<p align="center"><b><font face="verdana" size="2">Case No. CMA - 235 of 2004</font></b></p><br /> <p align="center"><textarea id="textfield" name="textfield" rows="27" cols="100"> IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T APPELLANT: RESPONDENTS: [ENTITY] & another v. Arvind Kumar & others S.B. CIVIL MISC. APPEAL NO.235 OF 2004 Date of judgment: 03 June 2016 PRESENT HON'BLE MR JUSTICE [ENTITY] Mr [ENTITY], for the appellants Mr [ENTITY] on behalf of Mr [ENTITY], for respondent No.3-insurance company BY THE COURT:
This appeal is directed against the award dated 10.06.2003 passed by Motor Accident Claims Tribunal (Additional District Judge), Abu Road in [CASE NUMBER] by which the Tribunal has passed an award of Rs.77,000/-.
2.Learned counsel for the appellant submitted that deceased [ENTITY] was a 13 years old child studying in 8th standard and was negligently crushed by the bus involved in the accident. Learned counsel has further submitted that the Tribunal has passed erroneous order and has not awarded any notional income. Referring to judgment in [PRECEDENT], learned counsel has contended that the notional income ought to have been computed and a multiplicand of 15 must have been applied and on this basis award must have been passed. However, the Tribunal has ignored the legal mandate and has passed an award in sum of Rs.77,000/-, which is liable to be enhanced in consideration of notional income of the deceased. So appeal be allowed and the compensation may be granted, as prayed. Counsel for the respondent-Oriental Insurance Company has contended that the driver was having a learning license and the Tribunal has passed correct award so there is no reason to enhance the same.
3.A perusal of the impugned order reveals that [ENTITY], father of the deceased child was examined as AW1 and one other witness [ENTITY] was produced and examined as AW2, respondent-Oriental Insurance Company has also testified NAW1. While deciding issue No.1, Tribunal has dealt with and elucidated evidence adduced before it, which discloses age of deceased child having been stated to be of 13 years and studying in 8th standard in Government Senior Higher Secondary School, Sarupganj.
4.There is a noting on front page of lower court's record and [ENTITY] does have a mentioning that Part-B of the record stands weeded out.
5.The Tribunal has passed an award of Rs.77,000/- and compensation awarded under different heads is as under:
PARTICULARS COMPENSATION AMOUNT No fault liability and lumpsum compensation Rs.63,000/-
Funeral expenses Rs.2000/-
Loss of love & affection to parents (5000+5000) Rs.10,000/-
conveyance Rs.2000/-
Total Rs.77,000/-
6.I have heard learned counsel for both the parties, examined the impugned award and material available on record.
7.In [PRECEDENT], law relating to disability caused to children has been laid down by Hon'ble Supreme Court and in [PRECEDENT], Hon'ble Supreme Court has held:
while assessing the non-pecuniary damages, the damages for mental and physical shock, pain and suffering already suffered and that are likely to be suffered, any future damages for the loss of amenities in life like difficulty in running, participation in active sports, etc., damages on account of inconvenience, hardship, discomfort, disappointment, frustration, etc., have to be addressed especially in the case of a child victim. For a child, the best part of his life is yet to come. While considering the claim by a victim child, it would be unfair and improper to follow the structured formula as per the [SECTION] to the [ACT] for reasons more than one. The main stress in the formula is on pecuniary damages. For children there is no income. The only indication in the [SECTION] for non-earning persons is to take the notional income as Rs. 15,000/- per year. A child cannot be equated to such a non-earning person. Therefore, the compensation is to be worked out under the non-pecuniary heads in addition to the actual amounts incurred for treatment done and/or to be done, transportation, assistance of attendant, etc. The main elements of damage in the case of child victims are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs. The compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability. Appropriate compensation for disability should take care of all the non-pecuniary damages. In other words, apart from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation, etc
8.While deciding [PRECEDENT], the Rajasthan High Court has laid down law relating to notional income of children setting as Rs.30,000/- per annum. Elaborately dealing with this aspect, Court has observed in para 10 and 11 of the judgment as under:
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 years old son. For this purpose, it would be necessary for us to refer to second Schedule under [SECTION] of the [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 [SECTION] of the [ACT], is considered by this court in the case of [PRECEDENT], 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.
and has further observed:
, I am of the further view that the legislation did not make any difference while fixing the notional income of non-earning member as Rs.15,000/-, between the boy and girl, poor and rich immense contribution to the family has been made while fixing the said Rs.15,000/- notional income fixed in the year 1994, therefore, no further discrimination can be made on account of sex and status of the child. The Supreme Court in the aforesaid judgment of [ENTITY] & Anr. (supra), for the reason of that the rupee value has come down drastically from the year 1994 enhanced the notional income of the non-earning member from Rs.15,000/- to Rs.30,000/-. In the present period, the life expectancy which is much higher than the earlier period, therefore, the age of 46 and 49 of the parents of the deceased cannot be said to be old age. Further, the deceased female girl had she been alive, would have been admitted in the school and thereafter, in the college and further on completion of study would have got the suitable job and certainly contributed substantially to her family, therefore, I allow the instant appeal and the amount is enhanced from Rs.50,000/- to Rs.5,00,000 as per the judgment of the Apex Court passed in [ENTITY] & Anr. (supra) and the non-earning member notional income is required to be enhanced to Rs.30,000/- and then, multiplier of 15 is to be applied. The calculation of the total amount is as follows:
(i)Notional income 30,000/-
(ii)Multiplier 15
(iii) Compensated amount 30,000x15= Rs.4,50,000/-
(iv) Funeral expenses, loss of love, affection and loss of rights of a child aged 6 years, the claimant-appellants are entitled for Rs.50,000/-. Total compensation is Rs.5,00,000/-.
9.Likewise, dealing with the accidents relating to children, High Court of Himachal Pradesh in [PRECEDENT] has also observed in paras 68, 69, 77, 78, 91, 92, 94, 95 with similar kind of aspects and while adverting such an issue, observed in paras 68 and 69 as under:
68. Admittedly, the age of the deceased was 6 years. The claimants are the parents and minor sister of the deceased. The age of the father was 35 years at the relevant point of time. Keeping in view the age of the deceased read with the age of the claimants and the dictum of the Apex Court in [PRECEDENT]'s case (supra) and upheld by a Larger Bench of the Apex Court in [PRECEDENT]'s case (supra), multiplier of '15' is applicable. Thus, the claimants are held entitled to Rs.24,000x15=Rs.3,60,000 under the head 'loss of income'. The claimants are also awarded Rs.10,000 under the head 'funeral expenses' and Rs.10,000 under the head 'loss of estate'.
69. Viewed thus, the claimants are held entitled to compensation to the tune of Rs.3,60,000+Rs.10,0000+ Rs.10,000= Rs.3,80,000.
10.The evidence adduced before the Tribunal succinctly establishes that the deceased child [ENTITY] was 13 years of age while he met with unfortunate mortal accident, the Tribunal without considering legal aspect and computing notional income of the deceased boy has passed the aforesaid award to the tune of Rs.77,000/- and has not quantified the damages reasonably and has awarded meager damages in lower side.
11.In view of the above discussion, this Court is of the view to infer and apply notional income of the deceased child [ENTITY] aged about 13 years at Rs.30,000/- per annum and a multiplicand of 15 appears to be logical, which comes to Rs.4,50,000/-. On this income, 50% deduction is applicable which the kid may have spent on himself. As such, this amount comes to Rs.4,50,000 ( ) 50%=Rs.4,50,000 ( ) Rs.2,25,000= Rs.2,25,000/-.
12.Taking guidance from the aforesaid law as laid down and on the basis of discussion aforesaid, this Court is of the view that the impugned award needs to be interfered with and modified in following terms to which appellant-claimants appears to be entitled. Accordingly, the impugned award is modified in following terms:
S.No. PARTICULARS COMPENSATION AMOUNT Notional income as Rs.30,000/- per annum Applying multiplier of 15, Rs.30,000x15= Rs.4,50,000/- ( ) 50%= Rs.4,50,000 (-) Rs.2,25,000=Rs.2,25,000/-
Rs.2,25,000/-
Loss of love & affection to parents Rs.80,000/-
Funeral & conveyance expenses Rs.20,000/-
Total Rs.3,25,000/-
13.The impugned award dated 10.06.2003 passed by the learned Motor Accident Claims Tribunal, Abu Road in [CASE NUMBER] is enhanced and modified accordingly as above. The appellant-claimants will be entitled to get total compensation of Rs.3,25,000/- along with interest at the rate of 9% per annum from the date of the petition. Interim compensation or any amount deposited earlier is to be adjusted towards final sum of compensation. The respondents are directed to deposit the enhanced compensation with interest as decided aforesaid within two months from the date of receipt of certified copy of this judgment. Appellants are free to receive the amount of compensation from the Tribunal. The appeal is allowed in aforesaid terms. No order as to costs.
[[ENTITY]
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