T- Y*f' r „ \ .(....>^'N •^i^-^-- r IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Appeai (c) No.^6^/2oqg SSiigie-Seiie'Is Jhe New India Assurance Company Ltd.,Branch Office Sattigudi Chowk, APPELLANT ?€fer €fendantNo.3 J.c..lt..-:^ \ Kaigarh, through its Divisional ^•R- No"."^". chri i^--^ Manager, Divisional Office, m front of ^^ale.d ^^J..^....' "•" Rajeev Plaza, Bilaspur (C.G.). j^JBS4..——>i -Versus RESPONDENT dmant No.l RESPONDENT Claimant No.2 ^ RESPONDENT Defendant No. 1 r RESPONDENT 0€fendantNo.2 l^- Shri Kanhaiyalal, 46 years/ S/o Shri Rameshwer, Occupation-Agriculturist. 2. Smt. Rukmani, 40 years, W/o Shri Kanhaiyalal, Both by caste - Agharia, R/o Village - Kurrubhata, Police Station- Bhoopdeopur, Tahsil - Kharasia, District - Raigarh (C.G.) ,,3. Shri Ram Kumar, aged about 23 years, S/o Shri Macro, Caste - Yadav, R/o Village - Kurrubhata, Police Station- Bhoopdeopur, Tahsil - Kharasia, District- Raigarh (C.G.) -Driver- Shri Sunderlal, aged about 45 years, S/o Shri Girjaram, Caste - Patel, R/o Village ~ Sendripali, Police Station Kharasia, District- Raigarh (C.G.) -Owner- 4 \^^^~"" APPEAL UNDER SECTION 173 OF THE MQTOK VEHICLES ACT, 1988. ^5- \ HIGH COURT OF CHHATTISGARH AT BILASPUR bIVISION BENCH: HON'BLE MR. I.M.QUDDUSI <& HON'BLE MR. GHULAM MINHAJUbbIN. JJ. ApDellant Respondents M.A. [c1 No.564/2009 The New India Assurance Co. Ltd. Vs Shri Kanhaiyalal <& others Present: Mr. Shailendra Sharma, Advocate for the appellant. Mr. Roop Naik, Advocate for respondents No.l <& 2. Mr. J.A. Lohani, Advocate for respondents No.3 & 4. ORDER rOral) (14th June, 2011) I.M. Quddusi. J; 1. Heard. 2. The appellant-Insurance Company has filed this miscellaneous appeal under Section 173 of the Motor Vehicles Act, 1988 (for short 'the Act") against the award dated 26.4.2007 passed by learned 1 Additional Motor Accidents Claims Tribunal, Raigarh (CG) (for short 'the Claims Tnbunat') in Claim Case No.30/2006 partly altowing claim of the claimants and fastening liability to pay compensation on the appellant-Insurance Company. 3. Permission under Section 170 of the Act has been granted to the appellant Insurance Company. 4. Facts of the case, in brief, are that on 14.10.2005 the deceased along with his mother and other persons was traveling in the tractor <& trolley bearing registration number CG13-A-4048 <& C&13-A-4049. Mother of the deceased was traveling in the said tractor as labourer. After finishing the agricultural work, they had gone to Chandrahasini Temple for darshan of Devi in the tractor-trolley in question and when they were returning from the temple to their vitlage, due to rash and negligent driving of its driver, the said tractor-trolley turned turtle near Village Katahardi as a result the deceased sustained grievous injuries on his body and died. The claimants, who are parents of the deceased, have filed a claim petition seeking compensation to the tune of Rs.25,75,000/- under various heads. 5. The Claims Tribunal after considering the issues framed by it partialty allowed the claim application of the claimants, awarded a sum of Rs.1,67,500/- as compensation and fastened liability on the appellant- Insurance Company to pay the compensation. 6. We have heard learned counsel for the parties and perused the impugned order asalso records of the Claims Tribunal below. 7. Perusal of the record shows that the deceased along with others was traveling in the trolley of the tractor-in-question, however, the claimants as well as the owner of the tractor-in-question have tried to make out a case that the deceased and other villagers were traveling in the vehicle-in- question as labourer. Therefore it is necessary to peruse relevant paragraphs of claim petition as welt as written statement filed by owner of the vehicle in question. 8. Un-amended Paro-10 of claim application is quoted below:- ^f, ^f^TT f^TW cf^- ^ SI^T ill^lRf^' ^ ^TST ^TT TT^ cn^f ^ ^f ^HUT ^ ^,7, ^l^^l'H'fl ^ ^ ^N ^ "H^T 8TT, T\^W^\ ^it ^ ^h ^ ^nn :tRy ^ ^TRT cnro sir ^ ^^t^ ^ 'ffFI ^RT ?^3TF ^Tpf ^ ^T 'Sf^ m TTTcR) ?n^T ^t ^jT ^KTR ^ ^ ^TT^ ^fe7TT ^T f^TT t|" Amended Para-10 of the claim petition reads thus: n?f, ^fe?fT f^Tfcp cpf ^Tcf) 3F?( ill^cllRl^' ^ ^T ^.n TT^f 'cn?^ ^ 'ffm ^iT3T ^ TTg ^RR^t SRI^) ^. 2 ^ ETFT ^lf ^ ^ul^t ^ TR^ ^d'llll'W ^g^ ^ l^q^ ^IT aff, a^ £|H^ei^ ^ ^ ^SK[ ER WRft ^ WW w^, -^^w^ ^ ^t ^h ^ TRT STT, 1cirs;^i'M'ft ^ ^ ^h ^ T1^IKT 'iF^y ^ ^TRT ^FRT 3IT '?t ^ Ht W^ ^? TTR ^RT ^ 3]Ff Tfflf ^ ^^r ^T ^r ^T^P ^n^T ^t ^jf ^IR ^ (v)|q\!c||^ ^ TlcW^ ^CTT ^cT ^IT tl" 9. In Para-25 of the written statement non-applicant No.2-Sunderlal has stated as under:- "^? f^, ^fe'ff Sf^I^T ^n^T ^ cn^r ^ici^ ^ ^fe^rr f^ffcp ^ ^RT cn^ T^ c^ ^ ^ m^ cii^ziic)Ti s^rf^T ^! §ft, cCT cn^r ^pft ^KT ?I? ^rt i? f^ 'tTl^^ ^ Wf ^^ ^T ^IT^T i^ ^T ^ ffi^it ^IT^T :EIT?FT si^rf^r^ft f^^ ^T ^:tn^T ^^TW^ /'/' '"' ^^M^&^^ ^•wy^^ :..jsy "y{ff"'\-f:\'^'' ^7 3]rfR) c^T f ^n ^T infNt ^T W^ ^wfEFT t, ^ft fN^ ^1 ^rr w-ft c^ sri^ ^i 3RT ^ c^ f^ M^ ^t 11 lO.From the above it is evident that owner of the vehicle has admitted that the deceased along with other villagers had gone for darshan of bevi at Chandrahasini Temple, Chandarpur, which was not the part of job. Further, perusal of the insurance policy shows that there was no sitting capacity in the trolley and as such, the deceased was not authorized to travel in the trolley and in such a situation, status of the deceased in the said trolley would be a gratuitous passenger. Therefore, we are of the opinion that .vehicle was plied in breach of insurance policy and therefore the Insurance Company should have been exonerated from its liabitity. 11. At this stage tearned counsel for the respondent Nos.3 <& 4 has submitted that this Court may consider the quantum fixed by the Ctaims Tribunal as the amount awarded by the Claims Tribunal is too excessive as the deceased was a minor and the claimants are not entitled for more than Rs.51,500/- as held by the Hon'ble Supreme Court in the matter of Oriental Insurance Co. Ltd. Vs. Syed Ibrahim reported in (2007) 11 SCC 512. He has further submitted that even the standard deduction and muttiplier applied by the Claims Tribunal is not proper. 12. Therefore, we propose to examine quantum part of the impugned award. 13.In the matter of Syed Ibrahim (supra) the Hon'ble Apex Court in par-10 has held thus:- "10. 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 is the income of the deceased child capable of m ^\» m ^ j 1 t. V-^^P^: -11 ^ ^ i' 5^ assessment on estimated basis nor is the financial loss suffered by the parents capable of mathematical computation." 14. However, in the matter of Lata Wadhwa v. State of Bihar reported (2001) 8 SCC 197 the three Judges Bench of the Hon'ble Supreme Court while considering the petition filed under Articles 21 <& 32 of the Constitution of India for issuance of writ of mandamus or any other writ or directions, ordering prosecution of the officers of Tata Iron and Steel Company and their agents and servants for the alleged negligence in organizing function in Jamshedpur and direct that appropriate compensation be provided to the victims by the State Government as well as the Company has held in Para-11 thus:- 11. So far as the award of compensation in case of children is concerned, Shri Justice Chandrachud has divided them into two groups, the first group between the age group of 5 to 10 years and the second group between the age group of 10 to 15 years. In case of children between the age group of 5 to 10 years, a uniform sum of Rs.50.000 has been held to be payable by way of compensation, to which the conventional figure of Rs.25,000 has been added and as such to the heirs of the 14 children, a consolidated sum of Rs.75,000 each, has been awarded. So far as the children in the age group of 10 to 15 years, there are 10 such children who died on the fateful day and having found their contribution to the family at Rs.12,000 per annum, 11 multiplier has been applied, particularly, depending upon the age of the father and then the conventional compensation of Rs.25,000 has been added to each case and consequently, the heirs of each of the deceased above 10 years of age, have been granted compensation to the tune of Rs.1,57,000 each. In case of the death of an infant, there may have been no actuat pecuniary benefit derived by its parents during the child's lifetime. But this will not necessarily bar the parents' claim and prospective loss will found 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. Jenkinsox\^ 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 31 are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inferencecan, I think, be drawn from circumstancesother than and different from them." At the same time, it must be held that a mere speculative possibility of benefit is not sufficient. Question whether there exists a reasonable expectation of pecuniary advantage is always a mixed question of fact and law. There are several decided cases on this point, providing the guidelines for determination of compensation in such cases but we do not think it necessary for us to advert, as the claimants had not adduced any materials on the reasonable expectation of pecuniary benefits, which the parents expected. In case of a bright and healthy boy, his performances in the school, it would be easier for the authority to arrive at the compensotion amount, which may be different from another sickly/ unhealthy, rickety child and bad student, but as has been stated earlier, not an iota of material was produced before Shri Justice ChandrQchud to enable him to arrive at a just compensation in such cases and, therefore, he has determined the same on an approximation. Mr Nariman, appearing for TISCO on his own, submitted that the compensation determined for the children of all age groups could be doubled. as in his views also, the determination made is grossly inadequate. Loss of a child to the parents is ir-recoupable, and no amount of money could compensate the parents. Having regard to the environment from which these children were brought, their parents being reasonably well-placed officials of Tata Iron and Steel Company, and on considering the submission of Mr. Nariman, we would direct that the compensation amount for the children between the age group of 5 to 10 years should be three times. In other words, it should be Rs.1.5 lakhs, to which the conventional figure of Rs.50,000 should be added and thus the total amount in each case would be Rs.2.00 lakhs. So far as the children between the age group of 10 to 15 years, they are all students of Class VI to Class X and are children of employees of TISCO. TISCO itself has a tradition that every employee can get one of his children employed in the Company. Having regard to these facts, in their case, the contribution of Rs.12,000 per annum appears to us to be on the lower side and in our considered opinion, the contribution should be Rs.24,000 and instead of 11 multiplier, the appropriate multiplier would be 15. Therefore, the compensation, so calculated on the aforesaid basis should be worked out to Rs.3.60 lakhs, to which an additional sum of Rs.50,000 has to be added, thus making the total amount payable at Rs.4.10 lakhs for each of the claimants of the aforesaid deceased children. 15.In view of above, the argument advanced by the learned counsel for the appellant that the claimants are entitled for only Rs.50,000/- as compensation has no force. ..^ ^ ^0 16.So far as the second submission of learned counsel for the respondent Nos.3 <& 4 regarding standard deduction and myltiplier is concerned, perusal of impugned award reveals that the Claims Tribunal in order to calculate loss of dependency i.e. Rs.l,50,000/-firstly deducted l/3rd from the notional income of the deceased i.e. Rs.15,000/-, as personal and living expenses of the deceased and thereafter applied multiplier of 15 to it. However, since in the instant case the deceased was a bachelor, the Claims Tribunalshould have deducted 507o towards personal and living expenditure as held by the Hon'ble Supreme Court in the matter of Sarla Verma (Smt.)- and others -vs- belhi Transport Corporation and another reported in (2009) 6 SCC 121. Further, considering age of parents of the deceased i.e. 46 & 40 years respectively, average age of which would come to 43 years, the multiplier of 14 should have been appliedby the Claims Tribunal instead of multiplier of 15, as held in the matter of Sarla Verma's case (supra). 17.Thus, if we deduct 507o from the annual income of the deceased and thereafter apply multiplier of 14, the total loss of dependency would come to Rs.1,05.000/- (15000-50%xl4). Besides this, the claimants are also entitled to get Rs.5,000/- each towards loss of love <& affection, Rs.5,000/- for loss of estate and Rs.5,000/- for funeral expenses, totaling Rs.20,000/- under other heads. 18. Accordingly, we are of view fhat the claimants are entitled for the compensation of Rs.1,25,000/- in all along with simple interest @ 6% p.a. from the date of filing of application till the amount of compensation is actually made. 19. In the result; • the impugned award so far as it relates to fastening of liability on the appellant-Insurance Company is hereby set aside and we hold that the appellant is not liable to pay any compensation to the respondent- claimants involved in the impugned award and the same shall be paid by the owner of vehicle in question i.e. respondent No,2 herein. In case any amount deposited by the appellant has been withdrawn by the respondent-claimants, it will be open for the appellant to recover the ^l some from the respondent No.2-owner of vehicle. However, if the amount, so deposited. has not been disbursed so far, the Insurance Company shall be atlowed to withdraw the same. • the impugned award is modified to the extent that now the ctaimants shall be entitled for Rs.1,25,000/- as compensation in place of Rs.1.67.500/-. They shall also be entitted for simple interest © 6% p.a. on the awarded amount from the date of filing of application till actual payment is made. The amount already paid by the appellant-Insurance Company and withdrawn by the claimants shall be adjusted towards the amount of compensation as fixed by this Court. 20.The appeal is atlowed to the extent indicated above. No order as to costs. . ! Roshan/- Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge