B.K. Somasekhara, J.
1. These cases can be styled as 'child death compensation cases' involving common - questions of law and facts. They have been heard together and being disposed of with this common judgment. Apart from each case presenting-different considerations to assess the compensation, they involve a common simple but very important question, namely, how to assess the compensation in motor accident infant or child death cases. The plethora of precedents prevailing on the question have failed to provide consistency or the uniform guidelines for the Tribunals and the Courts to approach the matter with certainty or with absolute confidence. Therefore, in the nature of the arguments advanced by the learned advocates who are appearing in the batch of cases, namely, Sarvasri S. Hanumaiah, Prattipati Venkateswarlu, N. Subba Rao, M. Chandrasekhar Reddy, T. Bheemsen, K. Subba Rao, V. Tulasi Reddy, M. Ramaiah, C. Prabhakar Reddy, P. Sri Raghuram, O. Manohar Reddy, Y. V. Swamy, S. Prabhakr Reddy, S.V.R. Somayajulu, and A.T.M. Rangaramanujam and in view of certain complexities projecting from the situation to leave and finality of the views on the question or questions involvedby removing certain doubts. Mr. Srinivasa Rao, the learned senior advocate has been prevailed upon to assist the Court as an amicus curias in addition to the valuable guidance given by the learned advocates for the petitioners. It is almost the four decades of the precedents and the comparable cases which are available to leave a background in deciding such a question.
2. We arc dealing with the fate of the survivors on the fete of the dead. The claim petitions are filed for compensation for the death of children. There cannot be any difference in the result of death as every mortal will meet the life with death. Therefore, in law and experience, the result of death is similar. The consequences of death are also on the survivors to suffer the separation or the sadness is also not different. But the degree of agony and the loss of the consequences may vary in certain situations. Therefore, to that extent, the death claim cases involving the death of the children may not be different from other claim cases of death. But, in law and facts and experience, the differentiation has a role to play for the Courts or the Tribunals to decide properly and in accordance with law and to achieve the ultimate justice which is popularly called Human law and Human justice. This is the back drop of the theme of the judgment which concerns the Court to deal with the matters with all seriousness and concern. There is no restitutio in integrum to award the compensation for the death of a child or anybody in money value as it is difficult to reimburse the life. However, the Law of Torts evolved a legal fiction that such loss of life can be compensated in money value, because 'to compensate in money for pain and for physical consequences is invariably difficult but no other process can be devised than that of making a monetary assessment.' (See page 2 of 'Damages for Personal Injuries and Death' by John Munkman, Seventh Edition, 1985, London, Butterworths).
3. Technically speaking, the law of compensation or damages has a root in the Law of Torts. Atleast in India, there wasno statutory basis to assess the compensation in such claims for the negligence of others till the Indian Fatal Accidents Act, 1855 was enacted to come on the Statute Book on 27th March, 1855 (Act 13 of 1855). Therefore, the first law was born almost one and half centuries ago in relation to awarding of compensation in fatal accident cases. The next condification of law relating to awarding compensation for motor vehicle accidents is the Motor Vehicles Act, 1939 (Act No. 4 of 1939) which came into force on 16th February, 1939 and the latest one is the Motor Vehicles Act, 1988 (Act No. LIX of 1988), which came into force on 1-7-1989. The 1988 Act has also undergone amendment by the Motor Vehicles (Amendment) Act, 1994 (Act No. 54 of 1994) which came into force with effect from 14-11-1994. Therefore, the root of law for compensation fundamental in Law of Torts has sought codification in the three enactments stated above. The Motor Vehicles Act, 1939 has been repealed by the Motor Vehicles Act, 1988. But, interestingly and usefully the Fatal Accidents Act, 1855 is still on statute book and not repealed. Both Sections 135 of 1939 Act and 217 of 1988 Act are silent about it. The reason being that none of the provisions of 1939 Act or 1988 Act deal with the question as how to award compensation in motor accident cases except broadly declaring that the Tribunals or the Courts will award compensation which is 'just and reasonable'. It is also interesting to note that there is no similar statute like the Fatal Accidents Act for personal injury claim cases. Therefore, it is fundamental to remember that even now, barring the precedents on the subject, it is the Fatal Accidents Act, 1855 which should primarily and really regulate the awarding of the damages or compensation regarding the fatal accident claim cases. Under Section 1A of the Fatal Accidents Act, a suit for compensation lies to the family of a person for loss occasioned to it by his or her death by actionable wrong. Such an action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused. It is only because of the relevant provisions in Act, 1939 and theAct, 1988, such suits arc barred. Therefore, the analogy is that although suits contemplated under Section 1A of the Fatal Accidents Act, 1855 are barred to be filed in a Civil Court, the law in relation to that to be dealt with before the Motor Accidents Claims Tribunals constituted under Section 110 of the Act, 1939 or under Section 165 of the 1988 Act, as the case may be, cannot be forgotten. The scope of Section 1A of the Fatal Accidents Act is also enlarged that not only the persons mentioned in the provision can maintain such proceedings or actions but also any other legal heir and the dependants of the deceased can maintain such action. Therefore, wherever the word 'Court'' is used under the provisions of Fatal Accidents Act, 1855, it may be substituted with the word 'Tribunal' or the 'Court' if it is the appellate Court, as the case may be. Similarly, the expression 'suit' used in such provisions may also have to be substituted with the word 'application' for compensation. Barring mat, there may not be difference in the operation of the provisions of the Fatal Accidents Act in relation to the fatal accident claim cases. This Court also feels that the provisions of the Fatal Accidents Act should be read with the relevant provisions of the 1939 Act and also the 1988 Act, while determining the compensation. But, it need not be over emphasised that the Motor Vehicles Act, 1939 or the Motor Vehicles Act, 1988 being the latter and latest enactments, to the extent of any inconsistency with the Fatal Accidents Act, 1855, should override the former enactment.
4. Now coming to the question as to what should be the compensation in a death claim case, the relevant portion of Section 1A of the Fatal Accidents Act, can be extracted hereunder for convenience sake.
'1-A, Suit for compensation to the family of person for loss occasioned to it by his death by actionable wrong :
XXX XXX XXXXXX XXX XXXand in every such action the Court may give such damages as it may thinkproportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, .....' (emphasissupplied).
5. In substance, the damages to be awarded in such actions should be proportioned to the loss resulting from such death to the claimants. The law advisedly has omitted to explain as to what is the loss to the surviving persons due to the death of the persons in fatal accident cases. Therefore, it is for the Tribunals or the Courts to work out as to what would be the loss to such persons for whose benefit such action or claim was brought or maintained applying its human wisdom, experience and depending upon the facts and circumstances of each case. This is emphasised only to mean that the Tribunals or the Courts cannot illustrate the meaning of the words ' 'proportioned loss'' suffered by the claimants due to the death of such persons. In the human experience, the loss in such deaths may be both mental, physical, monetary and any other measurable items. It may be unwise or inappropriate to categorically list out the items of such loss for all the cases. That has to be worked out for each case depending upon the facts and circumstances of the case Subramanya Iyer v. Kunhi Kutti, AIR 1970 SC 376. A particular item of loss in a particular case may not be there for other cases. Therefore, any categorisation or classification of items of damages or compensation in any precedents or judgments should be taken only as illustration but not as an exhaustive dealing of the matter. In fact although Section 1A of the Fatal Accidents Act used the word 'compensation' in the preamble of the section, in the above extracted portion, it is made synonym to 'damages'. Therefore, to understand the expressions in the synonyms or the similar situations both of them should mean the same thing, namely, the reimbursement in money value or that compensation and damages should be read toprovide the same meaning. A careful reading of Section 1A of the Fatal Accidents Act leaves no scope to think that the damages or the compensation for the death of a child is different from the death of an adult member or loss as the case may be.
6. Section 110-A of the Motor Vehicles Act, 1939 deals with the application for compensation. It enumerates the persons who can file such applications, namely, in injury case, the person who has sustained the injury and in the case of death, by all or any of the legal representatives of the deceased or by any agent duly authorised by the person injured or any of the legal representatives of the deceased as the case may be. Therefore, by reading sub-sections (b) and (c) of Section 110-A of the 1939 Act with Section 1A of the Fatal Accidents Act, the scope for filing the petitions for the compensation in a case of death of a child due to the accident is very much enlarged as already indicated that it will cover all or any of the legal representatives of the deceased. The law is also settled that all such legal representatives need not be the persons entitled to succeed or inherit the estate of the deceased as to read with Section 1A of the Fatal Accidents Act, all the dependants and all the persons who have sustained the loss in the death of the deceased for various reasons must be included. In a developing Law of Torts in India, the scope of such application should be still examined and enlarged to include all the persons not only parentally related to but also the persons related by fraternity, social obligation, religious intent and some times for various reasons which are difficult to illustrate, because it is the human relationship which creates a society. The nature of dependence is not the sole test to create the relationship and also the formation of a society. The affection, the feeling, the agony and the individual experience in the relationship and loss of relationship is a peculiar experience of human society and can never be defined or described by any law or science as the case may be. However, as it is, in view of Section 110-A of the Act, 1939 read with Section 1A of the Fatal Accidents Act, the Tribunals and the Courts are still to examine as to who are thepersons entitled to file such claim petitions to seek the compensation as a reimbursement of loss in the death of the deceased in a motor vehicle accident case. Section 166 of the Act, 1988 is practically the reproduction of Section 110-A of the Act, 1939 in relation to the above aspects of the matter. Section 110-B of 1939 Act deal with the award of the Claims Tribunal. Therein, it is contemplated that the Tribunal after holding an enquiry into the claim will make an award determining the amount of compensation which appears to it to be just. The law makers have left lot of discretion to the Tribunals and the Courts to award compensation which appears to them to be just. What is 'just' in a particular case, as it appears to the Courts or Tribunals, can never be declared at all and, therefore, it strictly depends upon the facts and circumstances of each case. The precedents have even declared that while deciding such a compensation as 'just compensation' even the culpable negligent person should feel that he has atoned to the sin of having committed the accident leading to the death of an individual or injury to the person and at the same time it should not be a windfall or a speculation to reap the invariable or unestimatable compensation disproportionate to the loss sustained due to the death or injury: Even under Section 110-B of 1939 Act, there is no discrimination in awarding the just compensation involving the death of persons of any age muchless the children or the adults. That is how the law makers have made it clear that what is 'just compensation' in the case of death of a child which appears to the Tribunal or the Court, it should be determined and not to put a scale or embargo on its own powers or discretion to award the compensation in a given case. Section 168 of Act, 1988 corresponds to Section 110-B of 1939 Act. The same expression as to determining the amount of compensation which appears to the Tribunal to be just, as has been mentioned in Section 110-B of 1939 Act, is repeated in Section 168 of the 1988 Act also. Therefore, as on the date, the law operating in fatal accident cases does not discriminate in determining the compensation in fetal accidentsimmaterial of the age of the deceased, however, subject to awarding such compensation which appears to the Tribunal or the Court, as the case may be, to be just in the facts and circumstances of the case.
7. After the incorporation of Chapter VII-A in 1939 Act under the heading 'liability without fault in certain cases' whereby Section 92-A to 92-E have been incorporated, the quantification of the compensation in fatal accident bases has been regulated or even defined. Notwithstanding Section 1A of the Fatal Accidents Act or Section 110-A of 1939 Act or Section 166 of 1988 Act, even without establishing the negligence on the part of the tort feasor, the claimant (s) shall be entitled to a minimum compensation both in injury claim cases as well as in death claim cases. A reading of Sections 92-A to 92-D and Section 110-B of Act, 1939, together produces a result that the no fault liability fixes a minimum compensation either as interim compensation or final compensation but can exceed as the just compensation where the negligence is established. Section 92-B(3) has enumerated such a legal consequence, particularly, in sub-sections 3(a) and 3(b) of Section 92-B are very specifically mentioned. Sections 92-A and 92-B of 1939 Act, were brought on the statute book by Act No.47 of 1982 which came into effect with effect from 10-12-1982. In a case of death, the minimum compensation to be awarded, whether no fault liability or otherwise, from such a provision shall be Rs.15,000/-. Sections 140 and 141 under Chapter X are the relevant equivalent provisions under the Act, 1988. There is no difference in these provisions in relation to no fault liability or fault liability except with regard to the quantum of minimum compensation. The 1988 Act came into force on 1-7-1989 and in regard to accidents occurring subsequent to 1-7-1989, the Act provided a minimum compensation of Rs.25,000/- in fetal accident claim cases. Now, by the latest Amendment Act (Act No.54 of 1994) which came into force with effect from 14-11-1994, by virtue of sub-section (2) of Section 140of Act, 1988, the minimum compensation awardable hasbeen raised to rupees fifty thousand. Therefore, depending upon the date of the accident, governed by the respective provisions of the enactments, the minimum compensation shall be Rs.15,000/-, Rs.25,000/- and Rs.50,000/-as the case may be for the death of any individual or human being immaterial of their age. To make it more emphatic, it cannot be differed in relation to children also. To that extent, insofar as the minimum compensation is concerned, the liability should be taken as declared by the statutes and settled as a certainty. The Tribunals and the Courts are to adopt them as a minimum compensation for the death of anybody including child depending upon the date of accident in a particular case.
8. Two more questions may arise, as to what should be the maximum compensation or any compensation more than the minimum compensation awardable in the case of death of the children of tender age or of the age not very much of the adults, capable of surviving or supporting the survivors in their life time and what should be the just compensation for the death of children prior to the incorporation of Section 92-A of Act, 1939 Possibly that must be brought within the meaning of 'just compensation' which appears to the Tribunals or the Courts as just. It is in that area the law of precedents and comparable cases should guide the Tribunals and the Courts.
9. The learned advocates and Mr. Srinivasa Rao, the learned amicus curiae have presented number of precedents in this regard which will be taken up at the appropriate stage, In motor vehicle accidents cases, it is stated that there is no law of precedents insofar as quantification of compensation is concerned and some times even the items of compensation, as each case has to be determined on its own merits subject to some statutory limitations. However, the law is settled that comparable cases would act as guidelines to assess the just compensation Yugaraj v. Anthony Fernandes, 1980 (2) Kar. LJ 488. Again what is a comparable case depends upon the facts and circumstances of each case. That will provide lot of freedom and discretion tothe Courts and the Tribunals to work out just compensation in each case. In view of Article 141 of the Constitution of India, the law declared by the Supreme Court of India to govern the facts of a particular case should be taken as a binding precedent both due to constitutional binding and also the legal discipline and' propriety and also to achieve certainity. The law of precedents of the same Court or similar other Courts also regulate such a discipline and consistency and will avoid arbitrariness in rendering the awards. Broadly stated, the method of assessment of compensation in a death case should be taken as settled by the Hon'ble Supreme Court consistently in more than one precedent, namely, in General Manager, Kerala SRTC v. Susamma Thomas, : AIR1994SC1631 , U.P. State Road Transport Corpn. v. Trilok Chandra, : (1996)4SCC362 , which are relied upon by this Court in several latest pronouncements, namely:
1. K. Ramalingam v. G. Kalavati, : 1997(1)ALT707 .
2. U. Kanaka Durgatnma v. D. Suryanarayana, : 1997(1)ALT739 .
3. Oriental Insurance Co., Ltd v. K. Ratnana, : 1997(1)ALT417 .
4. G. Sugunamma v. K Koteswara Rao, : 1997(1)ALT539 .
5. A. Hanumanth Reddy v. B. Jaswanth Singh Bhatia, : 1996(4)ALT1079 .
6. APSRTC v. T. Yashodha, : 1996(4)ALT1133 .
7. R. Balanarasammav. K. Ramakrishna Reddy, : 1997(3)ALT39 .
8. Depot Manager, APSRTC v. A. Krishna Mrunalini, : 1997(1)ALT282 .
9. M Venkateswarlu v. M. Balaramaiah, : 1997(1)ALT63 .
10. T. Ruthomma v. S. Bala Kotaiah, : 1997(1)ALT129 .
11. K. Lingawa v. APSRTC, : 1997(1)ALT75 .
12. New India Assurance Co., Ltd v. Devula Ramulu, 1996 (4) ALD 1143.
10. In Susamma Thomas case, by adopting the method popularly called as 'multiplier method''which is found to be most scientific, the following principles were evolved as a measure of damages :
'The measure of damage is the pecuniary loss suffered and is likely to be suffered by each dependant. Thus 'except where there is express statutory direction to the contrary, the damages to be awarded to a dependant of a deceased person under the Fatal Accidents Acts must take into account any pecuniary benefit accruing to that dependant in consequence of the death of the deceased. It is the net loss on balance which constitutes the measure of damages. The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing on the one hand the loss to him of the future pecuniary benefit, and on the other any pecuniary advantage which from whatever sources comes to him by reason of the death,.... the general principle is that the actual pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependant by the death, must be ascertained.'
The multiplier method to be adopted has been explained in susamma Thomas case in para 17 as follows :
'The multiplier represents the number of years' purchase on which the loss ofdependency is capitalised. Take for instance a case where annual loss of dependency is Rs.10,000./-. If a sum of Rs.1,00,000/- is invested at 10% annual interest, the interest will take care of the dependency, perpetually. The multiplier in this case works out to 10. If the rate of interest is 5% per annum and not 10% then the multiplier needed to capitalise the loss of the annual dependency at Rs.10,000/-would be 20. Then, the multiplier, i.e., the number of years' purchase of 20 will yield the annual dependency perpetually. Then allowance to scale down the multiplier would have to be made taking into account the uncertainities of the future, the allowances' for immediate lump sum for payment, the period over which the dependency is to last being shorter and the capital feed also to be spent away over the period of dependency is to last etc. Usually in English Courts the operative multiplier rarely exceeds 16 as maximum. This will come down accordingly as the age of the deceased person (or that of the dependants, whichever is higher) goes up.'
Therefore, the items of compensation in a case of death are broadly classified as follows :
1. Loss of dependency or loss to the estate;
2. Loss of expectation of life or loss of future happy life;
3. Shock, pain and suffering of the deceased falling on the survivors depending upon the nature and the time of dealh after the accident, which can be called 'general damages';
4. Medical and incidental expenses which may depend upon the facts and circumstances of each case, called as 'special damages'; and
5. Loss of Consortium.
Items 1 and 4 can be decided based upon the evidence in the case whereas items 2, 3 and 5 are conventional sums which are difficult to be assessed. However, such conventional sums reasonably arrived at and agreed upon by wisepeople in the field of law are to be consistently followed upto a particular period, to vary or escalate depending upon the loss of money value due to inflation or for any other reason. Therefore, to that extent, the guidelines in law of precedents particulars of Supreme Court and our Court should be taken as practically binding as law of precedents. At the moment, Rs.15,000/- (Rupees fifteen thousand) each are being awarded towards the loss of expectation of life or loss of future happy life and towards the loss of consortium. Following the principles from such precedents, the Tribunals and the Courts face no difficulty to assess the compensation in cases of adults, possibly above 16 to 18 years, whether they will be able to contribute to the family or the dependants or atleast to provide a potential income for the age, based on the family profession, Government or any other avocation, to decide the multiplicand and the multiplier. The age of such persons also provide a clear multiplier as described in Susamma Thomas, (supra) and similar cases. But the real difficulty comes in the case of children who are less than 16 to 18 years of age and who are known to be not capable of earning or contributing to the family or parents etc. during the age of minority or of tender age. That is where the law of precedents have tried to regulate some method to fix some conventional sums. As a matter of discipline, we may commence with the precedents of the Hon'blc Supreme Court on the question.
11. The earliest case of the Supreme Court appears to be in C.K. Subramania Iyer v. T. Kunhi Kuttan Nair, 1970 ACJ 110, following the decision of the Supreme Court in Gobald Motor Services TD., and another v. R.M.K. Veluswami and another, : 1SCR929 . The law on the point to compensate in death cases was declared in para 13 of Subramania Iyer's case as follows :
'13. The law on the point arising for decision may be summed up thus : Compulsory damages under Section 1A of the Act for wrongful death must be limited strictly to the pecuniary loss to the beneficiaries and that under Section 2, themeasure 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 arc necessarily personal to each case, in the very nature of tilings, 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 case 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....'.
It was a case of death of a child aged eight years. By applying the rules supra, the Supreme Court contemplated that it was difficult to know as how the deceased boy would be turned out in life later is at best a guess, but still held that there was a reasonable probability of his becoming a successful man in life as he was a bright boy in the school and his parents could have afforded him a good education and that it is not likely that he would have given any financial assistance to his parents till he was atleast 20 years old. But, from the evidence on record, his father was found to be a substantial person having prosperous business and therefore the Supreme Court came to the conclusion that he needed no assistance from his son and there was also no material on record to find out as to how old were the parents of the deceased at the time of his death and, therefore, on the basis of the evidence on record it was held that the amountof Rs.5,000/- awarded by the Claims Tribunal which was enhanced to Rs.6,000/- by the Court in appeal were not said to be inadequate. A careful reading of this pronouncement reveals that no principle as such was laid down as to the mode of assessment of compensation in the case of death of children of tender age. While laying down the general principle supra that it should be the present cash value of the prospective service of the deceased minor child, as to what the parents are entitled to recover and in addition to the compensation for loss of pecuniary benefits reasonably to be expected after the child attains the majority, the matter was left to be decided by the Tribunals and the Courts, depending upon the facts and circumstances of each case. Therefore, to rely upon such a precedent as a guideline or authority to award a particular quantum of compensation in the case of death of a child may not be correct.
12. Then, we must come to the precedents of our own High Court in APSRTC v. Annapu Reddy Gurava Reddy, 1984 ACJ 451, wherein for the death of a boy aged nine years, adopting the multiplier method, the loss of dependency to the parents was estimated at Rs.900/- per month and with the multiplier of 18, it was to tailed upto Rs. 16,200/- and Rs. 1800/- towards the mental agony to the parents was awarded and the total compensation was fixed at Rs. 18,000/-. In other words, the multiplier method as in the case of an adult was adopted in this precedent.
13. In Andhra Pradesh State Road Transport Corpn. v. G. Kamanaiah, 1988 ACJ 223, the question of assessing the compensation in the case of death of children was dealt with elaborately with all guidelines and with the aid of number of precedents to settle the following principles :
'(a) In the case of death of children, the parents can claim the present value of the future contributions which the deceased would have made to them. The dependency can be estimated by computing the annual contribution which the child would have made from the date of his probable earning.The question as to when a child would have reached such an earning capacity and as to what he could have contributed would depend on the facts of each case, the relevant factors being the child's general level of intelligence or health, the family background, the father's or family profession' if any, the capacity of the parents to educate the child etc.
(b) After arriving at the annual contribution (or annual dependency) to the family, the multiplier that has to be applied is not the one appropriate to the age of the child at its death but to the age of the parents. This is because of the fact that the dependency to parents will last only for the lifetime of the parents, who are likely to predecease the child (if the latter had not died in the accident). Of course, if the child is grown-up person and married, the multiplier to be applied for arriving at the present value of the future loss to the wife, is the appropriate to the age of the deceased because the wife being younger, is normally likely to live upto or beyond the life or her husband.
(c) If the child is unmarried at the time of accident but likely to be married in course of time, the Court cannot proceed on the basis that the contribution to the parents will be altogether stopped after such marriage. It may only be partially reduced. This is because of the statutory obligation in our country upon children to maintain their aged parents. In such cases, it is permissible to assess the contribution upto the possible date of marriage and later, separately.
(d) In the case of children above 5 years and below 10 years, it will not be possible to ascertain a suitable multiplier because of the fairly higher mortality rates in that period. But, it is permissible to arrive at conventional amounts, which may range upto Rs. 15,000/- for accidents in the latest seventies.
(e) In the case of children below 5 years (there are no decided cases of award ofdamages to the parents) a nominal amount upto Rs.5,000/- may perhaps be granted.'
Therefore, it must be taken that such principles are laid down with reference to the age group of the children from 0 to 5 years, 6 to 10 years and 11 to 18 or 20 years. However, one thing is certain that for the children who are unable to earn or incapable of contributing to the family, the precedent supra has taken into consideration that a conventional sum for the age group of 5 to 10 years and upto 5 years may be awarded as above depending upon the period for which that is going to be awarded.
14. In New India Assurance Co. Ltd. v. Anga Chinni Babu, 1992 (1) ACJ 281, while dealing with the case of a boy aged nine years who died in the accident, this Court under no fault liability under Section 92-A of Motor Vehicles Act, 1939, awarded Rs.15,000/-. Therefore, that has fallen back on the concept of minimum compensation by virtue of Section 92-A of 1939 Act for the death of a child immaterial of the age. However, it was a case where the boy was found to be earning and assisting the parents in agricultural work.
15. In Anjamuri Zeorge v. Gudala Rama Nageswara Rao, 1993 ACJ 174, in the case of death of a child aged 14 years, not only on the basis of no fault liability but also at the rate of Rs. 1,000/- for every one year over and above five years, inclusive of loss of affection, this Court granted Rs.15,000/- (the amount under no fault liability irrespective of the age of the deceased) plus Rs.9,000/- which was totalled upto Rs.24,000/-. It may be difficult to gather any rule in assessing the compensation in such cases except on the basis of no fault liability. Therefore, the view of our High Court from the precedents supra so far prevailing appears to be that for the death of a child of the tender age a conventional sum may be awarded which may not be less than Rs.15,000/- as no fault liability that still in a given case on facts if it is established that the child is earning or capable of earning, then the multiplier method can be adopted to arrive at the just compensation.
16. Now we are taking up the views of High Court of Madras in Muthuswamy v. SAR Annamalai, 1990 ACJ 974, in the case of death of a boy aged six years who was a brilliant student of Class II Rs.8,000/- was awarded towards pain and suffering and in all Rs.12,000/- was awarded by adopting the multiplier method. The contention that the deceased being aged six years was unable to contribute to the family to make it a ground not to adopt the multiplier method was rejected. On the facts of the case it was found that the parents of the deceased were educated and were in Government service and they were interested in their son's education and put him in Government service and, therefore, he being the eldest son in the family, it could have reasonably presumed that he would have effectively shared the parent's responsibility towards the daughter and in such view of the matter the multiplier method was adopted by the Court. In Managing Director, Thanthai Periyar Transport Corporation Ltd v. Sellamuthu and others, 1994 ACJ 118, for the death of a boy aged one year, Rs.15,000/- were awarded based on no fault liability. However, no law was laid down as to the mode of assessment in such cases. Therefore, the view of the High Court of Madras falls back on the general principle of assessment of compensation in a fatal accident claim case to apply multiplier method depending upon the evidence and also on the basis of no fault liability as minimum compensation.
17. That takes us to the view of the High Court of Karnataka. The earliest precedent was rendered by the erstwhile High Court of Mysore in Concord of India Insurance Co., Ltd. v. L.J. Machado and others, 1966 ACJ 321, wherein for the death of a boy aged eight years a compensation of Rs.5,000/-towards loss of expectation of life was awarded in addition to Rs. 1,000/- for pain and agony caused to the claimants themselves. In other words, such a conventional sum was awarded having due regard to the age of the deceased as the loss of expectation of life for the parents.
18. In Syed Patel v. N.H. Doddabasappa, : AIR1981Kant161 , for the death of a girl aged six years, Rs.6,000/- was awarded by way of compensation holding that in such cases compensation has to be awarded for loss of expectation of future happy life. In Madhu's case, 1979 ACJ 15, Rs.6,000/- was awarded for the death of a child aged five years on the basis that it was loss of expectation of future happy life. In Mohammed Iqbal 's, case : AIR1985Kant171 , 1985 ACJ 546, in the case of death of a boy aged six years, on the basis of no fault liability under Section 92-A of Act, 1939, Rs.15,000/- was awarded. In Lakshmamma v. C. Das, 1985 ACJ 199, for the death of a boy aged nine years. Rs.8,000/-were awarded towards the loss of expectation of life as a conventional sum. The view of the High Court of Kamataka appears to be that the conventional sum for the death of a child should be about Rs.1,000/- for every completed year of the child and most of the precedents have based their view relying upon the decision in C.K. Subramania Iyer's case (supra) of the Supreme Court. But, it must be emphasised again that the Hon'ble Supreme Court did not lay down such a rule to assess the compensation by such a method. This Court, with all respects, is unable to accede to the view of the High Court of Kamataka to assess such compensation based upon the analogy that Rs.1000/- should be granted for every one completed year of the deceased child.
19. The next view would be that of the High Court of Kerala. In R. Ayyavu v. Gopinathan Nair, 1991 ACJ 718, while dealing with the principle of assessment of quantum of damages in a fatal accident case involving the death of a child aged five years, the items of compensation classified were, for pain and suffering undergone by the child before the death, loss of expectation of life, pecuniary loss by adopting the multiplier method and accordingly Rs.48,000/- was awarded as a whole, taking into consideration the fact that the amended Act has fixed Rs.25,000/- as the minimum compensation in all cases of death of a human being, whetheran adult or a child, man or woman. In fact a useful reference has been made to the view of our High Court in APSRTC v. G. Ramanaiah, (supra) while assessing the compensation. Therefore, it must be taken that the view of the High Court of Kerala is the view of this Court and commands all acceptance.
20. In Amrutlal Chunnilal Kataria v. Maharashtra State Road Transport Corpn., 1986 ACJ 605, in a case involving the death of a child aged two years, Rs.10,000/- was awarded by the Bombay High Court on account of shock, pain and suffering and loss of expectation of life. In Panduranga Narayandas Sarada v. Subhash Gopal Changale, 1989 ACJ 879, the High Court of Bombay, for the death of a boy aged eight months, the parents were awarded Rs.20,000/-with the aid of Section 92-A of the Act as no fault liability in addition to Rs.4,000/- to cover other expenses. To support such a view reliance was taken on Saraswali Bai v. Damodar Prasad, 1987 ACJ 601 and Hassa Mal v. Jatti Ram, 1986 ACJ 1121 of the High Courts of Madhya Pradesh and Rajasthan respectively. To conclude that the amounts so awarded were not exhorbitent. The view of High Court of Bombay is thus based upon the conventional sum depending upon the age of the deceased child.
21. The High Court of Rajasthan has dealt with a case of death of a girl aged three years in Amarlal v. Devilal, 1989 ACJ 275. It was held that no compensation can be awarded for mental shock or loss of life and affection and the only ground of claim was loss of contribution of the deceased. Her income was computed at Rs.8/-per diam and deducting Rs.2/- towards her personal expenses, the contribution to the family was fixed at Rs.6/- per diam, with the multiplier of 6, Rs. 12,960/- were awarded to round it off to Rs.13,000/-. This leaves no clear basis to assess the compensation in such a case and is also inconsistent with the view of some of the precedents awarding such item of compensation. In Badri Narain v. Choru Ram, 1986 ACJ 1062, for the death of a child aged two years Rs.10,000/- was awarded with theaid of comparable cases of other High Courts. This also did not lay down the basis for awarding such compensation except to infer that it was a conventional sum awarded towards the loss of expectation of life.
22. The High Court of Gauhati in New India Assurance Co., Ltd. v. Sartgey Tsering, 1989 ACJ 304, involving the death of a girl aged seven years and a student in Class I, awarded Rs. 17,000/- by way of compensation without laying down any law as such. The same High Court in Uman Singh Gurung v. Seva Ram Dutta, 1991 ACJ 1030, while dealing with the boy aged seven years who died in an accident, awarded Rs.60,000/- with items of loss of prospective dependency, shock, pain, agony and anguish, practically adopted the multiplier method. Such a view cannot be helpful to answer the questions in these batch of cases.
23. The High Court of Orissa inKulamani Pradhan v. Srimanta, 1990 ACJ 213, was to deal with a case involving the death of a boy aged five years. A previous decision in Basanta Kumar Sahu v. Shyamsunder Agarwalla, 1977 ACJ 359, had already awarded Rs.8,000/- for the death of a child aged five years and that was a case of accident of the year 1977 and taking into consideration the rate of inflation, Rs. 16,000/-wcrc awarded for the accident occurred on 20-1-1980. Therefore, no law as such was decided in that case by the Orissa High Court. In National Insurance Co., Ltd. v. Kuntala Swain, 1993 ACJ 65, the same High Court in all awarded Rs.5,000/- for the death of a girl aged one year without laying down any law as such as a basis.
24. The High Court of Madhya Pradesh in Kanhaiyalal v. Dr. Anil Kumar, 1989 ACJ 213, awarded Rs.30,000/- in regard to the death of a boy aged 12 years following an earlier decision of the same High Court without laying down any law in that regard. In Harish Chandra v. Lucky Barat Garage, 1994 ACJ 201, the High Court of Madhya Pradesh dealt with the compensation for the death of a boyaged nine years studying in Class II and awarded Rs.25,000/- as the item of minimum compensation awardable for no fault liability under Section 140 of the new Motor Vehicles Act, 1988 wherein the minimum compensation itself was Rs.25,000/-. Therefore, that did not settle the law in the circumstances which are prevailing at present.
25. Now, we may take up the series of pronouncements of the High Court of Punjab and Haryana dealing with the question. In K.L. Pasrija v. Oriental Fire and Genl. Insurance Co., Ltd, 1986 ACJ 252, wherein for the death of a child aged five years, Rs.20,000/- were awarded by adopting the multiplier method on the basis even a labourer would have been in a position to contribute Rs.100/- per month for his parents. In Pushinder Kaur Sekhon v. Corporal Sharma, 1986 ACJ 591, the matter concern the assessment of compensation for the death of a child aged one and half years and Rs.10,000/-was awarded following Subramania Iyer 's case of the Supreme Court (supra). In Balwant Singh v. Jyoti Prasad, 1986 ACJ 1123 Rs.30,000/- was awarded for the death of a girl aged six years by referring to a previous decision of the Court awarding Rs.20,000/- in such a case. Apparently, no law has been settled as a basis to award such compensation. In Harminder Singh v. Sukhpinder Singh, 1987 ACJ 74, for the death of a child aged six years, Rs.12,000/- was awarded. Here also no basis was made out to assess the compensation. In Rupinder Singh v. Jaswant Singh, 1987 ACJ 493, for the death of two minor girls aged 8 and 4 years and the mother not having any other child, Rs.35,000/- was awarded in the circumstances. In this case also no principle was laid down to arrive at such compensation. In Bimla Devi v. National Insurance Co. Ltd., 1988 ACJ 981, the Court was concerned with the principle of assessment of compensation for the death of children in age group of 5 to 9 years. It is a Full Bench ruling of the Punjab and Haryana High Court. Subramania Iyer's case of the Supreme Court was followed in evaluating the multiplicand for assessing the compensation. Since theSupreme Court awarded Rs.5,000/- as a conventional sum for the accident of the year 1956, Rs.10,000/- was assessed as such for the accident occurred prior to 1982 having due regard to the inflation from 1956 to 1980. Paras 8 to 10 of the judgment mentions the list of precedents involving the death of children aged between 1 to 5 years and 6 to 10 years etc., with the reasoning that the various High Courts awarded conventional sums in different periods. Therefore, it must be taken that the rule of awarding conventional sum depending upon the age of the child in addition to other circumstances has been taken into consideration without any other basis nothing the circumstance that children will not contribute to the family or the parents due to their tender age. In Shakuntala Devi v. Delhi Transport Corporation, 1990 ACJ 459 for the death of a girl aged six years, Rs.6,000/-was awarded following the Full Bench decision in Bimala Devi's case (supra). In Tara Chand v. Major Singh, 1990 ACJ 537, for the death of a boy aged 9 years Rs.20,000/- was granted taking into account the over all circumstances of the case, following Bimala Devi's case. Therefore, the view of the High Court of Punjab and Haryana consistently taken is that conventional sums are to be awarded depending upon the age of the deceased and the totality of the circumstances.
26. The High Court of Patna in Krishnaji v. Subhadra Devi, 1969 ACJ 344, awarded Rs. 10,000/- in a case of death of a boy aged seven years studying in 4th class, on facts without laying down any law in the case. In Bihar Co.op. Motor Vehicles Insurance Society v. Rameshwar Raut, 1969 ACJ 405, in regard to the death of a girl aged four years, Rs.2,000/- was awarded following the decision in Gobatd Motor Service Ltd. v. R.M.K. Veluswami, case (supra). That produces no basis of law except indicating that only conventional sums are to be awarded. In Hassa Mal v. Jatti Ram, (supra), the High Court of Rajasthan, in a case involving the death of a child aged 9 years, following the earlier decision of the Court in New India Assurance Company, Alwar v. Ram Dayal, and other cases awarded a compensation ofRs.48,000/-, adopting the multiplier method. But, no law as such has been laid down by the Court.
27. With these precedents, the conspectus of the view arrived on appears to be that in cases involving the death of children of tender age, the compensation is awardable by way of conventional sum which is reasonable in the facts and circumstances of the case relevant to the period within which the rupee value has a relevance and consequently if there is evidence to assess the compensation based on the contribution to the family by deceased by adopting the multiplier method also. There is also an indication that in some cases regarding the death of the children aged upto five years it may be difficult to award any compensation.
28. There is an instance wherein there was loss of child in abortion due to the accident in Minati Das case, 1976 ACJ 512 (Ori.). That may raise a question whether the child in the womb is a person and the termination of the pregnancy would amount to death. In Minati Das case, Rs.5,000/- was awarded to the mother for the loss of child in abortion due to the accident, Rs.1,000/- was awarded for physical pain, set back and mental anguish, Rs.1,000/- for loss of income and Rs.500/-for medical expenses and in all a sum of Rs.7,500/- has been awarded. But, no law has been decided in this regard by any of the precedents, whether the child in the womb is a legal personality the death of which give raise to cause of action for compensation under the provisions of the Motor Vehicles Act or Fatal Accidents Act. Under the circumstances, there may not be any need to touch this question and it should be kept open.
29. The learned advocates for the petitioners have contended that any number of rulings as above have not considered the real implications of Section 1A of the Fatal Accidents Act, 1855 and also the true implications of Section 110-A of 1939 Act and also Section 166 of Act, 1988 for the Court to apply its mind as to what would appear to its mind that such a compensationshall be just or bears proportion to the loss sustained by surviving parents or anybody in the death of a child. There appears to be all the force in such a contention. As already pointed out, the loss of child to the parents is proportional to their physical and mental attachment in addition to investment to arrange for the delivery of the child, to bring up, educate and arrange for all the expenses till the death. It depends upon the facts and circumstances of each case. It may not be forgotten here that depending upon the requirement and the status of the persons in addition to the place of residence etc., and the opportunities, one has to spend certain amounts not only during the pregnancy but also at the time of delivery of the child and later on to bring up the child which is really an investment in monetary value. In India, the investment on education including the employment opportunity and for the adults to depend upon the children is uniform. Notwithstanding the sacrificing conduct or the mental set back of the parents, such a dependency cannot be avoided. It is every one's knowledge that the education has become too expensive in our country particularly at the stage of Nursery and also at the stage of higher education. It may not be forgotten that both under Section 110-A of 1939 Act and also under Section 166 of 1988 Act, the loss or damage to the property involved in the accident is also compensatable in money value. Although children may not be equated to property, the investment on them as stated above shall really partake the character of an estate in money value. The loss of such estate should be reimbursed in money value as such estimate can be made out from the provisions stated above both under the Fatal Accidents Act and also under the Motor Vehicles Act, 1939 and the new Act, 1988. If that is the correct legal and logical position there is no reason why such an investment or the expenditure on begetting, bringing up and educating the children should not be compensated in money value. Such an item of compensation should necessarily come within the special damages which should be proved by producing certain evidence including the judicial notice of the Court and the intellectualguess work called conjectures. In this regard, there is a valuable article and paper published by one Smt. S. Lalitha, Reader, Department of Law, Sri Krishnadevaraya University, Anantapur (1991 ACJ at page XVIII) under the caption 'Compensation for the death of children in motor accidents' to provide some solutions. The learned author has referred to number of rulings as above dealing with the death of children of different ages as in the present case raising several questions to be resolved by the Courts. In the preamble of the article, the learned author says as follows :
'Parental damages in the death of a child are assessed on exactly the same basis as damages in any other fatal accident claim, regardless of whether the child was an infant or an adult. Thus, the basis question in every case is, whether the parents had a reasonable expectation of pecuniary benefit either in the form of money or services. However, the death of a child is a calamity of such magnitude that the pecuniary loss rule is particularly outmoded when applied to actions brought for the wrongful deafly of children. It is a real tragedy, that most often, the judiciary fails to recognise the parents' actual though intangible harm arising from the loss of a child's life, and opt to utilise the pecuniary loss rule, focussing on computation of the amounts that the parents would have spent on necessities for the child as substracted from the worth of the child. 'Worth' is measured solely by what he might have earned or contributed to the family. That formula applies double-entry book-keeping to children as if they were profit-making machines; enter the child's expectable contributions to the family exchequer and deduct the cost of his upkeep and maintenance.'
(The observations are based upon precedents and laudable)
The learned author is also right in observing that from the comparable cases it can be seen that there is no uniform method of assessment for the death of a child, the multiplier appliedand the factors considered vary widely. She has also considered the various factors depending upon the strata of the society to which the claimants belong which are not being taken into consideration while deciding the claim cases involving the death of the children and to repeat :
'From the above perusal of the cases, it can be seen that there is no uniform method of assessment for the death of a child, the multiplier applied and the factors considered vary widely. Some Courts apply multiplier referable to the age of parents, while other Courts adopt multipliers referable to the age of the deceased child. The estimation of pecuniary benefit also happens to be mere guess'. Some Courts opine '...the/ earnings and support of a son in the family of a poor labourer is immediately needed and that support is more valuable than in the case of a well-to-do family ....', whileothers believe that 'the deceased is not an earning member of the family and being a girl, she was expected to remain a liability till her marriage,' some feel mat the only son would have been a source of earning and also a source of comfort to parents in their old age, 'some opine that in a tribal society, a girl is valued more, others hold, 'neither wealth nor the status of the child should be regarded as relevant in fixing the compensation', but some differ from this view saying, 'in a poor family the parents may expect much higher pecuniary benefits .....than the parents in an affluent family.' Contrarily, some hold that '... keeping in view the fact that the boy comes from the family of labourers an amount of Rs.4,000/-would be adequate compensation'', despite the fact that the deceased was the only son of the claimants. Some Judges conclude that the deceased would have probably landed 'in some clerical job because his father was a Superintendent in the P&T; Office', while others believe that 'any person coming from any strata of society may now follow an occupation not followed by persons belonging to a particular strata of society'.
Such an observation of the learned author really requires consideration by the Courts while evaluating the compensation in such cases. Various suggestions made by the learned author requiring consideration depends upon the facts and circumstances of each case to be pleaded and established in such cases and there may npt be any uniform or common solution to deal with such problems. But still it is pointed out that inspite of the plethora of precedents, the problems are still open for consideration to assess just compensation to bear proportion to the loss sustained by the claimants both in respect of mental and physical and monetarily and it must be taken that all such questions are not either answered or not sealed so far.
30. Therefore, this Court having considered the law and the precedents touching the issues in question, records the following law as declared for guidance of the Tribunals and the Courts :
1. The items of compensation in cases of death of children should not be different from the items of compensation for thedeath of adults;
2. While awarding the conventional sum for the death of the children, all the factors should be taken into consideration including the age of the deceased, the age of the parents or the dependents, the possibility of the deceased growing up and contributing to the family in future in an orderly life etc.;
3. The monetary loss to the claimants should also be awarded subject to proof as special damages in each case;
4. No precedent should be taken in such a question as the conclusion in the matter as each case has to be considered on its own merits subject to the general principles;
5. No amount of compensation as conventional sum should be taken as fixed;
6. The minimum amount of compensation awardable for the case of death of children as in the case of adults shall be as follows :
(i) Rs. 15,000/- (Rupees fifteen thousand) for the death of children in respect of the accidents occurred on or after the date when Section 92-A of 1939 Act was brought on the statute book i.e. 140-1982;
(ii) Rs.25,000/- (Rupees twenty five thousand) for the death of children in respect of the accidents occurred on or after the date when Section 140 of 1988 Act was brought into force i.e. 1-7-1989; and
(iii)Rs.50,000/- (Rupees fifty thousand) for the death of children in respect of the accidents occurred on or after the date on which Section 140 of 1988 Act was amended by Act No.54 of 1994 i.e. 14-11-1994.
6. The compensation in each case may be more than the minimum amounts of compensation stated above in each case depending upon the facts and circumstances of each case which should be proved;
7. Any other item of compensation as suggested in the article 'Compensation for the death of children in motor accidents' by Smt. S. Lalitha, Reader, Department of Law, Sri Krishnadevaraya University, Anantapur (1991 ACJ page XVIII) may also be taken into consideration depending the facts and circumstances of each case;
8. It shall not be taken that either the Supreme Court or this Court or any other Court has laid down the law in clear terms that the compensation in the case of death of children for a particular age is a known sum or a definite sum as indicated in some of the precedents and it has to be worked out in each case depending upon the facts and circumstances of each case.
31. Now, we are taking up each of the case to examine the correctness of the award challenged.
32. CMA No. 29 of 1992 : In this appeal the award of the Motor Accidents Claims Tribunal, Guntur in MVOP No. 178 of 1989 dated 6-9-1991 is challenged. The appellants are the claimants and parents of the deceased boy. The claim was for Rs.50,000/- whereas the Tribunal awarded Rs.20,000/-. The age of the boy who died in the accident is found to be 12 years. He was said to be working as a coolie earning Rs.20/- to 30/- per diam. The Tribunal disbelieved the evidence of PWs.1 to 3 that the deceased was doing the coolie work and earning Rs.20/- to 30/- per diam. However, taking into consideration that the deceased was the only son of the claimants and having due regard to their ages and that of the deceased fixed Rs.20.000/-. In such cases, it is rather difficult to get better evidence than the testimony of persons like PWs.1 to3. From the decisions already indicated, the probability of children aged above ten years working as such and earning some amount cannot be totally ruled out. The applicability of multiplier method in such cases is also consistently accepted. However, the income of such children neither can be consistent nor to be certain. With little guess work, presuming that he was earning at Rs.5/- to 10/- per day, he was able to contribute about Rs.5/- per day to the family or even at the lowest at Rs.2/-per day, the contribution to the family would be atleast Rs.60/- per mensem or Rs.720/- per annum. Having due regard to the age of the claimants the multiplier in this case should be 14 and with such multiplier and with the multiplicand of Rs.720/-, it will produce Rs.10,080/-. Since the date of the accident is 9-5-89, it is governed by Section 110-A of 1939 Act where the minimum compensation for the death should be Rs.15,000/-. Even adopting the multiplier method, the loss of expectation of life should be Rs.15,000/-. As already indicated, the death of a young son to the parents would be not only shocking but also agonising for a long time. The pain the deceased suffers is a sharing factor to the parents. It is popularly stated that it is theworst experience for parents to lose the children. Therefore, the item of compensation for shock, pain and suffering should also be considered. Rs.5,000/- should be thus added. The future prospects of the deceased cannot be totally ignored either to come up very well or atleast to prosper to the satisfaction of the parents. In the absence of material, atleast Rs.5,000/- should be granted for such item. Another item of compensation which is already indicated is the amount which the claimants might have spent on the deceased to bring him up, educate etc. and even at the rate of Rs.1,000/- per year, for 12 years they must have spent atleast Rs.12,000/-. When added Rs.3,000/- towards incidental expenses, the total compensation in this case should be Rs.40,000/-.
33. The appeal is allowed with costs and the appellants shall be entitled to a compensation of Rs.40,000/-. The amount already paid shall be deducted. The apportionment of the compensation shall be equal among the appellants-claimants.
34. CMA No.474 of 1990 : The award of the Motor Accidents Claims Tribunal, Ongole in OP No.134 of 1987 dated 30-6-1988 is challenged. The appellants are the claimants and parents of the deceased boy aged six years. They laid a claim for Rs.50,000/-, but they were successful in getting only Rs.15,000/-. He was found to be the only son of the claimants. The Tribunal adverting to certain precedents and on the facts and circumstances of the case fixed a global compensation of Rs.15,000/-. In view of the age of the deceased at six years, the prospect of his earning and contributing the family may not arise. He being the only son of the claimants would naturally predicate the probability of being the source of dependence and inspiration to the parents. Since the case is covered by the 1939 Act, the minimum compensation should be Rs.15,000/-. For shock, pain and suffering Rs.5,000/- are to be added. Incidental expenses of Rs.3,000/- can also be added. The investment on the deceased by the claimants at the rate of Rs. 1,000/-per year, in the absence of any material, should further escalate thecompensation by Rs.6,000/-. The total compensation in this case thus would be Rs.29,000/- which is rounded off to Rs.30,000/-. The award of the Tribunal, therefore, requires to be modified only to this extent.
35. The appeal is accordingly allowed and the award of the Tribunal is modified holding that the appellants are entitled to recover a sum of Rs.30,000/-, less the amount already paid with costs. The apportionment of compensation shall be equal among the claimants.
36. CMA No.615 of 1990 : The award of the Motor Accidents Claims Tribunal, Chittoor in MVOP No.324 of 1988 dated 17-7-1989 is the subject-matter of the appeal. The appellants are the claimants and parents of the deceased boy aged 15 years, the only son and was studying in 9th standard at the relevant time. The claim was laid for Rs.one lakh, but the Tribunal awarded an amount of Rs.32,500/-. The Tribunal has found that the deceased was not a bright student as pleaded. The Tribunal came to the conclusion that the claimants might have spent Rs.1,08,000/- for his education. It is also stated that after he married and started earning, he could have contributed only Rs.500/- per month for the maintenance of the appellants or Rs.6,000/-per month and taking into account that the 1st appellant would have received such assistance from the deceased for 21 years after he started earning, the Tribunal arrived at the prospectus quantum of assistance to the appellants from the deceased at Rs.1,26,000/-. However, according to Ihe Tribunal, as the appellants must have spent atleast Rs.1,08,000/- for the education of the deceased boy and the balance between this and the future assistance being nominal, practically there would be no contribution to the family by the deceased boy. The approach of the Tribunal appears to be wrong. The case is governed by the 1939 Act where the minimum compensation shouldbeRs.15,000/-. The question would be what would be the maximum awardable compensation from the facts established in the case. The claimants who are the residents of Chittoor town were able to educate the deceasedin AML Residential School, Hindupur by spending certain amounts. Whether he is a bright boy or not was difficult to be assessed only from the marks. The acid test is too well known that the mark sheet may not always represent the true calibre or the intellect of a student. It is also the common experience that all the bright boys in the school may not always propscr in the real life. The converse may also be true. That is not the basis to decide the future of an individual. The fact that the boy was being educated in a different place in a residential public school by spending certain amounts is definitely an indication that the parents expected him to be well educated and to be well employed or pursued his learning or any useful avocation to the pride of the claimants. Therefore, it was a fit case for applying the multiplier method. Presuming that he would have completed the normal education atleast upto Matriculation or Graduation etc., and got the minimum of the employment either in the private or public service, the monthly income could not have been less than Rs.1500/- to Rs.2000/-. Deducting even 50% of such income, the contribution to the parents or the estate could have been Rs.500/- to Rs.1000/- per monlh. The unpredictability of the future of the children is a factor which may bring down such speculative assessment of the future contribution. Even at the lowest at Rs.500/-per month, the multiplicand would have been Rs.6,000/- per annum. The age of the claimants being 35 and 40 years, the multiplier should be 13. With this multiplier and multiplicand of Rs.6,000/-, the loss of future contribution or loss of dependency should be Rs.78,000/-. Adding Rs.15,000/-towards loss of expectation of life and Rs.3,000/- towards incidental expenses, the total would come to Rs.96,000/-. Therefore, even a conservative estimation would justify awarding Rs. one lakh. In view of such method being adopted, other items of compensation would be redundant or academic.
37. Accordingly, the appeal is allowed with costs and the award of the Tribunal is modified holding that the appellants are entitled to recover a sum of Rs. one lakh. The amountalready paid shall be deducted. The apportionment of amount shall be mads: equally among the claimants.
38. CMA No.707of 1990 : This appeal challenges the award of the Motor Accidents Claims Tribunal, Karimnager in OP No.209 of 1988 dated 22-1-1990. The appellants are the claimants and the parents of the deceased boy found to be aged 15 years at the time of the accident. The accident was occurred on 26-4-1988. The claim was for Rs.40,000/-. The Tribunal awarded Rs.25,000/-. It is found that the claimants are aged 60 and 50 years respectively. Taking their age and the deceased into consideration, Rs.25,000/-was fixed. The deceased was studying in 10th class. The claimants pleaded that he was working as a casual labourer under a private contractor earning Rs.450/-per month. This is disbelieved by the Tribunal. A boy aged 15 years working as a casual labourer may not be improbable. His age is also such that he is able to work and earn as a labourer and contributes to the parents, both at the relevant time and in future also. But, since he was also said to be a student, his working as a labourer would be only a part time one. In either way, as in the other case stated above, taking contribution to the family at Rs.500/- per mensem or Rs.6,000/ per annum and with the age of the parents at 60 and 50 years respectively the multiplier being 10, the loss of dependency in this would come to Rs.80,000/- and the compensation as a whole would have touched the mark of Rs. one lakh. However, since the claim was made only for Rs.40,000/-, that can be awarded. Thus, the award of the Tribunal requires to be modified to that extent.
39. The appeal is allowed and the award of the Tribunal is modified holding that the appellants are entitled to recover a sum of Rs.40,000/- as claimed with costs less the amount already paid. The apportionment of the amount shall be made equally among the appellants claimants.
40. CMA No 1006 of 1990 : This appeal is directed against the award of the Motor Accidents Claims Tribunal, Hyderabad in OPNo.466 of 1987 dated 16-8-1989 which is by the claimants. They are the mother, brother and sister of the deceased boy aged 15 years who died in the accident. The claim was laid for Rs. one lakh. The Tribunal awarded Rs.25,000/-. Fundamentally, the case being covered by 1939 Act, the minimum compensation should be Rs.15,000/-. However, it is a fit case to apply the multiplier method. The evidence that he was working as a auto mechanic is disbelieved. His future prospects and contribution to the family monetarily and otherwise cannot be doubted. His potential income either as a labourer or otherwise cannot be less than Rs.600/- per mensem and deducting Rs.200/- towards his personal expenses, the contribution to the family should be Rs.400/- per mensem or Rs.4,800/- per annum. Further, he was not only to maintain his mother but also to look after his younger brother and sister and arrange for their marriages and therefore his pleasure to work and earn for the family was necessarily more. With the age of the minor claimants 2 and 3, it is a fit case to adopt the maximum multiplier of 16. Therefore, with the multiplicand of Rs.4,800/- and multiplier of 16, the loss of dependency would come to Rs.76,800/- when added Rs. 15,000/- towards loss of expectation of life and Rs.5,000/-towards incidental expenses, the total would escalate to Rs.96,800/- which is rounded off to Rs.97,000/- and that should have been the reasonable sum. Thus, the award deserves to be modified accordingly.
41. The appeal is allowed and the award is modified with costs holding that the claimants are entitled to recover a sum of Rs.97,000/- less the amount already paid. The apportionment of compensation should be at the rate of 50% to claimant No.1 and at the rate of 25% each to claimants 2 and 3.
42. CMA No. 1153 of 1990 : The appellants are the claimants in OP No. 165 of 1988 on the file of the Motor Accidents Claims Tribunal, Nizamabad. The award of the Tribunal dated 19-4-1990 is challenged. Their son aged ten years died in a motor vehicle accident. They laid a claim for Rs.50,000/-,but they succeeded in getting Rs.30,000/-. The claimants are aged 40 and 32 years respectively. The Tribunal felt that having due regard to the age of the claimants and the deceased after he having attained the age of earning capacity, he could not have contributed much to the parents and therefore fixed a sum of Rs.15,000/- towards the loss of future support and Rs.15,000/- towards non-pecuniary damages and in all Rs.30,000/- were awarded.
43. The case is essentially governed by the Act, 1939 and the minimum compensation should be Rs.15,000/-. It appears that he was studying in 4th class. He was just crossing the age of puerility. He could either pursue the education or work. Even at the lowest, his potential income or the notional income cannot be less than Rs.200/-per month or contribution to the family would be atleast Rs.100/- per month or Rs. 12000/- per annum and with the age of the claimants, the multiplier being 14, the total loss of dependency would be Rs.16,800/. When added Rs.15,000/-towards loss of expectation of life and incidental expenses at Rs.3,000/- the total amount of compensation would be Rs.34,800/- or Rs.35,000/-. Even applying the other method in the judgment, i.e. Rs.15,000/- towards the loss of expectation of life, Rs.5,000/- towards pain and suffering, Rs.10,000/- (at the rate of Rs. 1000/- per year) for begetting, bringing up and educating the child and Rs.3,000/- towards the incidental expenses are to be awarded and the total should be Rs.33,000/-. The amount awarded is very much less, particularly when he was a student his future prospects to come up in life could not have been ignored. Therefore, it is a fit case to award Rs.50,000/-as claimed. The appeal deserves to be modified accordingly.
44. The appeal is allowed and the award of the Tribunal is modified with costs holding that the appellants are entitled to cover a sum of Rs.50,000/-. The apportionment of compensation shall be made equally among the claimants. The amount already paid shall be deducted.
45. CMA No. 1243 of 1990 : The National Insurance Company, Guntur who was respondent in OP Np.143 of 1988 on the file of the Motor Accidents Claims Tribunal, Ongole has questioned the award of the Tribunal dated 17-3-1990. It had taken a contention that the deceased who died in the accident was a passenger in a good vehicle and therefore not covered by the insurance policy. There is nothing to indicate that the owner of the vehicle violated the terms of the policy. The case is directly covered by the decision of the Supreme Court in Sohanlal Passi v. P. Sesh Reddy, (1996) 5 SCC 35, wherein it was clearly held that for technical grounds of contravention of the insurance policy, the liability cannot be exonerated. It should also be established that the violation of the terms of the policy should be by the insured as once he places the vehicle incharge of the driver who is duly having licence etc., the responsibility of the insured ceases. In the absence of the violation of the terms of the policy by the insured-owner of the vehicle, even assuming that the deceased was travelling in a good vehicle as a passenger, that will not absolve the liability of the insurer. The appeal, therefore, deserves to be dismissed. The appeal is accordingly dismissed.
46. CMA No. 1387 of 1990 : The award of the Motor Accidents Claims Tribunal, Karimnager in OP No. 10 of 1989 dated 20-2-1990 is in challenge. The appellants are the claimants and the parents of deceased boy aged seven years studying in III class. The claim was laid for Rs.50,000/-, but the award was passed for Rs.20,000/-. The claimants tried to demonstrate that the deceased was an artist and was a member of a drama troupe and was actively participating in dramas and earning Rs.300/-to Rs.400/-per mensem. The said fact was testified by PW1 the father of the deceased boy and PW3, a resident of the same village. The Tribunal disbelieved such a testimony and awarded a global sum of Rs.20,000/- as just and reasonable compensation. This Court is not able to understand as to why the Tribunal should disbelieve such evidence. A child artist in a drama troupe cannot be expected to havedocumentary evidence in proof of the same as conducting of dramas in villages with the participation of child artists is not uncommon. Therefore, the evidence on that score by PW1 corroborated by PW3 could have been taken into consideration by the Tribunal. Further, the case is covered by 1939 Act wherein the minimum compensation to be awarded is Rs.15,000/-. Even at Rs.5,000/- towards shock, pain and suffering; Rs.7,000/- towards investment on the deceased by the parents to begot and to bring him up and Rs.3,000/-towards the incidental expenses, the total compensation should have been Rs.30,000/-. As a child artist or a future prospective educated person employed normally, he was bound to contribute to the family of the parents and even with the multiplier method the compensation in this case could have been far above Rs.50,000/- and therefore the award deserves to be modified.
47. The appeal is accordingly allowed and the award of the Tribunal is modified with costs holding that the claimants shall be entitled to recover a sum of Rs.50,000/-. The apportionment of compensation should be made equally among the claimants. The amount if any paid shall be deducted.
48. CMA No. 1517 of 1990 : The award of the Motor Accidents Claims Tribunal, Ongole in OP No.27 of 1987 dated 8-3-1988 is challenged. The claimants are the parents and brothers of the deceased young boy aged 13 to 14 years who died in the accident. The claim was laid at Rs. one lakh to yield the award at Rs.25,000/-. The age of the deceased was held as such. The age of the claimants becomes relevant. Claimants 3 and 4 are younger to the deceased and that will also form the basis to decide the multiplier. The claimants tried to prove that the deceased was working as a mason earning Rs.700/- to Rs.750/-per mensem. The Tribunal fixed the income of the deceased at Rs.200 to Rs.250/-per mensem. With all this, the Tribunal fixed Rs.25,000/- as global amount of compensation. A boy aged 13 to 14 years in a village would be potentially capable of being employed and earning something, if not all that the claimantspleaded. But, the plea that he was working as a mason, at his age, possibly was difficult to be accepted. His age being useful to adopt the multiplier method, even at the rate of Rs.15/-per diam, his monthly income would be Rs.450/- and deducting Rs.150/- towards his personal expenses, the contribution to the family would be Rs.300/- per month or Rs.3,600/- per annum. With the multiplier of 16, the loss of dependency to the parents or the family would be Rs.57,600/-. When added Rs.15,000/- towards loss of expectation of life, and Rs.3,000/- towards incidental expenses, the amount would escalate to Rs.75,600/-, rounded off to Rs.75,000/-. Therefore, the award of the Tribunal requires to be modified accordingly.
49. The appeal is allowed and the award of the Tribunal is modified with costs holding that the claimants shall be entitled to a compensation of Rs.75,000/-. The apportionment of the amount shall be at the rate of 30% each to claimants 1 and 2 and 20% each to claimants 2 and 3. The amount already paid shall be deducted.
50. CMA No. 1675 of 1990 : The award of the Motor Accidents Claims Tribunal, Hindupur in OP No.29 of 1988 dated 25-9-1989 is challenged. The appellants are parents and sisters of the deceased boy aged eight years who died in the accident. The claim was for Rs.25,000/-, but Rs.16,000/- was awarded by the Tribunal. The case is governed by 1939 Act, where the minimum compensation should be Rs.15,000/-. When added Rs.5,000/- towards pain and suffering, Rs.3,000/- towards incidental expenses and Rs.8,000/- towards the investment made on him to begot and to bring him up, the total compensation exceeds Rs.25,000/-. Therefore, the award deserves to be modified.
51. Accordingly, the appeal is allowed and the award is modified with costs holding that the appellants shall be entitled to Rs.25,000/- as claimed. The apportionment of compensation shall be at the rate of 30% each to the claimants 1 and 2 and at the rate of 20% each to the claimants 3 and 4. The amount already paid shall be deducted.
52. CMA No. 98 of 1991 : In this appeal, the award passed by the Motor Accidents Claims Tribunal, Vizianagaram in OP No.222 of 1989 dated 11-9-1990 is in challenge by the appellant - A.P. State Road Transport Corporation. The respondents are the claimants. They laid a claim under Section 110-A of the Motor Vehicle Act, 1939 to recover a sum of Rs.50,000/- for the death of their daughter aged nine years. It was contested by the appellant. It was urged that the accident occurred on 10-5-1989 at Ramabhadrapuram Junction while the deceased and her mother were trying to board the RTC bus. It was alleged that due to the negligence of the driver of the vehicle, the accident occurred. The Tribunal held that it was due to the negligence of the driver of the vehicle only. It is contended by the learned Standing Counsel for the appellant that because of the negligence of the deceased only the accident occurred as she was trying to board the moving vehicle. The law is settled that no negligence or contributory negligence can be attached to the children of tender age. It is the duty of the conductor or driver to see that either such persons arc prevented from boarding the bus cr take care that the door is closed after all the passengers are boarded in the bus before it actually moves. In the absence of such plea or defence or evidence, no plea of negligence or contributory negligence as against a child of tender age can be entertained or accepted.
53. The appeal, therefore, has no merit and deserves to be dismissed. It is accordingly dismissed affirming the award of the Tribunal awarding Rs.50,000/- as compensation with interest as directed. There shall be no order as to costs in this appeal.
54. CMA No. 170 of 1991 : The appellants who are the claimants in OP No.52/88 on the file of the Motor Accidents Claims Tribunal, Karimnager questions the award dated 4-10-1990. They are the parents of the deceased Gattaiah, aged 12 years who died in the accident on 3-12-1987. They laid a claim for Rs.50,000/-, but the Tribunal awarded Rs.30,000/-. He studied upto V class. Hewas a shepherd said to be earning Rs.200/-per month. He was the second son of the claimants. Taking the age of the claimants and the deceased into consideration, Rs.30,000/-wasawardedby way of compensation. A boy aged 12 years working either as a shepherd or even as a labourer and assisting the parents to get some income or contribution may not be improbable. Children above ten years working or contributing atleast a little sum to the parents in our country is not unusual. The case being covered by the 1939 Act, even the minimum compensation should be Rs.15,000/- and when added Rs.15,000/- towards loss of expectation of life and incidental expenses etc., the compensation in this case would have exceeded Rs.30,000/- awarded by the Tribunal. Examining in any manner, the compensation in mis case could have been more and it is a fit case to apply the multiplier method. Even at the lowest contribution of Rs. 150/- per month to the family or Rs. 1,800/- per year and with the multiplier of 13, the loss of dependency in this case should be atleast Rs.23,400/-. When added Rs. 15,000/- towards ioss of expectation of life Rs.5,000/- towards pain and suffering and Rs.3,000/- towards incidental expenses, the total would go up to Rs.46,400/- which is almost nearer to the amount of Rs.50,000/-claimed by the appellants. Therefore, it is a fit case to award the amount as claimed.
55. The appeal is allowed and the award of the Tribunal is modified with costs holding that the appellants are entitled to recover Rs.50,000/- as compensation. The apportionment of amount shall be made equally among the claimants. The amount already paid shall be deducted.
56. CMA No. 206 of 1991 : The award of the Motor Accidents Claims Tribunal, Madanapalle in OP No.95 of 1989 dated 17-8-1990 is challenged. The claimants are the appellants and parents of the deceased boy Chandrakala Reddy who died in the motor vehicle accident on 17-1-1989. The claim was laid for Rs.90,000/- under Section 110-A of 1939 Act. The Tribunal awarded Rs.59,000/-. The deceased was aged 12 years and was said to be studying in 8th class. Itwas pleaded that he was also assisting the parents in agricultural work and milk business and earning Rs.500/- per month. The Tribunal having considered the age of the deceased, fixed the income of the deceased at Rs.300/-per month or Rs.3,600/- per annum and with the multiplier of 10,45 arrived at Rs.37,620/-, rounded off to Rs.37,000/- towards the loss of dependency and added Rs.15,000/- towards non-pecuniary damages or loss of expectation of life and as the deceased died after three days of the accident added Rs.7,000/- towards pain and suffering and thus totalled it to Rs.59,000/'. The application of multiplier method in this case appears to be correct. The income fixed at Rs.300/- per month may also be not improbable. However, some amount towards the personal expenses of the deceased should have been deducted. After deducting such expenses, if the income of the deceased is fixed at Rs.250/- per month the contribution to the parents would have been Rs.3,000/- per annum. The multiplier applied by the Tribunal may not be correct. The age of the claimants being 45 and 40 years respectively, the multiplier in this case ought to have been 12. Therefore, with the multiplicand of Rs.3,000/-and with the multiplier of 12, the loss of dependency ought to have been Rs.36,000/-. When added Rs.15,000/- towards loss of expectation of life, Rs.5,000/- towards pain and suffering and Rs.3,000/- towards incidental expenses, the total compensation would escalate to Rs.59,000/- which is exactly the amount awarded by the Tribunal. This Court, therefore, finds no reason to interfere with the award passed by the Tribunal which is just and proper in the facts and circumstances of the case.
57. The appeal is, therefore, dismissed confirming the award of the Tribunal granting Rs.59,000/- as compensation with costs as awarded, and with interest as directed. There shall be no order as to costs in this appeal.
58. CMA No.475 of 1991 : The award of the Motor Accidents Claims Tribunal, Chittoor in MVOP No.32 of i989 dated 1-10-1990 is questioned by the appellant whois the claimant before the Tribunal. The claim was laid for Rs.75,000/-, but the Tribunal dismissed the claim petition on the ground that the claimant was already paid Rs.15,000/-under Section 92-A of Motor Vehicle Act, 1939 in OP No.31 of 1989 on the file of the same claims Tribunal. The son of the claimant who was studying in LKG aged four years died in the accident. She claimed him to be a very bright student and could have maintained her in future. It is not a case to apply the multiplier method. The child aged four years is not expected either to work or earn something. However, being a student had a future prospects of getting educated and getting employment or pursuing any avocatiotf under the circumstances. The case is governed by the 1939 Act and the minimum compensation should be Rs.15,000/-. Added Rs.4,000/- towards the investment made on him, incidental expenses Rs.3,000/- and Rs.5,000/- for pain and suffering of the deceased which was borne by the claimant on the of the boy in the accident and further added Rs.5,000/- towards future prospects as he was a student, the total compensation would escalate to Rs.32,000/-. In the circumstances, Rs.35,000/- appears to be the reasonable compensation.
59. Accordingly, the appeal is allowed and the order of the Tribunal is set aside holding that the appellant shall be entitled to recover a sum of Rs.35,000/- with costs of the petition and with interest from the date of petition till the date of payment. The amount already paid shall be given deduction. There shall, however, be no order as to costs in this appeal.
60. CMA No.542 of 1992 : This appeal is directed against the award of the Motor Accidents Claims Tribunal, Guntur in MVOP No.159 of 1989 dated 18-6-1990. The appellants are the claimants and the parents of the deceased Venkateswarlu who died in the accident on 7-11-1988. The claim was laid for Rs.38,500/-, but the Tribunal passed the award for Rs.25,000/-. The deceased was found to be aged six years at the relevant time. PW1 the mother of the deceased boy andclaimant No. 1 deposed that the deceased was the only son and the only issue. The Tribunal discussed the evidence in regard to the quantum of compensation in para 7 of the award. Rs.25,000/- was fixed taking into consideration of the law in relation to no fault liability both under Section 92-A of the 1939 Act and under Section 140 of 1988 Act. Beyond that there is not much discussion in regard to the quantum as to how it was arrived at. Normally speaking, with the age of such a child, without any other circumstance to know the future prospects, the minimum compensation should be Rs.15,000/-, when added Rs.5,000/- for pain and suffering. Rs.3,000/- towards incidental expenses and Rs.6,000/- towards the investment made on him to bring him up etc., the total would go up to Rs.29,000/-. The only distinguishing factor of the normal case as against this case is that the deceased was the only issue to the claimants. In other words, they were to wholly depend upon the deceased boy both for pleasures and pains and for monetary assistance. The age of the claimants are 45 and 55 respectively which the learned advocate says may not be the age for procreation normally. Therefore, added a sum of Rs.6,000/- for such a contingency, the compensation in this case would go up to Rs.35,000/-. The award deserves to be modified accordingly.
61. The appeal is, therefore, allowed and the award of the Tribunal is modified holding that the claimants shall be entitled to recover a compensation of Rs.35,000/-with costs. The amount already paid shall be deducted. The apportionment of the amount shall be made equally among the claimants. There shall be no order as to costs in this appeal.
62. In the result, CMA Nos.1243 of 1990, 98 of 1991 and 206 of 1991 are dismissed confirming the awards of the concerned Tribunals and the rest of the appeals are allowed modifying the awards of the respective Tribunals as indicated above. The amounts already paid shall be given deduction. The appellants - claimants are entitled to interest at the rate of 12% per annum from the date of their claim petitions till the date ofpayment. The deposit of the amounts shall be in accordance with the guidelines of the Hon'ble Supreme Court in Susamma Thomas case (supra). There shall be no order as to costs in these appeals.
63. Before parting with the judgment, however, this Court conveys its gratitude and deep appreciation for the selfless and invaluable service rendered by Sri M. Srinivasa Rao, the learned senior advocate and a former District Judge of the State Higher Judiciary in assisting the Court to resolve the serious questions involved in this batch of cases.