V. Parthiban vs Raja Mohamadu

Mr. S.M. Subramaniam, J. - The appellants have filed the present C.M.A(MD)No.826 of 2015, challenging the award passed in MCOP.No.1429 of 2010, dated 25.09.2014, on the file of the Motor Accident Claims Tribunal/1st Additional District Judge, Madurai.

It is a case of fatal accident caused on 06.05.2010 around 17.15 hours Opposite to Anbu Hospital, near Kallikudi Chatram Bus Stop. The deceased was 8 years old boy and the parents of the deceased boy filed an application seeking compensation before the Motor Accident Claims Tribunal/1st Additional District Judge, Madurai in MCOP.No.1429 of 2010. Considering the facts and circumstances of the case, the Tribunal awarded Rs.3,00,000/- as total compensation. Not satisfied with the quantum of award granted by the Tribunal, the appellants/claimants preferred the present appeal on the ground that the Tribunal has not considered various aspects and awarded less compensation. The Tribunal simply awarded compensation towards loss of income as Rs.1,50,000/-, for pecuniary damages Rs.75,000/- and for future prospects Rs.75,000/-, totally Rs.3,00,000/-. The Tribunal ought to have considered the fact that the deceased boy was 8 years of age and the mental and psychological impacts on the parents ought to have been considered by the Tribunal and the same was not considered. In support of the arguments, the learned counsel appearing for the appellants cited the judgment of the Hon''ble Supreme Court of India reported in 2013 (2) TNMAC 358 (SC) (Kishan Gopal & another v. Lala & others) is extracted hereunder:

"18.Point Nos.2 & 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 & ors. v. State of Bihar & Ors., 2001 (8) SCC 197, 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 & ors. v. State of Bihar & ors., 2001 (8) SCC 197, 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 Sarla Verma v. Delhi Transport Corporation, 2009 (2) TN MAC 1 (SC) : 2009 (6) SCC 121, 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 Kerala SRTC v. Susamma Thomas, 1994 (2) SCC 176, 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 v. Association of Victims of Uphaar Tragedy, 2011 (14) SCC 481, 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 the above said case, the Hon''ble Supreme Court of India adopted the multiplier of 15 for assessing the pecuniary loss. Accordingly Rs.4,50,000/- (30,000X15) was awarded by following the Sarla Verma case. Further, the conventional damages for loss of love and affection, funeral expenses, last rites, etc. are jointly awarded as Rs.50,000/-. Accordingly, the Supreme Court of India awarded Rs. 50,000/- in the above case. The same analogy shall be followed in the present case on hand, in view of the factor that the deceased boy in the present case was 8 years old at the time of death. Further, the accident took place in the case before the Hon''ble Supreme Court of India in the year 1992 and the case on hand the accident took place on 06.05.2010. Therefore, the enhancement of compensation from Rs. 3,00,000/- to Rs.5,00,000/- cannot be construed as excessive.

The learned counsel appearing for the 2nd respondent/United India Insurance Company opposed the appeal on the ground that the Tribunal by following the judgment of the Hon''ble Apex Court reported in 2009 ACJ 1924 (R.K. Mallik and another v. Kiran Pal and others) awarded Rs.3,00,000/-, since the accident took place in the year 2010. Therefore, the Tribunal has not committed any error on record and therefore the quantum of compensation deserves no reconsideration.

The arguments advanced by the learned counsel appearing for the 2nd respondent/Insurance Company cannot be appreciated, in view of the current Supreme Court Judgment reported in 2013 (2) TN MAC 358 SC, in which the year of the accident was 1992. Such being the compensation, this Court is inclined to enhance the compensation from Rs.3,00,000/- to Rs.5,00,000/- by following the judgments of the Hon''ble Supreme Court of India cited supra. Consequently, the award passed by the Motor Accident Claims Tribunal/1st Additional District Judge, Madurai in MCOP.No.1429 of 2010, dated 25.09.2014, is set aside and the Civil Miscellaneous Appeal is allowed and the total award of compensation of Rs.3,00,000/- is enhanced to Rs.5,00,000/-. The interest of 7.5% per annum is granted from the date of presentation of the application till the date of deposit for the enhanced compensation.

The 2nd respondent/United India Insurance Company is directed to deposit the enhanced compensation with accrued interest within a period of four weeks from the date of receipt of a copy of this order. The appellants/claimants are permitted to withdraw the entire award amount with accrued interest through RTGS, by filing necessary application before the Tribunal. No costs.