Full Judgment Text
17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC.APP.642/2005
th
% Date of decision: 19 August, 2009
RAMAI & ANR ..... Appellants
Through : Mr. Sudhir Kumar Sharma, Adv.
versus
BACHCHU SINGH & ORS ..... Respondents
Through : Mr. Kanwal Choudhary, Adv.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may YES
be allowed to see the Judgment?
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
JUDGMENT (Oral)
1. The appellants have challenged the award of the learned
Tribunal whereby their claim petition was dismissed.
th
2. The accident dated 10 March, 2003 resulted in the death
of six years old child, named, Vijay. The deceased was crossing
the road when he was hit by truck bearing No.DL-1GB-1381. The
rear wheel of the truck run over the child. The deceased was
taken to Sushruta Trauma Centre, Civil Lines, Delhi where his
th
right leg was amputated and he expired on 10 April, 2003.
3. The deceased was survived by his parents who filed the
claim petition before the learned Tribunal.
MAC.APP. No.642/2005 Page 1 of 20
4. Appellant No.1 is the father of the deceased who appeared
in the witness box before the learned Tribunal as PW-1 and
deposed that the deceased was his son and was hit by truck
th
bearing No.DL-1GB-1381 on 10 March, 2003 at about 6:45pm.
PW-1 further deposed that the deceased was crushed under the
rear wheel of the truck and he was taken to Sushruta Trauma
Centre, Civil Lines, Delhi where his right leg was amputated and
th
the deceased died on 10 April, 2003.
th
5. PW-1 proved the certified copy of FIR No.57/03 dated 10
March, 2003 – Ex.PW1/1, the challan – Ex.PW1/2, site plan -
Ex.PW1/3, seizure memo of the offending truck – Ex.PW1/4,
superdarinama – Ex.PW1/5, notice under Section 133 of the Motor
Vehicles Act – Ex.PW1/6, mechanical inspection report – Ex.PW1/7
and driving licence – Ex.PW1/8. PW-1 further deposed that the
deceased was treated at Sushruta Trauma Centre and
Rs.15,000/- were spent at his treatment and medicines and
Rs.5,000/- on conveyance. The MLC was exhibited as Ex.PW1/10
and the post-mortem report was exhibited as Ex.PW1/11. The
death summary was exhibited as Ex.PW1/13, death certificate
was exhibited as Ex.PW1/14 and the receipt of the dead body was
exhibited as Ex.PW1/15. PW1 further deposed that he wanted to
educate the deceased and make him an officer in Civil Services or
Armed Forces.
6. PW-2 is the eye-witness who deposed that the deceased
was crossing the road when the offending truck bearing No.DL-
1GB-1381 hit the deceased. The statement of PW2 was recorded
MAC.APP. No.642/2005 Page 2 of 20
by the police. PW-2 produced the statement recorded by the
police. PW-2 further deposed that the driver of the truck escaped
after the accident leaving behind the truck which was seized by
the police. PW-2 identified the driver at the police station.
7. Dr. B.N. Acharya from Forensic Department, Babu Jagjivan
Ram Hospital appeared as PW-3 and proved the post-mortem
report of the deceased.
8. Dr. Jitender Kumar from Sushruta Trauma Centre appeared
as PW-4 and proved the medical record – Ex.PW4/A (Colly.). PW-4
had treated the deceased at Sushruta Trauma Centre.
9. The learned Tribunal dismissed the claim petition on the
th
ground that although the accident dated 10 March, 2003
involving truck bearing No.DL-1GB-1381 resulted in the death of
six year old child but it has not been proved that the child,
named, Vijay died in the road accident. The learned Tribunal
further observed that it has not been established whether the
appellants have any son, named, Vijay and whether the child who
died in the road accident was Vijay. The learned Tribunal gave a
finding that the appellants have made a false and fabricated
claim to claim the compensation in respect of a child who died in
the road accident. The learned Tribunal further observed that
there was no proof that the appellants were the parents of the
deceased child.
th
10. Vide order dated 29 April, 2009, SDM, Narela, Delhi was
directed to conduct an inquiry to ascertain whether appellant
MAC.APP. No.642/2005 Page 3 of 20
No.1 is the father of the deceased child, Vijay who met with the
th
road accident on 10 March, 2003.
11. In pursuance to the aforesaid directions, SDM, Narela, Delhi
conducted an inquiry and submitted his report before this Court
th
on 20 July, 2009 in which he gave the finding that the child who
th
died in the road accident dated 10 March, 2003 was named
Vijay and the appellants are the parents of the said child. The
finding of the learned SDM are reproduced hereunder:-
“Findings:
During the inquiry, the undersigned found that
Sh. Ramai S/o Jokhu belongs to Vill: Rasulpur, Dist
Ambedkar Nagar, Uttar Pradesh. His psychological
condition seems to be little less than normal and is a
semi literate person who is barely able to sign. He
does not possess even Ration Card. As per his and
his neighbour’s statement he is staying in the village
Lampur for the last 20 years and sometimes his
family used to stay with him but most of the time
they stayed back in his native place in U.P. The
statements narrated same sequence of event, which
is, in the morning Ramai went to Kundli for work.
There he was informed that his son is missing. In
Lampur his neighbours were searching for the boy.
Only recently Ramai’s family had come to Lampur.
In the evening finally they went to PS Narela where
they were shown one missing boy who was not Vijay
and then they were informed that one boy was
admitted in Trauma Centre. In Trauma Centre,
Ramai identified his son Vijay who was in emergency
ward and who succumbed to injury after one month
of treatment.
I have gone through the statements recorded
above and had interaction with Ramai and his
neighbours and has no reason to disbelieve that the
deceased is son of Ramai. So, I hold that the
deceased is the son of Ramai who met with an
accident on Bawana Road on 10.03.2003 and was
admitted in Trauma Centre and who finally
succumbed to his injuries later on 10.04.2003.”
MAC.APP. No.642/2005 Page 4 of 20
12. The inquiry report of the learned SDM was considered and
th
accepted by this Court on 20 July, 2009. Respondent No.3 has
not raised any objection to the said report. It has, thus, been
sufficiently proved that the deceased was the son of the
appellants.
13. The learned Tribunal has not computed the compensation
to which the appellants are entitled. The deceased was aged six
years at the time of the accident. The deceased was the only son
of the appellants. The law with respect to the computation of
compensation in respect of the death of a child is well settled in
the recent case of National Insurance Co. Ltd. vs. Farzana,
th
MAC.APP.No.13/2007 decided on 14 July, 2009 which
related to the death of a child aged seven years in which this
Court has determined the compensation of Rs.3,75,000/-
following the judgments of the Hon’ble Supreme Court and this
Court in the cases of Manju Devi Vs. Musafir Paswan, VII
(2005) SLT 257, Sobhagya Devi Vs. Sukhvir Singh, II
(2006) ACC 1997, Syam Narayan Vs. Kitty Tours & Travels,
2006 ACJ 320, R.K. Malik vs. Kiran Pal, III (2006) ACC 261,
R.K. Malik vs. Kiran Pal, 2009(8) Scale 451 . The relevant
findings of this Court are reproduced hereunder: -
“4. In the case of Manju Devi Vs. Musafir
Paswan, VII (2005) SLT 257, the Hon’ble Supreme
Court awarded compensation of Rs.2,25,000/- in
respect of death of a 13-years old boy by applying
the multiplier of 15 and taking the notional income of
Rs.15,000/- as per the Second Schedule of the Motor
Vehicles Act. The relevant portion of the said
judgment is reproduced hereunder:-
MAC.APP. No.642/2005 Page 5 of 20
“As set out in the Second Schedule to the
Motor Vehicles Act, 1988, for a boy of 13
years of age, a multiplier of 15 would have
to be applied. As per the Second
Schedule, he being a non-earning person,
a sum of Rs.15,000/- must be taken as the
income. Thus, the compensation comes to
Rs.2,25,000/-“
5. The case of Sobhagya Devi & Ors. Vs.
Sukhvir Singh & Ors., II (2006) ACC 1997 relates
to the death of a 12-year old boy. Following the
decision of the Apex Court in Manju Devi’s case
(supra) , the Rajasthan High Court awarded
Rs.2,25,000/- by applying the Second Schedule of the
Motor Vehicles Act.
6. The case of Syam Narayan Vs. Kitty Tours &
Travels, 2006 ACJ 320 relates to the death of a
child aged 5 years. This Court relying on the
judgment of the Apex Court in Manju Devi’s case
(supra) awarded compensation to the parents by
applying the notional income of Rs.15,000/- and
multiplier of 15 as per the Second Schedule and
further awarded Rs.50,000/- for loss of company of
the child as also pain and suffering by them. The
relevant portion of the said judgment is reproduced
hereunder:-
“3. By and under the award dated
5.12.2003, a sum of Rs.1,00,000/- has
been awarded to the appellants. While
awarding sum of Rs.1,00,000/- to
appellants, learned M.A.C.T. has held that
the income of the deceased child was
incapable of assessment or estimation.
Recognising that every parent has a
reasonable expectation of financial and
moral support from his child, in the
absence of any evidence led, learned
M.A.C.T. opined that the interest of justice
requires that appellants are compensated
with the sum of Rs.1,00,000/-.
4. Had the Tribunal peeped into the
Second Schedule, as per section 163-A of
Motor Vehicles Act, 1988, it would have
dawned on the Tribunal that vide serial
No.6, notional income for compensation in
case of fatal accidents has been stipulated
at Rs.15,000/- per annum.
MAC.APP. No.642/2005 Page 6 of 20
5. In the decision reported as Manju
Devi V. Musafir Paswan, 2005 ACJ 99 (SC),
dealing with the accidental death of 13
years old boy, while awarding
compensation under the Motor Vehicles
Act, 1988, Apex Court took into account
the notional income stipulated in the
Second Schedule being Rs.15,000/- per
annum.
6. In the instant case, baby Chanda was
aged 5 years. Age of the appellants as on
date of accident was 28 years and 26
years respectively as recorded in the
impugned award. Applying a multiplier of
15 as set out in Second Schedule which
refers to the said multiplier, where age of
the victim is upto 15 years, compensation
determinable comes to Rs.15,000 x 15 =
Rs.2,25,000/-.
7. The learned Tribunal has awarded
Rs.1,00,000/- towards loss of expectation
of financial and moral support as also loss
of company of the child, mental agony,
etc. I have found that the parents are
entitled to compensation in the sum of
Rs.2,25,000/- on account of loss of
financial support from the deceased child.
I award a sum of Rs.50,000/- on account of
loss of company of the child as also pain
and suffering suffered by them as a result
of the untimely death of baby Chanda.
Appeal accordingly stands disposed of
enhancing the compensation to
Rs.2,75,000/-.
7. In the case of R.K. Malik vs. Kiran Pal, III
(2006) ACC 261, 22 children died in an accident of a
school bus which fell in river Yamuna. This Court
held the Second Schedule of the Motor Vehicles Act
to be the appropriate method for computing the
compensation. With respect to the non-pecuniary
damages, the Court observed that loss of
dependency of life and pain and suffering on that
account, generally speaking is same and uniform to
all regardless of status unless there is a specific case
made out for deviation. This Court awarded
Rs.75,000/- towards non-pecuniary compensation.
8. The aforesaid judgment of this Court was
challenged before the Hon’ble Supreme Court and
th
which has been decided recently on 15 May, 2009
MAC.APP. No.642/2005 Page 7 of 20
and is reported as R.K. Malik vs. Kiran Pal,
2009(8) Scale 451 . The Hon’ble Supreme Court
held that the claimants are also entitled to
compensation towards future prospects. The Hon’ble
Supreme Court held that the claimants are entitled to
compensate towards future prospects and granted
further compensation of Rs.75,000/- towards future
prospects of the children. The findings of the Hon’ble
Supreme Court are as under:-
“19. The other issue is with regard to non-
pecuniary compensation to the appellants-
dependents on the loss of human life, loss
of company, companionship, happiness,
pain and suffering, loss of expectation of
life etc.
20. In the Halsbury's Laws of England,
4th Edition, Vol. 12, page 446, it has been
stated with regard to non-pecuniary loss
as follows:
“Non-pecuniary loss: the pattern.
Damages awarded for pain and
suffering and loss of amenity
constitute a conventional sum which
is taken to be the sum which society
deems fair, fairness being
interpreted by the Courts in the light
of previous decisions. Thus there has
been evolved a set of conventional
principles providing a provisional
guide to the comparative severity of
different injuries, and indicating a
bracket of damages into which a
particular injury will currently fall.
The particular circumstance of the
plaintiff, including his age and any
unusual deprivation he may suffer, is
reflected in the actual amount of the
award. The fall in the value of money
leads to a continuing reassessment
of these awards and to periodic
reassessments of damages at certain
key points in the pattern where the
disability is readily identifiable and
not subject to large variations in
individual cases.
21. In the case of Ward v. James (1965) I
All E R 563, it was observed:
MAC.APP. No.642/2005 Page 8 of 20
“Although you cannot give a man so
gravely injured much for his `lost
years', you can, however,
compensate him for his loss during
his shortened, span, that is, during
his expected `years of survival'. You
can compensate him for his loss of
earnings during that time, and for
the cost of treatment, nursing and
attendance. But how can you
compensate him for being rendered
a helpless invalid? He may, owing to
brain injury, be rendered
unconscious for the rest of his days,
or, owing to a back injury, be unable
to rise from his bed. He has lost
everything that makes life
worthwhile. Money is no good to him.
Yet Judges and juries have to do the
best they can and give him what
they think is fair. No wonder they
find it well nigh insoluble. They are
being asked to calculable. The figure
is bound to be for the most part a
conventional sum. The Judges have
worked out a pattern, and they keep
it in line with the changes in the
value of money.
22. The Supreme Court in the case of R.D.
Hattangadi v. Pest Control (India) (P) Ltd.,
(1995) 1 SCC 551, at page 556, has
observed as follows in para 9:
“9. Broadly speaking while fixing an
amount of compensation payable to
a victim of an accident, the damages
have to be assessed separately as
pecuniary damages and special
damages. Pecuniary damages are
those which the victim has actually
incurred and which are capable of
being calculated in terms of money;
whereas non-pecuniary damages are
those which are incapable of being
assessed by arithmetical
calculations. In order to appreciate
two concepts pecuniary damages
may include expenses incurred by
the claimant: (i) medical attendance;
(ii) loss of earning of profit up to the
date of trial; (iii) other material loss.
MAC.APP. No.642/2005 Page 9 of 20
So far non-pecuniary damages are
concerned, they may include (i)
damages for mental and physical
shock, pain and suffering, already
suffered or likely to be suffered in
future; (ii) damages to compensate
for the loss of amenities of life which
may include a variety of matters i.e.
on account of injury the claimant
may not be able to walk, run or sit;
(iii) damages for the loss of
expectation of life, i.e., on account of
injury the normal longevity of the
person concerned is shortened; (iv)
inconvenience, hardship, discomfort,
disappointment, frustration and
mental stress in life.”
In this case, the Court awarded non-
pecuniary special damages of Rs. 3,
00,000/- to the claimants.
23. In Common Cause, A Registered
Society v. Union of India (1999) 6 SCC 667
@ page 738, it was observed:
“128. The object of an award of
damages is to give the plaintiff
compensation for damage, loss or
injury he has suffered. The elements
of damage recognised by law are
divisible into two main groups:
pecuniary and non-pecuniary. While
the pecuniary loss is capable of
being arithmetically worked out, the
non-pecuniary loss is not so
calculable. Non-pecuniary loss is
compensated in terms of money, not
as a substitute or replacement for
other money, but as a substitute,
what McGregor says, is generally
more important than money: it is the
best that a court can do. In Mediana,
Re Lord Halsbury, L.C. observed as
under: “How is anybody to measure
pain and suffering in moneys
counted? Nobody can suggest that
you can by arithmetical calculation
establish what is the exact sum of
money which would represent such a
thing as the pain and suffering which
a person has undergone by reason of
MAC.APP. No.642/2005 Page 10 of 20
an accident.... But nevertheless the
law recognises that as a topic upon
which damages may be given.”
24. It is extremely difficult to quantify the
non pecuniary compensation as it is to a
great extent based upon the sentiments
and emotions. But, the same could not be
a ground for non-payment of any amount
whatsoever by stating that it is difficult to
quantify and pinpoint the exact amount
payable with mathematical accuracy.
Human life cannot be measured only in
terms of loss of earning or monetary
losses alone. There are emotional
attachments involved and loss of a child
can have a devastating effect on the
family which can be easily visualized and
understood. Perhaps, the only mechanism
known to law in this kind of situation is to
compensate a person who has suffered
non-pecuniary loss or damage as a
consequence of the wrong done to him by
way of damages/monetary compensation.
Undoubtedly, when a victim of a wrong
suffers injuries he is entitled to
compensation including compensation for
the prospective life, pain and suffering,
happiness etc., which is sometimes
described as compensation paid for "loss
of expectation of life". This head of
compensation need not be restricted to a
case where the injured person himself
initiates action but is equally admissible if
his dependant brings about the action.
25. That being the position, the crucial
problem arises with regard to the
quantification of such compensation. The
injury inflicted by deprivation of the life of
a child is extremely difficult to quantify. In
view of the uncertainties and
contingencies of human life, what would
be an appropriate figure, an adequate
solatium is difficult to specify. The courts
have therefore used the expression
"standard compensation" and
"conventional amount/sum" to get over
the difficulty that arises in quantifying a
figure as the same ensures consistency
and uniformity in awarding
compensations.
MAC.APP. No.642/2005 Page 11 of 20
26. While quantifying and arriving at a
figure for "loss of expectation of life", the
Court have to keep in mind that this figure
is not to be calculated for the prospective
loss or further pecuniary benefits that has
been awarded under another head i.e.
pecuniary loss. The compensation payable
under this head is for loss of life and not
loss of future pecuniary prospects. Under
this head, compensation is paid for
termination of life, which results in
constant pain and suffering. This pain and
suffering does not depend upon the
financial position of the victim or the
claimant but rather on the capacity and
the ability of the deceased to provide
happiness to the claimant. This
compensation is paid for loss of
prospective happiness which the
claimant/victim would have enjoyed had
the child not been died at the tender age.
27. In the case of Lata Wadhwa (supra),
wherein several persons including children
lost their lives in a fire accident, the Court
awarded substantial amount as
compensation. No doubt, the Court
noticed that the children who lost their
lives were studying in an expensive
school, had bright prospects and belonged
to upper middle class, yet it cannot be
said that higher compensation awarded
was for deprivation of life and the pain
and suffering undergone on loss of life due
to financial status. The term "conventional
compensation" used in the said case has
been used for non pecuniary
compensation payable on account of pain
and suffering as a result of death. The
Court in the said case referred to Rs. 50,
000/- as conventional figure. The reason
was loss of expectancy of life and pain and
suffering on that account which was
common and uniform to all regardless of
the status. Unless there is a specific case
departing from the conventional formula,
non- pecuniary compensation should not
be fixed on basis of economic wealth and
background.
28. In Lata Wadhawa case (supra),
wherein the accident took place on
MAC.APP. No.642/2005 Page 12 of 20
03.03.1989, the multiplier method was
referred to and adopted with approval. In
cases of children between 5 to 10 years of
age, compensation of Rs. 1.50 lakhs was
awarded towards pecuniary compensation
and in addition a sum of Rs. 50,000/- was
awarded towards `conventional
compensation". In the case of children
between 10 to 18 years compensation of
Rs. 4.10 lakhs was awarded including
"conventional compensation". While doing
so the Supreme Court held that
contribution of each child towards family
should be taken as Rs. 24,000/- per
annum instead of Rs. 12, 000/- per annum
as recommended by Justice Y.
V.Chandrachud Committee. This was in
view of the fact that the company in
question had an un-written rule that every
employee can get one of his children
employed in the said company.
29. In the case of M.S. Grewal v. Deep
Chand Sood MANU/SC/0506/2001, wherein
14 students of a public school got
drowned in a river due to negligence of
the teachers. On the question of quantum
of compensation, this Court accepted that
the multiplier method was normally to be
adopted as a method for assigning value
of future annual dependency. It was
emphasized that the Court must ensure
that a just compensation was awarded.
30. In Grewal case (supra), compensation
of Rs. 5 lakhs was awarded to the
claimants and the same was held to be
justified. Learned Counsel for the
respondent No. 3, however, pointed out
that in the said case the Supreme Court
had noticed that the students belonged to
an affluent school as was apparent from
the fee structure and therefore the
compensation of Rs. 5 lakhs as awarded
by the High Court was not found to be
excessive. It is no doubt true that the
Supreme Court in the said case noticed
that the students belonged to an upper
middle class background but the basis and
the principle on which the compensation
was awarded in that case would equally
apply to the present case.
MAC.APP. No.642/2005 Page 13 of 20
31. A forceful submission has been made
by the learned Counsels appearing for the
claimants-appellants that both the
Tribunal as well as the High Court failed to
consider the claims of the appellants with
regard to the future prospects of the
children. It has been submitted that the
evidence with regard to the same has
been ignored by the Courts below. On
perusal of the evidence on record, we find
merit in such submission that the Courts
below have overlooked that aspect of the
matter while granting compensation. It is
well settled legal principle that in addition
to awarding compensation for pecuniary
losses, compensation must also be
granted with regard to the future
prospects of the children. It is incumbent
upon the Courts to consider the said
aspect while awarding compensation.
Reliance in this regard may be placed on
the decisions rendered by this Court in
General Manager, Kerala S. R. T. C. v.
Susamma Thomas(1994) 2 SCC 176; Sarla
Dixit v. Balwant Yadav (1996) 3 SCC 179;
and Lata Wadhwa case (supra).
32. In view of discussion made
hereinbefore, it is quite clear the claim
with regard to future prospect should have
been be addressed by the courts below.
While considering such claims, child's
performance in school, the reputation of
the school etc. might be taken into
consideration. In the present case, records
shows 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. But as already
noted, they were performing well in
studies, natural consequence supposed to
be a bright future. In the case of Lata
Wadhwa (supra) and M. S. Grewal (supra),
the Supreme Court recognised such future
prospect as basis and factor to be
considered. Therefore, denying
compensation towards future prospects
seems to be unjustified. Keeping this in
background, facts and circumstances of
MAC.APP. No.642/2005 Page 14 of 20
the present case, and following the
decision in Lata Wadhwa (supra) and M. S.
Grewal (supra), we deem it appropriate to
grant compensation of Rs. 75,000/- (which
is roughly half of the amount given on
account of pecuniary damages) as
compensation for the future prospects of
the children, to be paid to each claimant
within one month of the date of this
decision. We would like to clarify that this
amount i.e. Rs. 75,000/- is over and above
what has been awarded by the High Court.
33. Besides, the Courts have been
awarding compensation for pain and
suffering and towards non-pecuniary
damages. Reference in this regard can be
made to R. D. Hattangadi case (supra).
Further, the said compensation must be
just and reasonable. This Court has
observed as follows in State of Haryana v.
Jasbir Kaur (2003) 7 SCC 484:
“7. It has to be kept in view that the
Tribunal constituted under the Act as
provided in Section 168 is required
to make an award determining the
amount of compensation which is to
be in the real sense "damages"
which in turn appears to it to be "just
and reasonable". It has to be borne
in mind that compensation for loss of
limbs or life can hardly be weighed in
golden scales. But at the same time
it has to be borne in mind that the
compensation is not expected to be
a windfall for the victim. Statutory
provisions clearly indicate that the
compensation must be "just" and it
cannot be a bonanza; not a source of
profit; but the same should not be a
pittance. The courts and tribunals
have a duty to weigh the various
factors and quantify the amount of
compensation, which should be just.
What would be "just" compensation
is a vexed question. There can be no
golden rule applicable to all cases for
measuring the value of human life or
a limb. Measure of damages cannot
be arrived at by precise
mathematical calculations. It would
MAC.APP. No.642/2005 Page 15 of 20
depend upon the particular facts and
circumstances, and attending
peculiar or special features, if any.
Every method or mode adopted for
assessing compensation has to be
considered in the background of
"just" compensation which is the
pivotal consideration. Though by use
of the expression "which appears to
it to be just" a wide discretion is
vested in the Tribunal, the
determination has to be rational, to
be done by a judicious approach and
not the outcome of whims, wild
guesses and arbitrariness. The
expression "just" denotes
equitability, fairness and
reasonableness, and non-arbitrary. If
it is not so it cannot be just.”
34. So far as the pecuniary damage is
concerned we are of the considered view
both the Tribunal as well as the High Court
has awarded the compensation on the
basis of Second Schedule and relevant
multiplier under the Act. However, we may
notice here that as far as non-pecuniary
damages are concerned, the Tribunal does
not award any compensation under the
head of non-pecuniary damages. However,
in appeal the High Court has elaborately
discussed this aspect of the matter and
has awarded non-pecuniary damages of
Rs. 75,000. Needless to say, pecuniary
damages seeks to compensate those
losses which can be translated into money
terms like loss of earnings, actual and
prospective earning and other out of
pocket expenses. In contrast, non-
pecuniary damages include such
immeasurable elements as pain and
suffering and loss of amenity and
enjoyment of life. In this context, it
becomes duty of the court to award just
compensation for non-pecuniary loss. As
already noted it is difficult to quantify the
non-pecuniary compensation,
nevertheless, the endeavour of the Court
must be to provide a just, fair and
reasonable amount as compensation
keeping in view all relevant facts and
circumstances into consideration. We have
MAC.APP. No.642/2005 Page 16 of 20
noticed that the High Court in present
case has enhanced the compensation in
this category by Rs. 75, 000/- in all
connected appeals. We do not find any
infirmity in that regard.”
9. The learned Tribunal was in error in taking the
notional income to be Rs.22,500/- per annum.
Following the aforesaid judgments, the notional
income of the deceased is taken to be Rs.15,000/-
per annum and applying the multiplier of 15, the
claimants are entitled to loss of dependency of
Rs.2,25,000/-. The claimants are also entitled to
compensation of Rs.75,000/- towards the future
prospects in terms of the judgment of the Hon’ble
Supreme Court in R.K. Malik Vs. Kiran Pal, 2009
(8) Scale 451 . The claimants are also entitled to a
further sum of Rs.75,000/- towards non-pecuniary
damages in terms of the judgment of this Court in the
case of R.K. Malik Vs. Kiran Pal, III (2006) ACC
261 upheld by the Hon’ble Supreme Court. The
claimants are entitled to total compensation of
Rs.3,75,000/- (Rs.2,25,000/- + Rs.75,000/- +
Rs.75,000/-).”
14. The learned counsel for the appellant submits that the
principles of law laid down in the above cases are applicable to
the present case. In the case of National Insurance Company
Ltd. Vs. Farzana (Supra), it has been held that the parents of
the child aged 7 are entitled to pecuniary compensation of
Rs.2,25,000/- according to the Second Schedule of the Motor
Vehicles Act. Further Rs.75,000/- has been awarded as non-
pecuniary damages following the judgment of this Court in the
case of R.K. Malik vs. Kiran Pal, III (2006) ACC 261.
Rs.75,000/- has been awarded towards future prospects following
the judgment of the Hon’ble Supreme Court in the case of R.K.
Malik vs. Kiran Pal, 2009(8) Scale 451 .
15. This case is squarely covered by the aforesaid judgment of
this Court which related to the case of 7 year old child whereas
MAC.APP. No.642/2005 Page 17 of 20
the deceased in the present case was also 6 years old. Following
the aforesaid judgment, Rs.2,25,000/- is awarded towards
pecuniary damages following the Second Schedule of the Motor
Vehicles Act, Rs.75,000/- is awarded towards non-pecuniary
damages and Rs.75,000/- is awarded towards future prospects.
The total compensation awarded is Rs.3,75,000/-.
16. Following the aforesaid judgment of this Court and other
judgments followed therein, the appeal is allowed and the
compensation of Rs.3,75,000/- is awarded to the appellants along
with interest @7.5% per annum.
17. The offending vehicle was validly insured with respondent
No.3 vide policy No.311702/31/02/00586 at the time of the
accident which is admitted in paras 9 and 11 of the written
statement of respondent No.3 filed before the learned Tribunal.
Respondent No.3 is, therefore, liable to satisfy the impugned
award.
18. Respondent No.3 is directed to deposit the impugned award
along with interest thereon within 60 days. The deposit be made
by means of a cheque drawn in the name of UCO Bank A/c Ramai.
19. Upon the aforesaid deposit being made, UCO Bank is
directed to release a sum of Rs.50,000/- to the appellants and the
remaining amount be kept in fixed deposit in the joint name of
the appellants for a period of seven years on which monthly
interest be paid to them.
MAC.APP. No.642/2005 Page 18 of 20
20. The interest on the aforesaid fixed deposit shall be paid
monthly by automatic credit of interest in the Savings Account of
the appellants.
21. No cheque book be issued to the appellants without the
permission of this Court.
22. The original Fixed Deposit Receipt shall be retained by the
Bank in the safe custody. However, the original Pass Book shall
be given to the appellants along with the photocopy of the FDR.
23. The original Fixed Deposit Receipt shall be handed over to
the appellants at the end of the fixed deposit period.
24. No loan, advance or withdrawal shall be allowed on the said
Fixed Deposit Receipt without the permission of this Court.
25. Half yearly statement of account be filed by the Bank in this
Court.
26. On the request of the appellants, the Bank shall transfer the
Savings Account to any other branch of UCO Bank in Delhi
according to the convenience of the claimants.
27. The appellants shall furnish all the relevant documents for
opening of the Saving Bank Accounts and Fixed Deposit Accounts
to Mr. M.M. Tandon, Member-Retail Team, UCO Bank Zonal,
Parliament Street, New Delhi (Mobile No. 09310356400).
th
28. List for directions before this Court on 6 October, 2009.
29. Copy of the order be given dasti to counsel for both the
parties under the signatures of the Court Master.
30. Copy of this order be also sent to Mr. M.M. Tandon, Member-
Retail Team, UCO Bank Zonal, Parliament Street, New Delhi
MAC.APP. No.642/2005 Page 19 of 20
(Mobile No. 09310356400) through the UCO Bank, High Court
Branch under the signature of Court Master.
J.R. MIDHA, J
AUGUST 19, 2009
aj
MAC.APP. No.642/2005 Page 20 of 20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC.APP.642/2005
th
% Date of decision: 19 August, 2009
RAMAI & ANR ..... Appellants
Through : Mr. Sudhir Kumar Sharma, Adv.
versus
BACHCHU SINGH & ORS ..... Respondents
Through : Mr. Kanwal Choudhary, Adv.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may YES
be allowed to see the Judgment?
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
JUDGMENT (Oral)
1. The appellants have challenged the award of the learned
Tribunal whereby their claim petition was dismissed.
th
2. The accident dated 10 March, 2003 resulted in the death
of six years old child, named, Vijay. The deceased was crossing
the road when he was hit by truck bearing No.DL-1GB-1381. The
rear wheel of the truck run over the child. The deceased was
taken to Sushruta Trauma Centre, Civil Lines, Delhi where his
th
right leg was amputated and he expired on 10 April, 2003.
3. The deceased was survived by his parents who filed the
claim petition before the learned Tribunal.
MAC.APP. No.642/2005 Page 1 of 20
4. Appellant No.1 is the father of the deceased who appeared
in the witness box before the learned Tribunal as PW-1 and
deposed that the deceased was his son and was hit by truck
th
bearing No.DL-1GB-1381 on 10 March, 2003 at about 6:45pm.
PW-1 further deposed that the deceased was crushed under the
rear wheel of the truck and he was taken to Sushruta Trauma
Centre, Civil Lines, Delhi where his right leg was amputated and
th
the deceased died on 10 April, 2003.
th
5. PW-1 proved the certified copy of FIR No.57/03 dated 10
March, 2003 – Ex.PW1/1, the challan – Ex.PW1/2, site plan -
Ex.PW1/3, seizure memo of the offending truck – Ex.PW1/4,
superdarinama – Ex.PW1/5, notice under Section 133 of the Motor
Vehicles Act – Ex.PW1/6, mechanical inspection report – Ex.PW1/7
and driving licence – Ex.PW1/8. PW-1 further deposed that the
deceased was treated at Sushruta Trauma Centre and
Rs.15,000/- were spent at his treatment and medicines and
Rs.5,000/- on conveyance. The MLC was exhibited as Ex.PW1/10
and the post-mortem report was exhibited as Ex.PW1/11. The
death summary was exhibited as Ex.PW1/13, death certificate
was exhibited as Ex.PW1/14 and the receipt of the dead body was
exhibited as Ex.PW1/15. PW1 further deposed that he wanted to
educate the deceased and make him an officer in Civil Services or
Armed Forces.
6. PW-2 is the eye-witness who deposed that the deceased
was crossing the road when the offending truck bearing No.DL-
1GB-1381 hit the deceased. The statement of PW2 was recorded
MAC.APP. No.642/2005 Page 2 of 20
by the police. PW-2 produced the statement recorded by the
police. PW-2 further deposed that the driver of the truck escaped
after the accident leaving behind the truck which was seized by
the police. PW-2 identified the driver at the police station.
7. Dr. B.N. Acharya from Forensic Department, Babu Jagjivan
Ram Hospital appeared as PW-3 and proved the post-mortem
report of the deceased.
8. Dr. Jitender Kumar from Sushruta Trauma Centre appeared
as PW-4 and proved the medical record – Ex.PW4/A (Colly.). PW-4
had treated the deceased at Sushruta Trauma Centre.
9. The learned Tribunal dismissed the claim petition on the
th
ground that although the accident dated 10 March, 2003
involving truck bearing No.DL-1GB-1381 resulted in the death of
six year old child but it has not been proved that the child,
named, Vijay died in the road accident. The learned Tribunal
further observed that it has not been established whether the
appellants have any son, named, Vijay and whether the child who
died in the road accident was Vijay. The learned Tribunal gave a
finding that the appellants have made a false and fabricated
claim to claim the compensation in respect of a child who died in
the road accident. The learned Tribunal further observed that
there was no proof that the appellants were the parents of the
deceased child.
th
10. Vide order dated 29 April, 2009, SDM, Narela, Delhi was
directed to conduct an inquiry to ascertain whether appellant
MAC.APP. No.642/2005 Page 3 of 20
No.1 is the father of the deceased child, Vijay who met with the
th
road accident on 10 March, 2003.
11. In pursuance to the aforesaid directions, SDM, Narela, Delhi
conducted an inquiry and submitted his report before this Court
th
on 20 July, 2009 in which he gave the finding that the child who
th
died in the road accident dated 10 March, 2003 was named
Vijay and the appellants are the parents of the said child. The
finding of the learned SDM are reproduced hereunder:-
“Findings:
During the inquiry, the undersigned found that
Sh. Ramai S/o Jokhu belongs to Vill: Rasulpur, Dist
Ambedkar Nagar, Uttar Pradesh. His psychological
condition seems to be little less than normal and is a
semi literate person who is barely able to sign. He
does not possess even Ration Card. As per his and
his neighbour’s statement he is staying in the village
Lampur for the last 20 years and sometimes his
family used to stay with him but most of the time
they stayed back in his native place in U.P. The
statements narrated same sequence of event, which
is, in the morning Ramai went to Kundli for work.
There he was informed that his son is missing. In
Lampur his neighbours were searching for the boy.
Only recently Ramai’s family had come to Lampur.
In the evening finally they went to PS Narela where
they were shown one missing boy who was not Vijay
and then they were informed that one boy was
admitted in Trauma Centre. In Trauma Centre,
Ramai identified his son Vijay who was in emergency
ward and who succumbed to injury after one month
of treatment.
I have gone through the statements recorded
above and had interaction with Ramai and his
neighbours and has no reason to disbelieve that the
deceased is son of Ramai. So, I hold that the
deceased is the son of Ramai who met with an
accident on Bawana Road on 10.03.2003 and was
admitted in Trauma Centre and who finally
succumbed to his injuries later on 10.04.2003.”
MAC.APP. No.642/2005 Page 4 of 20
12. The inquiry report of the learned SDM was considered and
th
accepted by this Court on 20 July, 2009. Respondent No.3 has
not raised any objection to the said report. It has, thus, been
sufficiently proved that the deceased was the son of the
appellants.
13. The learned Tribunal has not computed the compensation
to which the appellants are entitled. The deceased was aged six
years at the time of the accident. The deceased was the only son
of the appellants. The law with respect to the computation of
compensation in respect of the death of a child is well settled in
the recent case of National Insurance Co. Ltd. vs. Farzana,
th
MAC.APP.No.13/2007 decided on 14 July, 2009 which
related to the death of a child aged seven years in which this
Court has determined the compensation of Rs.3,75,000/-
following the judgments of the Hon’ble Supreme Court and this
Court in the cases of Manju Devi Vs. Musafir Paswan, VII
(2005) SLT 257, Sobhagya Devi Vs. Sukhvir Singh, II
(2006) ACC 1997, Syam Narayan Vs. Kitty Tours & Travels,
2006 ACJ 320, R.K. Malik vs. Kiran Pal, III (2006) ACC 261,
R.K. Malik vs. Kiran Pal, 2009(8) Scale 451 . The relevant
findings of this Court are reproduced hereunder: -
“4. In the case of Manju Devi Vs. Musafir
Paswan, VII (2005) SLT 257, the Hon’ble Supreme
Court awarded compensation of Rs.2,25,000/- in
respect of death of a 13-years old boy by applying
the multiplier of 15 and taking the notional income of
Rs.15,000/- as per the Second Schedule of the Motor
Vehicles Act. The relevant portion of the said
judgment is reproduced hereunder:-
MAC.APP. No.642/2005 Page 5 of 20
“As set out in the Second Schedule to the
Motor Vehicles Act, 1988, for a boy of 13
years of age, a multiplier of 15 would have
to be applied. As per the Second
Schedule, he being a non-earning person,
a sum of Rs.15,000/- must be taken as the
income. Thus, the compensation comes to
Rs.2,25,000/-“
5. The case of Sobhagya Devi & Ors. Vs.
Sukhvir Singh & Ors., II (2006) ACC 1997 relates
to the death of a 12-year old boy. Following the
decision of the Apex Court in Manju Devi’s case
(supra) , the Rajasthan High Court awarded
Rs.2,25,000/- by applying the Second Schedule of the
Motor Vehicles Act.
6. The case of Syam Narayan Vs. Kitty Tours &
Travels, 2006 ACJ 320 relates to the death of a
child aged 5 years. This Court relying on the
judgment of the Apex Court in Manju Devi’s case
(supra) awarded compensation to the parents by
applying the notional income of Rs.15,000/- and
multiplier of 15 as per the Second Schedule and
further awarded Rs.50,000/- for loss of company of
the child as also pain and suffering by them. The
relevant portion of the said judgment is reproduced
hereunder:-
“3. By and under the award dated
5.12.2003, a sum of Rs.1,00,000/- has
been awarded to the appellants. While
awarding sum of Rs.1,00,000/- to
appellants, learned M.A.C.T. has held that
the income of the deceased child was
incapable of assessment or estimation.
Recognising that every parent has a
reasonable expectation of financial and
moral support from his child, in the
absence of any evidence led, learned
M.A.C.T. opined that the interest of justice
requires that appellants are compensated
with the sum of Rs.1,00,000/-.
4. Had the Tribunal peeped into the
Second Schedule, as per section 163-A of
Motor Vehicles Act, 1988, it would have
dawned on the Tribunal that vide serial
No.6, notional income for compensation in
case of fatal accidents has been stipulated
at Rs.15,000/- per annum.
MAC.APP. No.642/2005 Page 6 of 20
5. In the decision reported as Manju
Devi V. Musafir Paswan, 2005 ACJ 99 (SC),
dealing with the accidental death of 13
years old boy, while awarding
compensation under the Motor Vehicles
Act, 1988, Apex Court took into account
the notional income stipulated in the
Second Schedule being Rs.15,000/- per
annum.
6. In the instant case, baby Chanda was
aged 5 years. Age of the appellants as on
date of accident was 28 years and 26
years respectively as recorded in the
impugned award. Applying a multiplier of
15 as set out in Second Schedule which
refers to the said multiplier, where age of
the victim is upto 15 years, compensation
determinable comes to Rs.15,000 x 15 =
Rs.2,25,000/-.
7. The learned Tribunal has awarded
Rs.1,00,000/- towards loss of expectation
of financial and moral support as also loss
of company of the child, mental agony,
etc. I have found that the parents are
entitled to compensation in the sum of
Rs.2,25,000/- on account of loss of
financial support from the deceased child.
I award a sum of Rs.50,000/- on account of
loss of company of the child as also pain
and suffering suffered by them as a result
of the untimely death of baby Chanda.
Appeal accordingly stands disposed of
enhancing the compensation to
Rs.2,75,000/-.
7. In the case of R.K. Malik vs. Kiran Pal, III
(2006) ACC 261, 22 children died in an accident of a
school bus which fell in river Yamuna. This Court
held the Second Schedule of the Motor Vehicles Act
to be the appropriate method for computing the
compensation. With respect to the non-pecuniary
damages, the Court observed that loss of
dependency of life and pain and suffering on that
account, generally speaking is same and uniform to
all regardless of status unless there is a specific case
made out for deviation. This Court awarded
Rs.75,000/- towards non-pecuniary compensation.
8. The aforesaid judgment of this Court was
challenged before the Hon’ble Supreme Court and
th
which has been decided recently on 15 May, 2009
MAC.APP. No.642/2005 Page 7 of 20
and is reported as R.K. Malik vs. Kiran Pal,
2009(8) Scale 451 . The Hon’ble Supreme Court
held that the claimants are also entitled to
compensation towards future prospects. The Hon’ble
Supreme Court held that the claimants are entitled to
compensate towards future prospects and granted
further compensation of Rs.75,000/- towards future
prospects of the children. The findings of the Hon’ble
Supreme Court are as under:-
“19. The other issue is with regard to non-
pecuniary compensation to the appellants-
dependents on the loss of human life, loss
of company, companionship, happiness,
pain and suffering, loss of expectation of
life etc.
20. In the Halsbury's Laws of England,
4th Edition, Vol. 12, page 446, it has been
stated with regard to non-pecuniary loss
as follows:
“Non-pecuniary loss: the pattern.
Damages awarded for pain and
suffering and loss of amenity
constitute a conventional sum which
is taken to be the sum which society
deems fair, fairness being
interpreted by the Courts in the light
of previous decisions. Thus there has
been evolved a set of conventional
principles providing a provisional
guide to the comparative severity of
different injuries, and indicating a
bracket of damages into which a
particular injury will currently fall.
The particular circumstance of the
plaintiff, including his age and any
unusual deprivation he may suffer, is
reflected in the actual amount of the
award. The fall in the value of money
leads to a continuing reassessment
of these awards and to periodic
reassessments of damages at certain
key points in the pattern where the
disability is readily identifiable and
not subject to large variations in
individual cases.
21. In the case of Ward v. James (1965) I
All E R 563, it was observed:
MAC.APP. No.642/2005 Page 8 of 20
“Although you cannot give a man so
gravely injured much for his `lost
years', you can, however,
compensate him for his loss during
his shortened, span, that is, during
his expected `years of survival'. You
can compensate him for his loss of
earnings during that time, and for
the cost of treatment, nursing and
attendance. But how can you
compensate him for being rendered
a helpless invalid? He may, owing to
brain injury, be rendered
unconscious for the rest of his days,
or, owing to a back injury, be unable
to rise from his bed. He has lost
everything that makes life
worthwhile. Money is no good to him.
Yet Judges and juries have to do the
best they can and give him what
they think is fair. No wonder they
find it well nigh insoluble. They are
being asked to calculable. The figure
is bound to be for the most part a
conventional sum. The Judges have
worked out a pattern, and they keep
it in line with the changes in the
value of money.
22. The Supreme Court in the case of R.D.
Hattangadi v. Pest Control (India) (P) Ltd.,
(1995) 1 SCC 551, at page 556, has
observed as follows in para 9:
“9. Broadly speaking while fixing an
amount of compensation payable to
a victim of an accident, the damages
have to be assessed separately as
pecuniary damages and special
damages. Pecuniary damages are
those which the victim has actually
incurred and which are capable of
being calculated in terms of money;
whereas non-pecuniary damages are
those which are incapable of being
assessed by arithmetical
calculations. In order to appreciate
two concepts pecuniary damages
may include expenses incurred by
the claimant: (i) medical attendance;
(ii) loss of earning of profit up to the
date of trial; (iii) other material loss.
MAC.APP. No.642/2005 Page 9 of 20
So far non-pecuniary damages are
concerned, they may include (i)
damages for mental and physical
shock, pain and suffering, already
suffered or likely to be suffered in
future; (ii) damages to compensate
for the loss of amenities of life which
may include a variety of matters i.e.
on account of injury the claimant
may not be able to walk, run or sit;
(iii) damages for the loss of
expectation of life, i.e., on account of
injury the normal longevity of the
person concerned is shortened; (iv)
inconvenience, hardship, discomfort,
disappointment, frustration and
mental stress in life.”
In this case, the Court awarded non-
pecuniary special damages of Rs. 3,
00,000/- to the claimants.
23. In Common Cause, A Registered
Society v. Union of India (1999) 6 SCC 667
@ page 738, it was observed:
“128. The object of an award of
damages is to give the plaintiff
compensation for damage, loss or
injury he has suffered. The elements
of damage recognised by law are
divisible into two main groups:
pecuniary and non-pecuniary. While
the pecuniary loss is capable of
being arithmetically worked out, the
non-pecuniary loss is not so
calculable. Non-pecuniary loss is
compensated in terms of money, not
as a substitute or replacement for
other money, but as a substitute,
what McGregor says, is generally
more important than money: it is the
best that a court can do. In Mediana,
Re Lord Halsbury, L.C. observed as
under: “How is anybody to measure
pain and suffering in moneys
counted? Nobody can suggest that
you can by arithmetical calculation
establish what is the exact sum of
money which would represent such a
thing as the pain and suffering which
a person has undergone by reason of
MAC.APP. No.642/2005 Page 10 of 20
an accident.... But nevertheless the
law recognises that as a topic upon
which damages may be given.”
24. It is extremely difficult to quantify the
non pecuniary compensation as it is to a
great extent based upon the sentiments
and emotions. But, the same could not be
a ground for non-payment of any amount
whatsoever by stating that it is difficult to
quantify and pinpoint the exact amount
payable with mathematical accuracy.
Human life cannot be measured only in
terms of loss of earning or monetary
losses alone. There are emotional
attachments involved and loss of a child
can have a devastating effect on the
family which can be easily visualized and
understood. Perhaps, the only mechanism
known to law in this kind of situation is to
compensate a person who has suffered
non-pecuniary loss or damage as a
consequence of the wrong done to him by
way of damages/monetary compensation.
Undoubtedly, when a victim of a wrong
suffers injuries he is entitled to
compensation including compensation for
the prospective life, pain and suffering,
happiness etc., which is sometimes
described as compensation paid for "loss
of expectation of life". This head of
compensation need not be restricted to a
case where the injured person himself
initiates action but is equally admissible if
his dependant brings about the action.
25. That being the position, the crucial
problem arises with regard to the
quantification of such compensation. The
injury inflicted by deprivation of the life of
a child is extremely difficult to quantify. In
view of the uncertainties and
contingencies of human life, what would
be an appropriate figure, an adequate
solatium is difficult to specify. The courts
have therefore used the expression
"standard compensation" and
"conventional amount/sum" to get over
the difficulty that arises in quantifying a
figure as the same ensures consistency
and uniformity in awarding
compensations.
MAC.APP. No.642/2005 Page 11 of 20
26. While quantifying and arriving at a
figure for "loss of expectation of life", the
Court have to keep in mind that this figure
is not to be calculated for the prospective
loss or further pecuniary benefits that has
been awarded under another head i.e.
pecuniary loss. The compensation payable
under this head is for loss of life and not
loss of future pecuniary prospects. Under
this head, compensation is paid for
termination of life, which results in
constant pain and suffering. This pain and
suffering does not depend upon the
financial position of the victim or the
claimant but rather on the capacity and
the ability of the deceased to provide
happiness to the claimant. This
compensation is paid for loss of
prospective happiness which the
claimant/victim would have enjoyed had
the child not been died at the tender age.
27. In the case of Lata Wadhwa (supra),
wherein several persons including children
lost their lives in a fire accident, the Court
awarded substantial amount as
compensation. No doubt, the Court
noticed that the children who lost their
lives were studying in an expensive
school, had bright prospects and belonged
to upper middle class, yet it cannot be
said that higher compensation awarded
was for deprivation of life and the pain
and suffering undergone on loss of life due
to financial status. The term "conventional
compensation" used in the said case has
been used for non pecuniary
compensation payable on account of pain
and suffering as a result of death. The
Court in the said case referred to Rs. 50,
000/- as conventional figure. The reason
was loss of expectancy of life and pain and
suffering on that account which was
common and uniform to all regardless of
the status. Unless there is a specific case
departing from the conventional formula,
non- pecuniary compensation should not
be fixed on basis of economic wealth and
background.
28. In Lata Wadhawa case (supra),
wherein the accident took place on
MAC.APP. No.642/2005 Page 12 of 20
03.03.1989, the multiplier method was
referred to and adopted with approval. In
cases of children between 5 to 10 years of
age, compensation of Rs. 1.50 lakhs was
awarded towards pecuniary compensation
and in addition a sum of Rs. 50,000/- was
awarded towards `conventional
compensation". In the case of children
between 10 to 18 years compensation of
Rs. 4.10 lakhs was awarded including
"conventional compensation". While doing
so the Supreme Court held that
contribution of each child towards family
should be taken as Rs. 24,000/- per
annum instead of Rs. 12, 000/- per annum
as recommended by Justice Y.
V.Chandrachud Committee. This was in
view of the fact that the company in
question had an un-written rule that every
employee can get one of his children
employed in the said company.
29. In the case of M.S. Grewal v. Deep
Chand Sood MANU/SC/0506/2001, wherein
14 students of a public school got
drowned in a river due to negligence of
the teachers. On the question of quantum
of compensation, this Court accepted that
the multiplier method was normally to be
adopted as a method for assigning value
of future annual dependency. It was
emphasized that the Court must ensure
that a just compensation was awarded.
30. In Grewal case (supra), compensation
of Rs. 5 lakhs was awarded to the
claimants and the same was held to be
justified. Learned Counsel for the
respondent No. 3, however, pointed out
that in the said case the Supreme Court
had noticed that the students belonged to
an affluent school as was apparent from
the fee structure and therefore the
compensation of Rs. 5 lakhs as awarded
by the High Court was not found to be
excessive. It is no doubt true that the
Supreme Court in the said case noticed
that the students belonged to an upper
middle class background but the basis and
the principle on which the compensation
was awarded in that case would equally
apply to the present case.
MAC.APP. No.642/2005 Page 13 of 20
31. A forceful submission has been made
by the learned Counsels appearing for the
claimants-appellants that both the
Tribunal as well as the High Court failed to
consider the claims of the appellants with
regard to the future prospects of the
children. It has been submitted that the
evidence with regard to the same has
been ignored by the Courts below. On
perusal of the evidence on record, we find
merit in such submission that the Courts
below have overlooked that aspect of the
matter while granting compensation. It is
well settled legal principle that in addition
to awarding compensation for pecuniary
losses, compensation must also be
granted with regard to the future
prospects of the children. It is incumbent
upon the Courts to consider the said
aspect while awarding compensation.
Reliance in this regard may be placed on
the decisions rendered by this Court in
General Manager, Kerala S. R. T. C. v.
Susamma Thomas(1994) 2 SCC 176; Sarla
Dixit v. Balwant Yadav (1996) 3 SCC 179;
and Lata Wadhwa case (supra).
32. In view of discussion made
hereinbefore, it is quite clear the claim
with regard to future prospect should have
been be addressed by the courts below.
While considering such claims, child's
performance in school, the reputation of
the school etc. might be taken into
consideration. In the present case, records
shows 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. But as already
noted, they were performing well in
studies, natural consequence supposed to
be a bright future. In the case of Lata
Wadhwa (supra) and M. S. Grewal (supra),
the Supreme Court recognised such future
prospect as basis and factor to be
considered. Therefore, denying
compensation towards future prospects
seems to be unjustified. Keeping this in
background, facts and circumstances of
MAC.APP. No.642/2005 Page 14 of 20
the present case, and following the
decision in Lata Wadhwa (supra) and M. S.
Grewal (supra), we deem it appropriate to
grant compensation of Rs. 75,000/- (which
is roughly half of the amount given on
account of pecuniary damages) as
compensation for the future prospects of
the children, to be paid to each claimant
within one month of the date of this
decision. We would like to clarify that this
amount i.e. Rs. 75,000/- is over and above
what has been awarded by the High Court.
33. Besides, the Courts have been
awarding compensation for pain and
suffering and towards non-pecuniary
damages. Reference in this regard can be
made to R. D. Hattangadi case (supra).
Further, the said compensation must be
just and reasonable. This Court has
observed as follows in State of Haryana v.
Jasbir Kaur (2003) 7 SCC 484:
“7. It has to be kept in view that the
Tribunal constituted under the Act as
provided in Section 168 is required
to make an award determining the
amount of compensation which is to
be in the real sense "damages"
which in turn appears to it to be "just
and reasonable". It has to be borne
in mind that compensation for loss of
limbs or life can hardly be weighed in
golden scales. But at the same time
it has to be borne in mind that the
compensation is not expected to be
a windfall for the victim. Statutory
provisions clearly indicate that the
compensation must be "just" and it
cannot be a bonanza; not a source of
profit; but the same should not be a
pittance. The courts and tribunals
have a duty to weigh the various
factors and quantify the amount of
compensation, which should be just.
What would be "just" compensation
is a vexed question. There can be no
golden rule applicable to all cases for
measuring the value of human life or
a limb. Measure of damages cannot
be arrived at by precise
mathematical calculations. It would
MAC.APP. No.642/2005 Page 15 of 20
depend upon the particular facts and
circumstances, and attending
peculiar or special features, if any.
Every method or mode adopted for
assessing compensation has to be
considered in the background of
"just" compensation which is the
pivotal consideration. Though by use
of the expression "which appears to
it to be just" a wide discretion is
vested in the Tribunal, the
determination has to be rational, to
be done by a judicious approach and
not the outcome of whims, wild
guesses and arbitrariness. The
expression "just" denotes
equitability, fairness and
reasonableness, and non-arbitrary. If
it is not so it cannot be just.”
34. So far as the pecuniary damage is
concerned we are of the considered view
both the Tribunal as well as the High Court
has awarded the compensation on the
basis of Second Schedule and relevant
multiplier under the Act. However, we may
notice here that as far as non-pecuniary
damages are concerned, the Tribunal does
not award any compensation under the
head of non-pecuniary damages. However,
in appeal the High Court has elaborately
discussed this aspect of the matter and
has awarded non-pecuniary damages of
Rs. 75,000. Needless to say, pecuniary
damages seeks to compensate those
losses which can be translated into money
terms like loss of earnings, actual and
prospective earning and other out of
pocket expenses. In contrast, non-
pecuniary damages include such
immeasurable elements as pain and
suffering and loss of amenity and
enjoyment of life. In this context, it
becomes duty of the court to award just
compensation for non-pecuniary loss. As
already noted it is difficult to quantify the
non-pecuniary compensation,
nevertheless, the endeavour of the Court
must be to provide a just, fair and
reasonable amount as compensation
keeping in view all relevant facts and
circumstances into consideration. We have
MAC.APP. No.642/2005 Page 16 of 20
noticed that the High Court in present
case has enhanced the compensation in
this category by Rs. 75, 000/- in all
connected appeals. We do not find any
infirmity in that regard.”
9. The learned Tribunal was in error in taking the
notional income to be Rs.22,500/- per annum.
Following the aforesaid judgments, the notional
income of the deceased is taken to be Rs.15,000/-
per annum and applying the multiplier of 15, the
claimants are entitled to loss of dependency of
Rs.2,25,000/-. The claimants are also entitled to
compensation of Rs.75,000/- towards the future
prospects in terms of the judgment of the Hon’ble
Supreme Court in R.K. Malik Vs. Kiran Pal, 2009
(8) Scale 451 . The claimants are also entitled to a
further sum of Rs.75,000/- towards non-pecuniary
damages in terms of the judgment of this Court in the
case of R.K. Malik Vs. Kiran Pal, III (2006) ACC
261 upheld by the Hon’ble Supreme Court. The
claimants are entitled to total compensation of
Rs.3,75,000/- (Rs.2,25,000/- + Rs.75,000/- +
Rs.75,000/-).”
14. The learned counsel for the appellant submits that the
principles of law laid down in the above cases are applicable to
the present case. In the case of National Insurance Company
Ltd. Vs. Farzana (Supra), it has been held that the parents of
the child aged 7 are entitled to pecuniary compensation of
Rs.2,25,000/- according to the Second Schedule of the Motor
Vehicles Act. Further Rs.75,000/- has been awarded as non-
pecuniary damages following the judgment of this Court in the
case of R.K. Malik vs. Kiran Pal, III (2006) ACC 261.
Rs.75,000/- has been awarded towards future prospects following
the judgment of the Hon’ble Supreme Court in the case of R.K.
Malik vs. Kiran Pal, 2009(8) Scale 451 .
15. This case is squarely covered by the aforesaid judgment of
this Court which related to the case of 7 year old child whereas
MAC.APP. No.642/2005 Page 17 of 20
the deceased in the present case was also 6 years old. Following
the aforesaid judgment, Rs.2,25,000/- is awarded towards
pecuniary damages following the Second Schedule of the Motor
Vehicles Act, Rs.75,000/- is awarded towards non-pecuniary
damages and Rs.75,000/- is awarded towards future prospects.
The total compensation awarded is Rs.3,75,000/-.
16. Following the aforesaid judgment of this Court and other
judgments followed therein, the appeal is allowed and the
compensation of Rs.3,75,000/- is awarded to the appellants along
with interest @7.5% per annum.
17. The offending vehicle was validly insured with respondent
No.3 vide policy No.311702/31/02/00586 at the time of the
accident which is admitted in paras 9 and 11 of the written
statement of respondent No.3 filed before the learned Tribunal.
Respondent No.3 is, therefore, liable to satisfy the impugned
award.
18. Respondent No.3 is directed to deposit the impugned award
along with interest thereon within 60 days. The deposit be made
by means of a cheque drawn in the name of UCO Bank A/c Ramai.
19. Upon the aforesaid deposit being made, UCO Bank is
directed to release a sum of Rs.50,000/- to the appellants and the
remaining amount be kept in fixed deposit in the joint name of
the appellants for a period of seven years on which monthly
interest be paid to them.
MAC.APP. No.642/2005 Page 18 of 20
20. The interest on the aforesaid fixed deposit shall be paid
monthly by automatic credit of interest in the Savings Account of
the appellants.
21. No cheque book be issued to the appellants without the
permission of this Court.
22. The original Fixed Deposit Receipt shall be retained by the
Bank in the safe custody. However, the original Pass Book shall
be given to the appellants along with the photocopy of the FDR.
23. The original Fixed Deposit Receipt shall be handed over to
the appellants at the end of the fixed deposit period.
24. No loan, advance or withdrawal shall be allowed on the said
Fixed Deposit Receipt without the permission of this Court.
25. Half yearly statement of account be filed by the Bank in this
Court.
26. On the request of the appellants, the Bank shall transfer the
Savings Account to any other branch of UCO Bank in Delhi
according to the convenience of the claimants.
27. The appellants shall furnish all the relevant documents for
opening of the Saving Bank Accounts and Fixed Deposit Accounts
to Mr. M.M. Tandon, Member-Retail Team, UCO Bank Zonal,
Parliament Street, New Delhi (Mobile No. 09310356400).
th
28. List for directions before this Court on 6 October, 2009.
29. Copy of the order be given dasti to counsel for both the
parties under the signatures of the Court Master.
30. Copy of this order be also sent to Mr. M.M. Tandon, Member-
Retail Team, UCO Bank Zonal, Parliament Street, New Delhi
MAC.APP. No.642/2005 Page 19 of 20
(Mobile No. 09310356400) through the UCO Bank, High Court
Branch under the signature of Court Master.
J.R. MIDHA, J
AUGUST 19, 2009
aj
MAC.APP. No.642/2005 Page 20 of 20