Bombay High Court
Santoshkumar S/O Sheelchand Jain vs State Of Maharashtra Through The ... on 14 October, 1999
Equivalent citations: 2000(4)BOMCR76, 2000(2)MHLJ42
Author: S.D. Gundewar
Bench: S.D. Gundewar
ORDER S.D. Gundewar, J.
1. Feeling aggrieved by the quantum of compensation awarded by the Motor Accidents Claims Tribunal, Nagpur (hereinafter referred to as "the Tribunal") under the impugned award, the claimant, the father of the deceased child has now come up in this appeal seeking enhancement of compensation and modification of award in question.
2. I have heard the learned Counsel for the appellant as well as the learned Counsel representing the respondents and have carefully perused the record.
3. The facts giving rise to the filing of the present appeal are that on 11-2-1982 at about 7.15 p.m. claimant's minor son Sitosh, who had a nickname as Raju, aged about 2 years 3 months was going to Milk Centre, which was hardly 100 ft. away from his house along with his three sisters including Sulekha for purchasing milk. All of them crossed Bhandara road and after reaching the said Milk Centre, Sulekha was standing in a queue for purchasing milk, while Raju and her other sister Shivani were standing by the side of Sulekha. At that time, Shivani saw her girl friend standing on the other side of the road and, therefore, she caught the fingers of the hand of Raju and started crossing Bhandara road. At that very moment, a police wireless van bearing registration No. MHH-9139 came at excessive speed and knocked down Raju, who died as a result of the accident. The said accident occurred due to a rash and negligent driving of the said vehicle by its driver. The claimant contended that Raju was his only son after five daughters. He was a loving boy and he had high expectations from him and due to his death, his future as well as the future of his family members was badly affected. It was also contended by him that had the life of Raju not been cut short due to accident, he would have lived for a longer period and provided maintenance to his parents during their old age. The death of Raju was a great shock to all the members of his family and particularly to his mother, who lost her mental balance and has not yet come to normal. He, therefore, claimed compensation to the tune of Rs. 1,50,000/- from the respondents.
4. The respondents vide their written statement filed at Exh. 18 admitted the factum of accident but denied that at the relevant time the vehicle in question was being driven by its driver rashly or negligently. It is their contention that at the relevant time the deceased Raju and his 11 year old sister Shivani were standing on the road. The police wireless van was proceeding very slowly. The boy was holding a coin in his hand. The coin slipped from his grip and he went on the road to pick up that coin and in that process he was hit by the left side buffer of the van. According to the respondents, the accident in question occurred due to the negligence on the part of the child and his sister. On these grounds, they opposed the claim of the claimant.
5. The Tribunal taking into consideration the facts and circumstances brought on record determined the quantum of compensation to be Rs. 35,000/-.
6. While coming to the aforesaid conclusion, the Tribunal fixed compensation of Rs. 15,000/- on account of loss of earning and Rs. 20,000/- for pain and suffering.
7. The claimant had examined himself at Exh. 30, his daughter Sulekha at Exh. 32 and an eye-witness Santoshkumar Mithulal at Exh. 33, while the respondents examined Moradwaj Sharma, the driver of the police wireless van as their witness at Exh. 35.
8. Admittedly, the claimant Santoshkumar had not witnessed the accident and hence, his evidence is of no avail to the claimant to show as to how the accident in question took place. Sulekha (P.W. 2), however, deposed as to how the accident occurred. She had in very clear terms told the Tribunal that on 11-2-1982 at about 7.15 P.M. she herself along with her three sisters and the brother Raju left home for purchasing milk from the milk centre, which was hardly 100 ft. away from their house. They crossed Bhandara road and she was standing in a queue. Raju and her other sister Shivani were standing by her side. At that time, Shivani saw her girl friend standing on the other side of the road and, therefore, she caught the fingers of the hand of Raju and started crossing Bhandara road. She further deposed that she saw the police van coming at excessive speed. She, therefore, signalled the police van to stop as Raju was crossing the road but the driver of the van did not pay any heed to her request. The van proceeded further and knocked down Raju. This version of P.W. 2 Sulekha finds corroboration from the evidence of P.W. 3 Santoshkumar Mithulal.
9. The respondent's witness Moradwaj- the driver of the police van deposed that as Bhandara road was very busy road, he was driving the van in a very cautious manner and when it reached near Jagdish Misthan Bhandar, he heard the cries of the people that child was crushed. He immediately applied the brakes and got down. He lifted the child and handed it over to one constable. His aforesaid version is not consistent with the facts narrated by respondents in their written statement and, therefore, the Tribunal had rightly discarded the same.
10. The evidence of P.W. 2 Sulekha and P.W. 3 Santoshkumar Mithulal clearly establishes the fact that Raju, a child of 2 years 3 months old died because of rash and negligent driving of the police wireless van by its driver Moradwaj. The fact that on seeing the child on road, the driver of the said vehicle neither stopped it nor took it to right side of the road to avoid the accident, clearly indicates that he was rash and negligent in driving the vehicle in question and in my opinion, the Tribunal has rightly held so.
11. Now, it has been strenuously urged before me by the learned Counsel for the appellant that the deceased boy, namely, Raju was the only male child in the family after 5 daughters and losing the only male child is great loss to the family. His sudden death shocked the entire family and particularly to the mother of the child who lost her mental balance and not yet come to normal. It is also submitted by the learned Counsel for the appellant that the deceased Raju could have been a great support to his parents during their old age. According to the learned Counsel for the appellant, the amount of compensation awarded by the Tribunal is too meagre to compensate the loss suffered by the family and hence it needs to be enhanced particularly looking to the life expectancy of the members of the family of the deceased and the income of the appellant from his hosiery business.
12. As against this, the learned Counsel for the respondents asserted that the evidence of claimant, i.e. the father of the deceased is a wishful thinking, which could not be made a ground for justifying the enhancement of the amount awarded by the Tribunal which, according to him, is just and proper, especially when as observed by the Tribunal there is no data worth the name produced by the claimant to show the family background or other relevant circumstances which would give indication of the prospects of the child, who was only 2 years 3 months old at the time of his death. It has been urged that in the circumstances no interference by this Court is called for.
13. In determining the compensation in case of death of a child, the family background, the academic and other activities and the expectancy of the parents from the child have to be taken into consideration. The loss suffered by the parents due to sudden demise of their child cannot be calculated in terms of money. The parents of the child remain in trauma throughout their life. This cannot be compensated in any manner except by monetary compensation which has to be just and fair.
14. It is settled law that the award of compensation depends on the facts and circumstances of each case. If there is reasonable prospect of pecuniary benefit from the deceased for support of the family in the near future, the same can be taken into account. However, as a general rule, parents are entitled to recover the present cash value of the prospective service and pecuniary benefits of the deceased but when the prospect is very uncertain and the nature and quality of assistance is also uncertain, the Court must exclude all the considerations of matter which rest in speculation of fancy though conjecture to some extent is inevitable.
15. One cannot be oblivious of the uncertainties of life and inscrutable future. How the minor child would have turned out in later life is at best a guess only. Nothing has come on record to indicate that at the relevant time the parents of the child were well-placed in life and could afford him good education helping him thereby to further his prospects in life, which in turn would have enabled him to provide them financial assistance when the need arose.
16. It is no doubt true that no amount of money can compensate the injured feelings of the parents and can compensate them for what they had lost in Raju, but when we come to calculate the loss in terms of money, it is pecuniary loss alone which can be recoverable apart from general damages which can be awarded in the case for pain and suffering alone.
17. The Apex Court in its decision in the case of C.K. Subramonia Iyer and others v. T. Kunhikuttam Nair and others, , where the parents had claimed compensation of Rs. 30,000/-, held that an amount of Rs. 6000/- towards compensation was adequate in the case of death of their minor son aged 8 years as the parents could not bring on record enough material to establish the relevant facts which could indicate the extent of monetary benefits they would have got in the event the child had survived.
18. In the present case, the claimant had not adduced any evidence about his earnings of the year 1981-82, i.e. of the year just prior to the accident in question and, therefore, in my opinion, the Tribunal has rightly considered that there being no data in this behalf, the compensation of Rs. 15,000/- for the loss of earning would be enough. It is no doubt true that the loss of the only male child to the parents is irreparable. It is also true that the mother of the child received a great shock and lost her mental balance. This clearly indicates that the loss of the child is great damage to the entire family in general and the mother of the child in particular. Considering this aspect, in my view, the Tribunal had rightly awarded compensation of Rs. 20,000/- to the claimant on this count.
19. In my opinion, taking into consideration the decision of the Apex Court referred to hereinabove and the facts and circumstances of the case brought on record and further the overall escalation in the prices, the amount of compensation of Rs. 35,000/- awarded by the Tribunal does not appear to be unjust so as to warrant an interference in this appeal .
20. In the result, the appeal fails and is hereby dismissed. There shall, however, be no order as to costs.
21. Appeal dismissed.