IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.01.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.3107 of 2007 National Insurance Company Ltd., .. Appellant Vs 1.D.Balu 2.B.Sumitha 3.K.Senthamaraikannan .. Respondents Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 18.04.2006, made in M.C.O.P.No.1743 of 2004, on the file of the Motor Accident Claims Tribunal (First Additional Sub-Court), Cuddalore. For appellant : Mr.D.Bhaskaran For respondents : No appearance J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 18.04.2006, made in M.C.O.P.No.1743 of 2004, on the file of the Motor Accident Claims Tribunal (First Additional Sub-Court), Cuddalore, awarding a compensation of Rs.2,80,000/- with 7.5% interest per annum, from the date of filing petition till the date of payment of compensation. 2.Aggrieved by the said Award and Decree, the appellant/second respondent, The National Insurance Co., Ltd., has filed the above appeal praying to set aside the said award and decree. 3.The short facts of the case are as follows: On 09.07.2004, at about 4.45 a.m. while the (deceased) girl was carried by her grandmother from west to east direction at her extreme left hand side of the Panrutti-Cuddalore Main Road, near Government Museum, the first respondent's van bearing registration No.TN48 A9867 came from west to east direction in the same direction, at a very high speed, in a rash and negligent manner and hit behind the (deceased) girl and caused the accident. 4.Due to the said accident, the (deceased) girl sustained grievous injuries and multiple fractures all over her body and head. She was immediately taken to and admitted in G.H.Cuddalore, but she succumbed to her injuries. The accident was caused only due to the rash and negligent act of the driver of the first respondent vehicle https://hcservices.ecourts.gov.in/hcservices/ bearing registration No.TN48 A9867. 5.The (deceased) girl was a hale and healthy at the time of the accident and she was only eight months old. She is the only daughter of the petitioners. As such, the petitioners have claimed a compensation of Rs.15,00,000/-, together with interest at the rate of 18% per annum from the date of petition till the date of payment of compensation, from the first and second respondents, who are the owner and the insurer, respectively, of the said vehicle involved in the accident. 6.Regarding the said accident, a criminal case was registered by the Cuddalore N.T.Police as Crime No.450/2004. 7.The second respondent, in his Counter has resisted the claim denying the age, legal heirship of the petitioners and the manner of the accident. It has been submitted that on the date of accident, the first respondent's vehicle driver drove the vehicle in a moderate speed and observing all the traffic rules and regulations and at that time the grandmother of the (deceased) girl, who was carrying the (deceased) girl, suddenly crossed the road unmindful of the oncoming vehicle and invited the accident. The accident occurred only due to the carelessness and negligent act of the grandmother of the (deceased) girl. 8.Further, it has been submitted that the first respondent's vehicle had not been insured with the second respondent at the time of the accident and that the vehicle driver also did not have a valid driving licence to drive the vehicle at the time of accident. Further, it has been submitted that the consolidated claim of Rs.15,00,000/- made by the petitioners is highly speculative and the failure to categorise the loss under specific heads is against law and as such the petitioners should be estopped from making any claim under specific heads in future. Further as the claim and interest are excessive and without any basis, the second respondent has prayed for dismissal of the petition with costs. 9.The Motor Accident Claims Tribunal framed three issues for the consideration namely: (i) Whose negligence was the cause for the accident to take place? (ii) Was the first respondent's vehicle insured with the second respondent at the time of the accident and did the vehicle driver have a valid driving licence at the time of the accident? (iii)Are the petitioners entitled to receive compensation? If so, who is liable to pay the compensation and what is the quantum of compensation, which the petitioners are entitled to get? https://hcservices.ecourts.gov.in/hcservices/ 10.On the petitioners side, the first petitioner, Balu, the father of the deceased Girl, was examined as PW2 and one Doctor Venugopal was examined as PW3 and nine documents were marked as Exs.P1 to P9. On the respondents side, no witnesses were examined and no documents were marked. 11.The PW2, the first petitioner in his evidence has adduced that on 09.07.2004, at 4.45 a.m. the grandmother of his child had carried his child and that they were walking near the Government Museum, Cuddalore, on the Panrutti-Cuddalore Main Road, on the left side of the road from west to east; that the first respondent's van bearing registration No.TN48 A9867, driven by its driver at a high speed and in a rash and negligent manner had dashed against his child and caused the accident. In the accident, his child was seriously injured and admitted at Government Hospital, Cuddalore and that in spite of treatment, his child had succumbed to the injuries sustained by her. At the time of accident, his daughter was aged only eight months; and as such the petitioners had claimed a compensation of Rs.15,00,000/- under the heads of pain and suffering, mental agony, loss of love and affection. 12.An examination of Ex.P2-Motor Vehicle Inspector's Report reveals that the accident did not happen due to mechanical defects in the said van involved in the accident. The Tribunal on inspection of Ex.P1-the Complaint given by one Sumitha to the Cuddalore Pudu Nagar Police, whereupon the Cuddalore Pudu Nagar Police had registered a Criminal case as 450/2004, under Sections 279 and 304(A) of I.P.C as well as considering the evidence of PW2 and PW1, the grandmother of the deceased, held that the accident had been caused by the rash and negligent driving of the first respondent's driver. 13.Though, it has been contended by the second respondent that it was the negligent act of the grandmother of the child, who had suddenly crossed the road with the child, which had caused the accident, no witnesses have been examined to prove this point. Considering the above circumstances, the Tribunal held that it was only the negligence of the van driver, which had been the cause for the accident. 14.Further, on scrutiny of Ex.P2-Motor Vehicle Inspector's Report, it is evident that the said van of the first respondent had been insured with the second respondent at the time of the accident and that the van driver had a valid driving licence at the time of the accident. Further, no evidence has been let it by the second respondent, to prove that the insurance policy taken for the said van was in valid and that policy conditions have been breached. As such, the Tribunal held that the said van had been insured with the second respondent and that the van driver had a valid driving licence, at the time of the accident. 15.From an examination of Ex.P1-Post-Mortem Report of the deceased girl, it is evident that her age was eight months at the time of the accident. The Tribunal on considering provisions as per https://hcservices.ecourts.gov.in/hcservices/ the second Schedule of the Motor Vehicles Act 163(A)(6), pertinent to age of eight months, took the prospective income of the deceased girl as Rs.15,000/- per annum. Adopting a multiplier of 15, the Tribunal assessed the loss of income to the petitioners as Rs.15,000/- X15=Rs.2,25,000/- and awarded this amount to the petitioners under the head of loss of income. Further, the Tribunal awarded a compensation of Rs.25,000/- to the petitioners under the heads of loss of love and affection and mental agony. For funeral expenses, the Tribunal awarded a sum of Rs.5,000/- and in total the Tribunal awarded a compensation of Rs.2,80,000/- to the petitioners together with interest at 7.5% per annum from the date of filing the petition till the date of payment of compensation and directed the second respondent to deposit the said award with accrued interest into the credit of the M.C.O.P.No.1743 of 2004, on the file of the Motor Accident Claims Tribunal (First Additional Sub-Court), Cuddalore, within a period of one month, from the date of its Order. Further, it apportioned 50% of the award with interest to the first petitioner and apportioned 50% of the award with interest to the second petitioner. Further, the apportioned share of the award of the first and second petitioners has to be invested in a nationalised bank for a period of three years and the petitioners were permitted to receive the interest on such deposits, once in six months, directly from the Bank. The petitioners were directed to pay the Court fees for the award within ten days from the date of its Order. The Advocate fees was fixed as Rs.8,360/-. 16.The learned counsel for the appellant in his appeal has contended that the Tribunal had erred in holding that the driver of the second respondent's vehicle alone was responsible for the accident; that the claimants/parents cannot be dependants of their deceased eight months old baby; that the Tribunal erred in adopting multiplier method of calculation for death of eight months old baby; that the Tribunal had erred in taking Rs.15,000/- per annum as contribution and adopting 12 years multiplier to arrive at a compensation of Rs.2,25,000/-; that the award of Rs.25,000/- to each claimant under the head of pain and suffering is also not sustainable. 17.The learned counsel for the appellant, in support of his contention has cited the following Judgments made in 2004 (1) TN MAC 172 (DB), High Court of Madras, Kokila & Another v. A.C.Rayan & Another, the relevant head notes of which are as follows: ".....Deceased a minor girl aged 10 years studying in IIIrd standard – Accident caused due to rash and negligent act of driver of lorry – Deceased died at hospital after two days of accident – Claimants: Deceased's parents – Prayer for compensation of Rs.1,00,000 – No dispute on side of respondents with regard to negligence – Inspite of such factual information, Tribunal granted compensation of Rs.25,000 – Appeal for higher compensation – Contention that in view of Principles laid down by Supreme Court in Lata Wadhwa v. State of Bihar, 2001 ACJ 1735, particularly with reference to death of https://hcservices.ecourts.gov.in/hcservices/ children between 5 and 10 and above 10 years, appellants are entitled for balance amount of Rs.75,000 – Appellate Court of opinion that a compensation of Rs.50,000 with further amount of Rs.25,000 towards conventional figure would meet end of justice – Award of Tribunal modified – Enhanced compensation of Rs.50,000 to carry 9% interest from date of Petition." I (2008) ACC 406 (SC) Oriental Insurance Co., Ltd., v. Syed Ibrahim & Ors, the relevant head notes of which are as follows: ".......Death of child aged 7 years – Claimants parents – Relevant factors is age of parents – Normal rule about deprivation of income not applicable – Where deceased was child he earns nothing but has prospect to earn – Assessment of compensation in such cases involves good deal of guesswork – Amount of Rs.51,500/-awarded by Tribunal as compensation, upheld – Motor Vehicles Act, 1988 – Section 168." CDJ 2006 SC 953, New India Assurance Co., Ltd., Vs. Satender & Others, the relevant head notes of which are as follows: "........Auantum of Compensation-held-In cases of young children of tender age, in view of uncertainities 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 estimate basis-The reason is that at such an early age, the uncertainities 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 capable of mathematical computation-Applying the principles indicated in Jasbir Kaur's case (supra) to the facts of the present case we think award of sum of Rs.1,80,000/- would meet the ends of justice-The same shall carry interest at the rate of 7.5% from the date of filing petition till payment is made." 2007 ACJ 1870, Supreme Court of India, Kaushlya Devi v. Karan Arora and others, the relevant head notes of which are as follows: "Quantum – Fatal accident – Deceased aged 14, brilliant student of class VIII – Claimants: father and mother – Deceased only son of his parents – Father filed claim before Tribunal, mother was joined as respondent and Tribunal awarded Rs.1,00,000 to be shared equally – Appeal by father was dismissed by High Court – Death of father – Appeal by mother for enhancement of compensation on the ground of family background of the deceased and his academic career – https://hcservices.ecourts.gov.in/hcservices/ Apex Court upheld the award of Rs.1,00,000 taking into consideration death of father of the deceased." 18.For the foregoing reasons and facts and circumstances of the case and after hearing the arguments advanced by the learned counsels on either side, the Court is of the view that for a non-earning member, the notional income of Rs.15,000/- fixed by the Tribunal is correct and the multiplier of 15 adopted by the Tribunal is also correct. As such, the loss of income is calculated as Rs.15,000/- X15=Rs.2,25,000/- and after deducting 1/3rd share for personal expenses, the loss of income incurred by the petitioners is assessed at Rs.1,50,000/-. For love and affection, this Court grants an award of Rs.20,000/- and Rs.10,000/- is granted for funeral expenses. In total, this Court grants an award of Rs.1,80,000/- to the petitioners together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment, which is found to be fair and equitable. The award of Rs.2,80,000/- granted by the Tribunal is scaled down as Rs.1,80,000/- for the reason that the claimants are aged about 30 years and 22 years respectively and as such the second petitioner has the possibility of begetting another child. 19.At the time of admission, this Court directed the appellant/National Insurance Company Ltd., to deposit the entire compensation award amount, into the credit of the M.C.O.P.No.1743 of 2004, on the file of the Motor Accident Claims Tribunal (First Additional Sub-Court), Cuddalore. The said conditional Order was complied by the Insurance Company as per records. 20.Therefore, it is open to the respondents/claimants to withdraw their apportioned share of the award amount ie.Rs.90,000/- each of the claimants with accrued interest, lying in the credit of the M.C.O.P.No.1743 of 2004, on the file of the Motor Accident Claims Tribunal (First Additional Sub-Court), Cuddalore, after filing necessary application, in accordance with law. Likewise, the appellant/Insurance Company is at liberty to withdraw the excess compensation amount of a sum of Rs.1,00,000/- with accrued interest, after observing Court formalities. 21.In the result, the above Civil Miscellaneous Appeal is partly allowed and consequently, the award and decree passed by the Motor Accident Claims Tribunal (First Additional Sub-Court), Cuddalore, in M.C.O.P.No.1743 of 2004 is modified. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar krk https://hcservices.ecourts.gov.in/hcservices/ To 1.Motor Vehicles Accident Claims Tribunal, First Additional Sub-Court, Cuddalore. 2. The Section Officer, VR Section, High Court, Madras. C.M.A.No.3107 of 2007 RSI(CO) pmk.9.2.2010 https://hcservices.ecourts.gov.in/hcservices/