants were entitled to the compensation prayed for by them.
10. The counsel for the insurance company has opposed the claim and has attempted to re-affirm the facts and findings contained in the order of the tribunal, to contend that the claim petition was rightly rejected and it requires no interference in the exercise of appellate jurisdiction. We have also perused the counter affidavit filed by the defendant-respondent no.1, who had not contested the proceedings before the tribunal and before this court a counter affidavit merely has been filed supporting the view taken by the tribunal.
11. Undisputedly, Km. Mamta aged about 8 year died in accident on 4.3.2010 around 4.15 PM. A timely first information report on the same day at 4.45 PM was lodged, which was on record. Recital in the first information report is to the effect that Km. Mamta while returning to her residence along with appellants, at Purepandey Chauraha, was hit by the Bolero Jeep having registration no. UP 33M/6991, due to rash and negligent driving of the driver and on account thereof she died on the spot, and that the residents of the locality caught hold of the vehicle and driver at the spot. After investigation by the police, a charge sheet has also been submitted, which was on record before the tribunal, where a case under section 279/304-A I.P.C. was found proved against Pawan Kumar Yadav. The postmortem report is also on record, which shows that the death was caused due to shock as a result of ante-mortem injuires. Statement of Ram Kumar as PW.1 and Mohan Lal as PW.2 were also adduced through affidavit and they were also cross-examined, who supported the appellants-claimants' case.
12. The tribunal took note of the aforesaid facts and proceeded to reject the claim essentially on the ground that PW.1 and PW.2 both admitted in their deposition that vehicle was being driven at normal speed. The tribunal also found that claimants-appellants have not been able to exactly prove in what manner the accident was caused, inasmuch as according to the claimants-appellants, they were returning to their home by a bicycle, and their claim that the victim was standing on the road side patari when she was hit by the vehicle, has not been properly explained. The tribunal held that for a case to succeed under section 166 of the Motor Vehicle Act, 1988 (hereinafter referred to as 'Act'), it must be proved that vehicle was being driven rashly and negligently and as in the present case the claimants-appellants could not demonstrate it, as such the claim under section 166 has been rejected.
13. The scheme of the Act clearly contemplates making of a claim either under section 163-A of the Act or alternatively under section 166 of the Act. It must be proved that accident was result of rash and negligent driving if a claim under section 166 of the Act has to succeed, whereas in a claim under section 163-A, it is not obligatory on the claimants to plead or establish that the death have been caused due to any wrongful act, neglect or default of the owner of the vehicle. The tribunal correctly observed that the instant claim under section 166 of the Act can succeed only if the claimants-appellants can prove negligence on part of the driver or owner of the vehicle.
14. The Hon'ble Supreme Court in Ravi Kapoor vs. State of Rajasthan reported in (2012) 9 SCC 284, in respect of a motor accident claim, dealt with the issue of negligence and contributory negligence in the context of reasonable care i.e. expected of a vehicle driver. The observation made in para 14 and 15 of the said judgment is reproduced:-
"14. The court has to adopt another parameter i.e. "reasonable care" in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrians happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others.
15. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes -- one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in IPC that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concept of "culpable rashness" and "culpable negligence" into consideration in cases of road accidents. "Culpable rashness" is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite consciousness (luxuria). "Culpable negligence" is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person's negligent conduct. [Ref. Justice Rajesh Tandon's An Exhaustive Commentary on Motor Vehicles Act, 1988 (1st Edn., 2010).]"
15. Elaborating it further, following observations have been made in para 20, 21 and 22 of the judgment:-
"20. In light of the above, now we have to examine if negligence in the case of an accident can be gathered from the attendant circumstances. We have already held that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the civil jurisprudence. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose negligence the accident occurred. The factum of accident having been established, the court with the aid of proper evidence may take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur. The mere fact of occurrence of an accident does not necessarily imply that it must be owed to someone's negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases, the circumstantial evidence may be adduced to prove negligence. Circumstantial evidence consists of facts that necessarily point to negligence as a logical conclusion rather than providing an outright demonstration thereof. Elements of this doctrine may be stated as:
- The event would not have occurred but for someone's negligence.
- The evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the event.
- The accused was negligent and owed a duty of care towards the victim.
21. In Thakur Singh v. State of Punjab the petitioner drove a bus rashly and negligently with 41 passengers and while crossing a bridge, the bus fell into the nearby canal resulting in death of all the passengers. The Court applied the doctrine of res ipsa loquitur since admittedly the petitioner was driving the bus at the relevant time and it was going over the bridge when it fell down. The Court held as under: (SCC p. 209, para 4) "4. It is admitted that the petitioner himself was driving the vehicle at the relevant time. It is also admitted that bus was driven over a bridge and then it fell into canal. In such a situation the doctrine of res ipsa loquitur comes into play and the burden shifts on to the man who was in control of the automobile to establish that the accident did not happen on account of any negligence on his part. He did not succeed in showing that the accident happened due to causes other than negligence on his part."
22. Still, in Mohd. Aynuddin, this Court has also stated the principle: (SCC p. 74, para 8) "8. The principle of res ipsa loquitur is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrongdoer."
It has also been stated that the effect of this maxim, however, depends upon the cogency of the inferences to be drawn and must, therefore, vary in each case."
16. Considering the facts of the present case in light of the aforesaid observations, we find that the factum of Km. Mamta having died in an accident at 4.15 PM on 4.3.2010 is undisputed. Her death was caused as she was hit by the vehicle in question, also cannot be denied. The vehicle and its driver was apprehended on spot and a timely FIR was lodged with the police at 4.45 PM, pursuant to which a charge sheet was also filed after investigation. The aspect which requires consideration in the matter is as to whether the accident was caused due to rash and negligent driving of the vehicle and whether the claimants-appellants have been able to prove it?
17. The case of the claimants-appellants as noticed in the FIR lodged within half an hour of the accident was that the accident was caused due to rash and negligent driving of the vehicle. Postmortem report also disclosed that it was due to serious injuries sustained by the victim that she died as a result of ante-mortem injuries and the postmortem report is on record. The deceased was a 8 year old minor who is stated to be standing on road side patri. The oral statements of the witnesses, who were present at the spot, also verified that the accident was caused by the vehicle in question. It was further found as a fact by the tribunal that the vehicle was being driven by the defendant-respondent no.1, who had no valid driving licence.
18. Applying the principles of law noticed above in the factual scenario of the present case, we find that the driver of the vehicle since was not having a valid driving licence, there cannot be a presumption of the driver driving the vehicle with care and caution, rather his lack of possessing valid driving licence would support the claim that the driver was not legally entitled to drive the vehicle. The standard of reasonable care required in determining the question of negligence, when the victim happened to be a pedestrian of tender age, imposes an implicit duty cast upon the driver to see that life of a minor pedestrian is not endangered while driving and sufficient care was expected on part of the driver to avoid danger to such a minor.
19. The doctorine of res ipsa loquitur has been evolved by the courts for its aid, in determining such questions of fact, where it is not clear as to how and due to whose negligence the accident occurred. The factum of accident is admitted in the instant case. The fact that the driver was not having a valid driving licence and the accident was caused by the vehicle are also undisputed. The minor pedestrian aged about 8 year was standing on road side patri, the vehicle and its owner were being caught on spot, lodging of a timely FIR, and filing of charge sheet after investigation holding the driver guilty of rash and negligent driving are sufficient circumstances, which necessarily points to negligence as a logical conclusion in the instant case. The nature of accident and the admitted circumstances in the present case leads to a reasonable conclusion being arrived at for the belief that in absence of negligence, the accident itself would not have occurred. Minor 8 year old only child of the claimants-appellants, had died instantly. The tribunal, therefore, was not justified in coming to a conclusion that merely because the claimants-appellants admitted to the vehicle being driven at normal speed would bely gross negligence. The speed of a vehicle cannot be the only criterian to determine whether it was driven rashly and negligently. Reckless and negligent driving at normal speed is also possible. The observation made by the Apex Court in Ravi Kapoor vs. State of Rajasthan (supra) in para 4 of the judgment is apposite and relied upon as under:-
"4. The prosecution examined as many as 11 witnesses including four eyewitnesses, doctors and the investigating officer himself. Upon closing of the case of the prosecution, all the incriminating evidence against the accused was put before him and his statement under Section 313 CrPC was recorded wherein he took the stand of complete denial and stated that the case of the prosecution was false. The trial court, vide its judgment dated 11-5-2006, held that the prosecution has not been able to prove its case beyond reasonable doubt and the accused was entitled to an order of acquittal. Consequently, the court acquitted the accused Ravi Kapur of all the abovementioned charges."
20. The tribunal has taken note of minor contradictions in the statement of the witnesses. In the instant case, the FIR was lodged by Ram Kumar but in his statement before the tribunal, he has stated that FIR was lodged by Smt. Rani. The tribunal also took note of the fact that the informant/claimant had stated in F.I.R. that the victim was hit when she was standing on left road side patari, whereas in the statement he has stated that he was going on bicycle and tribunal observed that it was not explained as to where was his wife, his daughter and in what manner the victim was standing. We find that the tribunal has misconstrued the evidence on record. The case of the claimant was that he was returning on bicycle to his place after attending his in-laws place, and that the accident was caused when he reached at Pure Pandeypur crossing. It is not unusual for a cyclist travelling with his wife and daughter to get down at a crossing in a town area. The statement that the victim was standing on road side patri near the crossing, is not inconsistent with the case of the claimants. Admittedly, none of the claimants were injured. Had the claimant been riding a bicycle, injury to the claimant and his wife would be reasonably expected. The fact that only the victim sustained injuries causing death clearly supports the case of the claimants that she was standing on road side patri. The contradictions noticed by the tribunal were wholly irrelevant inasmuch as a wrong narration as to who lodged the FIR i.e. husband or the wife is not relevant for the present purposes. The tribunal, therefore, misdirected itself and had erroneously relied upon minor contradictions while omitting to consider overwhelming weight of evidence available in law to support the claimants' case.
21. The tribunal in the judgment has noticed that the driver was not having a valid driving licence and had resorted to a fake licence. This aspect was not taken into consideration while examining the issue as to whether the vehicle was being driven rashly or negligently. This fact was an important circumstance and had to be taken note of in examining the question as to whether vehicle was being driven rashly or negligently but the same has been completely omitted from consideration.
22. Section 3 of the Act provides that no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle. Section 5 of the Act puts an obligation on the owner or person in charge of a motor vehicle to satisfy the provisions of section 3. Section 3(1) and 5 of the Act is reproduced:-
"3(1)- No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle; and no person shall so drive a transport vehicle [other than [a motor cab or motorcycle] hired for his own use or rented under any scheme made under sub-section (2) of section 75] unless his driving licence specifically entitles him so to do.
5- Responsibility of owners of motor vehicles for contraventions of sections 3 and 4 - No owner or person in charge of a motor vehicle shall cause or permit any person who does not satisfy the provisions of section 3 or section 4 to drive the vehicle."
23. The act of running a motor vehicle without possessing a valid driving licence is an unauthorized act. The court would lean in favour of an interpretation that unauthorized running of a motor vehicle due to non-possessing of a valid driving licence, caused the accident due to rash and negligent driving if other circumstances on record supports such a view.
24. The principles of res ipsa loquitur were also not pressed, even though necessary ingredients to attract the principles were clearly available on record. In view of the aforesaid considerations, we find that the conclusion derived by the tribunal on issue no.1 to the effect that vehicle was not driven rashly or negligently is wholly illegal and perverse and cannot be sustained. Upon consideration of evidence in light of the principles laid down, as discussed above, we are of the considered opinion that the vehicle was being driven rashly and negligently, and as such the claim for payment of compensation under section 166 of the Act was made out and the claimants-appellants were entitled to payment of compensation as per law.
25. The finding of the tribunal on issue no.2 and 3 that the vehicle was insured and that the driver was not having a valid driving licence are based on correct appreciation of facts and law, as such are affirmed.
26. In view of the above finding returned on issue no.1 holding that the accident was caused due to rash and negligent driving, we are now required to determine as to what compensation was liable to be paid to the claimants-appellants. The claimants-appellants herein are the parents of the victim, who are aged 30 and 33 years respectively. The victim was their only 8 year minor child, who met with the accident. The victim was stated to be studying in class 2nd and was bright student. A minor child is not expected of having an income. The second schedule to section 163-A in respect of those, who had no income, provides a notional income of Rs.15,000/- p.a. It is also settled that in case of death of a minor, it is the age of the parents, which is relevant. In the present case, the parents were aged between 30 and 35 years and consequently, the multiplier of 17 would be attracted. After deducting 1/3 for the expenses of the victim the notional income would workout to Rs.10,000/- p.a. and by applying multiplier of 17, the amount of compensation payable would workout to Rs.1,70,000/-.
27. The Hon'ble Supreme Court in New India Assurance Co. Ltd. v. Satender reported in (2006) 13 SCC 60 dealt with the claim for payment of compensation at the instance of parent of a minor child. The law was considered and the observations of the Apex Court in para 7 to 13 are reproduced:-
"7. In Mallett v. McMonagle, Lord Diplock analysed in detail the uncertainties which arise at various stages in making a rational estimate and practical ways of dealing with them. In Davies v. Taylor, it was held that the Court, in looking at future uncertain events, does not decide whether on balance one thing is more likely to happen than another, but merely puts a value on the chances. A possibility may be ignored if it is slight and remote. Any method of calculation is subordinate to the necessity for compensating the real loss. But a practical approach to the calculation of the damages has been stated by Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd., in the following words: (All ER p. 665 A) "The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years' purchase."
8. In State of Haryana v. Jasbir Kaur it was held as under: (SCC p. 487, para 7) "7. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is to be in the real sense ''damages' which in turn appears to it to be ''just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be ''just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be ''just' compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of ''just' compensation which is the pivotal consideration. Though by use of the expression ''which appears to it to be just' a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression ''just' denotes equitability, fairness and reasonableness, and non-arbitrary. If it is not so it cannot be just. (See Helen C. Rebello v. Maharashtra SRTC.)"
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. Jenkins6, 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. These 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 to 10 years and age group of 10 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.
13. Applying the principles indicated in Jasbir Kaur case4 to the facts of the present case we think award of a sum of Rs 1,80,000 would meet the ends of justice. The same shall carry an interest at the rate of 7.5% from the date of filing of petition till payment is made. Payment shall be made within a period of three months from today. Amounts, if any, already paid shall be adjusted from the aforesaid amount of Rs 1,80,000."
28. The aforesaid principle has been reiterated in Kaushlya Devi v. Karan Arora and others reported in (2007) 11 SCC 120.
29. In Priya Vasant Kalgutkar v. Murad Shaikh and others reported in (2009) 15 SCC 54, the principles laid down in Lata Wadhwa v. State of Bihar (2001) 8 SCC 197 was again noticed and approved in para 7 of the judgment as under:-
"7. We may, however, notice that in Lata Wadhwa v. State of Bihar this Court held: (SCC pp. 210-12, para 11) "11. So far as the award of compensation in case of children is concerned, Shri Justice Chandrachud has divided them into two groups, the first group between the age group of 5 to 10 years and the second group between the age group of 10 to 15 years. In case of children between the age group of 5 to 10 years, a uniform sum of Rs 50,000 has been held to be payable by way of compensation, to which the conventional figure of Rs 25,000 has been added and as such to the heirs of the 14 children, a consolidated sum of Rs 75,000 each, has been awarded. So far as the children in the age group of 10 to 15 years are concerned, there are 10 such children who died on the fateful day and having found their contribution to the family at Rs 12,000 per annum, 11 multiplier has been applied, particularly, depending upon the age of the father and then the conventional compensation of Rs 25,000 has been added to each case and consequently, the heirs of each of the deceased above 10 years of age, have been granted compensation to the tune of Rs 1,57,000 each. In case of the death of an infant, there may have been no actual pecuniary benefit derived by its parents during the child's lifetime. But this will not necessarily bar the parents' claim and prospective loss will found 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 Railway Co. v. Jenkins and Lord Atkinson said thus: (AC p. 7) ''... 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. These 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.' At the same time, it must be held that a mere speculative possibility of benefit is not sufficient. Question whether there exists a reasonable expectation of pecuniary advantage is always a mixed question of fact and law. There are several decided cases on this point, providing the guidelines for determination of compensation in such cases but we do not think it necessary for us to advert, as the claimants had not adduced any materials on the reasonable expectation of pecuniary benefits, which the parents expected. In case of a bright and healthy boy, his performances in the school, it would be easier for the authority to arrive at the compensation amount, which may be different from another sickly, unhealthy, rickety child and bad student, but as has been stated earlier, not an iota of material was produced before Shri Justice Chandrachud to enable him to arrive at a just compensation in such cases and, therefore, he has determined the same on an approximation. Mr Nariman, appearing for TISCO on his own, submitted that the compensation determined for the children of all age groups could be doubled, as in his view also, the determination made is grossly inadequate. Loss of a child to the parents is irrecoupable, and no amount of money could compensate the parents. Having regard to the environment from which these children were brought, their parents being reasonably well-placed officials of Tata Iron and Steel Company, and on considering the submission of Mr Nariman, we would direct that the compensation amount for the children between the age group of 5 to 10 years should be three times. In other words, it should be Rs 1.5 lakhs, to which the conventional figure of Rs 50,000 should be added and thus the total amount in each case would be Rs 2 lakhs. So far as the children between the age group of 10 to 15 years are concerned, they are all students of Class VI to Class X and are children of employees of TISCO. TISCO itself has a tradition that every employee can get one of his children employed in the Company. Having regard to these facts, in their case, the contribution of Rs 12,000 per annum appears to us to be on the lower side and in our considered opinion, the contribution should be Rs 24,000 and instead of 11 multiplier, the appropriate multiplier would be 15. Therefore, the compensation, so calculated on the aforesaid basis should be worked out to Rs 3.60 lakhs, to which an additional sum of Rs 50,000 has to be added, thus making the total amount payable at Rs 4.10 lakhs for each of the claimants of the aforesaid deceased children."
Even by that standard, the amount of compensation granted by the High Court appears to be adequate in the absence of any evidence having brought on record as to the actual damages."
30. In view of the above, the claimants-appellants are entitled to payment of compensation amounting to Rs.1,70,000/- for the loss of life. The claimants-appellants are also entitled to funeral expenses of Rs.25,000/- as approved in (2013) 9 SCC 54 Rajesh and others vs. Rajbir Singh and others and consequently, the claimants-appellants are allowed the payment of compensation amounting to Rs.1,95,000/- and the claimants-appellants are also entitled for interest at the rate of 9% p.a. from the date of filing of application till the date actual payment is made.
31. In the present case, the vehicle was insured. The driver/owner of the vehicle, however, had breached the terms of the policy as the vehicle was being driven by the driver, who had no valid driving licence, as such the ultimate liability to pay aforesaid compensation would be of the driver and owner of the vehicle i.e. defendant-respondent no.1 and not that of the insurance company.
32. Accordingly, we allow the present appeal and the judgment and order dated 26.7.2011 passed by the Motor Accident Claims Tribunal in M.A.C.P. No. 115 of 2010 'Smt. Rani and another vs. Pawan Kumar Yadav and another' is set aside. We award a sum of Rs. 1,95,000/- along with 9% interest per annum, from the date of filing of the application till the date actual payment is made to the claimants-appellants. The amount so determined shall be paid by the defendant-respondent insurance company at the first instance and it shall be open for the insurance company to recover the said amount from the defendant-respondent no.1.
33. Accordingly, the present appeal is allowed. However, no order is passed as to costs.
Order Date :- 8.5.2014 Ashok Kr.