1. There is a delay of 95 days in filing this appeal under section 173 of the Motor Vehicles Act, 1988. I.A. No. 2636/04 is an application whereby the appellant seeks condonation of delay in filing the appeal.
2. It is stated in the application that the appellant handed over the file to Shri Deepak Awasthy, advocate, for filing the appeal and he was carrying impression that the appeal has been filed within time. It is urged that subsequently it was discovered that the appeal could not be filed within the time, therefore, the appellant engaged another counsel Shri Ghanshyam Pandey, who filed this appeal on 13-10-2003. It is contended that there is no deliberate delay on the part of the appellant who is very much interested in contesting the matter and the delay was beyond the control of the appellant. Though an objection has been raised on behalf of the respondent/Insurance Company who has entered appearance after notice; however, keeping in view the reasons contained in the application and the fact that the same is supported by an affidavit, this Court is of considered opinion that the delay deserves to be and is hereby condoned.
3. I.A. No. 2636/04 is accordingly allowed. Appeal is admitted for hearing. With the consent of the learned counsel for the parties the matter is heard finally. Since there is no dispute that the death of Shubhangi was due to the accident caused on 26-05-2001 by rash and negligent driving of truck bearing Registration No. UP-42/B/6233 driven by respondent No. 2 and owned by respondent No. 1, the only question which crops up for consideration is whether the Claims Tribunal was justified in awarding compensation of Rs. 82,000/-. The issue as to what should be just, fair and reasonable amount of compensation in lieu of death of a minor, has been considered by the Apex Court in the case of Lata Wadhwa and others v. State of Bihar and others : (2001) 8 SCC 197 wherein it was observed :-
"11. So far as the award of compensation in case of children is concerned, Shri Justice Chandrachud has divided them into two groups, the first group between the age group of 5 to 10 years and the second group between the age group of 10 to 15 years. In case of children between the age group of 5 to 10 years, a uniform sum of Rs. 50,000 has been held to be payable by way of compensation, to which the conventional figure of Rs. 25,000 has been added and as such to the heirs of the 14 children, a consolidated sum of Rs. 75,000 each, has been awarded. So far as the children in the age group of 10 to 15 years, there are 10 such children who died on the fateful day and having found their contribution to the family at Rs. 12,000 per annum, 11 multiplier has been applied, particularly, depending upon the age of the father and then the conventional compensation of Rs. 25,000 has been added to each case and consequently, the heirs of each of the deceased above 10 years of age, have been granted compensation to the tune of Rs.1,57,000 each. In case of the death of an infant, there may have been no actual pecuniary benefit derived by its parents during the child's lifetime. But this will not necessarily bar the parents' claim and prospective loss will found a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived."
4. Similarly, in the case of State of Haryana v. Jasbir Kaur ; (2003) 7 SCC 484, it is held : "7. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is to be in the real sense "damages" which in turn appears to it to be `just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has be to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate the compensation must be "just" and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. The Courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness and non-arbitrary. If it is not so it cannot be just. [See Helen C. Rebello v. Maharashtra State Road Transport Corporation (AIR 1998 SC 3191) : 1998(4) RCR(Civil) 177 (SC)]. "
5. In New India Assurance Co. Ltd. v. Satender ; (2006) 3 SCC 60 it was observed :- "9. There are some aspects of human life which are capable of monetary measurement, but the totality of human life is like the beauty of sunrise or the splendor of the stars, beyond the reach of monetary tape measure. The determination of damages for loss of human life is an extremely difficult talk and it becomes all the more baffling when the deceased is a child and/or a non-earning person. The future of a child is uncertain. Where the deceased was a child, he was earning nothing but had a prospect to earn. The question of assessment of compensation, therefore, becomes stiffer. The figure of compensation in such cases involves a good deal of guesswork. In cases, where parents are claimants, relevant factor would be age of parents.
6. In case of the death of an infant, there may have been no actual pecuniary benefit derived by his parents during the child's lifetime. But this will not necessarily bar the parents' claim and prospective loss will find a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived. This principle was laid down by the House of Lords in the famous case of Taff Vale Rly. v. Jenkins and Lord Atkinson said thus :
"...all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact there must be a basis of fact from which the inference can reasonably be drawn; but I wish to express my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first that the deceased earned money in the past, and, second, that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inference can I think, be drawn from circumstances other than and different from them:. [See Lata Wadhwa v. State of Bihar. (2001) 8 SCC 197]"
7. In cases of young children of tender age, in view of uncertainties abound, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation."
8. Similar view has been expressed in the case of R. K. Malik and another v. Kiram Pal and others; (2009) 14 SCC 1, wherein it is observed :- "39. So far as the pecuniary damage is concerned we are of the considered view, both the Tribunal as well as the High Court has awarded the compensation on the basis of the Second Schedule and relevant multiplier under the Act. However, we may notice here that as far as non-pecuniary damages are concerned, the Tribunal does not award any compensation under the head of non-pecuniary damages. However, in appeal the High Court has awarded non- pecuniary damages of Rs. 75,000.
9. Needless to say, pecuniary damages seek to compensate those losses which can be translated into money terms like loss of earnings, actual and prospective earning and other out of pocket expenses. In contrast, non-pecuniary damages include such immeasurable elements as pain and suffering and loss of amenity and enjoyment of life. In this context, it becomes duty of the court to award just compensation for non-pecuniary loss. As already noted it is difficult to quantify the non-pecuniary compensation, nevertheless, the endeavour of the court must be to provide a just, fair and reasonable amount as compensation keeping in view all relevant facts and circumstances into consideration. We have noticed that the High Court in the present case has enhanced the compensation in this category by Rs. 75,000 in all connected appeals. We do not find any infirmity in that regard."
10. In the case at hand as apparent from the award, the trial Court has not taken into consideration the aspects which ought to have been while computing the amount of compensation taking into consideration the monetary as well as non-monetary loss which may occur when a minor dies, therefore, in the considered opinion of this Court the appellant is entitled for further amount of compensation to the tune of Rs. 1,20,000/-. The appellant shall also be entitled to the interest @ 7.5% on the enhanced amount from the date of this appeal. The amount is modified to said extent. The appeal is thus allowed to the extent above. However, no costs.