Gauhati High Court
New India Assurance Co. Ltd. vs Sangey Tsering And Anr. on 1 December, 1988
Equivalent citations: 1(1989)ACC411
Author: B.L. Hansaria
Bench: B.L. Hansaria
JUDGMENT B.L. Hansaria, J.
1. The Only question to be decided in this appeal relates to the, quantum of compensation payable to the 'respondent No. 1 who is the father of Droma who Was aged about 7 years when she met her death in a motor accident. A claim, of Rs. 1,00,000.00 Was advanced and the learned Tribunal has awarded a sum of Rs. 50,000/-.
2. It is contended by Shri Choudhuri for the appellant that compensation, of Rs. 50,000/- on account Of an estirnated pecuniary loss sustained by the father of Droma is excessive. In support of this submission, Shri Choudhuri has relied, on a large number of decisions. At first he has referred; to State of Assam v. Nalini Kantd , in which a bench of this Court scaled down the compensation from Rs. 30,000.00 to Rs. 10,000/- awarded for death of a girl aged about 15/16 years. The learned Counsel has then drawn my attention to a number of decisions of the years 1977 to 1984 Wherein different , High Courts of the country had awarded, a sum varying from Rs, 4,000/- to Rs. 12,000/- for the death of a girl or boy aged between 5 to 12. The first is Hira Devi v. Bhaba Kanti (FB) AIR 1977 Gauhati 31, in which compensation for the death of a boy aged 12 years was fixed at Rs. 1,2,000/-. He has then referred to Manmohan Sarup Kausnal v. Mela Ram 1977 ACJ 140, where a sum of Rs. 8,000/- was awarded for the death of a,girl aged about 11 years. In Basanta Kumar Sahu v. Shyamsunder Agarwalla 1977 ACJ 359 (Orissa), the compensation fixed for the death of a boy aged about 5 years was Rs. 8,000/-. In Beliya v. M.P.S.R.T. Corporation Bhopal 1977 ACJ 362 (MP), a surri of Rs. 4,000/- was awarded for the death of a boy aged about 7 years, In Neelakantanchari Velayudhandchari v. Kerala State Road Transport Corp. 1977 ACJ 474, a sum of Rs. 5,000/- was awarded for the death of a girl aged about 12 years and a similar amount for the death of a boy of about 11 years. In M. P. State Road Transport Corporation v. Yasim 1974 ACJ 358 (MP), compensation for the death of a boy" aged about 12 years was fixed at Rs. 5,000/-.
3. Some recent decisions show that the compensation has been escalated to some extent inasmuch as in Andhra Pradesh State Road Trans. Corpn v. Ahnapureddy Gurava Reddy 1984 ACJ 451 (Andhra Pradesh) compensation awarded for the death of a boy aged about 9 years was fixed at Rs. 18,0,00/- and in P. R. Thakur v. J.P. Tyagi 1984 ACJ 635 (Delhi) a sum of Rs. 20,000/- was awarded as compensation for a boy aged about 5 years.
4. Shri Choudhury also refers to J and K State Road Transport Corporation v. M.A.C.T. 1988 (1) ACC 291 (J & K) in which the compensation for the death of a boy aged about 11 years was fixed at Rs. 10,000/-, though the compensation claimed was Rs. 1,55,400/-. In Kothandam v. Gobindarajan (1988) 1 ACC 407, the compensation awarded for the death of a boy aged about 12 years was enhanced from Rs. 5P00/- to Rs. 12,500/-.
5. As against these decisions cited by Shri Choudhury Shri Bhattacharjee has referred to Saraswati Bai v. Damodar Pd. 1987 ACJ 501 (M.P.) in which the court Was concerned with the just compensation awardable on the death 6f only son aged about 7 years. The Court felt that the award of Rs. 6,000/- by the Tribunal was too inadequate and, so it felt like enhancing the compensation to Rs, .50,000/-, but as a sum pf Rs. 21,000/- had been claimed on this count, the Court remained satisfied by awarding a sum of Rs. 21,000/-, I have been also referred by Shri Bhattacharjee to Rupinder Singh v. Jaswant Singh 1987 ACJ 493, in which the parents of the two deceased daughters aged about 8 and 4 years were granted a total compensation of Rs. 35,060/- Shri Bhattacharjee also contends that while awarding compensation, the court should bear in mind the escalating prices and the losing' value of money.
6. In the case at hand, we are concerned with the compensation payable to respondent No. 1 on the death of his sole daughter aged about 7 years, Though normally; compensation in case of spot, death in paid mainly to take care of the pecuniary loss Sustained by a claimant I am of the view that while dealing with the compensation payable for the death of a boy or girl too young in age, the desire of the Court to compensate the pecuniary loss would not be, the appropriate basis to fix the compensation inasmuch as in case of a child it would not be an earning (not even prospectively earning) member and as such pecuniarily not an asset to the family. Indeed, a child in its young age would be a pecuniary liability to the family inasmuch as the parents would have to spend varying amount on its upbringing including education which is proving too Costly in some cases. This apart, the family shall have to spend considerable amount of money of getting the boy or daughter married. It is also not known as to whether the child after attaining manhood would be gainfully employed, and if so, how, much he or she would earn and whether he o she would be of any real financing assistance to the parents in their old age, of course, the position would, be different in those Cases, where the child was a working, hand and the family was deriving financial help from it This' will however be so in a few eases. The Court has therefore to make, a departure from the traditional mode of computing compensation in, such cases. In my view the compensation has to be paid mostly to take care of the mental shock the parents had received on the death of their son or daughter. It is no doubt difficult to measure the mental shock in terms of money but the Court has nonetheless to perform this difficult, task as satisfactorily as the same can be done. There is no doubt that in doing so some amount of guests shall have to be taken recourse to but there seems to be no way out. Indeed, some amount of guesswork is, involved, in almost all computation of compensation under the Act.
7. While trying to measure the mental shock, the age of the child and a number of children, more particularly of the six to which the deceased belonged the couple had, would be the relevant factor. The financial status of the' family shall also be relevant inasmuch as a sum of even Rs. 5000/- may mean much to a person belonging to lower strata of the society, this amount will be regarded insignificant by the affluent parents. I have regarded the age of the child as a relevant factor in this regard because the attachment of the parents towards the child Would definitely depend upon the period the child has been in the family. The number of children the couple has; has also a bearing inasmuch as the shock would be terrible if the deceased child be the only issue. This shock would definitely be softened if the couple has some other children more particularly of the same sex. The mental attainment of the child would also have some nexus in fixing the compensation. If the child be bright, the loss would be felt more even by the parents. The mental shock suffered by parents would also depend on ' the sex of the child and the attitude of the society to which the parties belong towards a child of the sex to which the child belonged. Another factor to be borne in mind in this connection would be whether the couple has possibility of begetting another child. If the couple has passed the reproductive age, the loss would be felt more.
8. The above are some of the factors which should guide the Court in fixing compensation for the loss of a child. If these factors are borne in mind in the present case, it would be seen that the claimant is an educated person belonging to the middle class inasmuch as he was a Government servant at the relevant time holding the post of Deputy Field Officer under the Arunachal Pradesh Government. The father has also taken due care for the education of his children inasmuch as he had sent his younger son for study in Agricultural Engineering at Ludhiana, Punjab. Droma was the only female child of the claimant. In all he had three issues-two sons and a daughter. Droma was only 7 years old and was reading in Class-I of Bomdila Primary School; and as such not much is known about her mental attainments.
9. For a person like the claimant I would think that a sum of Rs. 10,000/- would be just compensation for the mental shock suffered due to the loss of a daughter aged about 7 years. As Droma was, however, the only daughter of the claimant who is aged about 60 years by now because of which the chance of his begetting another daughter can be said to be very belak, I would assess the shock at Rs. 15,000/-. Keeping in view the submission of Shri Bhattacharjee that in a tribal society a girl is valued no less than a son and indeed a girl is valued more, I would enhance the amount of Rs. 15,000/- to Rs. 17,000/-.
10. The compensation awardable to the claimant is, therefore fixed at a sum of Rs. 17,000/-. This would carry interest @ 12% from the date of filing of the claim petition. Of course while calculating interest the amount already paid would be adjusted suitably. The claimant shall also get a sum of Rs. 1,000/- by way of cost. All these amounts shall be paid within a period of 2 months from today.
11. In the result, the appeal is partly allowed.