Jagannath and Another vs Shankarlal and Others

R.D. Shukla, J.—This appeal is directed against the judgment award dated March 18, 1983, of the Second Member, Motor Accidents Claims Tribunal, Indore, passed in Claim Case No. 14 of 1982, whereby the claimant-appellants have been awarded Rs. 6,000 with interest at 6 per cent. '' per annum as compensation for the death of their son, Rajesh, aged about six years, in an accident by Matador CPF-709 driven and owned by respondents Nos. 2 and 1, respectively, and insured with respondent No. 3. This appeal has been filed for enhancement of the amount of compensation.

The admitted facts of the case are that the respondent (non-applicant No. 1) is the owner of motor vehicle, Matador No. CPF-709, and was insured with respondent No. 3 (non-applicant No. 3). On the date of incident, i.e., February 20, 1982, when Rajesh, the son of the claimants, was playing by the side of road on the Kachhi Patri in village Bhavarasala, a matador came at an excessive speed and without blowing its horn, knocked down Rajesh from the opposite direction as a result of which he sustained injuries and died in consequence thereof instantaneously at the spot.

The claimants filed the claim petition for grant of compensation of Rs. 50,000. The learned Tribunal has granted compensation as aforesaid. Hence, this appeal for enhancement.

In the memo of appeal and during the course of arguments, it has been submitted by learned counsel for the appellants that now the minimum no-fault liability has been fixed at Rs. 25,000 and, therefore, the learned Tribunal ought to have awarded at least that amount.

The claimants are agriculturists with sufficient means and they have suffered mental agony and a future loss of earning of their son and for that reason also the compensation amount deserves to be enhanced. It has also been submitted that the interest at 12 per cent, per annum ought to have been awarded.

As against it, learned counsel for the respondents has submitted that as the accident occurred prior to the coming into force of the amendment in Section 95A of the Motor Vehicles Act in October, 1982, which has no retrospective operation. Earlier an amount of Rs. 5,000 to Rs. 6,000 was being granted for the death of a child and, therefore, the compensation is just and proper.

Learned counsel has tried to refer cases decided by this court (i) M.A. No. 291 of 1981 (Dhulji v. MPSRTC) decided by the Hon''ble Justice Shri B.B.L. Shrivastava J., (ii) M.A. No. 239 of 1982 (Mansoorali v. Alihussain) decided by the Hon''ble Justice Shri R.K. Verma, and (iii) M.A. No. 108 of 1980 (Smt. Sarjubai v. Rajendrasingh) decided by the Hon''ble Justice Shri R. K. Varma. In all the three cases, it has been held that since the Legislature has made amendment in its own prudence and fixed the minimum liability to the tune of Rs. 25,000 and, therefore, that amount ought to be paid. In all those cases, a case in Rukmabai v. Ramlal (1988] ACJ 351 (MP) has been referred to and relied on. But, in this case, the amount awarded was Rs. 15,000 only. This reported case was also decided by Shri R.K. Verma J.

In the opinion of this court the amendment referred to above which has been made in the year 1982 and, thereafter, in the year 1988, have no retrospective operation, though it can be taken into consideration in determining the compensation in cases of motor accidents.

I am supported in my view by a case decided by a Division Bench of this High Court presided over by Justice Shri P.D. Mulye and Justice Shri K.L. Shrivastava in Karuram v. Omprakash [1989] ACJ 941 . Though a different view in the matter has been taken by other Division Bench, presided over by Justice Dr. T.N. Singh and Justice Shri K.K. Verma, in Bhagwandas and Another Vs. National Insurance Co. Ltd. and Another, whereby it has been held that there is no provision in the Act that debars the enforcement of a claim u/s 92A in respect of an accident taking place prior to the enactment of Section 92A of the Motor Vehicles Act. It appears the earlier decision in Karuram v. Omprahash [1989] ACJ 941 (MP) was not brought to the notice of two brother judges while deciding this case. What comes out from the discussion above is that the amendment and insertion of Section 92A of the Motor Vehicles Act in the year 1982, has no retrospective operation but it can always be taken into consideration for determining the compensation.

Learned counsel for the respondents has referred the following cases:

(i) C. K. Subramania Iyer v. T. Kunhi Kuttan Nair [1970] ACJ 110 (SC), where a compensation of Rs. 6,000 was awarded for the death of a boy, aged about eight years.

(ii) Prathviraj v. Kulvir Singh [1983] ACJ 61 (MP), where for the death of a girl, aged about five -years Rs. 2,500 was awarded.

(iii) Euclides joao Rodrigues v. Custodio Dias [1983] ACJ 478 (Bom), where for the death of a boy, aged about five years Rs. 6,000 was awarded as compensation.

(iv) Basanta Kumar Sahu v. Shyamsunder Agarwalla [1977] ACJ 359 (Orissa), where for the death of a boy, aged five years, Rs. 8,000 was awarded as compensation, and

(v) Sitaram v. Nagar Palika Parishad [1982] ACJ 63 (MP), where for the death of a girl, aged ten years, an amount of Rs. 2,000 was awarded as compensation.

Looking to the reeent trend of judgments of the Supreme Court the award of compensation has been on the higher side. This accident has occurred on February 20, 1982, and a minimum "no-fault liability" was fixed at Rs. 15,000, vide amendment in October, 1982, i.e., in the same year. Since the Legislature in its own prudence has enhanced the amount and fixed the liability to the tune of Rs. 15,000 without making any difference in the death of a child or in an adult, it would be proper to enhance the amount of compensation. However, the fact of uncertainty of life and the future prospects of a child and further that the claimants are only agriculturists will also have to be taken into consideration. They have not proved that they wanted to give the child higher educations the best education in the State or country, hence it would be proper to fix this compensation amount at Rs. 12,000.

Learned counsel for the appellants has demanded interest at 12 per cent, from the date of application till realisation.

As against it learned counsel for the respondents while relying on a case in Jyotsna Dey v. State of Assam [1987] ACJ 172 (Delhi) has submitted that interest should be awarded if the amount is not paid within a specified period. However, in a case in Jagbir Singh v. Punjab Roadways [1987] ACJ 15 (Delhi) their Lordships of the Supreme Court have awarded interest at 12 per cent, per annum from the date of the claim petition. This judgment is prior to the judgment referred to above.

As a result this appeal succeeds. The amount of compensation awarded is enhanced to Rs. 12,000. The claimants shall be entitled to the interest payable at 12 per cent, per annum from the date of application till realisation. Counsel''s fee Rs. 400 if certified.