* THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY + M.A.C.M.A.No.1226 of 2007 %25-02-2010 #The New India Assurance Company Limited. ..... APPELLANT Vs. $ P. Raju and others. .....RESPONDENTS ! Counsel for the Appellant: Mr. Kota Subba Rao Counsel for the Respondent Nos.1 and 2: Mr. C. Vikram Chandra Counsel for the Respondent No.3: Mr. A. Samir Kumar Reddy <Gist : >Head Note: ? Cases referred: 1. AIR 2001 SC 3218 2. 2007 ACJ 2816 3. (2009) 4 SCC 513 4. AIR 2007 SC 324 5. (1913) AC 1 THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY M.A.C.M.A.No.1226 of 2007 Date:25.02.2010 Between: The New India Assurance Company Limited. ..... APPELLANTS AND P. Raju and others. .....RESPONDENTS Counsel for the Appellant: Mr. Kota Subba Rao Counsel for the Respondent Nos.1 and 2: Mr. C. Vikram Chandra Counsel for the Respondent No.3: Mr. A. Samir Kumar Reddy The Court made the following Order: - ORDER: This M.A.C.M.A. arises out of award dated 30.08.2006 in O.P.No.206 of 2005 on the file of the Motor Accidents Claims Tribunal – cum - III Additional Chief Judge, City Civil Court, Hyderabad (for short ‘the Tribunal’), whereby the Tribunal awarded a sum of Rs.1,50,000/- as compensation for the death of a seven year old boy. For convenience, the parties are referred to as they are arrayed in the O.P. A boy aged seven years, by name Rakesh, the son of the petitioners, died on 05.09.2004 while he was travelling along with his parents in a TATA SUMO bearing registration No.AP 10U 7185 from Vijayawada to Hyderabad. The death occurred on account of the vehicle hitting a tree. The petitioners sued the respondents, who are owner and insurance company respectively, for recovery of Rs.2,00,000/- for the death of the boy. The Tribunal framed the following issues: “1. Whether the deceased died in the accident took place on 05.09.2004 due to the rash and negligent driving of the driver of th Tata Sumo bearing No.AP 10U 7185? 2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom? 3. To what relief?” Under issue No.1, the Tribunal held that the accident took place due to the rash and negligent driving of the driver of the vehicle in which the deceased was travelling. Under issue No.2, the Tribunal held that the deceased was a boy of seven years age. It relied upon the judgment of the Apex Court in Lata Wadhwa vs. State of Bihar[1] and awarded a sum of Rs.1,50,000/- as compensation with interest at 7.5% per annum. In this appeal, Mr. Kota Subba Rao, learned standing counsel appearing for respondent No.2 – appellant – insurance company, submitted that the quantum of compensation awarded to the petitioners is excessive. In support of his submission, he placed reliance on the judgment of the Hon’ble Supreme Court in Oriental Insurance Company Limited vs. Syed Ibrahim[2]. Opposing the above contention, Mr. C. Vikram Chandra, learned counsel appearing for the petitioners – claimants relied on the judgments of the Supreme Court in Supe Dei vs. National Insurance Co. Ltd[3] and New India Assurance Co. Ltd. vs. Satender and others[4]. I have carefully considered the submissions of the learned counsel for the parties. I n Oriental Insurance Company Limited (2 supra), it was observed by the Supreme Court that while making assessment of compensation in the case of death of a non-earning person such as a child, the task is stiffer and a great deal of guess work is involved therein. The Court referred to the judgment of the House of Lords in Taff Vale Rly. v. Jenkins[5] and quoted Lord Atkinson, which is apt to be reproduced hereunder: ".....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 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. [See Lata Wadhwa. v. State of Bihar, 2001 ACJ 1735 (SC)].” The Supreme Court also placed reliance on the judgment in Lata Wadhwa (1 supra) and has taken note of the fact that in the said case it has classified the children into two age groups, viz., age group between 5 and 10 years and age group between 10 and 15 years and observed that 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. It was further held that due to early age 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 and that therefore, neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by parents is capable of mathematical computation. On that premise, the Hon’ble Apex Court, while reversing the judgment of the High Court, which enhanced the compensation from Rs.51,500/- awarded by the Tribunal to Rs.1,52,000/-, confirmed the award of the Tribunal. However, another judgment was rendered by the same Bench in New India Assurance Co. Ltd. (4 supra), wherein a nine year old boy died in an accident and the Tribunal assessed compensation at Rs.3,40,000/- as loss of financial dependency and Rs.1,00,000/- for emotional loss, and after adding funeral expenses to the same and awarded a sum of Rs.4,45,000/- as compensation. This award of the Tribunal was confirmed by the Delhi High Court, which was questioned before the Supreme Court. The Court, while expressing identical views as in Oriental Insurance Company Limited (2 supra) [Indeed this judgment was rendered prior to the judgment in Oriental Insurance Company Limited (2 supra)], felt that award of a sum of Rs.1,80,000/- would meet the ends of justice. On a careful consideration of these two judgments, I am unable to accept the submission of the learned counsel for the appellant that in the light of the judgment in Oriental Insurance Company Limited (2 supra), award of Rs.1,50,000/- in the instant case cannot be sustained. The Supreme Court never laid down as a ratio that in every case of death of a boy, the compensation should not be in excess of what was awarded by the Tribunal in the said case. The Supreme Court in categorical terms held that since there were huge uncertainties in drawing conclusions on the prospects of a child with regard to his academic and professional career, the assessment should be carefully made. The Supreme Court’s judgment, confirming the Tribunal’s award in that case, was never intended to be treated as a ratio as regards the quantum of compensation fixed in that case. This is evident from the judgment in New India Assurance Co. Ltd (4 supra) rendered by the same Bench, wherein their Lordships have fixed the compensation of Rs.1,80,000/- for the death of a nine year old boy. The ratio that can be culled out from these two judgments is that the Tribunal is required to take into consideration various aspects such as the family background of the child, the financial and other status of the parents and the future potentialities of the deceased child. As noted above, in the instant case, the Tribunal which has placed reliance on the judgment of the Hon’ble Apex Court in Lata Wadhwa (1 supra) awarded Rs.1,50,000/- as compensation. In my considered opinion, this estimate does not suffer from any illegality or perversity warranting interference of this Court. For the above mentioned reasons, the M.A.C.M.A. is dismissed. Before closing the case, it may be noted that the learned counsel appearing for the respondents – claimants submitted that a separate C.M.A. was filed by the respondents - claimants for enhancement of compensation. As the said C.M.A. is not numbered and ready for hearing, the same is not taken up for hearing by this Court. Needless to clarify that dismissal of this appeal of the insurance company does not come in the way of respondents – claimants to pursue their appeal for further enhancement. _________________________ (C.V.NAGARJUNA REDDY, J) 25th February, 2010 Note: LR copy to be marked. (B/o) GHN [1] AIR 2001 SC 3218 [2] 2007 ACJ 2816 [3] (2009) 4 SCC 513 [4] AIR 2007 SC 324 [5] (1913) AC 1