Shama and Others vs Mahantappa and Others

G. Narendra, J.—Heard the learned counsel for the appellant and the learned counsel for the second respondent.

The matter lies in very narrow compass and it is admitted that it is covered by the decision rendered by the Hon''ble Apex Court in the case of Kishan Gopal and Another Vs. Lala and Others, .

The undisputed facts are that on 22.11.2013 at about 12.00 p.m., one Sumayya aged about 10 years along with her parents i.e., the claimants was waiting for a bus on Aland Check Post-MSK Mill Hirapur road, near Shaha Jilani Darga Ring Road, when the offending vehicle being a motorcycle bearing No. KA-32/V-8709 which has been driven at high speed and in a rash and negligent manner, knocked down the said Sumayya and as a result of the impact she sustained grievous head injuries and was shifted to Sangameshwar Hospital, Kalaburagi, where she succumbed to the injuries. The said facts are not in dispute nor are they disputed by the respondents.

The only contention placed before this Court is the approach of the Tribunal in fixing the notional income and arriving at a quantum under the head of loss of dependency. It is submitted at the bar that the issue of death of minor child is covered under the judgment of the Hon''ble Apex Court rendered in the case of KISHAN GOPAL (supra), where the Apex Court has held in paragraphs 17, 18 and 19 as follows:

"17. In our considered view, the Tribunal has ignored certain relevant facts and evidence on record while considering the case of the appellants. The High Court though it has got power to re-appreciate the pleadings and evidence on record, has declined to do so and mechanically endorsed the findings of fact on contentious issue Nos. 1 & 2 after referring to certain stray sentences from the evidence of AW-1 and the FIR and it has erroneously held that there is a contradiction between the FIR, the claim petition and the evidence of the appellants. It has concurred with the finding of fact recorded on the contentious issues and accepted dismissed of the petition. The concurrent findings of fact are erroneous and invalid and therefore, the same call for our interference in this appeal. The approach of the High Court to the claim of the appellants is very casual as it did not advert to the oral and documentary evidence placed on record on behalf of the appellants, particularly, in the absence of rebuttal evidence adduced by the Insurance Company, hence the same is liable to set aside and accordingly we set aside the same.

Point Nos. 2 and 3 are answered together in favour of the appellants for the following reasons:--

The Tribunal having answered the contentious issue No. 1, against the appellants in its judgment the same is concurred with by the High Court by assigning erroneous reasons and it has affirmed dismissal of the claim petition of the appellants holding that the accident did not take place on account of the rash and negligent driving of the offending vehicle by the first respondent and therefore the contentious issue Nos. 1 and 2 are answered in the negative against the appellants and it has not awarded compensation in favour of the appellants.

Since we have set aside the findings and reasons recorded by both the Tribunal and the High Court on the contentious issue Nos. 1 & 2 by recording our reasons in the preceding paragraphs of this judgment and we have answered the point in favour of the appellants and also examined the claim of the appellants to award just and reasonable compensation in favour of the appellants as they have lost their affectionate 10 year old son. For this purpose, it would be necessary for us to refer to Second Schedule under Section 163-A of the M.V. Act, at clause No. 6 which refers to notional income for compensation to those persons who had no income prior to accident. The relevant portion of clause No. 6 states as under:

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

..............

(a) Non-earning persons - Rs. 15,000/- p.a."

The aforesaid clause of the Second Schedule to Section 163-A of the M.V. Act, is considered by this Court in the case of Lata Wadhwa and Others Vs. State of Bihar and Others, , while examining the tortuous liability of the tort-feasor has examined the criteria for awarding compensation for death of children in accident between 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 the said 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 irrecoupable 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 the case referred to supra it has 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. 24,000/- p.a. In our considered view, the aforesaid legal principle laid down in Lata Wadhwa''s case with all fours is applicable to the facts and circumstances of the case in hand having regard to the fact that the deceased was 10 years'' 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 the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , the multiplier of 15 can be applied to the multiplicand. Thus, 30,000 x 15 = 4,50,000 and 50,000/- under conventional heads towards loss of love and affection, funeral expenses, last rites as held in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, , which is referred to in Lata Wadhwa''s 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 at the rate of 9% p.a. by applying the law laid down in the case of Municipal Corporation of Delhi, Delhi Vs. Association of Victims of Uphaar Tragedy and Others, , for the reason that the Insurance Company has been contesting the claim of the appellants from 1992-2013 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 legally justified.

Accordingly, we pass the following order.

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

(II) The awarded amount of Rs. 5,00,000/- with interest at the rate of 9% per annum should be paid to the appellants from the date of filing of the application till the date of payment.

(III) We direct the Insurance Company to issue the demand draft drawn on any Nationalized Bank by apportioning the compensation amount equally with proportionate interest and send it to the appellants within six weeks from the date of receipt of a copy of this judgment."

In view of the above, this Court deems it necessary to interfere with the judgment and award of the Tribunal.

Accordingly, the appeal is partly allowed. The award of the Tribunal, awarding a total sum of Rs. 2,87,000/- is modified and a sum of Rs. 5,00,000/- is awarded as per the law laid down by the Hon''ble Apex Court as stated supra. Thus, the appellants are entitled to the enhanced sum of Rs. 2,13,000/-.

The enhanced amount shall carry interest at the rate of 9% p.a. The second respondent - insurer shall deposit the said amount in the Tribunal within a period of eight weeks from the date of receipt of copy of this order.

Sri Sudarshan M., Advocate is permitted to file vakalath on behalf of respondent No. 2.