Nagaraju and Others vs The Managing Director K.S.R.T.C.

B. Veerappa, J.—Though the matter is listed for Admission, with the consent of the learned Counsel for both parties, the same is taken up for final disposal.

The above appeal is filed by the parents who lost their son due to the accident that occurred on 10.1.2009 against the judgment and award dated 15.4.2011 passed in MVC No. 211/2009 by the Civil Judge (Sr. Dn.) and Additional MACT., Gubbi seeking enhancement of compensation.

It is the case of the appellant, who are the parents of the minor son - Sandesh that when their son on 10.1.2009 at about 4.00 p.m. was proceeding on the extreme end of the left side of the road by riding bicycle with care and caution by following traffic rules on Lakkenahalli-Lakkenahatti Gate from his house towards Lakkenhalli Gate and when he reached Lakkenahalli Gollarahatti Gate, at that time, the driver of the KSRTC Bus bearing registration No. KA-06-F-0121 drove the same in a rash and negligent manner with high speed and without following the traffic rules came and dashed against him as a result of which, he sustained grievous injuries on his head, legs and stomach and other bleeding injuries all over the body. Immediately he was shifted by some persons in a motor bike to the Government Hospital, Gubbi and when they reached near the hospital at about 4.15 p.m. he succumbed to the injuries and the duty doctor of the hospital have conducted the post mortem on the deceased and after the police enquiry, the appellants have shifted the dead body to their native placed in a hired vehicle by paying Rs. 3,000/- and the claimants have performed funeral and obsequies on the deceased by spending Rs. 20,000/-. It was also alleged by them that their son was aged about 10 years, studying in 4th standard, hale and healthy, very intelligent and a very good sports man before the accident and they had a very good hopes on the future of the deceased which has been wiped out now and they are suffering from mental shock and agony due to the death of their loving and affectionate son in his early age, etc., and hence filed a claim petition for compensation.

The respondent filed objections denying the entire averments made in the claim petition and also the age of the deceased, etc and prayed for dismissal of the claim petition contending that the deceased Sandesh by riding his bicycle suddenly came from Gollarahatti side to the main road negligently without observing the vehicles passing on the road and dashed against the KSRTC bus on the right middle portion and fell down with the bicycle, etc.

Based on the pleadings, the Tribunal framed the following issues:

"1) Whether the claimant proves that Sandesh S/o Nagaraj died in the alleged R.T.A. occurred on 10.01.2009 at about 04.00p.m. at Gollarahatti Gate, on Lakkenahalli road, Kasaba Hobli, Gubbi Taluk, due to actionable negligence by the driver of the K.S.R.T.C. Bus bearing Reg. No. KA-06-F-0121?

Whether the claimants prove their entitlement for compensation? If yes, what is the quantum of compensation and from whom?

What Order or Award?"

In order to establish their claim, the claimant No. 1 examined himself as P.W.1 and one witness as P.W.2 and marked the documents Exs.P.1 to 9. The driver of the KSRTC bus was examined as R.W.1 but no documents were got marked.

After considering the entire material on record, the Tribunal held that the accident occurred due to the rash and negligent driving on the part of the driver of the KSRTC bus and the claimants/parents of the deceased are entitled to a compensation of Rs. 1,86,000/- together with interest at 6% p.a. from the date of petition till realization against which judgment and award, the present appeal is filed by the parents of the deceased/appellants seeking enhancement of compensation.

I have heard the learned Counsel for the parties to the lis.

Sri Abdul Khadar, learned Counsel for the appellants contended that the impugned judgment and award of the Tribunal is unsustainable and the same is liable to be set aside in view of the fact that the global compensation awarded is on the lower side and it has not considered the various aspects before passing the same and therefore, prayed for enhancement of compensation.

Sri K.N. Dayalu, learned Counsel for the contesting respondent sought to justify the impugned judgment and award passed by the Tribunal contending that it is in accordance with the law declared by the Hon''ble Supreme Court in the case of Santhosh Rani v. Ranjit Singh and others reported in 2008 ACJ 1405 and therefore, sought for dismissal of the appeal.

I have given my thoughtful consideration to the arguments advanced by both the learned Counsel for the parties and perused the entire records.

The respondents have not disputed that the deceased Sandesh - 10 years old boy died in a road traffic accident on 10.1.2009 due to the rash and negligent driving of the driver of the KSRTC bus as recorded by the Tribunal and admittedly, the insurance company has not filed any appeal against the adverse finding recorded by the Tribunal. Therefore, it is a case that the contentions urged by the claimants and the evidence of P.Ws. 1 and 2 coupled with the documents Exs.P.1 to 9 have to be accepted.

The only point that arises for my consideration is:

"Whether the Tribunal is justified in awarding compensation of Rs. 1,86,000/- with interest at 6% p.a. from the date of petition till realization to a boy of 10 years old?"

It is not in dispute that the Tribunal recorded a specific finding that the 10 years boy who died in a road traffic accident is on account of the rash and negligent driving on the part of the driver of the KSRTC bus and it is also not in dispute that the deceased boy was 10 years old, studying in 4th standard, intelligent and good at sports and other activities as claimed by the appellants and in view of the unfortunate death, the appellants, who are the parents have lost the entire hopes on their son and they will be definitely suffering from mental shock and agony throughout their life and they cannot forget the incident that occurred on 10.1.2009 till their death. The Tribunal has awarded a compensation of Rs. 1,86,000/- in favour of the 10 years old child, which is inadequate, as the loss of a child is irrevocable and no amount of compensation could compensate the parents and having regard to the environment in which the children are brought up by their parents, the Tribunal ought to have awarded more compensation than what is awarded and hence, the same requires enhancement.

The Hon''ble Supreme Court while considering the provisions of Sections 166 , 168 , 170(b) , 171 and 173 of the Motor Vehicles Act, 1988 in the case of Kishan Gopal and Another Vs. Lala and Others, while determining the quantum of compensation in respect of death of children between the age of 10 to 15 years, relying on various judgments has held that the parents of the children, who died in the road accident between the age of 10 to 15 years, are entitled to a compensation of Rs. 5 lakhs as global compensation with interest at 9% from the date of petition till realization which reads as under:

"35. The relevant portion of Clause 6 states as under:

"6. Notional income for compensation to those who had no income prior to accident-

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(a) Non-earning persons- Rs. 15,000 p.a." The aforesaid clause of the Second Schedule to Section 163-A of the MV Act, is considered by this Court in Lata Wadhwa and Others Vs. State of Bihar and Others, while examining the tortuous liability of the tortfeasor has examined the criteria for awarding compensation for death of children in accidents between the age group of 10 to 15 years and held in the above case that the compensation shall be awarded taking the contribution of the children to the family at Rs. 12,000 p.a. and multiplier 11 has been applied taking the age of the father and then under the conventional heads the compensation of Rs. 25,000/- was awarded. Thus, a total sum of Rs. 1,57,000 was awarded in that case.

After noting the submission made on behalf of TISCO in Lata Wadhwa case that the compensation determined for the children of all age groups could be double as in its view the determination made was grossly inadequate and the observation was further made that loss of children is inrecoupable and no amount of money could compensate the parents. Having regard to the environment from which the children referred to in that case were brought up, their parents being reasonably well-placed officials of TISCO, it was directed 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 under the conventional heads a sum of Rs. 50,000 should be added and thus total amount in each case would be Rs. 2 lakhs.

Further, in Lata Wadhwa case it was observed that in so far as the children of age group between 10 to 15 years are concerned, they are all students of Class VI to Class X and are children of employees of TISCO and one of the children was employed in the Company in the said case having regard to the fact the contribution of the deceased child was taken Rs. 12,000 p.a. appears to be on the lower side and held that the contribution of such children should be Rs. 24,000p.a.

In our considered view, the aforesaid legal principle laid down in Lata Wadhwa case with all four is applicable to the facts and circumstances of the case in hand having regard to the fact that the deceased was 10years old, who was assisting the appellants in their agricultural occupation which is an undisputed fact. We have also considered the fact that the rupee value has come down drastically from the year 1994, when the notional income of the non-earning member prior to the date of accident was fixed at Rs. 15,000. Further, the deceased boy, had he been alive would have certainly contributed substantially to the family of the appellants by working hard.

In view of the aforesaid reasons, it would be just and reasonable for us to take his notional income at Rs. 30,000 and further taking the young age of the parents, namely, the mother who was about 36 years old, at the time of accident, by applying the legal principles laid down in Sarla Verma v. DTC, the multiplier of 15 can be applied to the multiplicand. Thus, 30,000 x15 = 4,50,000 and 50,000 under conventional heads towards loss of love and affection, funeral expenses, last rites as held in Kerala SRTC v. Susamma Thomas, which is referred to in Lata Wadhwa case and the said amount under the conventional heads is awarded even in relation to the death of children between 10 to 15 years old. In this case also we award Rs. 50,000 under conventional heads. In our view, for the aforesaid reasons the said amount would be fair, just and reasonable compensation to be awarded in favour of the appellants.

The said amount will carry interest @ 9% p.a. by applying the law laid down in MCD v. Uphaar Tragedy Victims Assn., for the reason that the Insurance Company has been contesting the claim of the appellants from 1992-93 without settling their legitimate claim for nearly about 21 years, if the Insurance Company had awarded and paid just and reasonable compensation to the appellants the same could have been either invested or kept in the fixed deposit, then the amount could have earned five times more than what is awarded today in this appeal. Therefore, awarding 9% interest on the compensation awarded in favour of the appellants is illegally justified.

Accordingly, we pass the following order:

41.1. The appeal is allowed and the impugned judgments and awards of both the Tribunal and High Court are set aside.

41.2. The awarded amount of Rs. 5,00,000 with interest @ 9% per annum should be paid to the appellants from the date of filing of the application till the date of payment."

In the present case, the admitted facts are that the deceased was 10 years old boy studying in 4th standard and the accident took place on 10.1.2009 and the appellants, who are admittedly the parents of the deceased will have to suffer mental shock and agony throughout their life, loss of love and affection of their son and the Tribunal while awarding compensation of Rs. 1,86,000/- has relied on the judgment of the Hon''ble Supreme Court in the case of Santosh Rani v. Ranjit Singh and Others reported in 2008 ACJ 1405 SC and the latest judgment stated supra. The Apex Court relying on various earlier judgments of its Court i.e., Municipal Corporation of Delhi, Delhi Vs. Association of Victims of Uphaar Tragedy and Others, ; Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , National Insurance Co. Ltd. Vs. Baljit Kaur and Others, , National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi and Others, , Lata Wadhwa and Others Vs. State of Bihar and Others, and other cases has held that the death in respect of minor children between 10 to 15 years are concerned, they entitled to a compensation of Rs. 5 lakhs with interest at 9% p.a. from the date of petition till realization. Taking into consideration the law laid down by the Hon''ble Supreme Court and the date of accident i.e., 10.1.2009 and the surrounding facts and circumstances of the present case, it is a fit case to grant global compensation of Rs. 5 lakhs with 7% interest from the date of petition till realisation.

Accordingly, the appeal is allowed in part and the impugned judgment and award passed by the Tribunal is modified and the appellants/claimants are entitled to a total compensation of Rs. 5 lakhs including the award already made by the Tribunal i.e., the enhanced compensation comes to Rs. 3,14,000/- with interest @ 7% from the date of petition till realization which shall be deposited by the insurance company within a period of 8 weeks from the date of receipt of a copy of this judgment and award.

Out of the enhanced compensation, 50% of the same with proportionate interest shall be apportioned in favour of each of appellant Nos. 1 and 2 which shall be invested in fixed deposit separately in their names for a period of 5 years in any of the Nationalised Bank and the remaining 50% with proportionate interest shall be disbursed equally to the appellants immediately after the deposit made by the insurance company.

Office to draw the award accordingly.