IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 20 of 2008 The Oriental Insurance Company Ltd. … Appellant Vs Kulminder Singh & others … Respondents Sri V.K. Kohli, learned Senior Advocate, assisted by Sri I.P. Kohli, learned counsel for the appellant Sri Lalit Sharma, learned counsel for the respondent No. 3 Sri Z.U. Siddiquie, learned counsel for the respondent Nos. 1 and 2 Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed by the appellant/Insurance Company against the judgment and award dated 22.11.2007 passed by M.A.C.T./Additional District Judge/F.T.C., Haldwani, District Nainital in M.A.C. No. 91 of 2006, Kulminder Singh Vs Oriental Insurance Company Ltd. & others. 2. Brief facts of the case are that on 06.02.2006 at about 12:00 Noon, when the son of the claimants/respondents was going towards his home along with his friend on a scooter, when they reached near Beersheba School, they parked their scooter and talking over there, suddenly, a tanker No. UP14/9926, which was being driven by its driver in a very rash and negligent manner, hit the son of the claimants/respondents, due to which he died on the spot. According to the claimants, the deceased was 18 years of age and he was a partner in M/s Kulminder Enterprises Motahaldu, Haldwani, District Nainital. The claimants are the parents of the deceased and they have filed a claim petition before the Tribunal for a sum of Rs. 25,55,000/- as compensation in lieu of the death of their young son. 3. Thereafter notices were issued to the opposite parties. The opposite party No. 1/Insurance Company 2 contested the claim petition by filing written statement before the Tribunal. The Oriental Insurance Company contested the claim petition and it was claimed that the driver did not have a valid driving licence and it was prayed that the claim petition be dismissed. 4. The opposite party Nos. 2 and 3 filed their joint written statement before the Tribunal concerned. The opposite party No. 2 is the owner of the vehicle and opposite party No. 3 is the driver of the vehicle in question. It has pleaded in the written statement that the vehicle in question was insured with the Oriental Insurance Company Ltd., therefore, liability of compensation, if any, lies upon the insurer of the vehicle. 5. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues in the claim petition. Thereafter, both the parties led evidence in support of their case. After hearing learned counsel for the parties and perusing the entire material available on record, the Tribunal decreed the claim petition for a sum of Rs. 9,42,000/- along with interest @ 7% per annum vide judgment and award dated 22.11.2007. 6. Feeling aggrieved by the aforesaid judgment and award, the appellant/Insurance Company has come up in appeal before this Court. 7. Heard Sri V.K. Kohli, learned Senior Advocate, assisted by Sri I.P. Kohli, learned counsel for the appellant, Sri Lalit Sharma, learned counsel for the respondent No. 3, Sri Z.U. Siddiquie, learned counsel for the respondent Nos. 1 and 2 and perused the record. 3 8. As far as the factum of accident is concerned, the Tribunal has decided issue No. 1 and the finding recorded by the Tribunal that the accident took place on account of rash and negligent driving of the driver of the offending Tanker is concerned, that appears to be completely justified and I am in total agreement with finding recorded by the Tribunal. 9. As far as the amount of compensation is concerned, the Tribunal while deciding issue No. 4 has discussed this aspect, but the approach adopted by the Tribunal appears to be based on conjecture and surmises. The Tribunal has not given any reasonable and cogent finding with regard to the income of the deceased, on the basis of which the actual amount of compensation to be awarded in favour of the claimants could be ascertained. In the instant case, the deceased was a school going boy of aged about 18 years. The amount of compensation has been calculated by the Tribunal on the basis of the income of the father from his firm. The future expectation, which has been taken into account by the Tribunal, appears to be just on guesswork and not on any reasonable foundations. I fail to understand how the Tribunal could assess the monthly income of the deceased, who was school going boy as Rs. 7,000/- per month and Rs. 56,000/- after deducting 1/3rd out of the same as annual income. It is true that father of the deceased has a firm in the name of M/s Kulminder Enterprises Motahaldu and he is a tax-payer, but on the basis of this sole fact, the income of the deceased son could not have been ascertained as Rs. 7,000/- per month and Rs. 56,000/- per annum. In case of the young children of tender age, in view of the uncertainties around, neither their income at the time of death nor prospects of the future increase in the income nor chances of advancement of their 4 career are capable of proper determination on estimated basis. The reasons behind this at such an early age, the uncertainties in regards to their academic pursuits, achievements in carries and thereafter advancement in life are so many with nothing can be assumed with reasonable certainty. 10. Learned counsel for the claimants/respondents has submitted that the application filed by the Insurance Company under Section 170 of the Motor Vehicles Act was not allowed by the court below and it was simply directed to be kept on file. Hence, at this stage, the Insurance Company cannot agitate on the point of quantum. 11. I do not find any force in this argument. The application filed by the Insurance Company under Section 170 of the Motor Vehicles Act on 15.06.2007, which is available on record as paper No. 29C and thereafter an evidence of Kulminder Singh (P.W.1) was recorded on the same day i.e. 05.06.2007. Another witness Vipin Chandra Joshi (P.W.2) was also produced before the court below on 10.08.2007. The specific question was asked to the claimants that the exorbitant amount of compensation has been claimed, the Insurance Company has also cross-examined the claimants on the question of the income and his partnership in the firm. The claimants could not produce any document before the Tribunal, which may show that his son was in fact working as a partner in the firm. However, the finding recorded by the Tribunal with regard to the assessment of the income of the deceased is based absolutely on conjecture and surmises. Therefore, I am of the view that this court can interfere in the finding recorded by the Tribunal, which is based on absolutely unreasonable, baseless and unfounded surface. The Tribunal 5 has not recorded any finding in the impugned judgment that actually what is the basis on which the income of the deceased has been assessed. I think, under these circumstances, the finding recorded by the Tribunal pertaining to the income of the deceased is liable to be set aside. 12. The accident in this case took place in the year 2006, therefore, at the time of the death, the notional income in case, if taken to be Rs. 36,000/- per annum then after deducting 1/3rd out of it, the dependency of the claimants in any case could not exceed more than Rs. 24,000/- per annum. In case of child death, relevant factor would be the age of the parents. The Hon’ble Supreme Court in a case Kaushalya Devi Vs. Karan Arora and others reported in 2007(3) T.A.C. 16 (S.C.) has held in paragraph 7, which reads, as under:- “7. There are some aspects of human life which are capable of monetary measurement, but the totality of human life is like the beauty of sunrise or the splendor of the stars, beyond the reach of monetary tape-measure. 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. Where the deceased was a child, he was earning nothing but had a prospect to earn. The question of assessment of company, therefore, becomes stiffer. The figure of compensation in such cases involves a good deal of guesswork. In cases, where parents are claimants, relevant factor would be age of parents.” 6 13. The Hon’ble Apex Court further in paragraph Nos. 8 and 9 has held, as follows:- “8.. In case of the death of an infant, there may have been 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. This principle was laid down by the House of Lords in the famous case of Taff Vale Rly. V. Jenkins (1913) A.C. 1, and Lord Atkinson said thus: ‘……….all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact there must be a basis of fact from which the inference can reasonably be drawn; but I wish to express my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first that the deceased earned money in the past, and, second, that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence and the necessary inference can I think be drawn from circumstances other than and different from them. 9. This Court in Lata Wadhwa’s case (supra) while computing compensation made distinction between deceased children falling within the age group of 5 to 10 years and age group of 10 to 15 years. ” 7 14. The Hon’ble Apex Court has also taken note of the observation made by the Hon’ble Apex in another case New India Assurance Company Ltd. Vs Satender Singh & others reported in (2008) 1 SCC (Cri) 96 and thereafter held in para 10 that “In cases of young children of tender age, in view of uncertainties abound, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation.” 15. Keeping in view the observations made by the Supreme Court as well as considering the age of the parents in the instant case which is 45 and 44 years respectively, I think, the multiplier of ‘12’ would be just and reasonable. Therefore, on the basis of the aforesaid calculation, the amount of compensation comes to Rs. 2,88,000/- (24000 x 12). The Tribunal further awarded a sum of Rs. 2,000/- for funeral expenses, which appears to be justified, but the Tribunal fell in error in awarding a sum of Rs. 1.00 lac under the head of loss of love and affection. It is true that the deceased in the instant case was only child but at the same time the Tribunal could not have awarded any amount under a particular head with arbitrariness. The Tribunal has a duty to weigh the various factors and quantify the amount of compensation, which should be just. The determination of the amount should be rational and to be done by a judicious approach and 8 not the outcome of whims, wild guesses and arbitrariness. It should be borne in mind that the compensation of 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. I am of the opinion that keeping in view this factor that it is the untimely death of a young tender boy who was the only son of the claimants and the claimants on account of the death of their child have lost company, hence, the just and proper amount under the head of loss of love and affection would be Rs. 50,000/- instead of Rs. 1.00 lac as has been awarded by the Tribunal. Thus, the total amount of compensation comes to Rs. 3,42,000/- (288000 + 2000 + 50000). 16. For the reasons stated above, the appeal is partly allowed. The impugned judgment and award is modified up to the extent that the claimants are entitled to get a sum of Rs. 3,42,000/- instead of Rs. 9,42,000/- as has been awarded by the Tribunal along with interest as indicated in the impugned judgment and award. 17. The amount, if any, deposited by the appellant before this Court be remitted to the Tribunal concerned. (B.C. Kandpal, J.) June 19, 2009 ASWAL