Mamtesh And ANR v. Arif And ANR

-1IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O No. 2016 of 2015 (O&M) Date of decision:- 30.01.2018 Mamtesh and anr.

...Appellants

Versus

Arif & anr.

...Respondents

CORAM:

HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. R.S. Mamli, Advocate for the appellants Mr. Ashik Ali, Advocate for respondent No. 1 Mr. Rajbir Singh, Advocate for respondent No. 2 RITU BAHRI J. (Oral) C.M. No. 6223-CII-2015 For the reasons mentioned in the applications, delay of 281 days in filing of the appeal is hereby condoned. The application stands disposed of.

F.A.O No. 2016-2015 1.

The present appeal has been preferred by the appellants, against award dated 21.01.2014 passed by the learned Motor Accident Claims Tribunal, Yamuna Nagar at Jagadhari (for short, 'the Tribunal') to the tune of Rs.2,30,000/- in an appeal filed under Section 163-A of the Motor Vehicles Act.

FACTS NOT IN DISPUTE On 13.06.2012, Shubham was sitting on tractor No. HR02U7871 and respondent No. 1 was driving the said tractor in a rash and negligent manner. When the tractor reached near Rahmia Colony

-2Chhachhrauli, Shubham fell on the road and the rear tyre of the tractor run over Shubham who died on the spot.

3.

The learned counsel for the claimant-appellant contends that the compensation awarded by the learned Tribunal is on the lower side and deserves to the enhanced, in view of the judgment of Hon'ble the Supreme Court of India in a case of "Kishan Gopal Vs. Lala and others 2013 AIR SC (Civil) 2465" wherein in a case of death of child aged 10 years, Hon'ble the Supreme Court took the notional income of the deceased at Rs.30,000/- and applied the multiplier of 15 and the compensation came to Rs.4.50 lacs, Rs,50,000/- was given towards loss of love and affection, funeral expenses, last rites etc. Hon'ble the Supreme Court while dealing with a case filed under Section 163-A of the Motor Vehicles Act laid criteria for awarding the compensation in a case filed under Section 163-A of the Motor Vehicle Act.

Hon'ble the Supreme Court in para 18 of the judgment has held as under:- "18. 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 & Ors.

(4) RCR (Civil) 673, while examining the tortuous liability of

-3the 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 the said 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 irrecusable 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 wellplaced 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.

-4the 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 and others vs. Delhi Transport Corporation and another, 2009 (3) RCR (Civil) Page 77, 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.

-5of 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."

4.

I have heard learned counsel for the appellant and perused the record.

COMPENSATION ASSESSED BY MACT 5.

The learned Tribunal assessed the income of the deceased to the tune of Rs.15000/- as per annum. No cut was imposed and multiplier of 15 was applied, Rs.5000/- was awarded towards loss of love and affection and funeral expenses. He was awarded total compensation of Rs.2,30,000/-. RE-ASSESSED COMPENSATION Reference at this stage can be made to a judgment passed by this Court in a case of Sh. Amandeep Singh vs. The Oriental Insurance Co. Ltd and others, passed in FAO No. 5 of 2008, decided on 11.09.2014 whereby in a similar circumstances, while dealing with the claim petition filed under Section 163-A of the Motor Vehicles Act, this Court took the notional income of child at Rs.30,000/- who died in the year 2006 and thereafter, awarded him lump sum amount of Rs.1 lacs under the conventional heads of loss of love and affection, funeral expenses and last rites.

Thus, the compensation requires enhancement only to the extent that the salary should be taken at Rs.40000/- per annum and something should be given under conventional head, as per judgment of Hon'ble the Supreme Court in a case of R.K. Malik and anr. vs. Kiran Pal

-6and others, 2009(14) SCC 1 wherein Rs.75,000/- had been awarded under conventional head in claim petitions filed under Section 163-A of the Motor Vehicle Act.

8.

Following the ratio of law laid down by Hon'ble the Supreme Court in the above mentioned judgments, the compensation has to be reassessed as follows:- HEAD COMPENSATION AMOUNT Notional income Rs.40000 per annum Compensation after multiplier of 15 40000X15=Rs.6,00,000/- Conventional heads Rs.75,000/- TOTAL COMPENSATION AWARDED:- Rs.06,75,000/- ENHANCED AMOUNT OF COMPENSATION Rs.06,75,000-2,30,000=Rs.4,45,000/- The enhanced amount of compensation of Rs.4,45,000/- shall be payable within a period of forty five days from the date of receipt of certified copy of this order. The enhanced amount of compensation shall carry interest @ 9% per annum from the date of filing of the claim petition, till its realization, in view of the judgment of Hon'ble the Supreme Court in a case of Kumari Kiran through her father Harinarayan vs. Sajjan Singh and others, 2015(1) SCC 539. Remaining conditions of disbursal of amount shall remain unaltered.

Accordingly, the award stands modified to the above extent and the present appeal is partly allowed.

30.01.2018 (RITU BAHRI) G Arora JUDGE Whether speaking/reasoned Yes Whether reportable No