Madhya Pradesh High Court
Kailash vs Ganpat on 7 August, 2015
1
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
Before Single Bench: Hon'ble Mrs. Justice S.R. Waghmare
Miscellaneous Appeal No. 1294 / 2014
Kailash & Ramibai
.vs.
Ganpat & 2 Others
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Shri Manish Jain, learned Counsel for the appellants.
Shri S.S. Chawla, learned Counsel for the respondent No.3/ National
Insurance Company Ltd.
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JUDGMENT
(Passed on 7/8/2015) Per Mrs. S.R. Waghmare, J.
By this miscellaneous appeal filed u/S.173(1) of the Motor Vehicles Act, 1988, the appellants /claimants are aggrieved by the award dated 06/03/2014 passed by Additional Member, Motor Accident Claims Tribunal, Sardarpur in Claim Case No.38/11 awarding a sum of Rs.1,75,000/- to the appellant.
Counsel for the appellant has vehemently urged the fact that the amount awarded is on the lower side and needs to be enhanced and hence the present appeal.
22. Briefly stated, the facts of the case are that on 01/01/2011 approximately @ 6.00 pm in the evening at Dilawar Road, in front of the Brick kiln of Bharat Prajapat Bhatta, the deceased Krishna was going along with his mother to meet his aunt, when the non- applicant No.1 Ganapat Patidar, driving the truck bearing no. MP11AB-6765 rashly and negligently dashed against them and caused severe injuries to Krishna. On account of the severe injuries, during the time of treatment, Krishna died and at the time of his death, Krishna was only 3 years old and studying in Nursery class. The appellants, the parents of the deceased, claimed that they were deprived of their child support in their old age and claimed a compensation from the respondents for a sum of Rs.10,00,000/-. The non-appellant no.1, driver and non-appellant no.2, owner denied the claim resisting that the truck was insured with respondent / non- appellant no.3, National Insurance Company Ltd. and the company is liable to pay the claim. The respondent no.3, Insurance Company had denied the claim on the basis that the accident did not occur due to the negligence of the driver and also denied the age of the deceased and denied the entire accident.
3Besides the F.I.R was delayed and the truck was driven by an unknown person and denied its liability to pay the compensation. The trial Court on considering the evidence, however, held that the respondents jointly and severally liable and ordered a sum of Rs.1,75,000/- be paid to the claimants. Being aggrieved by this order, the appellants / claimants have filed the present appeal stating that the award was very much meager under the circumstances that the Tribunal had failed to consider the age, future prospectus and future income of the deceased and the multiplier has also been wrongly used.
3. Counsel for the appellant / claimants, contended that the Tribunal ought to have calculated the amount of compensation on the basis of minimum wages or notional income prevalent at that time. Besides, the factor that the child was a bright child and his future prospects are not being considered. Counsel relied on Krishna Gopal and another v. Lala and others, [2013 ACJ 2594] whereby the Apex Court had considered the death of the deceased boy aged 10 years. The Apex Court had directed payment of Rs.4,50,000/- plus Rs.50,000/- in the conventional heads thus a total sum of Rs.5,00,000/- was awarded 4 with 9% interest. Considering the case of R.K. Malik and another v. Kiran Pal and others, [2009 ACJ 1924], Counsel contended that the case of 15 years old boy was considered and also awarded non- pecuniary compensation and besides the award of Rs.1,55,000/-, directed payment of Rs.75,000/- as pecuniary damages and Rs.75,000/- as non-pecuniary damages. Counsel placed reliance on Renu and another v. Oriental Insurance Co. Ltd and another [2015 ACJ 890] submitting that the Court had enhanced the award (Rs.1,80,000/-) to a sum of Rs.4,00,000/- and also considered the case of Ratan and another v. Rakesh Jain and another [2014 ACJ 2308] whereby the deceased was 6 years old girl and the award of Rs.50,000/- was enhanced to Rs.5,00,000/-. Also in the matter of Sattar Sheikh and another [2014 ACJ 489], Delhi High Court, in the case of death of the 9 years old child, the award amount was enhanced to Rs.6,97,623/- and hence, Counsel prayed that the amount of compensation in the present case also be enhanced.
4. Per contra, Counsel for the respondent No.3/insurance company has placed reliance on the judgment of the Apex Court in the matter of National 5 Insurance Company Ltd v. Satender and others whereby, considering the death of child around nine years, the Delhi High Court dismissed the appeal of the Insurance Company, whereby, an amount of Rs.4,45,000/- was awarded was upheld. The Apex Court directed that as indicated in the case of Jasbir Kaur and Others [2003(7) SCC 484] whether more appropriate under the circumstances and awarded a sum of Rs. 1,50,000/- to meet the ends of justice the Court had held thus:
"In cases of young children of tender age, in view of uncertainties abound, neither their income at the time of death nor the prospects of the future increase in their income; nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation."
Counsel also placed reliance on judgment and decree of M.P. High Court in the matter of Pooran Lal and another v. Amratlal and others [2008 ACJ 2795] whereby, for death of five years old child only 6 Rs.1,50,000/- has been awarded and submitted that more than adequate amount has been paid by the Tribunal and Counsel submitted that the appeal was without merit and the same be dismissed.
5. On considering the above submissions I find that the compensation awarded to the claimant must be just, reasonable and proper looking to the facts and circumstances of the case and taking into account the law laid down by the Supreme Court in various cases. However, there is no fixed or any static formula as such is provided for determining the compensation and the same is required to be determined on the basis of totality of evidence adduced and the relevant factors which are required to be taken into consideration as mentioned supra. It is on this basis the Courts have to work out award of reasonable compensation to the claimant for the injuries sustained and hence the amount needs to be enhanced as indicated by the cases cited above.
6. On considering the fact that only Rs.1,75,000/- has been awarded, I find that it could be appropriate to enhance in lump sum the compensation from Rs.1,75,000/- to sum of Rs.3,00,000/- In other words, the appellants/claimants are entitled for a total sum of 7 Rs.3,00,000/- by way of compensation.
7. In this view of the matter , the appeal succeeds and is allowed in part. The impugned award is modified to the extent indicated above. The enhanced sum will carry interest at the rate of 6% per annum from the date of the application till realization. All other findings are upheld being not under challenge.
(Mrs. S.R. Waghmare) Judge sumathi