IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 760 of 2006 Smt. Takdiran & another … Appellant Vs Jagrup Singh & another … Respondents With Appeal From Order No. 758 of 2006 Smt. Sumitra Devi & another … Appellant Vs Jagrup Singh & another … Respondents With Appeal From Order No. 761 of 2006 Smt. Sumitra & another … Appellant Vs Jagrup Singh & another … Respondents Sri Ravindra Singh Bisht, learned counsel for the appellant Sri Siddartha Sah, learned counsel for the respondent No. 1 Sri T.A. Khan, Advocate for the respondent No. 2 Hon’ble B.C. Kandpal, J. These appeals, arising out of same accident and the issues are also similar, therefore, all these appeals are being heard and decided together by this common judgment. For the sake of convenience, I am mentioning the fact of appeal No. 760 of 2006. 2. Appeal No. 760 of 2006 has been filed by the appellants/claimants against the judgment and award dated 25.05.2006 passed by Motor Accident Claims 2 Tribunal/District Judge, Nainital in Motor Accident Claim Tribunal No. 186 of 2005 whereby the Tribunal awarded a sum of Rs. 87,000/- in favour of the claimants. 3. Appeal No. 758 of 2006 has been filed by the appellants/claimants against the judgment and award dated 25.05.2006 passed by Motor Accident Claims Tribunal/District Judge, Nainital in Motor Accident Claim Tribunal No. 187 of 2005 whereby the Tribunal awarded a sum of Rs. 87,000/- in favour of the claimants. 4. Appeal No. 761 of 2006 has been filed by the appellants/claimants against the judgment and award dated 25.05.2006 passed by Motor Accident Claims Tribunal/District Judge, Nainital in Motor Accident Claim Tribunal No. 189 of 2005 whereby the Tribunal awarded a sum of Rs. 87,000/- in favour of the claimants. 5. Brief facts of the case are that on 23.06.2005 at about 08:00 a.m. the deceased Mala, Irshad and Shama were sitting on the road side at Kashipur-Road, Ramnagar, District Nainital. Suddenly, one truck bearing registration No. UP02B/8385 which was being driven by its driver in a very rash and negligent manner coming from Bhawaniganj- Ramnagar, crushed the above children due to which they died on the spot. According to the claimants the deceased was 5 years of age ant she was receiving her education. Therefore, the claimants filed claim petition for a sum of Rs. 6,00,000/- as compensation. 3 6. The owner of the offending truck contested the claim petition on the ground that the driver of the vehicle at a slow speed and driving the said truck cautiously. The driver was having valid and effective driving licence and the vehicle was insured with The New India Assurance Company Ltd. The amount of compensation is very exorbitant. 7. The New India Assurance Company Ltd. also contested the claim petition by filing written statement. The Insurance Company alleged that the accident has occurred due to the fault of the children. Hence the insurer cannot be held liable to pay compensation. The vehicle was being driven against the terms of insurance policy. Hence the insurer is not liable to pay compensation. 8. The learned Tribunal, on the basis of the pleadings of the parties, framed relevant issues in the petition. Parties adduced evidence in support of their cases. The Tribunal after having heard learned counsel for the parties and perusing the evidence on record, allowed the claim petition for a sum of Rs. 87,000/- payable by the New India Assurance Company Ltd. vide judgment and award dated 25.05.2006. 9. Feeling aggrieved by the aforesaid judgment and award, the claimants/appellant preferred this appeal before this Court for enhancement of the amount of compensation. 10. Heard Sri Ravindra Singh Bisht, learned counsel for the appellant, Sri Siddartha Sah, learned counsel for the 4 respondent No. 1, Sri T.A. Khan, Advocate for the respondent No. 2 and perused the record. 11. Learned counsel for the appellants/claimants has submitted before the Court that the Tribunal has committed illegality in awarding the lump-sum amount of Rs. 87,000/- as compensation in favour of the claimants/appellants. He has confined his prayer only upto the extent that the Tribunal has committed error while passing the impugned judgment and award. Learned counsel for the appellants/claimants has invited my attention towards the decision of Hon’ble Apex Court in the matter of Kaushalya Devi Vs. Karan Arora and others, reported in 2007(3) T.A.C. 16 (S.C.) and has submitted that the Hon’ble Apex Court has, after detailed discussion, found the compensation for a sum of Rs. One Lac in case of an infant death, quite justified. 12. I have perused the impugned judgment and award passed by the Tribunal and also perused the judgment of the Hon’ble Apex Court cited by the learned counsel for the appellant/claimants. The Hon’ble Apex Court in the cited judgment has held as follows:- “5. 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 5 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 compensation, 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. (a) 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 6 of evidence and the necessary inference can I think be drawn from circumstances other than and different from them.” 13. The Hon’ble Apex Court further has taken the note of the Lata Wadhwa’s case reported in 2001 (8) SCC 197 and has held as under:- “6. 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. (a) 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.” 14. In view of the judgment passed by the Hon’ble Apex Court, it is quite clear that in the motor vehicle accident where the deceased child is of tender age, then in view of the uncertainties abound, neither his income at the 7 time of death nor the prospects of the future increase in the income nor chances of advancement of their career are capable of proper determination on estimated basis. Hence neither the income of the deceased child is assessable on estimated basis nor financial loss suffered by the parents is capable of mathematical computation. In this case also the deceased/children were between the age group of four to five years. Having considered the decision of Hon’ble Apex Court as well as to the present facts and circumstances of the case, I am, therefore, of the view that the impugned judgment and award is modified upto the extent that the claimants/appellants are entitled to get Rs. 1,00,000/- as compensation. 15. So far as the interest part is concerned, the Tribunal awarded interest @ 6% per annum, which also appears to be on lesser side. In my view, it should be 7.5% per annum instead of 6% per annum. 16. Accordingly, the appeals are partly allowed. The impugned judgments and awards dated 25.06.2006 are modified upto the extent that the claimants/appellants are entitled to get a sum of Rs. 1,00,000/- in all these cases, instead of Rs. 87,000/- as has been awarded by the Tribunal. The Compensation would be payable to the claimants/appellants by the Insurance Company along with interest @ 7.5% per annum instead of 6% per annum, as has been awarded by the Tribunal. 17. Let the copy of this judgment be placed in A.O. No. 758 of 2006 and 761 of 2006. 8 (B.C. Kandpal, J.) 06.06.2008 ASWAL