THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR CMA NO.1195/1995 JUDGMENT: The parents of one minor girl by name Cheepuri Venkata Lakshmi who died in an accident on 17-9-1991 preferred the present Civil Miscellaneous Appeal questioning the inadequate amount of compensation granted by the Motor Accident Claims Tribunal-cum-I Additional District Judge, Rajahmundry in OP No.63/1992. 2. An application under Section 166 of the Motor Vehicles Act was filed by the appellant herein claiming compensation of Rs.60,000/- against the respondents 1 to 3 jointly and severally with costs and interest at 12% per annum for the death of their daughter. According to them, on the fateful day at 3 PM a lorry bearing number ATK 5785 going towards Tadithota road junction on down gradient road being driven by its driver, the first respondent in OP, in a rash and negligent manner and at high speed dashed against the deceased, resulting in front left wheel running over both the legs of the deceased. Immediately after the accident, the deceased was admitted in Government Headquarters Hospital, Rajahmundry, where she was treated as an inpatient from 17-9- 1991 to 7-11-1991 for the crush injuries of both legs. She succumbed to the injuries on 7-11-1991. 3. The claim petition against the first respondent ie., the driver was dismissed for default as not pressed. 4. The second respondent who is the owner of the vehicle remained ex parte. 5. The third respondent, in OP, filed their counter denying the averments made in the petition. They are disputing the age, nature of injuries and also the manner in which the accident took place. They are also disputing the driver of the vehicle which was involved in the said accident. 6. Basing on the pleadings of the parties, the tribunal framed the following issues for trial: 1. Whether C. Venkata Lakshmi died in an accident as a result of rash and negligent driving of the vehicle (lorry) ATK 5785? 2. Whether the petitioners are entitled for compensation? If so, what is the amount? 3. To what relief? 7. In support of their case, the claimants examined P.Ws.1 and 2 and got marked Exs.A-1 to A-3. The respondents on their behalf got marked Ex.B-1-a copy of insurance policy. 8. The tribunal after considering the oral and documentary evidence awarded only a sum of Rs.5,000/- as compensation against the claim of Rs.60,000/- , together with interest at 12% per annum from the date of petition till the date of realization to be paid by respondents 2 and 3 jointly and severally. 9. Heard Sri Mehar Chand Nori, the learned counsel for the appellants-claimants. Though the notice is served on respondents 2 and 3 ie., the owner and insurer of the said vehicle, there is no representation on their behalf. The docket order shows that the notices were served on them in the month of October, 2012. Since the driver who is the first respondent herein did not even contest the matter before the tribunal, the appeal can be disposed of even without service of notice on him since there is no dispute with regard to the vehicle being insured with the third respondent and the policy covering the risk of the death of the deceased. 10. The finding of the tribunal that the accident took place due to rash and negligent driving of the said vehicle by its driver has not been challenged either by the owner of the vehicle or by the insurer of the said vehicle. Hence, it has to be held that the finding of the tribunal on the said aspect warrants no interference. 11. The learned counsel for the appellants/claimants mainly contends that though the deceased in the present case is a child aged about 5 years at the time of accident still the compensation awarded is on lower side and seeks enhancement of the same. 12. P.W.1 who is the father of the deceased in his evidence stated that on the date of accident, the deceased who is aged about 6 years old was hale and healthy. Immediately, after the accident, she was taken to the Government Headquarters Hospital, Rajahumundry, where she was treated for two months and later she succumbed to the injuries on 7-11- 1991. Initially, the father-in-law of P.W.1 was attending on the deceased and later he himself attended on her till her death. According to him, his daughter suffered unbearable pain after the accident till her death. He seems to have purchased medicines and also blood from the blood bank and has spent nearly Rs.10,000/- for the treatment taken in Government Hospital. Since the finding as to the manner in which the accident took place is not in dispute, the only question which requires to be considered and decided is whether the compensation awarded is just and reasonable? 13. P.W.1 in his evidence categorically stated that his daughter sustained severe injuries all over her body and that she was an inpatient in Government Hospital, Rajahmundry for nearly two months before she succumbed to those injuries on 7-11-1991. Though P.W.1 was cross-examined at length, nothing useful was elicited to discredit his evidence with regard to the nature of injuries sustained by the deceased and also the amount spent by P.W.1 for the treatment of his daughter. Since the evidence of P.W.1 remained unimpeached in all material aspects, his evidence can be taken into consideration for the purpose of deciding the amount of compensation, which he is entitled to. 14. One fact, which has to be kept in mind is that the accident took place in the year 1991 and the claim was made for Rs.60,000/-. 15. As stated by the Apex Court in NEW INDIA ASSURANCE CO., LTD., V. SATENDER[1] the determination of damages for loss of human life is an extremely difficult task and it becomes all the more baffling when the deceased is a child and/or a non-earning person. The future of a child is uncertain. The Supreme Court further held that where the deceased was a child, he would be earning nothing but had a prospect to earn. The question of assessment of compensation, therefore, becomes stiffer. The figure of compensation in such cases involves a good deal of guesswork. The Supreme Court further held that in the case of the death of an infant, there may be no actual pecuniary benefit derived by its parents during the child's life-time. But this will not necessarily bar the parent's claim and prospective loss will find a valid claim provided that the parents' establish that they had a reasonable expectation of pecuniary benefit if the child had lived. 16. P.W.1 in his evidence never deposed about the reasonable expectation of pecuniary benefit if the child had lived. In fact, no steps have been taken to get any re-examination done to show whether he was expecting any pecuniary benefit from his child. This being the position, the hands of the court are tied and no amount can be assessed towards loss of dependency. 17. The fact that the deceased was an inpatient in the hospital for nearly two months remained undisputed. PW.1 claims to have spent a sum of Rs.10,000/- towards purchase of blood and medicines during the said period. It is true that no bills are produced showing the expenditure incurred towards purchase of medicines and blood. The claimant would not have anticipated filing an OP at a later point of time so as to preserve those bills. The utmost consideration for him at that time would only be to save his child. Therefore, one cannot expect an illiterate person like P.W.1 to demand for bills while purchasing medicines and preserve the same in anticipation of filing of claim petition. Since the evidence of P.W.1 with regard to the amount spent by P.,W.1 remained unimpeached by way of any contra evidence., it would be just and proper to award Rs.10,000/- towards medical expenses. 18. A perusal of the oral and documentary evidence made available on record would indicate that the deceased was living with her parents at Dulla village, which is in Kadiyam Mandal of East Godavari District and the accident took place in the said village. She was taken to Government Hospital at Rajahmundry where she took treatment for two months. The tribunal did not award any amount towards transportation and also the amount spent on attendant who was with her during the said period. Though P.W.1 in his evidence stated that his father-in-law and himself were there during the said period, they would have definitely incurred some expenditure during their stay at the hospital. In those circumstances, I deem it appropriate to award a sum of RS.5,000/- towards transportation, attendant, extra nourishment and for other miscellaneous expenses. 19. It is evident from the record that the deceased died on 7- 11-1991 while taking treatment in the hospital. She must have been brought from Rajahmundry to her native place for performing last rites. In those circumstances, I deem it appropriate to award a sum of Rs.5000/- towards transportation and funeral charges. 20. As held by the Apex Court in STATE OF HARYANA V. JASBIR KAUR[2], 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 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 on 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. 21. The evidence on record would disclose that the deceased was aged about 5 years at the time of accident and was the only child to the claimants. She has not even reached the age of earning so as to fix the compensation in terms of earning capacity. As held above, no evidence has been let in by the claimants to show that there was reasonable expectation of pecuniary benefit if she had lived. But one fact which cannot be lost sight of is the love and affection which the claimants would have missed in their life. The gentle touch of a daughter and her voice has a soothing effect on the parents. The happiness which one gets while playing with the child of that age is missed by the parents. Definitely the parents have lost all the love and affection which they would have enjoyed had the child been alive. In that view of the matter, I deem it appropriate to award a sum of Rs.25,000/- towards loss of love and affection and also for the mental shock and trauma which the parents would have undergone due to the death of their only child. 22. Taking into consideration the above aspects, the compensation of Rs.5000/- awarded by the Tribunal is enhanced to Rs.50,000/-. The enhanced compensation of Rs. 45,000/- will carry interest @ 8 % per annum from the date of the petition till the date of payment, while maintaining the interest of 12% per annum on the amount awarded by the tribunal. . 23. With the above enhancement in the compensation, the Civil Miscellaneous Appeal filed by the claimant is partly allowed. There shall be no order as to costs. _________________ C.PRAVEEN KUMAR, J Dt.15-2-2013 kmr [1] 2007 ACJ 160 [2] 2003 ACJ 1800