MISC. APPEAL No.137 OF 2003 --------- 1.SMT.BINDA DEVI @ VIDYA DEVI alias Vidya Devi wife of Sri Rameshwar Yadav 2. Rameshwar Yadav son of Late Bahulal Yadav, both resident of village kanshi P.S. Simari, Dist. Muzaffarpur -------------------------(Appellants) Versus 1.SMT.PUSHPA KHANNA wife of not known to the appellants residing at Jawahar Lal Road, Muzaffarpur (O.P. no.1) 2. The Divisional Manager, United India Insurance Company Ltd. At Suraksha Bhawan, Akharaghat Road, Muzaffarpur (O.P.No.2) ………………… .Respondents) For the the Appellants : Mr. Ajay Kumar, Advocate. For the Respondents : Mr. Prakash Kumar, Advocate. --------- O R D E R 8 15- 04-2009 Learned counsel appearing on behalf of the appellants as well as respondent no.2 jointly request to dispose of this appeal finally at this stage itself. Vide order dated 2.5.2007, notices were issued upon the respondents to show cause as to why this appeal be not disposed of at the stage of admission itself. Despite valid service of the notice, the respondent no.1 (owner of the vehicle) has chosen not to appear and contest the appeal. It is jointly submitted that the respondent no.1 (O.P. no.1 before the tribunal) did not even file written statement before the Tribunal. It is further submitted that the owner has not been saddled with any liability of payment of compensation amount to the claimant. The Insurance Company has been directed to pay the amount as awarded by the Tribunal. Thus, contention is that this appeal could be disposed of at this stage even in the absence of the owner. In the aforesaid circumstances now I proceed to dispose of this appeal at this - 2 - stage itself. By preferring this appeal under section 173 (1) of the Motor Vehicles Act 1988 (hereinafter referred to be referred to as ”the Act”) the original claimants-appellants have challenged the amount of compensation awarded by 4th Additional District Judge-cum- Motor Vehicle Accident Claims Tribunal, Muzaffarpur in claim case no. 115 of 2000. By the impugned judgement dated 11.12.2002 the claimants have been awarded a total sum of Rs. 50,000/- only by way of compensation for the death of Sheela Kumari, minor daughter of the claimants- appellants.According to the claimants, the compensation awarded is on lower side and hence needs to be enhanced. It is not necessary to narrate the entire facts in detail such as how the accident occurred, whether there was negligence in driving the offending vehicle or who is liable for paying the compensation etc. for the reason that the findings recorded with regard to the aforesaid issues are not under challenge in this appeal. In an accident which occurred on 25.5.2000 , ten years old minor daughter of the claimants died giving rise to filing of claim petition by the claimants who are the parents of the deceased and who are appellants herein. The case was contested by the respondent Insurance Company by filing written statement whereas the owner though initially filed objection refuting the rash and negligent driving of the vehicle by the driver, however, he did not file any written statement and had not contested. The claimants adduced evidence. The Claims Tribunal by the impugned award , though allowed the claim - 3 - case, but awarded lump sum amount of Rs. 50,000/ only as just and proper compensation in this case. The Tribunal also awarded 12% interest as the Insurance Company, despite an order dated 17.9.2000 passed by the Claim Tribunal disposing of an application under section 140 of the Act directing the Insurance Company to pay a sum of Rs. 50,000/- by way of interim compensation, had not paid the same within time. Thus, the Tribunal awarded the aforesaid interest from the date of filing of the application till realisation of the amount. Learned counsel for the appellants submits that while deciding the compensation amount the learned tribunal has erroneously found lump sum amount of Rs. 50,000/- only as just and proper in case of death of child who was a non earning member. There has been non- consideration of the provision under section 163 (A) of the Act which is special provision for payment of compensation of on structured formula basis and which was inserted by the Act 54 of 1994. He contends that the Tribunal should have awarded the compensation amount on structured formula basis which has been purposely introduced by the Legislature under section 163(A). He contends that even in a claim petition filed under section 166 of the Act ,the Claims Tribunal was not precluded from calculating the compensation amount on the aforesaid structured formula. In support of his submission learned counsel relies upon U.P. State Road Transport Corporation and others Vs. Trilok Chandra & others reported in (1996) 4 SCC 362 wherein the Apex Court has held that the most important change has been introduced by the amendment Act 54 of 1994 in regard to the - 4 - determination of compensation by insertion of sections 163 (A),163 (B) and 165 (A). The second schedule to the Act has given mode of calculation for the compensation amount which, though suffered from several defects, yet can be used as a guide. Learned counsel further placed his reliance upon a decision of the Supreme Court in United India Insurance Co. Ltd. And others Vs Patricia Jean Mahajan and others reported in (2002) 6 SCC 281. In the aforesaid decision the Supreme Court has held that even in a claim petition filed under section 166 of the Act, the provision of section 163 (A) and the Schedule II may be taken as a guide unless until there is some special feature or fact calling for deviation from the scheduled multiplier. It has further been contended that the Supreme Court has been of the view that structured formula as provided in second schedule would be a safe guide to calculate the amount of just compensation. In yet another decision rendered in Manju Devi & Anr vs Musafir Paswan & Anr reported in 2003 (2) PLJR 120 (SC) the Supreme Court took notice of the decision rendered in U.P. State Road Transport Corporation (Supra) and has held that there should be no departure from the multiplier method on the ground that lump sum payment being made is just compensation. In the aforesaid case the Claims Tribunal fixed a sum of Rs. 90000/- considering it an amount to be just and proper and reasonable but the Supreme Court by applying the methodology of calculation envisaged under the 2nd schedule of the Act for the minor boy of age of 13 years held Rs. 15000/- per annum as a notional income and a multiplier of 15 as an appropriate multiplier and thus , enhanced - 5 - and modified the award to the sum of Rs. 2,25000/- along with interest. Similarly a Bench of this Court in Sukhdeo Paswan @ Shukdeo Paswan vs M/s United India Insurance Company Limited & Ors reported in 2006 (2) PLJR page 171 has enhanced the lump sum compensation amount of Rs. 52000/- awarded by the claims Tribunal to Rs. 1,50000/- along with interest @ 9% from the date of application till the realization holding that while compensation amount should not be a windfall and no body should try to make capital out of calamity but at the same time there should not be grossly inadequate compensation. Applying the structured formula basis, enhancement was made by the Supreme Court in Lata Wadhwa and others Vs State of Bihar and others reported in 2001(8) SCC page 197. The Supreme Court while dealing with the compensation amount on the death of a minor aged 10 to 15 years has assessed Rs. 200000/- as just and proper compensation. Learned counsel for the appellants has also placed reliance on various other decisions of different High Courts on the aforesaid issue such as R.K. Malik & Ors .vs Kiran Pal & Ors reported in 2007 ACJ 2010 (Decision of Division Bench of Delhi High Court), Mohammad Waseem vs Izraul Haqu & another reported in 2007 ACJ 1434 (Division Bench decision of Allahabad High Court) , Nirmal Maria vs Ram Singh & Ors reported in 2007 ACJ 82 (Punjab and Haryana High Court). S.C. Mittal & Ors vs Rajasthan State Road Transport Corporation & Ors reported in 2006 ACJ 875 (Rajsthan High Court, Jaipur Bench) and Sajansingh & another vs Manoharsingh & Others reported in 2008 ACJ 947. It has been contended that in all the - 6 - aforesaid cases the various High Courts have also enhanced the compensation amount by applying structured formula as per schedule 2 of the Act. Thus, according to the appellants the Tribunal has erred in holding that a lump sum amount of Rs. 50,000/- would be just and proper compensation without recording any reason or finding as to how it has reached to such conclusion. Learned counsel appearing for the respondent no.2 (Insurance Company) submits in reply that calculation of quantum of compensation amount cannot be done on mathematical calculation only rather all other aspect should be taken into consideration like the financial condition of the family, expectancy of the life of the claimants, status of the parties and future expectancy of the deceased etc. Learned counsel contends that the Claim Tribunal has clearly recorded a finding that in this case there is no evidence adduced on behalf of the claimants in respect of status of parties, financial condition of the family of the deceased, future expectancy of the deceased and loss of love and affection. Thus, according to him there was no error in the Tribunals conclusion that lump sum amount of Rs. 50,000/- would be proper to meet the ends of justice. However, he could not explain as to on what basis the tribunal has reached to the aforesaid just and proper amount. Learned Counsel for the respondent has placed his reliance upon a decision of Apex Court rendered in Oriental Insurance Company Ltd Vs. Syed Ibrahim and others reported in (2007) SCCR 898 wherein, according to him the Apex Court has held that calculation of quantum of compensation should not be on the basis of - 7 - Mathematical calculation only rather all over aspects as aforesaid should have been taken into consideration. In the aforesaid case the amount of enhancement by High Court was reduced to the amount awarded by the Tribunal. In reply thereof, learned counsel for the appellants submits that in the aforesaid case, the Apex Court has held that insurer was not liable to indemnify the award as the driver was not having a proper license of driving heavy goods vehicle. Even then the quantum as awarded by the tribunal and deposited by insurance company pursuant to the earlier order dated 29.4.2005 of the Apex Court was maintained and claimant was permitted to withdraw the amount so deposited along with the accrued interest. According to him, in the present case, in the absence of evidence on the point of status and the financial condition of the family, the only way open for the court below for computation of compensation amount was on the basis of structural formula provided in the Second Schedule of the Act. Learned counsel for the appellants also placed reliance upon a decision of Supreme Court in New India Assurance Co. Ltd. Vs Satender & others, 2006(13) SCC, 60 wherein the Apex Court had awarded Rs.1,80000/- as compensation amount in case of death of a nine years old child. Here, it would also be pertinent to refer to another decision of the Supreme Court rendered in Nagappa Vs Gurudayal Singh and others, reported in 2003 (1)PLJR 22 wherein it has been held that there is no bar for the Claims Tribunal to award compensation even in excess than the amount claimed if it comes to the conclusion that the - 8 - claimants are genuinely entitled for such amount. Having heard the rival submission and on consideration of the authorities cited by the parties I am of the view that on the plain perusal and evaluation of the factual profile of the present case, the amount awarded to the extent of Rs. 50,000/- to the unfortunate parents who have lost their young daughter of the age of ten years is grossly inadequate. It is diametrically opposite to the special proposition of law propounded so for. Even if there is no evidence led on the point of status of the parties, financial condition of the family of the deceased and future expectancy of the deceased, the Claims Tribunal was not precluded from taking recourse to the structured formula basis as provided in schedule II of the Act for said calculation. After all human life cannot be counted only in terms of loss of earnings or monetary loss alone. There is emotional attachment involved and loss of child can have devasting effect on a family which can be easily visualized and understood. However, it appears that a sum of Rs. 50,000/ has been assessed without disclosing any reason or basis for reaching such conclusion. Thus, the same requires to be revised upwards. The parliament in its wisdom has made structured formula in the second schedule for payment of compensation for third party fatal accident or injury cases. In the aforesaid Schedule for compensation for the persons who have no income prior to accident, income has been notionally fixed as Rs. 1,5000/- per annum. In the case in hand the deceased was ten years old minor and did not have any income. Only evidence has come that she used to help her mother. Thus, her income - 9 - could notionally be fixed at Rs. 15000/ per annum and since she was aged ten years only at the time of death due to accident, according to the structured formula, a multiplier of 15 would be appropriate as prescribed. Annual dependency after deducting 1/3rd from the aforesaid amount of Rs. 15000/- per annum comes to Rs. 10000/- per annum and if the same is multiplied by a multiplier of 15 the compensation amount would come to Rs. 1,50000/-. Thus, the appellants are held entitled for a total sum of Rs. 1,50000/- by way of compensation for the death of Sheela Kumari. The enhanced amount will be along with the interest as has been awarded by the impugned Award of the Claims Tribunal i.e. at the rate of 12% per annum to be calculated from the date of filing of the claim application till realization. This appeal is allowed with the aforesaid observation and Judgement and Award of the Claim Tribunal stands modified to the extent aforesaid. (Dr. Ravi Ranjan, J) Rahman/