FAO No. 44 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 44 of 2009 (O&M) Date of decision: 14.01.2010 Rajesh Kumar and another ....Appellants Versus Rinku Kumar and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Ms. Sangeeta Dubey, Advocate, for the appellants. Mr. Subhash Goyal, Advocate, for respondent No.3. ***** VINOD K. SHARMA, J (ORAL) This appeal by the claimants is for enhancement of compensation, awarded to the claimants under Section 166 of the Motor Vehicles Act, 1988. The appellants had claimed compensation on account of death of their child named Sapna, aged seven years in a motor vehicular accident, which occurred on 19.10.2007. It was pleaded in the claim petition that the death occurred due to the rash and negligent driving of Rinku Kumar respondent No.1. The claim petition was contested. The learned Motor Accident Claims Tribunal framed the following issues: - “1. Whether the accident in question took place due to rash and negligent driving on part of FAO No. 44 of 2009 (O&M) -2- Respondent No.1 resulting the injuries to Nirmala Devi and death of Sapna? OPP 2. If issue no.1 is proved whether the petitioners are entitled to compensation alongwith interest. If so how much and from whom? OPP 3. Whether respondent no.1 did not possess a valid driving licence? OPR3 4. Whether the present petition is bad for mis- joinder and non-joinder of the necessary parties? OPR 5. Whether the petitioners have no locus standi to file the present petition? OPR 6. Whether the petitioners have no cause of action to file the petition? OPR 7. Whether respondents no.1 and 2 have violated the terms and conditions of the insurance policy? OPR 8. Relief.? On appreciation of evidence, the learned Tribunal recorded a finding, that the accident had occurred due to rash and negligent driving of respondent No.1, which resulted in injuries to Nirmala Devi and death of Sapna. It was also held, that the driver was in possession of valid driving licence. Other issues, onus of which was on the respondents, were decided against the respondents as not pressed. The appellants were allowed compensation to the tune of Rs.1,50,000/- (Rupees one lac and fifty thousand only), on account of death of minor Sapna. The reason for assessing the amount of Rs.1,50,000/- (Rupees one lac and fifty thousand only) was, that Sapna FAO No. 44 of 2009 (O&M) -3- being seven years of age, there was no proof of income or dependency, therefore, the assessment was based on guess work of the loss. Learned counsel for the appellants contends, that the compensation awarded, is on the lower side, as the deceased had a very bright future, and was the only child of the parents, on whom they were dependent, for love and also for their future. The contention of the learned counsel for the appellants was, that the appellants were entitled to compensation, to the tune of Rs.2,00,000/- (Rupees two lac only), in view of the judgment passed by this Court in R.S. Rawat and another Vs. Tilak Raj and others, 2005 ACJ 1597. The learned counsel appearing on behalf of the Insurance Company, however, defends the award by placing reliance on the judgment of the Hon'ble Supreme Court in Oriental Insurance Co. Ltd. Vs. Syed Ibrahim and others, 2007(4) RCR (Civil) 351, wherein the compensation granted on account of death of the child aged seven years to the tune of Rs.51,500/- (Rupees fifty one thousand and five hundred only), was upheld. On consideration, I find force in the contentions raised by the learned counsel for the appellants. This Court in Ravinder Kaur and another Vs. Roop Lal and others, 2006(4) RCR (Civil) 329 granted the compensation of Rs.2,00,000/- (Rupees two lac only) for the death of a child of four years. The compensation was assessed in view of the law laid down by the Hon'ble Supreme Court in the case of Lata Wadhawa and others Vs. State of Bihar and others, 2001(4) RCR (Civil) 673, wherein the Hon'ble Supreme Court was pleased to lay down as under: - FAO No. 44 of 2009 (O&M) -4- “So far as the award of compensation in case of children are concerned, Shri Justice Chandrachud, has divided them into two groups, 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 actual pecuniary benefit derived by its parents during the child's life- time. 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 Ry. Vs. 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 FAO No. 44 of 2009 (O&M) -5- 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.” In the judgment relied upon by the learned counsel for the Insurance Company, the Hon'ble Supreme Court upheld the compensation granted by the Tribunal in an appeal filed by the Insurance Company, therefore, the Hon'ble Supreme Court was not considering the question of enhancement, whereas the Hon'ble Supreme Court in Lata Wadhawa and others Vs. State of Bihar and others (supra), considered the loss which the parents suffered due to the death of a minor child. The appeal is accordingly allowed and the compensation awarded is enhanced to Rs.2,00,000/- (Rupees two lac only). The appellants shall also be entitled to interest @ 7.5% at the enhanced compensation, from the date of filing of claim petition till realisation. No costs. (Vinod K. Sharma) Judge January 14, 2010 R.S.