The United India Insurance Company is on appeal challenging the award dated 8.10.2003 passed in M.C.O.P.No.1704 of 2000 on the file of the Motor Accidents Claims Tribunal (Additional District Judge, Fast Track Court No.1), Chennai.
2. The only contention raised by the counsel for the appellant is on the quantum of compensation awarded by the Tribunal.
3. It is a case of fatal accident. The brief facts of the case are as follows:- The accident in this case happened on 17.2.2000 at 5.30 p.m. The deceased R.Anish, 10 years old student, was walking on the platform near Kallikuppam bus stand. The lorry driven by its driver in a rash and negligent manner hit the said Anish. In that accident the said Anish sustained crush injuries and died on the spot. The mother aged 33 years and the father aged 42 years filed a claim for compensation in a sum of Rs.3 lakhs on the death of their son.
4. In support of the claim, the father of the deceased was examined as P.W.1. One Kobakumar, the eye witnesses to the accident, was examined as P.Ws.2. Exs.A-1 to A-6 were marked, the details of which are as follows:-
Ex.A-1 is the photocopy of F.I.R., dated 17.2.2000, Ex.A-2 is the photocopy of rough sketch dated 17.2.2000, Ex.A-3 is the photocopy of post-mortem certificate dated 17.2.2000, Es.A-4 is the School transfer certificate, Ex.A-5 is the mark sheet and Ex.A-6 is the legal heir certificate.
No oral or documentary evidence was let on behalf of the appellant insurance company, the second respondent before the Tribunal.
5. The finding of negligence on the part of the driver of the lorry, who is responsible for the accident and the death of the deceased Anish and the liability fixed on the appellant insurance company to compensate the claimants is not disputed by the counsel for the appellant and the same is confirmed.
6. Taking note of the age of the deceased boy, a 5th standard student, the only son and considering the evidence on record where it is observed that the mother had undergone family planning procedure and therefore, the possibility of having another child has become impossible, the Tribunal by fixing the income at Rs.3,000/- per month (i.e.) Rs.36,000/- per annum and after deducing 1/3 towards personal expenses of the deceased, fixed the loss of pecuniary benefits to the parents at Rs.24,000/- per annum. Considering the age of the parents and the age of the deceased, the Tribunal adopted 15 multiplier. A sum of Rs.3,60,000/- (Rs.24,000/- x 15 = Rs.3,60,000/-) was fixed as loss of pecuniary benefits to the parents. In addition, the Tribunal granted compensation under conventional heads. In all, the Tribunal granted the following amounts as compensation with interest at 9% per annum:-
Sl.No.
Head Amount granted by the Tribunal 1 Loss of pecuniary benefits to the parents Rs.3,60,000/-
Loss of love and affection to the parents on the death of their minor son (Rs.20,000/- each) Rs. 40,000/-
7. Even though the total compensation comes to Rs.4,05,000/-, the Tribunal granted a sum of Rs.3,00,000/- as claimed. It is found that the Tribunal also granted default interest at 12% of which no plea was raised by the counsel for the appellant
8. In appeal, it is contended that the compensation granted for the death of the 10 year old student, is on the higher side. Reliance was placed on the decision of the Apex Court in New India Assurance Co. Ltd., - vs. - Satender and others reported in 2007 ACJ 160 for reduction.
9. Counsel for the claimants on the other hand submitted that the parents lost their only son in the road accident. They lost their child at a tender age and that he had a bright prospects in the future. The parents were giving him good education in a school. Claimants/parents expended huge amount of money for their son's education and welfare. The possibility of another child has also been scuttled as the mother of the deceased has already undergone family planning procedure. He, therefore, pleaded that the total compensation restricted to Rs.3,00,000/- should not be interfered with.
10. In this case, the deceased child, 10 years old, is a student. The Tribunal has taken the income as Rs.3,000/- and worked out the pecuniary loss on the death of the child and that may not strictly apply to this case. However, the decision in the case of New India Assurance Co. Ltd., - vs. - Satender and others reported in 2007 ACJ 160 = 2006 AIR SCW 6139 is relevant on this issue. Para 9, 10 and 12 reads thus:-
"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 splendour 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 its parents during the child's life time. But this will not necessarily bar the parent's 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 (1913) AC 1, 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 and Ors. V. State of Bihar and Ors. (2001(8) SCC 197)."
"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 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."
Again in Manju Devi and another Musafir Paswan and another reported in 2005 ACJ 99 = 2005(1) TAC 609(SC) = 2004(2) TNMAC 262(SC), a sum of Rs.2,25,000/- was granted as compensation for the death of a 13 years old student. The accident in that case happened in the year 1998. The Apex Court in The Municipal Corporation of Greater Bombay vs. Shri Laxman Iyer and another reported in 2004 ACJ 53 = 2004(1) TN MAC (SC) 16 = 2004(2) LW 15 = (2004)1 M.L.J. 82(S.C.), on the death of 18 year old student and on a claim for compensation filed by father and mother aged 47 and 43 years respectively, the Apex Court fixed the total compensation in a sum of Rs.3,60,000/-.
11. Keeping in mind the above decisions, the following factors emerged for consideration:-
(i) The deceased in this case is a 10 years old 5th Standard student.
(ii) The deceased is the only son to the parents, who are the claimants and they are aged 33 and 42 years.
(iii) The mother has undergone family planning procedure and the possibility of another child has been erased.
(iv) For the welfare and education of the child, the claimants would have expended huge amount and they have lost the support, love and affection from the child for the rest of their life.
(v) In view of the Apex Court's decision in Manju Devi and another Musafir Paswan and another (cited supra), the sum of Rs.3,60,000/- granted by the Tribunal towards loss of pecuniary benefits can be modified to Rs.2,25,000/- as the deceased in this case is 10 years old student.
(vi) As far as compensation for loss of love and affection to the parents is concerned, since the deceased is the only child and for all the reasons stated above, the sum of Rs.20,000/- each granted towards loss of love and affection on the death of their son can be justified.
(vii) The funeral expenses of Rs.5,000/- is also justified.
12. Accordingly, the award of the Tribunal is modified as follows:-
Sl.No.
Head Amount granted by the Tribunal Amount granted by this court 1 Loss of pecuniary benefits to the parents Rs.3,60,000/-
Rs.2,25,000/-
Loss of love and affection on the death of their minor son (Rs.20,000/- each) Rs. 40,000/-
Rs. 40,000/-
3 Funeral expenses Rs. 5,000/- Rs. 5,000/- Total Rs.4,05,000/- Rs.2,70,000/-
13. Since the accident in this case happened in the year 2000 and the award was passed in the year 2003, the interest at 9% granted by the Tribunal stands reduced to 7.5%, in view of the decision of the Apex Court in Tamil Nadu State Transport Corporation vs. S.Rajapriya reported in 2005 (3) C.T.C. 373 However, the default interest granted at 12% is set aside as there is no provision of law to grant the same.
14. In the result, the Civil Miscellaneous Appeal is allowed in part as follows:-
(i) The award of the Tribunal is reduced to Rs.2,70,000/- from Rs.3,00,000/-.
(ii) The interest granted at 9% is reduced to 7.5% per annum. The default interest granted at 12% is set aside.
(iii) Counsel for appellant prays for eight weeks' time to deposit the award amount as ordered by this court and is granted.
(iv) On such deposit, the respondents 1 and 2/claimants are entitled to withdraw the award amount as apportioned below:-
The first respondent/the mother Rs.2,00,000/- with proportionate interest and entire costs as ordered by the Tribunal The second respondent/the father Rs.70,000/- with proportionate interest
(v) There will be no order as to costs.
(vi) Consequently, connected miscellaneous petition is closed.
ts To
1. Additional District Judge, Fast Track Court No.1, (The Motor Accidents Claims Tribunal), Chennai