IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL No. 10- COURT’S ORDER WHETHER THE CASE IS OR IS NOT APPROVED FOR REPORTING. [Chapter VIII, Rule 32(2) (b)] A.O. No. 463 of 2006 Mohd. Safeeq and another Vs. Moh. Deen and another Decided on 6-5-2008 A.F.R. (Approved for Reporting) Not Approved for Reporting (B.C. Kandpal, J.) Dated: 6-5-2008 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 463/2006 Mohd. Safeeq and another ..... Appellants. Vs. Moh. Deen and another ... Respondents. Mr. B.S. Parihar, Advocate for appellants. Mr. Mohd. Azim, Advocate for respondent No.1. Mr. Manish Dalakoti i/b for Mr. D.S. Patni, Advocate for respondent No.2. Dated: 06-05-2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of the Motor Vehicles Act 1988, has been preferred against the judgment and award dated 19-5-2006, passed by Motor Accident Claim Tribunal/Additional District Judge/ F.T.C. Kashipur, in MACT Case No. 168 of 2005. 2- Brief facts of the case are that on 19-7-2005, at about 3.30 P.M., Km. Fatma along with her mother was standing near the ‘Theli of Bangles’ in village Ghanori. Truck, bearing registration No. U.P. 21/N-0536 came there from Kashipur side in a high speed and dashed Km. Fatima on wrong side, due to which she sustained grievious injuries and thereafter succumbed to the injuries in L.D. Bhatt Government Hospital, Kashipur on the day of accident itself. According to the claimants the deceased was aged about 4 years and she was receiving her education. The claimants filed petition for U/S 163-A of the Motor Vehicles Act for compensation. 3- The owner of the offending truck contested the petition on the ground that the driver was driving the vehicle at a slow speed and the deceased herself was negligent as she was trying to cross the road. The driver was having valid driving license and the vehicle was insured with United India Insurance Company. Therefore the owner pleaded that the petition be dismissed against him. 4- The United India Insurance Company also contested the claim petition by filing written statement. The Insurance Company alleged that the accident has occurred due to her fault of the deceased. Hence the insurer cannot be held liable to pay compensation. It also alleged that he claimants were not dependant upon the deceased/infant child. The vehicle was being driven against the terms of insurance policy. Hence the insurer is not liable to pay compensation. 5- The learned Tribunal, on the basis of pleadings of 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 petition for a sum of Rs. 1,00,000/- payable by United India Insurance Company along with interest @ 9% per annum from the date of filing the petition till the date of actual payment. 6- Feeling aggrieved with the impugned judgment and award the claimants have preferred this appeal for enhancement. 7- Heard Sri B.S. Parihar learned counsel for the appellants, Sri Manish Dalakoti holding brief of Mr. D.S. Patni, Advocate for respondent No.2 and Mr. Mohd. Azim, learned counsel for respondent No.1 and perused the record. 8- Learned counsel for the appellants has submitted that it is a case of infant death and in this case minimum amount of Rs. 1,50,000/- should have been awarded as compensation, instead of Rs. 1,00,000/-, therefore, the amount awarded by the Tribunal is quite meager and liable to be enhanced. 9- Learned counsel for the Insurance Company, on the other hand, 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 (4) Supreme 29 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. 10- 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 Insurance Company. 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 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 interference 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.” 11- 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.” 12- In view of the judgment passed by the Hon’ble Apex Court, it is quite clear that in the motor vehicular accident where the deceased child is of tender age, then in view of the uncertainties abound, neither his income at the 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. I am, therefore, of the view that the impugned judgment and award suffers with no infirmity and is liable to be confirmed. 13- Accordingly, the appeal is dismissed. The impugned judgment and award dated 19-5-2006 is confirmed. (B.C. Kandpal, J.) ISB