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Judgment
DIPANKAR DATTA, J.
As a result of a road accident on June 8, 2012 involving the use of two motor vehicles, ~ one light and the other a heavy vehicle ~ nine passengers
of the lighter vehicle sustained severe injuries and later on passed away. The deceased included a minor girl aged about 10 (ten) years (hereafter the
victim). The death of the victim led her parents (hereafter the claimants) to approach the Motor Accident Claims Tribunal, 1st Court, Balurghat,
Dakshin Dinajpur by filing an application under Section 166 of the Motor Vehicles Act, 1988 (hereafter the Act) seeking compensation of Rs.
3,70,000/- + interest. It was registered as M.A.C. Case No.183 of 2012.
The tribunal, upon considering oral and documentary evidence, allowed the claim application by its judgment and award dated January 6, 2016. The
victim was held to have died as a consequence of the accident. It was also held that rash and negligent driving of the two vehicles resulted in the
accident that claimed the victim’s life. In the absence of any proof that the light motor vehicle was insured, its owner (the opposite party no. 2)
and the insurer of the heavy motor vehicle (the opposite party no. 3) were held liable to bear compensation in equal shares together with interest to the
victim’s mother (the claimant no.1). Compensation was assessed in a sum of Rs. 3,51,500/-, which was to carry interest @ 9% per annum from
September 21, 2012 (the date of presentation of the claim application) till payment were made to the claimant no.1.
It was pleaded in the claim application that the victim was a girl of good health and had active habits. She had a monthly income of Rs. 3,000/- per
month from her occupation and she used to contribute such income towards the daily expenses of her family. Due to the pathetic premature death of
the victim, the claimants had suffered great financial loss apart from mental pain and agony which they were likely to suffer throughout their lives. The
claimants, however, had not adduced any documentary evidence to prove the income of the victim. This triggered a challenge to such version by the
insurance company, i.e., the insurer of the heavy motor vehicle. It was contended that in the absence of any documentary evidence adduced by the
claimants to prove their version of the victim having a regular monthly income of Rs. 3,000/-, which she allegedly contributed to the claimants for
running the family, the same should not be believed.
The tribunal upheld the challenge and recorded a finding that it was “straightway not inclined to believe the oral testimonies†of the claimants
since “the same is not supported by any documentary proofâ€. However, the tribunal in assessing compensation applied the law laid down in Laxmi
Devi v. Mohammed Tabbar, reported in 2008 (2) TAC 394 (SC), and held that the income of the victim was Rs. 3,000/- per month.
For the purpose of selecting the multiplier, the tribunal considered the age of the claimant no.1. She was 27 (twenty-seven) years old on or about
the date of the accident. Looking into the decision in Sarla Verma v. Delhi Transport Corporation, reported in 2009 ACJ 1298 (SC), the tribunal
applied 18 (eighteen) as the multiplier. To award interest, the tribunal relied on the decision of a coordinate Bench of this Court in Kohinur Begam v.
New India assurance Company Limited, reported in 2008 (2) TAC 711.
The challenge in this appeal under section 173 of the Act, at the instance of the insurance company (which had insured the heavy motor vehicle) is
to such award of the tribunal. An application has been filed in the appeal, praying for stay of operation of the award. The claimants upon service of
notice have entered appearance and filed a cross-objection.
Mr. Rajesh Singh, learned advocate representing the appellant, contended that the decision in Laxmi Devi (supra) could not have been applied by
the tribunal for working out the notional income of the victim, since she died a minor. According to him, the said decision would have applicability
where an able bodied person, who is a major, dies in a motor vehicular accident and his income, as claimed, is not proved to the satisfaction of the
tribunal; in such case, it is assumed that had he been employed on daily wages, the minimum that he could have earned as an unskilled worker is Rs.
100/- per day. In view of the fact that the victim was a minor and the tribunal had held that no documentary evidence to prove the version relating to
income had been produced, rendering the claimants’ version unacceptable, Mr. Singh further contended that the tribunal ought to have worked out
compensation treating the victim as a non-earning person. Referring to the Second Schedule appended to the Act where Rs. 15,000/- per annum is the
notional sum for non-earning persons and drawing support from the decisions of coordinate Benches of this Court in Smt. Pato Mandal v. New India
Assurance Co. Ltd., reported in 2008 (2) TAC 818 (Cal), and Sabina Yeasmin v. The Branch Manager, New India Assurance Co. Ltd., reported in
(2016) 2 WBLR 71 (Cal), it was urged that the same ought to be followed. Referring to the decision in Reshma Kumari v. Madan Mohan, reported in
2013 ACJ 1253, Mr. Singh contended that law is clearly laid down therein that in a claim for death under section 166 of the Act where the age of the
deceased is above 15 years, the claims tribunal should not seek guidance or place reliance on the Second Schedule; as a corollary, it follows that if the
deceased were less than 15 years old, the Second Schedule could be looked into for assessing just compensation under section 168 of the Act.
Going by the structured formula in the Second Schedule, i.e., the multiplier for death of a minor below 15 years of age and Rs.15,000/- per annum
for a non-earning person, coupled with such quantum as this Court may provide for loss of estate and funeral expenses, Mr. Singh submitted that the
claimants would be roughly entitled to Rs.1,54,500/-. He, accordingly, prayed for modification of the impugned award.
Mr. Rahaman, learned advocate for the claimants/cross-objectors, contended that the determination of compensation by the tribunal although might
seem to be infirm on some counts, yet, it can be sustained on the basis of the principles laid down by the Supreme Court in Kishan Gopal v. Lala,
reported in (2014) 1 SCC 244. He, accordingly, prayed for dismissal of the appeal.
Pressing the cross-objection, Mr. Rahaman submitted that this being a case of composite negligence involving joint tortfeasors, the claim
application would have been maintainable even against one tortfeasor and the tribunal erred in not holding the owner of the heavy motor vehicle, a
fortiori, its insurer liable to pay the entire compensation; and, by directing the awarded compensation to be borne by the opposite parties 2 and 3
equally, the tribunal occasioned a grave failure of justice in that recovery of compensation from a private person after exhausting the long drawn
procedures for execution of the award would render the object and purpose of grant of compensation nugatory. It was, therefore, prayed that the
appellant may be directed to bear the entire compensation; in the alternative, while so directing, the Court may grant liberty to the appellant to recover
the owner’s share of compensation payable from the owner, as held in Khenyei v. New India Assurance Co. Ltd., reported in (2015) 9 SCC 273.
We have heard the appellant and the claimants/cross-objectors. Upon such hearing, we find that while the former is aggrieved by the quantum of
compensation that the tribunal has determined, the latter is aggrieved because of the manner of sharing of liability to bear compensation payable to
them as directed by the tribunal.
The findings in respect of the accident and who were involved in it and responsible, which led to the loss of several precious lives including that of
the victim not being under challenge, there is no necessity to advert to the same. We are left with the duty of determining “just†compensation
under section 168 of the Act for the death of the victim, a 10 (ten) year old girl, which by any means is not an easy task. In fact, we find such
determination to be quite onerous because it is dependent on various imponderables. Since the actual extent of the pecuniary loss that the claimants
suffered because of the death of the victim cannot be assessed with any degree of precision, the determination, as of necessity, has to be an estimate.
Loss to the claimants of the future pecuniary benefits, had the victim not passed away, has to be ascertained by excluding considerations which are in
the realm of speculation, though conjecture to some extent might be inevitable. Survival rate in the country having gone up, the life expectancy of the
victim is a relevant consideration. We are conscious that the victim had crossed the uncertainties of childhood and had barely entered double digits
when the ghastly accident made her breathe for the last time. Upon attaining majority, the victim could definitely have contributed to the income of the
family.
We are ad idem with the tribunal in not believing the claimants’ version of the victim earning Rs. 3,000/- per month, for the additional reason that
we do not find the claimants even specifying the source of such earning by such a little girl; however, the manner in which the tribunal has worked out
compensation does not also commend to be acceptable to us. The principle laid down in Laxmi Devi (supra), based as it is on minimum wages, should
not have been applied in the case of a minor particularly when child labour in our country is prohibited. The Second Schedule having been amended
with effect from May 22, 2018 in terms of section 163-A(3) of the Act and there being no existence of the structured formula on the date we heard
the parties, the decisions in Pato Mandal (supra) and Sabina Yeasmin (supra) are also of no assistance. Even otherwise, the marked difference in the
principle of liability envisaged in sections 166 and 163-A of the Act would have persuaded us to take a view different from that taken in those cases.
The ruling in Sarla Verma (supra) that the structured formula envisaged in the Second Schedule does not apply to claims under section 166 of the Act
has been approved in Reshma Kumari (supra).
The way Mr. Singh wishes us to read the decision in Reshma Kumari (supra) is not acceptable, since the said decision has to be read and understood
in the light of the questions that were referred to the three-judge Bench for answers. The decision in Kishan Gopal (supra) dealing with a claim case
where the deceased was a 10 (ten) year old boy (having died on September 19, 1992), bears resemblance with the facts of the present case; but then
again, the Court had in mind what the Second Schedule provided for a non-earning person. In view of its recent amendment doing away with the
structured formula, it would not be a justified approach on our part to determine compensation resting on it. The decision in Sarla Verma (supra) also
does not identify the multiplier applicable for death of a minor below 15 (fifteen) years of age. We are, therefore, required to look for guiding principles
laid down by the Supreme Court in other cases of like nature.
In C.K. Subramania Iyer v. T. Kunhikuttan Nair, reported in (1969) 3 SCC 64, the Court while considering a case under the Fatal Accidents Act,
1855 was required to lay down principles governing the assessment of damages under sections 1-A and 2 thereof. A young boy of 8 (eight) years had
died in a motor accident. This is what the Court held:
“13. The law on the point arising for decision may be summed up thus: Compulsory damages under Section 1-A of the Act for wrongful death must
be limited strictly to the pecuniary loss to the beneficiaries and that under Section 2, the measure of damages is the economic loss sustained by the
estate. There can be no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise
mathematical calculations but the amount recoverable depends on the particular facts and circumstances of each case. The life expectancy of the
deceased or of the beneficiaries whichever is shorter is an important factor. Since the elements which go to make up the value of the life of the
deceased to the designated beneficiaries are necessarily personal to each case, in the very nature of things, there can be no exact or uniform rule for
measuring the value of human life. In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy
though conjecture to some extent is inevitable. As a general rule parents are entitled to recover the present cash value of the prospective service of
the deceased minor child. In addition they may receive compensation for loss of pecuniary benefits reasonably to be expected after the child attains
majority. In the matter of ascertainment of damages, the appellate court should be slow in disturbing the findings reached by the-courts below, if they
have taken all the relevant facts into consideration.â€
The decision in Kishan Gopal (supra) and the decision in Mallikarjun v. Divisional Manager, the National Insurance Company Limited, reported
AIR 2014 SC 736, were rendered by the Supreme Court on the same day, i.e., August 26, 2013. While the former related to a claim arising out of
death of a 10 (ten) year old boy, the latter arose out of serious bodily injury suffered by a 12 (twelve) year old boy.
It has been held in Kishan Gopal (supra) as follows:
“38. In our considered view, the aforesaid legal principle laid down in Lata Wadhwa case [(2001) 8 SCC 197] 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 Sarla Verma v.
DTC [(2009) 6 SCC 121], the multiplier of 15 can be applied to the multiplicand. Thus, 30,000 × 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 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 @ 9% p.a. by applying the law laid down in MCD v. Uphaar Tragedy Victims Assn. [(2011) 14 SCC 481],
*****â€
It would appear from the aforesaid extract that Rs. 30,000/- was reckoned as the notional income of a 10 (ten) year old boy as he was found to
assist his parents in their agricultural occupation. However, in Mallikarjun (supra), the Court held that for “children there is no incomeâ€, it would
be unfair and improper to follow the structured formula as per the Second Schedule, a child cannot be equated to a non-earning person for whom the
notional income is Rs. 15,000/- in the Second Schedule, and that compensation has to be worked out under the non-pecuniary heads. It was finally held
as follows :
“12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor
vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate
compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto
30% of the whole body, Rs.3 lakhs; upto 60%, Rs. 4 lakhs; upto 90%, Rs. 5 lakhs and above 90%, it should be Rs. 6 lakhs. For permanent disability
upto 10%, it should be Rs. 1 lakh, unless there are exceptional circumstances to take different yardstick. ***â€
The learned Judge of the Supreme Court who authored the decision in Kishan Gopal (supra) had the occasion to author the decision in Kumari
Kiran through her father Harinarayan v. Sajjan Singh, reported in 2014 S.A.R. (Civil) 1188, as well. It involved, inter alia, claims for compensation at
the instance of two minor siblings, the younger one aged 10 (ten) years and the elder aged 15 (fifteen) years. While following the decision in
Mallikarjun (supra) and awarding compensation as laid down therein, the Court avoided looking into the Second Schedule appended to the Act and
observed that a child’s notional income cannot be ascertained as per the figure given for a non-earning individual in the Second Schedule.
Relying upon the said decisions in Mallikarjun (supra) and Kumari Kiran (supra), a coordinate Bench of this Court in its decision in Minor Riyan
Ghosh v. Oriental Insurance Co. Ltd., reported in 2017 (4) T.A.C. 381 (Cal), has held for the reasons assigned therein that a child victim can have no
income and, therefore, he cannot be equated with a non-earning person for whom a notional income of Rs. 15,000/- per year is indicated in the Second
Schedule; therefore, compensation has to be worked out under the non-pecuniary heads.
Here, the victim has died and the claimants’ version that prior to her death she was earning Rs. 3,000/- is not found to be trustworthy.
However, compensation payable to the claimants has to be worked out bearing in mind several factors, viz. pain and trauma that the claimants have
suffered by reason of the premature death of their daughter, the loss of pecuniary benefits that the claimants could reasonably expect upon the victim
attaining majority, the loss of care and affection of the victim that could have been of help to the claimants in the December years of their lives, loss of
estate and funeral expenses. There cannot be any precise determination in money terms of the loss suffered by the claimants. However, viewed in the
perspective of our decision in Urmila Halder v. New India Assurance Co. Ltd. & ors. (F.M.A. 446 of 2010) dated August 9, 2018, wherein we have
held the substituted Second Schedule enforced from May 22, 2018 to be applicable to pending appeals arising out of awards passed on claim
applications under Section 163-A of the Act, the claimants could have been entitled to Rs. 5,00,000/- as compensation for the death of the victim if
only they had approached the tribunal under such provision. Since the present appeal arises out of a claim application under Section 166 of the Act, the
benefit of the substituted Second Schedule may not be derived by the claimants but given the fact that they had proved rash and negligent driving of
the offending vehicles, which is not required to be proved in proceedings under Section 163-A of the Act, we hold that Rs. 3,51,500/- awarded by the
tribunal is “just†compensation for the death of the claimants’ 10 (ten) year old daughter. The award impugned in the appeal, thus, merits no
interference.
Insofar as the cross objection is concerned, we are inclined to the view that the same ought to be allowed. Due regard being had to the decision in
Khenyei (supra), we hold that the entire compensation amount as well as interest thereon should be borne by the appellant for the present. After
satisfaction of the award, the appellant shall be at liberty to recover 50% thereof from the owner of the light motor vehicle, opposite party no.2 before
the tribunal, in accordance with law.
Since the appellant has secured a part of the compensation awarded together with interest, it shall secure the other part too together with such
interest as directed by the tribunal with the Registrar General of this Court within two months of service of a copy of this judgment and order on it
without prejudice to its rights and contentions to recover such part from the owner of the light motor vehicle in accordance with law.
As soon as the direction in the preceding paragraph is complied with by the appellant, but not beyond two months as indicated above, the claimants
shall be at liberty to approach the Registrar General for release of compensation to which they are entitled. Upon such an approach being made, the
Registrar General shall proceed to do the needful in accordance with law.
With the aforesaid minor modification of the impugned award, the appeal and the cross-objection stand disposed of. Parties shall bear their own
costs.