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Judgment
This Civil Miscellaneous Appeal has been filed for enhancement of compensation granted by the award dated 17.09.2019 made in M.C.O.P.No.99 of 2017 on the file of Motor Accident Claims Tribunal, Sub Court, Avinashi, Tiruppur District.
The appellant is the claimant in M.C.O.P.No.99 of 2017 on the file of Motor Accident Claims Tribunal, Sub Court, Avinashi, Tiruppur District. She filed the above said claim petition, claiming a sum of Rs.40,00,000/- as compensation for the death of her son viz., Muhil, who died in the accident that took place on 07.12.2015.
The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by the driver of the bus belonging to the 2nd respondent and directed the 2nd respondent-Transport Corporation to pay a sum of Rs.5,45,000/- as compensation to the appellant.
Not being satisfied with the amounts awarded by the Tribunal, the appellant has come out with the present appeal seeking enhancement of compensation.
The learned counsel appearing for the appellant contended that the Tribunal erroneously fixed meagre sum of Rs.30,000/- as the annual income of the deceased. The Tribunal ought to have fixed a sum of Rs.1,00,000/- per annum as notional income of the deceased considering the date of accident, i.e., on 08.12.2015, prevailing economic cash flow index and cost of living. In the accident, the only male child and the father of the child also died.
The learned counsel appearing for the appellant relying on the judgments reported in 2017 (2) TNMAC 702, [J.Kanagaraj and other Vs. Metropolitan Transport Corporation Limited] and (2018) 1 SCC 130, [Magma General Insurance Company Limited Vs. Nanu Ram], contended that that the Tribunal ought to have awarded a sum of Rs.5,00,000/- for fertility treatment or for adopting a child and also a sum of Rs.1,00,000/-towards filial consortium. The amounts awarded by the Tribunal towards loss of love and affection and funeral expenses are meagre. The Tribunal failed to award any amount towards damages to clothes. The learned counsel appearing for the appellant also relied on the following judgments and prayed for enhancement of compensation:
(i) Judgment of this Court reported in 2017 (2) TNMAC 805, [National Insurance Company Limited Vs. K.Sugumar and others];
(ii) Judgment of this Court reported in 2019 (2) TNMAC 223, [Royal Sundaram Alliance Insurance Company Limited Vs. S.Vani and others]; (iii)Judgment of this Court dated 19.12.2019 in C.M.A.Nos.4576 & 4577 of 2019, [C.Raja and others Vs. V.Murugan and another].
Per contra, Mr.K.J.Sivakumar, learned counsel appearing for the 2nd respondent-Transport Corporation contended that the deceased was a student, aged 10 years, a non-earning member at the time of accident. As per II Schedule, the annual income for a non-earning member has to be fixed at Rs.15,000/- and multiplier applicable is '15'. The Tribunal erroneously fixed excessive sum of Rs.30,000/- as annual income of the deceased, applied multiplier '15' and granted excess amount of Rs.4,50,000/- as compensation towards pecuniary loss. The appellant is not entitled to a sum of Rs.50,000/-awarded by the Tribunal towards future prospects. In view of the same, appellant is not entitled to any compensation for damages to clothes and also for any enhancement and prayed for dismissal of the appeal.
Heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the 2nd respondent-Transport Corporation and perused the entire materials on record.
It is the case of the appellant that at the time of accident, the deceased minor boy was aged 10 years, a school going child studying IV standard at Kendriya Vidyalaya, Sulur. The pecuniary loss for the death of minor cannot be quantified by mathematical calculation. The minor on completing his studies may get good job and reasonable income. At the same time, it has to be taken into account that life is full of uncertainties. Considering this fact along with mental agony and loss of happiness to the Mother by death of her minor child, the Courts must grant just compensation. The compensation awarded should not be pittance or wind fall. The compensation for the death of the minor is to be granted as per the structural formula in the II Schedule. As per the structural formula, the annual income of the minor non-earning member upto 15 years is fixed at Rs.15,000/-. The Hon'ble Apex Court taking into consideration the date of insertion of the II Schedule in the Motor Vehicles Act, passage of time and raise in cost of living, has increased annual income of the minor non-earning member.
The issue of granting compensation for the death of minor non-earning member was considered by the Hon'ble Apex Court in the following judgments:
(i) In the judgment reported in 2001 (8) SCC 197, [Lata Wadhwa and others vs. State of Bihar and others], the Hon'ble Apex Court has fixed annual contribution of minor aged 10 to 15 years at Rs.24,000/- and applied multiplier '15'. In paragraph-11 of the said judgment, it is held as follows:
"11.So far as the award of compensation in case of children is concerned, Shri Justice Chandrachud has divided them into two groups, the first group between the age group of 5 to 10 years and the second group between the age group of 10 to 15 years. In case of children between the age group of 5 to 10 years, a uniform sum of Rs.50,000/- has been held to be payable by way of compensation, to which the conventional figure of Rs.25,000/- has been added and as such to the heirs of the 14 children, a consolidated sum of Rs.75,000/- each, has been awarded. So far as the children in the age group of 10 to 15 years, there are 10 such children, who died on the fateful day and having found their contribution to the family at Rs.12,000/- per annum, 11 multiplier has been applied, particularly, depending upon the age of the father and then the conventional compensation of Rs.25,000/- has been added to each case and consequently, the heirs of each of the deceased above 10 years of age, have been granted compensation to the tune of Rs.1,57,000/- each. In case of the death of an infant, there may have been no actual pecuniary benefit derived by its parents during the child's life-time. But this will not necessarily bar the parents claim and prospective loss will found a valid claim provided that the parents establish that they had a 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 Ry. Vs. Jenkins [1913] A.C.1, and Lord Atkinson said thus:
"........all that is necessary is that a 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 a 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."
At the same time, it must be held that a mere speculative possibility of benefit is not sufficient. Question whether there exists a reasonable expectation of pecuniary advantage is always a mixed question of fact and law. There are several decided cases on this point, providing the guidelines for determination of compensation in such cases but we do not think it necessary for us to advert, as the claimants had not adduced any materials on the reasonable expectation of pecuniary benefits, which the parents expected. In case of a bright and healthy boy, his performances in the school, it would be easier for the authority to arrive at the compensation amount, which may be different from another sickly, unhealthy, rickety child and bad student, but as has been stated earlier, not an iota of material was produced before Shri Justice Chandrachud to enable him to arrive at just compensation in such cases and, therefore, he has determined the same on an approximation. Mr.Nariman, appearing for the TISCO on his own, submitted that the compensation determined for the children of all age groups could be doubled, as in his views also, the determination made is grossly inadequate. Loss of a child to the parents is irrecoupable, and no amount of money could compensate the parents. Having regard to the environment from which these children were brought, their parents being reasonably well placed officials of the Tata Iron and Steel Company, and on considering the submission of Mr. Nariman, we would direct that the compensation amount for the children between the age group of 5 to 10 years should be three times. In other words, it should be Rs.1.5 lakhs, to which the conventional figure of Rs.50,000/- should be added and thus the total amount in each case would be Rs. 2.00 lakhs. So far as the children between the age group of 10 to 15 years, they are all students of Class VI to Class X and are children of employees of TISCO. The TISCO itself has a tradition that every employee can get one of his child employed in the company. Having regard to these facts, in their case, the contribution of Rs.12,000/- per annum appear to us to be on the lower side and in our considered opinion, the contribution should be Rs.24,000/- and instead of 11 multiplier, the appropriate multiplier would be 15. Therefore, the compensation, so calculated on the aforesaid basis should be worked out to Rs. 3.60 lakhs, to which an additional sum of Rs.50,000/- has to be added, thus making the total amount payable at Rs.4.10 lakhs for each of the claimants of the aforesaid deceased children."
(ii) The Hon'ble Apex Court in the judgment reported in 2006 (13) SCC 60, [New India Assurance Co. Ltd. vs. Satendar and others], awarded a lumpsum of Rs.1,80,000/- for the death of a child aged 9 years and in paragraph No.12, it is held as follows:
"12.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."
(iii) In the judgment reported in 2014 (1) SCC 244, [Kishan Gopal and another vs. Lala and others], the Hon'ble Apex Court has fixed annual income for the deceased boy aged 10 years at Rs.30,000/- and applied multiplier '15'. In paragraph Nos.34 to 40, it is held as follows:
"34.Since we have set aside the findings and reasons recorded by both the Tribunal and the High Court on the contentious issue Nos.1 & 2 by recording our reasons in the preceding paragraphs of this judgment and we have answered the point in favour of the appellants and also examined the claim of the appellants to award just and reasonable compensation in favour of the appellants as they have lost their affectionate 10 year old son. For this purpose, it would be necessary for us to refer to Second Schedule under Section 163-A of the M.V. Act, at clause No.6 which refers to notional income for compensation to those persons who had no income prior to accident.
The relevant portion of clause No.6 states as under:
"6. Notional income for compensation to those who had no income prior to accident:
..............
(a) Non-earning persons - Rs.15,000/- p.a."
The aforesaid clause of the Second Schedule to Section 163-A of the M.V. Act, is considered by this Court in the case of Lata Wadhwa & Ors, v. State of Bihar (2001) 8 SCC 197 while examining the tortuous liability of the tort-feasor has examined the criteria for awarding compensation for death of children in accident between age group of 10 to 15 years and held in the above case that the compensation shall be awarded taking the contribution of the children to the family at Rs.12,000/- p.a. and multiplier 11 has been applied taking the age of the father and then under the conventional heads the compensation of Rs.25,000/-was awarded. Thus, a total sum of Rs.1,57,000/- was awarded in that case.
After noting the submission made on behalf of TISCO in Lata Wadhwa case that the compensation determined for the children of all age groups could be double as in its view the determination made was grossly inadequate and the observation was further made that loss of children is irrecoupable and no amount of money could compensate the parents. Having regard to the environment from which the children referred to in that case were brought up, their parents being reasonably well-placed officials of TISCO, it was directed that the compensation amount for the children between the age group of 5 to 10 years should be three times. In other words, it should be Rs.1.5 lakhs to which under the conventional heads a sum of Rs.50,000/- should be added and thus total amount in each case would be Rs.2 lakhs.
Further, in Lata Wadhwa case it was observed that in so far as the children of age group between 10 to 15 years are concerned, they are all students of Class VI to Class X and are children of employees of TISCO and one of the children was employed in the Company in the said case having regard to the fact the contribution of the deceased child was taken Rs.12,000/- p.a. appears to be on the lower side and held that the contribution of such children should be Rs.24,000/- p.a.
In our considered view, the aforesaid legal principle laid down in Lata Wadhwa's case with all fours is applicable to the facts and circumstances of the case in hand having regard to the fact that the deceased was 10 years' old, who was assisting the appellants in their agricultural occupation which is an undisputed fact. We have also considered the fact that the rupee value has come down drastically from the year 1994, when the notional income of the non-earning member prior to the date of accident was fixed at Rs.15,000/-. Further, the deceased boy, had he been alive would have certainly contributed substantially to the family of the appellants by working hard.
In view of the aforesaid reasons, it would be just and reasonable for us to take his notional income at Rs.30,000/- and further taking the young age of the parents, namely the mother who was about 36 years old, at the time of accident, by applying the legal principles laid down in the case of Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121, the multiplier of 15 can be applied to the multiplicand. Thus, 30,000 x 15 = 4,50,000 and 50,000/- under conventional heads towards loss of love and affection, funeral expenses, last rites as held in Kerala SRTC v. Susamma Thomas (1994) 2 SCC 176, which is referred to in Lata Wadhwa's case and the said amount under the conventional heads is awarded even in relation to the death of children between 10 to 15 years old. In this case also we award Rs.50,000/- under conventional heads. In our view, for the aforesaid reasons the said amount would be fair, just and reasonable compensation to be awarded in favour of the appellants.
The said amount will carry interest at the rate of 9% p.a. by applying the law laid down in the case of Municipal Council of Delhi v. Uphaar Tragedy Victims Association (2011) 14 SCC 481, for the reason that the Insurance Company has been contesting the claim of the appellants from 1992-2013 without settling their legitimate claim for nearly about 21 years, if the Insurance Company had awarded and paid just and reasonable compensation to the appellants the same could have been either invested or kept in the fixed deposit, then the amount could have earned five times more than what is awarded today in this appeal. Therefore, awarding 9% interest on the compensation awarded in favour of the appellants is legally justified."
(iv) The Hon'ble Apex Court in the recent judgment reported in 2020 (7) SCC 256, [Rajendra Singh and others vs. National Insurance Company Ltd. and others] set aside 50% contributory negligence fixed on the minor on the facts and circumstances of that case, confirmed award of the Tribunal fixing annual income at Rs.36,000/-, deducting 50% and applying multiplier '15'. In addition to that, a sum of Rs.25,000/- was granted towards funeral expenses. In paragraph Nos.2 to 5 and 16, it is held as follows:
"2. The deceased in the first appeal was a housewife aged about 30 years. The second deceased was her daughter aged about 12 years. The claimants are the husband/father of the deceased and three minor siblings. The two deceased on 25.12.2012 were travelling in a horse cart along with some others to a religious congregation. The horse cart was hit by a bus resulting in their death.
The Tribunal assessed the notional income of the first deceased at Rs.36,000/- per annum and after ¼th deduction towards personal expenses, with a multiplier of 17 awarded a compensation of Rs.4,59,000/-. The Tribunal then deducted 50% on ground of contributory negligence as the horse cart was stated to have been in the middle of the road when the accident took place. A sum of Rs.1,00,000/- was then added as loss of consortium and Rs.25,000/-towards funeral expenses leading to an award total of Rs.3,54,500/- with interest at the rate of 7.5%.
Insofar as the minor child is concerned, the notional income was assessed at Rs.36,000/- per annum, applying a 50% deduction towards personal expenses with a multiplier of 15, the compensation was awarded at Rs.2,70,000/- out of which 50% was again deducted towards contributory negligence. A sum of Rs.25,000/- was added towards funeral expenses, leading to an award total of Rs.1,60,000/- with interest at the rate of 7.5%.
The appeal for enhancement of compensation was dismissed by the High Court and thus the present appeals.
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The deduction on account of contributory negligence has already been held by us to be unsustainable. The determination of a just and proper compensation to the appellants with regard to the deceased child, in the entirety of the facts and circumstances of the case does not persuade us to enhance the same any further from Rs.2,95,000/- by granting any further compensation under the separate head of future prospects. It may only be noticed that R.K. Malik vs. Kiran Pal (2009) 14 SCC 1 does not consider Satender (2006) 13 SCC 60 on the grant of future prospects as far as children are concerned."
In the present case, the deceased was a minor boy aged 10 years, studying IV standard and a non-earning member at the time of accident. The Tribunal fixed a sum of Rs.30,000/- as annual income of the deceased based on the judgment of this Court in C.M.A.No.1712 of 2014 dated 12.09.2019, applied multiplier '15' based on the judgment of the Hon'ble Apex Court reported in 2009 (2) TNMAC 1 SC Supreme Court, [Sarla Verma & others Vs. Delhi Transport Corporation & another] and awarded a sum of Rs.4,50,000/- towards pecuniary loss.
12.It is well settled that just and proper compensation must be awarded. The compensation should not be windfall, but at the same time it should not be pittance. The Hon'ble Apex Court has held that the compensation especially to minor child, non-earning member must be fixed depending on the facts and circumstances of the case. In the facts and circumstances of the present case, this Court is of the considered view that the judgments relied on by the learned counsel appearing for the appellant do not advance his case.
In the facts and circumstances of the case, following the judgments of the Hon'ble Apex Court reported in 2001 (8) SCC 197, 2006 (13) SCC 60, 2014 (1) SCC 244 and 2020 (7) SCC 256, referred to above, the judgment of this Court dated 12.09.2019 in C.M.A.No.1712 of 2014 and Division Bench judgment of this Court reported in 2015 (2) TNMAC 490 (DB), [NationalInsurance Company Limited Vs. R.Vimala and others], this Court is of the view that notional income of a minor deceased can be fixed at Rs.40,000/- per annum. By applying multiplier '15' as per the II Schedule, the compensation awarded by the Tribunal towards pecuniary loss is modified to Rs.6,00,000/-[Rs.40,000/- X 15]. The amounts awarded by the Tribunal towards loss of love and affection and funeral expenses are meagre and hence, the same are enhanced to Rs.40,000/- and Rs.15,000/- respectively. The Tribunal has not awarded any amount towards loss of estate. The appellant is entitled to a sum of Rs.15,000/- towards loss of estate. The amounts awarded by the Tribunal towards future prospects and transportation are just and reasonable and hence, the same are hereby confirmed. Thus, the compensation awarded by the Tribunal is modified as follows:
S. No
Description
Amount awarded by Tribunal (Rs)
mount awarded by this Court (Rs)
Award confirmed or enhanced or granted
1.
Pecuniary loss
4,50,000/-
6,00,000/-
Enhanced
2.
Future prospects
50,000/-
50,000/-
Confirmed
3.
Loss of love and affection
30,000/
40,000/-
Enhanced
4.
Transportation
5,000/-
5,000/-
Confirmed
5.
Funeral expenses
10,000/-
15,000/-
Enhanced
6.
Loss of estate
-
15,000/-
Granted
Total
Rs.5,45,000/-
Rs.7,25,000/-
Enhanced by Rs.1,80,000/-
In the result, this Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.5,45,000/- is hereby enhanced to Rs.7,25,000/- together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. The 2nd respondent-Transport Corporation is directed to deposit the award amount now determined by this Court, along with interest and costs, less the amount already deposited, if any, within a period of twelve weeks from the date of receipt of a copy of this judgment to the credit of M.C.O.P.No.99 of 2017 on the file of Motor Accident Claims Tribunal, Sub Court, Avinashi, Tiruppur District. On such deposit, the appellant is permitted to withdraw the award amount now determined by this Court, along with interest and costs, less the amount if any, already withdrawn by making necessary applications before the Tribunal. The appellant is directed to pay the necessary Court fee as per the order of this Court dated 20.12.2019 made in C.M.P.No.26998 of 2019 in C.M.A.No.SR.153833 of 2019. No costs.