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Judgment
N. Kirubakaran, J.—It is a very unfortunate case, wherein 2 1/2 years old child died in an accident, the Tribunal awarded a sum of Rs.
1,50,000/- as compensation to the parents and against which only the present appeal has been preferred by the Insurance Company.
The case of the appellant/Insurance Company is that the vehicle named in the claim petition was not involved in the accident and the death of the
child occurred due to asphyxia while playing with the other children in haystack and not due to the accident. The learned Counsel for the appellant
relied on the appellant''s complaint given by them to the police authority through Ex.R.2 dated 28.09.2006 and Ex.R.3 dated 08.02.2007. Further,
he relied on the evidence of R.W.1 and R.W.2 and also Ex.R.4 to contend that the child did not die due to the accident as contended by the
claimants, it died while the child was playing as stated above. The learned Counsel is unable to state as to what the stage of the complaint given by
the appellant to the police authority as bogus claim.
Secondly, the learned Counsel also questioned the quantum of award passed by the Tribunal stating that it is on the higher side. He also relied
upon the judgment of the Apex Court reported in 2007 ACJ 2816, Oriental Insurance Co. Ltd. v. Syed Ibrahim and Ors. wherein a boy aged
about 7 years old died; the Tribunal awarded Rs. 50,000/- plus Rs. 1,000/- for funeral expenses. The High Court enhanced the award to Rs.
1,52,000/- and the matter was taken to the Hon''ble Supreme Court and the Supreme Court observed that in the cases of young children of tender
age, in view of uncertainties abound, 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. In that case, the Supreme Court allowed Rs. 51,500/-. Only by relying upon the
aforesaid judgment, the learned Counsel vehemently contended that the amount awarded by the Tribunal is on higher side and it has to be reduced.
He also relied upon another judgment of this Court reported in 2008 (4) T.A.C. 66 (Chhattis.), Gaya Prasad Agrawal and Anr. v. T.A. Reddy
and Ors., wherein for the death of 2 1/2 years old child a sum of Rs. 50,000/- was granted as just and proper compensation.
On the other hand, the learned Counsel for the respondent argued that the accident occurred due to the accident caused by the van and the
child did not die for any other reason as contended by the learned Counsel for the appellant and it is not a bogus claim. He relied upon the
judgment of the Supreme Court reported in 2008 ACJ 1405, Santhosh Rani v. Ranjit Singh and Ors., in that case 13 years old child died and the
Tribunal awarded Rs. 50,000/- on account of liability and the same was upheld by the High Court; The Apex Court enhanced the compensation to
Rs. 2,50,000/-. He also relied upon another Supreme Court judgment in New India Assurance Co. Ltd. Vs. Satender and Others, , wherein, 9
years old child died, the Tribunal awarded a sum of Rs. 3,40,000/- plus Rs. 1,00,000/- and a sum of Rs. 5,000/- for funeral expenses; High Court
dismissed the appeal and the Apex Court reduced the award from Rs. 4,45,000/- to Rs. 1,80,000/- following the earlier judgment of the Supreme
Court in State of Haryana and Another Vs. Jasbir Kaur and Others, .
The learned Counsel for the respondent relied upon another judgment reported in The Managing Director, Tamil Nadu State Transport
Corporation (Coimbatore Division I) Ltd. Vs. M. Chinnasamy, Parvathy and P. Radhakrishnan, , in which, 3 years old child died and a sum of Rs.
1,86,000/- was awarded by the Tribunal and the same was confirmed by this Court. Further, he also relied upon another judgment of Karnataka
High Court reported in Premakumari and Kumar Vs. United India Insurance Company Limited and A. Raju Gowda, , in that case 2 1/2 years old
child died and the Tribunal awarded a sum of Rs. 83,000/- and on appeal the amount was enhanced to Rs. 1,80,000/-. After relying upon of those
judgments, the learned Counsel submitted that the compensation awarded by the Tribunal need not to be reduced.
Heard the learned Counsel for the appellant and the learned Counsel for the respondent. On perusal of the counter statement filed by the
Insurance Company would reveal that the allegations in the claim petition were denied in general. Each and every allegation made in the claim
petition was not denied specifically Para No. 5 of the counter statement filed by the Insurance company is extracted as follows:
This respondent reserves its right to file additional statement of objection later, on receipt of additional information. D.Rajangam, who alleged to
drive the van at the time of accident is not having any valid driving license. This accident is a hit and run case, in which the lorry Regn. No. and its
owner details are not known to the petitioners, therefore, a false case has been registered by Thirunagar Police against the 1st respondent''s van
driver. The petitioners claim of Rs. 50,000/- under no fault liability is not maintainable.
The allegation in Paragraph 5 of the counter statement would show that the accident was a hit and run case, whereas the stand of the appellant
during the trial was that the child did not die due to the accident, but died due to asphyxia while she was playing along with other children in the
haystack. The Insurance Company did not take any definite stand as to whether the child died in the accident or while playing. As per the counter
statement before the Tribunal was that the appellant did not plead that the child died while playing and the claim was a bogus one. In the absence
of pleading to the effect that the child died due to asphyxia during the play in the haystack, the appellant company cannot set up such a plea. It is
well settled law that any amount of evidence in the absence of pleading is of no avail. The following are the judgments in support of the above said
principle: 2003(1) CTC 254, Aravind Laboratories Vs. M.A. Rahim, trading as Jamuna Product, . Hence, in the absence of plea the contention of
the appellant that the child died while playing is liable to be rejected.
To decide about cause of the death of the child, the post martem report could be considered. The post martem report of the child Ex.P.4 reads
as follows:
The deceased would appear to have died on usual and Haemo RRhage due to abdomen injuries.
The above report reveals that the child died on usual and Haemo RRhage due to abdomen injuries. There was no cross examination by the
appellant Insurance Company in this regard and no contra evidence was adduced by the Insurance Company to show that the child did not die due
to the accident.
On the other hand the evidence of P.W.1 and P.W.2 would show that the child died only due to accident. The Ex.P.1 F.I.R. also reveals that
the accident occurred due to negligent driving of the driver of the van and on that basis, the charge-sheet was also filed. It was marked as Ex.P.2
and the Motor Vehicle Inspector Report was marked as Ex.P.3. If the child died due to asphyxia, there could not have been any injury in the
abdomen. The injury in the abdomen would only prove the child died due to injury caused in the accident. P.W.2 was the Eye witness to the
accident and spoke of the accident. Moreover, the Tribunal rightly concluded that there was no evidence on the side of the appellant to prove that
the child did not die in the accident. The Tribunal found that there was medical evidence to prove the stand of the appellant. The Tribunal observed
that the police authority did not make any investigation by examining the witness regarding the bogus claim.
The aforesaid evidence of P.W.1 and P.W.2 as well as the documentary evidence filed before the Tribunal would show that the child died due
to the accident only. In those circumstances only the Tribunal came to the conclusion that the child died in the accident caused by the vehicle,
insured with the appellant/Insurance company.
It is very unfortunate that the parents lost their only child in the tender age. Immortal Tamil Poet Thiruvalluvar devoted a chapter for ""Children
(MAZHALAI SELVAM) denoting their importance in one''s life. No amount would compensate the loss of the child especially only child of the
claimants. Even if sun or star or moon or karpakavriksha or even kamadhenu is given to the affected parents, will it or will they be alternate for
their child? Certainly not. To put it in nutshell"". Nothing in the world is equal to their child"". In that event, this Court has to make a sincere effort to
suitably compensate them. No amount of money can compensate for the loss of the child. Definitely loss of the child caused a vaccum in the life of
the appellant. The loss of son was described in the great Epics ""Mahabaratha"" and ""Ramayana"". King Dasaratha died due to puthrasogha, when
Rama went to Jungle.
Ex.P.5 is the Family Planning Certificate which showed that the mother had undergone a Family Planning operation and in that event the
chances of having a child is remote. Even for child''s death, the Hon''ble Supreme Court in a recent judgment in R.K. Malik and Another Vs. Kiran
Pal and Others, , held that future prospects of the child could be taken into consideration for awarding compensation. Considering the fact that the
parents lost their only male child and based on the evidence and the judgment of the Hon''ble Supreme Court, this Court finds that the Tribunal
rightly awarded a sum of Rs. 1,50,000/- to the parents and the same is reasonable. Though there are uncertainties about the prospects of the child,
that cannot be a ground to deny compensation for the case of this nature. This Court in The Managing Director, Tamil Nadu State Transport
Corporation (Coimbatore Division I) Ltd. Vs. M. Chinnasamy, Parvathy and P. Radhakrishnan, awarded a sum of Rs. 1,86,000/- for the death of
the three year old child.
Taking into consideration of the aforesaid judgment, this Court finds that the award of Rs. 1,50,000/- along with interest at 7.5% for the loss of
child is just and the same is sustained. Accordingly, the appeal is dismissed. No Costs.