Rajesh Kumar and Others vs Javed Afzal Ansari and Others

Rekha Mittal, J.

The present appeal has been preferred seeking enhancement of compensation awarded by the Motor Accident Claims Tribunal, Faridabad (in short ''MACT'') vide award dated 14.12.2011. Abhishek, the son of the appellants died on 12.012011 at about 5.30 PM in a Motor Vehicular Accident due to rash and negligent driving of Xylo car bearing No. HR-38QT-7125 in the area of Faridabad. The postmortem examination on the dead body was conducted at B.K. Hospital, Faridabad. FIR No. 51 dated 12.02.2011 under Sections 279 and 304-A of the Indian Penal Code (in short ''I.P.C.'') was registered in Police Station Sarai Khawaja.

The appellants, parents of the deceased child, prayed for grant of compensation to the extent of Rs. 10 lacs for loss of their only child aged about 3 = years. The learned Tribunal awarded compensation to the tune of Rs. 2,50,000/- under the following heads:-

i) Pecuniary compensation Rs. 1.5 lacs

ii) Non-pecuniary damages towards pain and suffering Rs. 55,000/-

iii) Damages on account of future prospects Rs. 40,000/-

iv) Funeral expenses Rs. 5,000/-

Counsel for the appellants contends that the compensation awarded by the Tribunal is on lower side and liable to be enhanced. In support of his contentions, he has referred to judgment of Hon''ble the Supreme Court of Kishan Gopal and Another Vs. Lala and Others, . He has further relied upon the judgment of the Delhi High Court in Jitender Kumar & another v. Oriental Insurance Co. Ltd. & another, 2010 ACJ 242.

Counsel for the contesting respondents has submitted that there is no error or infirmity in the findings recorded by the learned Tribunal, therefore, the appeal is liable to be dismissed.

I have heard counsel for the parties and perused the records.

The deceased child was admittedly 3 = years old when he unfortunately died in a Motor Vehicular Accident. The Tribunal has taken notice that the child was not studying in a school. There is no evidence on record in regard to status of the parents of the child.

In Kishan Gopal and another''s case (supra), the deceased was 10 years old who was assisting the appellants in their agricultural occupation. The Hon''ble Supreme Court considering the fact that 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/- and further the deceased boy, had he remained alive would have certainly contributed substantially to the family of the appellants by working hard, thought it just and reasonable to take his notional income at Rs. 30,000/- and further taking the young age of the parents at the time of accident, multiplier of 15 was applied and an amount of Rs. 4,50,000/- towards pecuniary damages and another amount of Rs. 50,000/- under conventional heads was awarded. In the case at hand, the child was merely 3 = years old and he was not rendering any assistance to his parents. The judgment in Kishan Gopal and another''s case (supra) cannot be made applicable to the facts of the case in hand to fix notional income of the deceased child at Rs. 30,000/- or anything more than Rs. 15,000/- fixed by the Tribunal. The Hon''ble Supreme Court of Puttamma and Others Vs. K.L. Narayana Reddy and Another, decided by a Bench of which Justice G.S. Sirghvi is one of the Members and His Lordship was also a member of the Bench which decided Krishan Gopal and another''s case (supra), the Hon''ble Apex Court has summed up certain principles in para 40 of the judgment, quoted hereinbelow:-

(i) In the applications for compensation made under Section 166 of the 1988 Act in death cases where the age of the deceased is 15 years and above, the Claims Tribunals shall select the multiplier as indicated in Column (4) of the table prepared in Sarla Verma read with para 42 of that judgment,

(ii) In cases where the age of the deceased is upto 15 years, irrespective of the Section 166 or Section 163A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the table in Sarla Verma should be followed.

(iii) As a result of the above, while considering the claim applications made under Section 166 in death cases where the age of the deceased is above 15 years, there is no necessity for the Claims Tribunals to seek guidance or for placing reliance on the Second Schedule in the 1988 Act.

(iv) to (vi) XXXX XXXX XXXX

(vii) The above propositions mutatis mutandis shall apply to all pending matters where above aspects are under consideration.

In this view of the matter, the appellants cannot derive any benefit from the notional income of the deceased child fixed by Hon''ble the Supreme Court of India in Krishan Gopal and another''s case (supra), in view of the peculiar facts and circumstances of the said case.

The judgment in Jatinder Kumar and another''s case (supra) makes reference to the judgment of the Hon''ble Supreme Court in R.K. Malik and Another Vs. Kiran Pal and Others, . In R.K. Malik''s case (supra), the claimants were held entitled to compensation of Rs. 75,000/- towards non-pecuniary damages and another amount of Rs. 75,000/- towards future prospects. However, in the said case the Court held that while considering claim with regard to future prospect, child''s performance in school and reputation of the school etc. might be taken into consideration. Further held that in the present case, records show that the children were good in studies and studying in a reasonably good school. Naturally, their future prospect would be presumed to be good and bright. Since they were children, there is no yardstick to measure the loss of future prospects of these children. On the other hand, in the case at hand, the situation is altogether fluid as there is no evidence if in view of status of the parents, what could be the assumed future of the child, who was not studying. Under these circumstances, ends of justice would be met if an amount of Rs. 20,000/- is enhanced towards claim in regard to future prospects. At the same time, the appellants are entitled to compensation of Rs. 75,000/- towards non pecuniary damages as awarded in R.K. Malik''s case (supra). They are held entitled to an amount of Rs. 25,000/- towards funeral expenses in the light of judgment in Rajesh and Others Vs. Rajbir Singh and Others, .

Keeping in view the above, the appellants are entitled to compensation of Rs. 3,10,000/- i.e. Rs. 1,50,000/- + Rs. 60,000/- + Rs. 75,000/- + Rs. 25,000/-). The amount of enhanced compensation i.e. (Rs. 3,10,000 - Rs. 2,50,000) Rs. 60,000 shall carry interest @ Rs. 7.5% per annum from the date of filing of the petition till realization of the amount. In case, the insurance company (respondent No. 3) deposits the enhanced amount with the learned Tribunal within 45 days, the interest would be payable @ 6% per annum on the enhanced awarded amount. The appeal stands disposed of with modification in the aforesaid terms.