Bombay High Court
Mohammed Akbar And Anr. vs Mustafa Khan And Ors. on 19 September, 2003
Equivalent citations: II(2004)ACC820
Author: S.B. Deshmukh
Bench: S.B. Deshmukh
JUDGMENT S.B. Deshmukh, J.
1. Heard Mr. H.M.S. Athar, the learned Advocate for the appellants. None present for the respondent No. 2 though served.
2. Learned Advocate Mr. V.L. Somalwar who appears for the respondent No. 3 was heard along with the learned Advocate for the appellant on earlier occasion i.e., on September 19, 2003. Hearing of this appeal was adjourned as the learned Counsel at that time sought time for referring some judicial pronouncements which according to them are relevant in this appeal.
3. The appellants are hapless parents of deceased Niyaz Ahmed who was about 5 years old on the date of vehicular accident. The appellants had filed the Claim Petition No. 32/1984 for grant of compensation. The appellants' case is that, their only son Niyaz Ahmed was standing near the house of his maternal grandfather by the side of Jabalpur-Nagpur road at Kamptee, on October 171983, in the morning, at about 11.30 a.m. The goods truch bearing No. URS-9785 coming from the side of Jabalpur and was proceeding towards Nagpur, which according to them left the road and dashed to their only son Niyaz Ahmed, and Niyaz succumbed to death on the spot. The brain of deceased Niyaz Ahmed was smashed into pieces. The Goods truck concerned did not stop and sped away. The people present on the spot seized the truck, caught hold of the driver near Mehmood Ali Petrol Pump on Nagpur Road and the accident was reported to the police. The appellants had filed the claim petition as stated above bearing No., 32/1984 claiming compensation to the tune of Rs. 50,000/-.
4. The respondents were served. The respondent No. 1 who was driving the said vehicle at the time of the accident remained absent and did not file written statement. The respondent No. 2 is the owner of the truck involved in the accident who had filed written statement at Exh. 15. The respondent No. 3 Insurance Company filed its written statement at Exh. 17 and resisted the petition. The respondent No. 3, however, admitted that the Truck No. URS-9785 was insured with the said respondent No. 3 Insurance Company at the relevant time. However, the respondent No. 3 emphatically denied the rash and negligent driving of the respondent No. 1. According to the respondent No. 3, the vehicle which was loaded with potatoes, was proceeding from Kanhan to Kamptee in a normal speed. The road was crowded with pedestrians on account of Maharram Festival. Niyaz Ahmed (deceased boy) of the appellants suddenly tried to cross the road. disregarding traffic rules and without noticing the said truck which was plying on the road at the relevant time, accidentally, came under the wheels of the said truck. According to the respondent No. 3, therefore, the accident took place only on account of the negligence on the part of the deceased Niyaz Ahmed. The learned Tribunal considering the pleadings of the parties framed issues in the matter. After recording the evidence and hearing the parties, the learned Member, Additional Motor Accident Claims Tribunal, Nagpur, dismissed the claim petition with no order as to costs by the judgment and award dated 19th March, 1987. However, the Member, Additional Motor Accident Claims Tribunal, Nagpur recorded the finding that the appellants are entitled to the compensation to the tune of Rs. 14,940/-. The learned Member, Additional M.A.C.T., Nagpur, considered grant of Rs. 15,000/- under the principles of No Fault Liability and, therefore, held that despite the fact that the applicants are entitled for getting compensation to the tune of Rs. 14,940/-, but an amount of Rs. 15,000/- is already paid to them on account of principle of No Fault Liability and, therefore, by this substantive petition, the appellants are not entitled for any more compensation than the amount of Rs. 15,000/- which was previously granted. In other words, the learned Member, Additional Motor Accident Claims Tribunal, Nagpur, awarded Rs. 15,000/- to the appellants on account of accidental death of their only son Niyaz Ahmed. It is this award passed by the Member, Addl. M.A.C.T., Nagpur, in Claim Petition No. 32/1984 is challenged in this appeal by the parents of the deceased Niyaz, who are appellants.
5. Admittedly, the deceased Niyaz Ahmed was of 5 years old on the date of accident i.e., on 17.10.1983. Admittedly deceased Niyaz Ahmed after the postmortem was handed over to the appellants. There is also no dispute that the truck in question was driven by the respondent No. 1 at the relevant time, was owned by the respondent No. 2 and was insured with the insurer i.e. the respondent No. 3 on the date of the accident. Ultimately, the learned Member, Addl. M.A.C.T., Nagpur, considering the age of 5 years of deceased Niyaz and status and position of the appellants, held that Niyaz could have started earning at the age of 18 years i.e., after 13 years of his death. According to the learned Member, Addl. M.A.C.T., Nagpur, by that time, the present appellants on an average would be 48 years old and they would be entitled to pecuniary benefits for expectancy of life, thus, for a period of about 17 years. The learned Member, Addl. M.A.C.T., Nagpur, also observed that looking to the status of the applicants, it could be said that they would be entitled to pecuniary benefit at the rate of Rs. 75/- per month which comes to Rs. 900/- per month and to the tune of Rs. 14,600/-. Thus, the entitlement of the appellants in this way is being considered and calculated by the learned Member, Addl. M.A.C.T., Nagpur, to the tune of Rs. 14,600/-.
6. The question in this appeal, therefore, in admitted facts as stated above, is regarding the entitlement of the appellants for compensation.
7. Learned Counsel appearing for the appellants, has referred to some judicial pronouncements. One of the judgments relied upon by the learned Counsel for the appellants is in the matter of R. Ayyavu and Anr. v. Gopinathan Nair and Anr. . The facts of this reported judgment reveals that the victim was of 5 years of age on the date of the accident and the Tribunal has granted an amount of Rs. 10,000/- towards the compensation though the claimants in that case had claimed an amount of Rs. 28,000/- towards the compensation. Their Lordships of the Kerala High Court in this cited judgment have considered the various other judgments and ultimately held that the amount of Rs. 48,000/- claimed by the claimants therein, is reasonable and granted said amount of compensation with interest at the rate of Rs. 12% per annum from the date of the application till payment.
Another judgment referred to by the learned Counsel appearing for the appellants is in the matter of Ram Sewak Anr. v. State of U.P. and Anr. reported in 1997 (3) Civil LJ 366. The facts revealed from this judgment do show that the victim boy in this case was 14 years old and Motor Accident Claims Tribunal, Zhansi had granted an amount of Rs. 20,000/- to the claimants. In this case Their Lordships of the Allahabad High Court worked out the compensation to the tune of Rs. 76,000/-, however, claim was restricted by the claimants to the tune of Rs. 50,000/- and, therefore, amount of Rs. 50,000/- was granted in that case.
In the matter of Oriental Insurance Co. Ltd. v. Gopal Singh and Ors.reported in 2000(1) T.A.C. 147 (MP), it seems that the Claims Tribunal had awarded Rs. 73,200/- for the accidental death of a child aged 4 years. This amount of Rs. 73,200/- was raised to Rs, 80,000/- in an appeal by Their Lordships of the Madhya Pradesh High Court.
8. The learned Counsel for the appellants has also referred to one more judgment pertaining to the group of appellants in the matter of Amti Hymavarthi Anr. v. Nissankararao Srikrishna Murthy and Ors. . In this reported judgment, the learned Counsel pointed out that the facts are similar. According to the learned Counsel, these petitions were governed by the provisions of Motor Vehicles Act, 1939 and his case is also governed by the said Act. In this reported case, an amount of Rs. 35,000/- is granted by way of compensation for the death of a boy who was 4 years old on the date of death. Another case from the same judgment which is being referred to is regarding grant of compensation to the tune of Rs. 25,000/- for the death of a boy who was 6 years old and in appeal which was enhanced to the tune of Rs. 35,000/-.
9. After referring to the pleading, observations and findings recorded by the Tribunal and after having heard the parties, the principle issue which requires for the consideration by this Court is regarding grant of compensation on account of death of 5 years old boy. Secondly, so far as this case is concerned, the rash and negligent driving of the respondent No. 1 also requires to be considered and decided by this Court. Therefore, the following are the points which arise for my consideration.
Points:
1. As to whether the appellants have proved that the respondent No. 1 was driving the said motor-vehicle rashly and negligently as alleged by them in the petition and the deceased Niyaz Ahmed died on the spot due to dash of the said vehicle?
2. Whether the compensation awarded by the learned Member, M.A.C.T., is adequate and proper?
3. What order?
Findings:
1. Yes.
2. No.
3. As per final order.
Reasons:
As to Point No. 110. The appellants' contention is that on the date of the accident i.e., on 17.10.1983, at about 11.30 a.m., a goods truck bearing No. URS-9785 was being " driven by the Mustafa Khan on Jabalpur-Nagpur Road. The appellants have also alleged that their son deceased Niyaz Ahmed was standing near the house of his maternal grandfather by the side of Jabalpur-Nagpur Road. The appellant No. 1 Mohd. Akbar has stated in his evidence that said goods truck which was being driven rashly, negligently and with a high speed, left the road and dashed against his son, a tailoring shop and a shop of a Barber. It is the evidence of the appellant No. 1 Mohd. Akbar that due to the accident, his son died on the spot and his brain was smashed into pieces. The truck according to them did not stop and sped away. The evidence further show that the people seized the truck and caught hold of driver and matter was reported to the concerned police station. The evidence of Faiz Mohammad shows that he runs hair cutting Saloon on Jabalpur-Nagpur Road at Kamptee. On 17.10.1983, he was attending a customer in his Saloon and at that time, deceased Niyaz Ahmed was standing in front of the house of his maternal grandfather and a truck came from the direction of Jabalpur Road which was in a high speed. The said witness Faiz Mohd. further states in the evidence that the truck knocked Niyaz Ahmed. The truck dashed against his Saloon with the result that the tin sheets of its roof were uprooted. Witness further says that the brain of Niyaz Ahmed smashed into pieces and he died on the spot itself. With this evidence, of an eye-witness as it is said in Criminal Jurisprudence, the fact of negligence as also rashness of driving the vehicle with high speed by the respondent No. 1 is established. Therefore, considering this evidence, it cannot be said that learned Member, Addl. M.A.C.T., Nagpur, has committed any error while recording finding that the respondent No. 1 is responsible for the accident in question and was driving the said truck rashly and negligently at the time of the accident. I accept the evidence of these witnesses and concur with findings recorded by the learned Member, Addl. M.A.C.T., Nagpur, on this point. Therefore, point No. 1 is answered accordingly.
As to Point No. 2:
11. The deceased Niyaz Ahmed, as stated above, was a boy of 5 years old. While considering the age of deceased Niyaz, his status, family background and other factors which are relevant, compensation needs to be worked out. Life of human person may be of 5 years old is precious. In such cases, it requires to be considered as to what should be the methodology of working out the compensation. A boy of 5 years of age is not expected to earn much and support his parents and or somebody else. For working out the compensation, the aim and object of the principle of No Fault Liability can be considered up to some extent. In the earlier Motor Vehicles Act, 1939, previously such procedure and or provisions was not made available to the claimants. All that was available to the claimants was to make an application for grant of compensation to the claimants at the time of adjudication of their claim petition. Grant of some amount of compensation without entering into the area of fault and/or error, either on the part of the victim or the person who was driving the motor vehicle at the relevant time was not possible. Therefore, the principle of No Fault Liability was introduced for the first time, in the year 1982. It was by way of amended Section 92(A) to the Provisions of Motor Vehicles Act, 1939. By virtue of this amendment, an amount of Rs. 15,000/- was provided on account of the death due to motor vehicle accident. This amendment was brought to the statute book on October 1st, 1982. Thereafter, again, the principle Act suffered an amendment and by way of amended Section 140 to the said Motor Vehicles Act, 1988, this amount was enhanced to the tune of Rs. 25,000/- and this section was brought in force since 1st of July, 1989. Thereafter, the Legislatures in their wisdom thought it fit to raise this amount of Rs. 25,000/- to Rs. 50,000/- in an accident, occurred on or after the date on which Section 140 was brought to the statute book. This amendment was made enforceable from 14.11.1994. Thus, initially, the provision of Rs. 15,000/- was made and has been raised to 25,000/- and thereafter to 50,000/-, within a span of about 12 years. Therefore, compensation to the tune of Rs. 50,000/- in case of a death of human person, irrespective of age of that person shall be taken to be normal amount of compensation.
12. While determining the compensation in case of death of a child, the family background, the academic and other activities and the expectancy of parents from the child have to be taken into consideration. The loss suffered by the parents due to accidental death of their child cannot be calculated in terms of money. The parents of the child remain in trauma throughout their life. How the minor child would have turned out in later life is at best a guess-work only. The amount of compensation depends on the facts and circumstances of each case. If there is reasonable prospectus of pecuniary benefit from the deceased for support to the family at the time of the accident, the same can be taken into consideration. However, as a general rule, parents are entitled to recover the present cash value of prospective service and pecuniary benefits of the deceased. Thus, now statute itself has provided minimum amount of compensation towards the death of an human person on the date of the accident.
13. Looking to the status of the present appellants, occupation and evidence of the present appellant, it cannot be denied that deceased Niyaz was looking after the said business of the Pan Shop for short span of time as a reliever. If we consider the nature of the business of Pan Shop, obviously, it is clear that reliever is necessary and we cannot accept that any person since morning till closure of the shop, would look after the shop. In such circumstances, the case of the appellant and evidence to that effect needs to be accepted. The contention of the appellant is that after the demise of Niyaz, the only some of appellant, now he requires the help of the reliever and has to make payment of Rs. 10/- per day. According to the learned Counsel appearing for the appellant, therefore, requires to incur as expenses of Rs. 300/- per month and ultimately per annum Rs. 3,600/-. This can be said to be a loss in earning and or income of the parents. Considering the age of deceased Niyaz as well as respective ages of the present appellants, atleast for about 16 years, deceased Niyaz would have been at the help of parents. The proper multiplier in this case can be said to be 16. The actual expenses of the appellants to the tune of Rs. 3,600/- if considered to be earning of deceased Niyaz, 1/3rd amount can be considered to be for personal expenses and can be reduced. The amount of Rs. 2,400/- can be said to be earning of deceased Niyaz per annum. With little arithmetical exercise by adopting multiplier of 16, it comes to Rs. 38,400/-. Thus, an amount of Rs. 38,400/- can be added with Rs. 30,000/- for pains and sufferings. Thus, a total amount comes to Rs. 68,400/- however, appellants have claimed an amount of Rs. 50,000/- only. Therefore, they are entitled for Rs. 50,000/- towards compensation.
14. Thus, in my view, the appellants are entitled to claim and get Rs. 50,400/- towards the amount of compensation. Learned Member of the Tribunal has granted an amount of Rs. 14,940/- and since an amount of Rs. 15,000/- was paid on the principle of No Fault Liability has rejected the claim petition. Thus, the award passed by the learned Member, Additional M.A.C.T. Nagpur, will have to be modified. The appellants are entitled to Rs. 35,000/- as an amount of compensation. The learned Counsel appearing for the appellants has also brought to my notice the judgment of the Apex Court in the matter of Ramesh Chandra v. Randhir Singh and Ors. , wherein it is observed that even though interest is not claimed in the petition, interest can be awarded by the Tribunal. In the present case, in my opinion, interest at the rate of Rs. 9% can be awarded to the appellants from the date of the application till receipt of the entire amount. Hence, I pass the following order.
ORDER
1. Appeal is allowed.
2. The award passed by the Member, Additional Motor Accident Claims Tribunal, Nagpur, is hereby modified and the respondent Nos. 2 and 3 are jointly and severally held liable to pay an amount of Rs. 35,000/- (Rupees thirty-five thousands only) to the appellants along with interest from the date of filing of the petition till realization of the entire amount exclusive of Rs. 15,000/- (Rupees fifteen thousands) previously paid.
3. The proportionate cost of the petition is also allowed in favour of the appellants.