Gauhati High Court
Uman Singh Gurung And Anr. vs Seva Ram Dutta And Ors. on 17 August, 1990
Equivalent citations: 1991ACJ1030
JUDGMENT Jagat Mohan Srivastava, J.
1. This is claimants' appeal against the judgment and award dated 21.11.1983 passed by the learned Motor Accidents Claims Tribunal (Kamrup), Gauhati.
2. The claimants who are the parents had claimed compensation for the death of their seven years old son, the only child, in an accident on 7.11.1977 caused by a motor bus belonging to the respondent No. 1 and at the time driven by respondent No. 2, which was insured with the respondent No. 3. The claimants had expected their deceased son who was bright in studies to do well in life and accordingly the claim was made for Rs. 1,00,000/-.
3. The claim was resisted by the respondents on the ground, inter alia, that the claim was excessive. The learned Tribunal on consideration of the evidence produced, by the impugned judgment and award, held that the deceased had died as a result of the accident caused due to rash and negligent driving of the bus for which the opposite parties, the present respondents, were liable. The compensation payable was determined at Rs. 20,000/- which was allowed.
4. Aggrieved, the claimants have come in appeal and Mr. D.K. Bhattacharjee, learned counsel appearing on their behalf, has contended that the deceased was the only son of the claimants, was a good student, also good in sports and considering that the claimant father was a Junior Commissioned Officer in the Indian Army, it was expected that the deceased would have done well in life and hence compensation determined at Rs. 20,000/- was much too inadequate. The learned counsel for the claimants has contended that at least Rs. 1,00,000/- should be allowed.
5. The respondent Nos. 1 and 2 have not put in appearance in this appeal.
6. Mr. A.K. Choudhary, learned counsel appearing on behalf of the insurance company, respondent No. 3, has argued that considering the age of the deceased the compensation allowed was fair and adequate and further that in the case of minor, the expectancy or dependency is just speculation and accordingly it was not a safe criterion for determination of compensation.
7. We have considered the submissions for the parties and the evidence on record.
8. The question for determination in this appeal is that whether the compensation allowed was adequate and if not, what should be the compensation payable.
9. Mr. AK. Choudhary, learned counsel for the respondent insurance company, has relied upon New India Assurance Co. Ltd. v. Sangey Tsering 1989 ACJ 304 (Gauhati), where this court took the view that the injury which is caused on the death of a minor is related to the mental shock and pain sustained by the claimants and compensation is to be allowed on that basis. The determination of compensation on the basis of working out dependency did not find favour.
10. Mr. D.K. Bhattacharjee, learned counsel for the claimants-appellants, has cited K.L. Pasrija v. Oriental Fire & General Ins. Co. Ltd. 1986 ACJ 252 (P&H), where for the death of a 5 years old son Rs. 20.000/- was allowed as compensation to the parents and it was held that dependency and multiplier had to be evaluated for the purpose. In Mangaldas Mohanlal Patel v. Union of India 1982 ACJ 426 (Gujarat), where for the death of a 13 years old boy Rs. 54,000/- had been allowed, it was held that in evaluating a chance, positive approach to life and optimistic view should be taken. In Mohd. Muzzafar v. Mohd. Sultan Sheikh 1980 ACJ 516 (J&K), where for the death of a son 12 years old, the compensation was enhanced from Rs. 10,000/- to Rs. 25,000/-. In Abdul Wahab v. Chandra Prakash 1986 ACJ 1087 (Allahabad), where for the death of a 2 years old in an accident Rs. 25,000/- as compensation-Rs. 5,000/- for mental shock and agony suffered and Rs. 20,000/- towards reasonably fc aseeable support in the normal course-was allowed. In Allah Bakhas v. Dhirendranath Panda 1983 ACJ 650 (Orissa), where for a 8 months old female child Rs. 8,000/- had been allowed. In E. Enjanadevi v. Arumugham 1983 ACJ 625 (Madras), where for the death of a 12 years old son Rs. 15,000/-had been allowed.
11. It should be clear from the above that the view has been taken that even in the case of death of a minor child it is reasonable and proper to take into consideration the future prospects for determination of compensation payable on the basis of criteria as may be available for a particular case. The view that compensation in the case of death of a minor child is only for the shock and pain' sustained by the claimants does not appear to be sound and correct.
12. We have considered the matter and think that while shock and pain may and do constitute one of the considerations, there is no good reason to confine the determination of compensation for the death of a minor in an accident only for the injury of'shock and pain' caused to the claimants. We see no good reason why the future prospects should not be duly taken into consideration, for future prospects even in cases of death, other than those of minors' death, also tend to be in the realm of speculation. In case of death of a grown-up person who had actual earning capacity, even though there is some material basis to determine the loss, nevertheless the expectancy has some measure of speculation in the determination of future prospect. While the measure of speculation may be more in the case of a minor yet in principle we find no justification for refusal of the claim only on the ground that the exercise shall be more speculative. It is true it may be difficult to determine the amount of compensation payable yet the basic fact should not be ignored or brushed aside that the parents do suffer irreparable injury due to the death of their child and there is hardly a parent who does not expect some support from his or her child when he or she was grown up and even though the dependency may not arise until some time later, loss of expectancy does occur and should be compensated as far as it may be reasonably possible to determine with as minimum speculative approach as may reasonably be possible. We, therefore, think that in the case of death of a minor child the claimant parents' expectations from the child have to be taken into consideration for determination of just compensation payable.
13. It is true that determination of compensation in the case of death of a child may be more difficult, but within reasonable limits, on the basis of the family background, the academic 1/ activities and achievements of the child, reasonable expectancy which the parents might have had from their child may be assessed and taken as fair basis for determination of payable compensation.
14. The claimant parents of deceased who was their only child must have sustained terrible shock, pain, hurt, a tremendous sense of loss and almost unbearable agony and anguish for which money cannot be anywhere near just compensation, yet in the absence of anything better,' monetary compensation helps to some extent to make the injury somehow endurable. We think Rs. 10,000/- for the injury should be reasonable compensation.
15. We have, as earlier said, not been able to persuade ourselves to share the view expressed in New India Assurance Co. Ltd. v. Sangey Tsering 1989 ACJ 304 (Gauhati) and think that the claimant parents are entitled to compensation for loss of expectancy also.
16. PW 1 Uman Singh, the father, stated about expectations he and his wife had from his only son who was bright in studies and sports. The boy was taking special coaching in English in the expectation to be taken abroad by his uncle.
17. PW 2 Daji Pawar, teacher in the school where the deceased studied, had testified that the deceased was good at studies and sports. PWs 3, 4, 5, 6 and 8 had also testified to the same effect. Exh. 1 to Exh. 5, school records produced, also bear out the above version. The above evidence was reliable and on its basis we accept that the claimants' son, the deceased, was good at studies and sports and the expectations of the claimants that the deceased would have done well in life were reasonable and justified.
18. Mr. D.K. Bhattacharjee, learned counsel for the appellants, had argued considering that the accident took place on 7.11.1977 when the deceased was 7 years, father 38/39 years and mother 29 years of age, the parents would have borne the responsibility of support and education of the deceased upto the age of about 22 years, that is, for about 15 years more, that thereafter the claimants could have reasonable expectation from the deceased and considering the expectancy of life at 70 years the multiplier for the father could safely be 16 years and for the mother 26 years-an average of 21 years. Mr. Bhattacharjee, learned counsel for the appellants, has further worked out expectancy at about Rs. 800/- per month which the parents could be expected to receive from the son, i.e., Rs. 9,600/- per year. By allowing deduction for uncertainties of life Rs. 1,00,000/- (one lakh) was the compensation amount payable.
19. It would be more realistic to think that the deceased would have settled in life by the age of about 26 years and could be expected to provide about Rs. 400/- p.m. for the parents and accordingly we think it would be reasonable to say that Rs. 50,000/- should be fair and adequate compensation for loss of expectancy.
20. Together with compensation of Rs. 10,000/- for shock etc., the claimants should receive Rs. 60,000/- as compensation.
21. The accident in which the claimants' son had lost his life had occurred in 1977. The claim was made and the Tribunal made the award on 21.11.1983, we think interest on the compensation payable should also be allowed. In Assam State Trans. Corporation v. Kamurun Nessa Mazumdar 1991 ACJ 464 (Gauhati), rate of interest that may be allowed in such cases was considered and in para 12 it was observed: The nature and character of interest is also well settled that interest is compensatory and when awarded it partakes the character of additional compensation. The rate of interest that may be allowed, as observed in Assam State Trans. Corporation 's case (supra), to have some reasonable basis, may be as per the rate of interest payable on delayed refund under the Income Tax Act, 1961. The rate should, therefore, be 12 per cent per annum upto 30.9.1984 and 15 per cent per annum thereafter.
22. For the aforesaid reasons, the appeal is partly allowed. The claimants shall receive Rs. 60,000/- as compensation from the respondents together with interest at 12 per cent per annum thereon from the date the claim petition was filed upto 30.9.1984 and at 15 per cent per annum from 1.10.1984 until recovered. Any payments already made shall be adjusted. Parties shall bear their own costs of this appeal.