AO/39/2005 of SURESH CHAND SAXENA and ORS Vs UMESH and ORS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

A.O. No. 39 of 2005

1- Suresh Chand Saxena S/o Bheem Sain Saxena,

2- Smt. Sudha Saxena W/o Suresh Chand Saxena, R/o Ward No. 7 Khatima R/o Ward No. 7 Khatima

District Udham Singh Nagar …Appellants

1- Umesh S/o Ram Kishan

R/o Village Majhola, P.S. Khatima,

District Udham Singh Nagar.

2- Brijesh Singh S/o Ram Kishan

R/o Village Majhola, P.S. Khatima

District Udham Singh Nagar.

3- The National Insurance Co. Ltd. Branch

Pilibhit, through Divisional Office,

Haldwani, District Nainital …Respondents

Sri S.K. Mandal, Advocate for the appellants.

Sri M.S. Bisht, holding brief of Sri Dharmender Chandra, Advocate for respondents 1 and 2. Sri Manish Dalakoti, holding brief for Sri D.S. Patni, Advocate for the respondent No. 3.

Hon’ble B.C. Kandpal, J.

Dated: 26-3-2008

This appeal under Section 173 of the Motor Vehicles Act, has been preferred against the judgment and award dated 29-10-2004, passed by Motor Accident Claim Tribunal/Addl. District Judge/ II F.T.C., Udham Singh, in MACP No. 136 of 2003, awarding compensation for sum of Rs. 1,02,000/- against the National Insurance Company Ltd. along with interest @ 6% per annum from 19-5-2003, the date of presentation of the petition, till the date of final payment.

2- The facts of the case, in short, are that on 12- 3-2003, at about 6.15 P.M., Tej Bahadur Saxena, son of the claimants, was standing at the corner of the road in village Charubeta and he was talking with Nainpal Singh and Ishwari Prasad. All of sudden, Truck, bearing registration No. H.R. 38/D-8893, came there from Majhola side, at high speed and dashed all the three persons, due to which they were seriously injured. Tej Bahadur was brought to Khatima, Hospital and looking to the graveness of the injuries, he was referred to Pilibhit and while Tej Bahadur was being carried to Pilibhit, in the way, he succumbed to the injuries sustained by him in the accident. According to claim petition, the deceased was aged about 18 years and he was studying in class -10[th]. The claimants claimed the compensation for sum of Rs. Five Lacs.

3- The Opposite Party/Respondent No. 1, Umesh filed written statement before the Tribunal and alleged that the Truck bearing registration H.R. 38/D- 8893 was registered in the name of Brijesh Singh and it was ensured with National Insurance Company Ltd. The accident has occurred due to own negligence of the deceased.

4- The Opposite Party/Respondent No. 2, contested the claim petition and filed his written statement. He alleged that the accident has occurred due to own negligence of the deceased. The offending Truck was having valid driving license and the vehicle was insured with National Insurance Company. It has also valid documents.

5- The Opposite Party/Respondent No. 3 filed its written statement alleging therein that the driver had no

valid driving license at the time of accident, therefore, the Insurance Company cannot be held liable to pay compensation.

6- The Tribunal, on the pleadings of parties, framed the following issues in the claim petition:-

1- Whether on 12.3.2003, at about 6.15 P.M. within the boundary of Village Charubeta P.S. Khatima, District U.S. Nagar, Truck bearing registration No. H.R. 38/D-8893 caused accident due to rash and negligent of its driver, in which Tej Bahadur Saxena had died? If so, its effect? within the boundary of Village Charubeta P.S. Khatima, District U.S. Nagar, Truck bearing registration No. H.R. 38/D-8893 caused accident due to rash and negligent of its driver, in which Tej Bahadur Saxena had died? If so, its effect?

2- To what relief, the claimants are entitled to get and from which of the parties? and from which of the parties?

7- Parties led evidence in support of their case. The learned Tribunal after considering the evidence on record and hearing the learned counsel for the parties, decreed the claim petition for sum of Rs. 1,02,000/- against the National Insurance Company Ltd. along with interest @ 6% per annum from 19-5-2003, the date of presentation of the petition, till the date of final payment.

8- Being dissatisfied with the amount of compensation awarded by the Tribunal, the claimants have preferred this appeal before this Court for enhancement of the compensation.

9- I have heard the learned counsel for the parties and perused the record.

10- From perusal of the record it reveals that at the time of accident the deceased was 18 years of age and he was studying in 10[th] class. The deceased was non-earning member. Therefore the Tribunal has taken the notional income of Rs. 15,000/- per year and after deducting 1/3[rd]towards personal expenses, 10,000/- per year was assessed the dependency of the claimants upon the deceased. The multiplier of ‘10’ was adopted by the Tribunal. Therefore, sum of Rs. 1,00,000/- + Rs. 2,000/- (towards funeral expenses) = Rs. 1,02,000/- was awarded as compensation.

11- Sri S.K. Mandal, learned counsel for the claimants/ appellants has submitted that the amount of compensation awarded by the Claim Tribunal is meager and it should be enhanced. In support of his contention he has cited the decision New India Assurance Co. Ltd. v. Satender & Ors. reported in A.I.R. 2007 Supreme Court 324 and has submitted that in view of the decision of the Hon’ble Apex Court, sum of Rs. 1,80,000/- was awarded in the case where the death of child of 9 years of age was caused. Learned counsel also submitted that the Tribunal awarded low rate of interest and the same be enhanced.

respondent/Insurance Company has made the rival contention by submitting that the amount awarded by the Tribunal is absolutely justified. He has submitted that the deceased was non-earning member and no proper determination of the future career of the deceased could be estimated. In support of his contention the learned counsel has cited the decision Kaushlya Devi vs. Shri Karan Arora and others, reported in 2007 (3) T.A.C. 16 (S.C.).

13- Having considered the arguments advanced by the learned counsel for the parties and also keeping in view the judgments cited by the learned counsel for the parties in support of their contentions, I come to the conclusion that the judgment cited by the Insurance Company is later judgment of the Hon’ble Apex Court and the Hon’ble Apex court in the later judgment cited by the learned counsel for the Insurance Company

(supra) has held as follows:-

“8. In case of the death of an infant, there may have been no actual pecuniary benefit derived by its parents during the child’s lifetime. But, this will not necessarily bar the parent’s claim and prospective loss will find valid claim provided that the parents establish that they had reasonable expectation of pecuniary benefit if the child had lived. This principle was laid down by the House of Lords in the famous case of Taff Vale V. Jenkins, 1913 A.C. 1, and Lord Atkinson said thus:

‘…….all that is necessary is that reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact-there must be basis of fact from which the inference can reasonably be drawn; but I wish to express my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first that the deceased earned money in the past, and,

second, that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence; but they are only pieces of evidence; and the necessary inference can I think, be drawn from circumstances other than and different from them. ‘(See Lata Wadhwa and Ors. v. State of Bihar and Ors., 2001 (8) S.C.C. 197: 2002 (1) (G.A.C. 138.

9. This Court in Lata Wadhwa’s case (supra) while computing compensation made distinction between deceased children falling within the age group of 5 to 10 years and age group of 10 to 15 years.

10. In cases of young children the tender age, in view of uncertainties around, 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 any 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.”

14- In the above cited case the Hon’ble Apex Court has confirmed the judgment of the Tribunal who awarded sum of Rs. One Lac as compensation. In the present case the deceased was non-earning member

and was class 10[th] student and the Tribunal awarded Rs. One Lac as compensation + Rs. 2,000/- towards funeral expenses, which appears to be quite reasonable.

15- In view of the aforesaid discussion, I do not find any infirmity in the impugned judgment and award passed by the learned Court below. The finding recorded by the Tribunal does not require any interference.

16- So far as the interest part is concerned, the Tribunal awarded interest @ 6% per annum, which appears to be on lesser side. In my view it should be 7.5%per annum instead of 6% per annum.

17- Therefore, the appeal is liable to be partly allowed, so far as the interest part is concerned.

18- Accordingly, the appeal is partly allowed. The impugned judgment and award is modified up-to the extent that the amount of Rs. 1,02,000/- awarded by the Tribunal as compensation, would be payable to the claimants by the Insurance Company along with an interest @ 7.5% per annum instead of 6% per annum, as has been awarded by the Tribunal. Rest part of the impugned award is confirmed.

ISB

(B.C. Kandpal, J.)