* THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY + C.M.A.No.2690 of 2003 %21-10-2010 # Sivangi Aduilakshmi and another ..... APPELLANTS Vs. $ Moturi Veeranjaneyulu and others .....RESPONDENTS ! Counsel for the Appellants: Mr. Aravala Rama Rao Counsel for Respondents: None appeared <Gist : >Head Note: ? Cases referred: 1. AIR 2003 SC 674 2. 1913 AC 1,7 THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY C.M.A.No.2690 of 2003 Date:21.10.2010 Between: Sivangi Aduilakshmi and another ..... APPELLANTS AND Moturi Veeranjaneyulu and others .....RESPONDENTS Counsel for the Appellants: Mr. Aravala Rama Rao Counsel for Respondents: None appeared The Court made the following Order: ORDER: This Civil Miscellaneous Appeal arises out of the award dated 13.03.2003 in M.V.O.P.No.482 of 1998 on the file of the Motor Vehicle Accidents Claims Tribunal-cum-I Additional District Judge’s Court, Srikakulam (for short ‘the Tribunal’). The appellants are the parents of a five years old boy, by name, Sivangi Krishna (hereinafter referred to as ‘the deceased’). When the deceased along with the appellants were traveling in a car bearing No.OR 05/T 0027, driven by respondent No.4, the car was hit by a lorry bearing No.AIW 9297 near Sriramanagar Village on NH5 road on 20.01.1997 at about 4.30 p.m. The said lorry was owned by respondent Nos.1 and 2 and insured with respondent No.3. The appellants have filed the abovementioned O.P. before the Tribunal for compensation of Rs.1,00,000/-. The Tribunal has held that the accident occurred on account of the rash and negligent driving of the lorry and assessed the compensation at Rs.1,80,000/-. As the appellants have restricted their claim to Rs.1,00,000/-, the Tribunal has awarded the said sum. At the hearing, Sri Aravala Rama Rao, the learned counsel for the appellants, submitted that the Tribunal has committed an error in restricting the award of compensation to Rs.1,00,000/- on the ground that the appellants have claimed only the said sum. He relied upon the judgment of the Supreme Court in Nagappa v. Gurudayal Singh[1] in support of his contention that as the Tribunal is empowered to award just compensation, it has the jurisdiction to award even higher compensation than what is actually claimed by the claimants and that either the Tribunal at the O.P. stage or the superior Courts at the appellate stage can entertain an application for amendment of the claim petition. I have carefully considered this submission of the learned counsel for the appellants. It is no doubt true that the Apex Court in Nagappa’s case (1 supra) held that the Tribunal is empowered to award higher compensation than what is actually claimed and that to facilitate such an award, it can entertain an application for amendment which, if allowed, would not amount to either introducing a new or inconsistent cause of action. In the said case, the Supreme Court has gone to the extent of entertaining an application for amendment at the stage of appeal before it. While this proposition of law is undisputed, on a careful consideration of the award, I find that the appellants are not entitled to enhancement of compensation in this appeal, the reason being that the Tribunal committed a serious error in assessing the compensation by treating appellant No.1, the mother of the deceased boy, as the non- earning member and applying the second schedule to the Act. This approach of the Tribunal is fundamentally wrong because in the case of death or injury, the assessment of compensation shall be made with reference to the income of person involved in the accident and not by taking into consideration the income of the claimants. The relevancy for adopting the age of the claimants would arise only in cases of unmarried victims of the accidents. Though no appeal has been filed against the award of the Tribunal, that by itself would not entitle the appellants to plead that the award of the Tribunal should be taken on its face value and the judgment of the Supreme Court in Nagappa’s case (1 supra) shall be applied. When the approach of the Tribunal is found to be legally unsustainable in assessing the compensation in excess of the claim made by the claimants, this Court is entitled to examine the basis for such assessment even in the absence of an appeal filed by the respondents. Unless this Court is satisfied that the assessment made by the Tribunal conforms to the legal principles, the appellants would not be entitled to the award of compensation in excess of what is actually claimed by them before the Tribunal. In case of death of children of tender age, it is not possible to assess the compensation as any estimate of the income would fall in the realm of hypothesis. However, the parents of the deceased children are not precluded from making a valid claim and establishing the same by adducing evidence on their reasonable expectation of pecuniary benefit from the child. if it had lived. Lord Atkinson in Taff Vale Rly. Co. vs. Jenkins[2] held as under: “..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 of evidence; and the necessary inference can 1 think be drawn from circumstances other than and different from them.” (Emphasis added) In the present case, P.W.1, the father of the deceased boy, has not raised any whisper about the potential of the deceased, the class in which he was studying and his future prospects regarding his education and general capabilities. In the absence of any such plea and evidence, it is not possible for this Court to presume that the deceased boy would have earned more than the claim made by the appellants. In this view of the matter, I am not inclined to accept the plea of the appellants to enhance the compensation in excess of the claim made by them by applying the ratio laid down in the judgment of the Supreme Court in Nagappa’s case (1 supra). For the aforementioned reasons, the Civil Miscellaneous Appeal is dismissed. As a sequel to dismissal of the Civil Miscellaneous Appeal, C.M.A.M.P.No.18149 of 2003 is dismissed as infructuous. _________________________ (C.V.NAGARJUNA REDDY, J) 21st October, 2010 Note: L.R. Copies to be marked. (B/o) GHN [1] AIR 2003 SC 674 [2] 1913 AC 1,7