K.C. Agrawal, J.
1. These two appeals have been preferred against the judgment of the Motor Accidents Claims Tribunal, Allahabad, dated 11th May, 1977, partly decreeing the claim of Kishan Lal and Smt. Kamla Rani (herein after referred to as the respondents) for the recovery of Rs. 12800/-with interest at the rate of 6% per annum for the death of their son, Rajiv Kumar alias Pappu, in the accident which occurred on 5th March, 1973.
2. The case of the respondents was that while Rajiv Kumar was returning from his school, Agrasen Inter College, Allahabad, at 430 P.M. on 5th March, 1973, and was in front of Military Dairy form near Phanai Imli, Grand Trunk Road, bus No. U.T.B. 2101 driven by Ram Jiwan Pandey, dahsed the deceased who was on a cycle and threw him on the road. Rajiv Kumar was, thereafter, run over by the Bus causing his instantaneous death at the spot. The cycle was also crushed. The respondents alleged that the accident occurred due to rash and negligent driving of the Bus by its driver and, as such, they were entitled to get compensation in the sum of Rs. 80,000/-. Out of Rs. 80,000/-, Rs. 10,000/- had been claimed for mental shock and Rs. 70,000/- as damages on account of death. The respondents asserted that Rajiv Kumar alias Pappu was a bright student in Class IX in Agrasen Inter College, and that he had a very bright future. They also asserted that the deceased was helping in the business of his father and was making substantial income.
3. The claim petition was contested by the U.P. State Road Transport Corporation as well as Ramjiwan Pandey, the driver. According to him, the accident took place on account of the own negligence of the deceased Rajiv Kumar. On behalf of the State of U.P. the Deputy General Manager of the U.P. State Road Transport Corporation Lucknow filed the written statement denying the allegation that the accident resulted due to rash and negligent driving of the Bus by its driver.
4. On the pleadings, the Tribunal framed five issues. Issue No. 2 was the main issue, which was as follows :
Whether the passenger Bus no. U.T.B. 2101 was being driven rashly or negligently at the time of the occurrence
5. For proving that the accident was due to rashnass of the driver of the Bus, the respondents produced Chandra Prakash Arora as P.W. 1, Onker Nath Khera as P.W. 2 Kishan Lal claimant himself as P.W. 3, Khairati Lal as P.W. 4 and Naresh Kumar as P.W. 5. Naresh Kumar P.W. 5 was a student of Agrasen Inter College and was going to his house at sulem Sarai along with the deceased, Rajiv Kumar. He stated that Rajiv Kumar along with him was going on the left when the Bus came from behind and dashed against his cycle. He stated that the Bus was being run at a high speed and once it was beyond the control the driver, the accident occurred. Onkar Niath P.W. 2 another eye witness. He gave the version of the accident as was given by Naresh Kumar P.W. 5. He further stated that the driver of the Bus did not blow the horn and Rajiv Kumar instantaneously died at the spot. Khairati Lal P.W. 4 was also present at the spot when the accident took place.
6. These three witnesses are consistent and nothing could be obtained in their cross examination to discredit their testimony. These statements established that the accident occurred due to rashness of driver of the bus, and had he been careful and not negligent, the accident would not have occurred. In this view of the matter, as the driver was negligent, the U.P. State Road Transport Corporation, which was its Master, was vicariously liable for payment of compensation claimed by the respondents.
7. On behalf of the appellant, UP. State Road Transport Corporation, the witness produced to negative the claim was G.S. Tandon, Service Manager. He admitted the factum of accident but stated that the deceased was not driving the cycle in his left. According to him the Bus was slow and well within the control of the driver. His statement has not been accepted by the Tribunal. We find no reason to differ from this view. We in agreement with the Tribunal's view, hold that the Roadways Bus U.T.B. 2101 was being driven by the driver rashly and negligently and it was due to rashness of the driver of the Bus that the accident was caused resulting in the instantaneous death of Rajiv Kumar.
8. The next question is about quantum of compensation. The respondents bad claimed Rs. 80,000/-, out of which Rs. 70,000/- was decreed for damages and the remaining Rs. 10,000/- the shock. The Tribunal awarded Rs. 160000/- and after having deducted 20% on account lump sum payment found the amount payable to the respondents to be Rs. 12,800/-. Being aggrieved by the award, the respondents have filed F.A.F.O. No. 473 of 1977 claiming higher compensation and F. A. F. O. No. 429 of 1977 has been filed by U.P. State Road Transport Corporation.
9. At the time of the accident, the respondents claimed that Rajiv Kumar was in Class IX and was a bright student. He was a healthy boy of about 17 years. The respondents did not produce any evidence of his academic career. Kishan Lal P. W. 3 did not tell the Court the division in which the deceased had passed out the previous examinations. The respondents could have obtained the relevant result cards of the deceased from Agrasen Intermediate College for proving the academic career of the deceased, Rajiv Kumar. This was, however, not done. Kishan Lal P.W. 3 state that the deceased used to help him in the business and that on account of his health he was earning about Rs. 300/- per month. This part of the statement of Kishan Lal does not appear to us to be convincing. He was a regular student and was attending his classes everyday. It is not believable that on account of his regular sitting at the shop, the income had increased There appears to be subsistence in the submission of the counsel for the U.P. State Road Transport Corporation that this had been introduced by the respondents only with a view to inflate their claim.
10. For what we have said above, we find that there was no evidence as to what the deceased was earning or what he would have earned in future. In fact, there could not be any kind of such evidence when the boy was student. We have therefore, to assess the value of the loss of dependency benefit by guessing and finding out what could be the economic loss to the respondents in the present case. For that purpose, we have to find out the future financial support which the deceased would have given to his parents, of which they were deprived. In the present case, the Tribunal had assessed that the deceased would have given the help of Rs. 50/- each to his parents for about 20 years. In this way, the total amount arrived at on this count was Rs. 12,000/- and Rs. 4000/- for mental shock. Taking these two figures together, the compensation found payable by the Tribunal was Rs. 16003/-. On the evidence, we are not satisfied that the respondent could get more pecuniary benefit than awarded by the Tribunal.
11. After reviewing a large number of decisions on the point in hand, we have held in F.A. F.O. No. 298 of 1977. Oriental Fire, and General Insurance Company Ltd. v. Banarsi Das, decided on 23-9-1983, that the following considerations should be kept into account while assessing the compensation in the case of death of a boy :
1. The age and health of the boy.
2. The class in which the boy was studying.
3. Whether he was bright in studies ?
4. Status parents.
5. Ages of parents.
6. Life expectancy of the boy an well as the parents.
7. Whether the partents were desirous of giving higher education to the boy ?
8. Whether the parents were capable of doing so ?
9. After how many years the boy could be expected to complete his education and get settled in life ?
10. Whether the. parents would have required monetary help then?
11. How much monetary help the boy could be reasonably expected to give to the parents ?
12. For how much period the parents could reasonably expect the monetary help ?
We have not referred to any principle or ruling which could justify our taking of a different view. The respondents, counsel has referred to a number of decisions in support of his claim for enhancement of the compensation. Each one of the decisions is based on its own facts. In 1978 A.C.J. page 43 relied upon by the learned Counsel for the respondents, the age of the deceased was 17 years. He was found to be brilliant at studies and the damages awarded was Rs. 21,000/- and Rs. 3000/- towards pain and suffering. In the instant case, the evidence has come that the father of the deceased was having a shop in Sulem Sarai and that he was not having such an income that the deceased Rajiv Kumar could be said to have very bright future in the business.
12. We have noted above that about academic career also no evidence has been produced. Mere statement by the father of the deceased could be of no help. As was suggested, it may be reasonable to accept that Kishan Lal P.W. 3 stated that his son was very bright, as is always said by every father for his son. The evidence of his educational career could be easily obtained, but as it was done we may reasonably presume, that the same was withheld. In this view of the matter, to us it appears that the sum of Rs. 12,800/- awarded by the Tribunal cannot be said to be less that what was required to be given.
13. Sri S.K. Sharma, counsel for the U.P. Sate Road Transport Corporation urged that the Tribunal was wrong in giving the compensation of Rs. 12,800/-, as according to his submission the compensation should have been less. He urged that in case of death of a boy, only conventional damages are recoverable. In support of his submission, the learned Counsel referred to us some of the decisions. These decisions were in respect of boys below 5 years of age. We do not think it proper in the instant case to award conventional damages when there is evidence on record to assess or calculate the pecuniary loss. In assessing the damages, we have to confine ourselves, 'hard', matter of rupees, annas and pies, which tinkle well, but mingle ill with sentiments. We are, therefore, not prepared to accept in the instant case that the respondents were entitled only to conventional compensation. On the material and evidence given, we find that the award given is justified and is not required to be interfered with.
14. It was said in C.K.S. Iyer v. T.K. Nair 1970 A.C.J. 110 (S.C.) :
In assessing damages the Court must exclude all considerations of matter which rest in speculation or fancy. Though conjecture to some extent is unavoidable. As a general rule parents are entitled to recover the present cash value of the prospective service of the deceased minor child. In addition they may receive compensation for loss of pecuniary benefits reasonably to be expected after the child attains majority.
15. It was also noted in this case that in ascertaining pecuniary loss it must be borne in mind that these damages are not to be given as solatium, but are to be given with reference to a pecuniary loss which has to be calculated with reference to a reasonable expectation of pecuniary benefit from the continuance of life of the deceased.
16. For the reasons given above, both these appeals are dismissed. In the circumstances, we direct the parties to bear their own costs.