Abhay Gohil, J.
1. Claimants have filed this appeal under Section 173 of Motor Vehicles Act, being aggrieved by the award dated 13.1.2001 passed by First Motor Accidents Claims Tribunal, Vidisha in Claim Case No. 9 of 1998, whereby the Tribunal has awarded only compensation of Rs. 50,000 for the death of a boy of 8 years old and has also exonerated insurance company from its liability on the ground that the driver of the tractor was not having valid driving licence and was driving the tractor without licence and directed to refund the amount awarded under no fault liability under Section 140 of the Motor Vehicles Act.
2. Brief facts of the case are that on 12.5.1998 at about 7 p.m. in the evening the deceased Krishna Kumar, aged about 8 years, was going to the market from his house near Police Chowki at Mohangiri, a tractor-trolley No. MP 04-L 2795, which was being driven by respondent No. 2 and owned by respondent Nos. 1 and 3, dashed the boy Krishna Kumar. As a result of this accident deceased Krishna Kumar sustained injuries in his head, leg and both the shoulders, he became unconscious. He was referred to District Civil Hospital, Vidisha, where he died next day during treatment. The matter was reported to Police Station Kotwali, Vidisha, where crime was registered and after investigation charge-sheet was filed. Appellants who are the claimants and parents of the deceased, have filed claim petition claiming compensation of Rs. 6,20,000. Before the Tribunal issues were framed and evidence of the parties were recorded. After recording evidence of the parties, Tribunal recorded finding on all the issues and held that the deceased Krishna Kumar died in an accident. The accident took place because of rash and negligent driving of tractor-trolley by its driver Prashant Singh. The Tribunal also found that the driver of the tractor-trolley was driving the tractor without any valid driving licence and thereby he committed breach of the terms and conditions of the insurance policy. The Tribunal awarded a lump sum compensation of Rs. 50,000 for the death of the child and held that both the owners of the tractor, respondent Nos. 1 and 3 and driver are jointly and severally liable for the payment of compensation and also exonerated the insurance company from its liability on the ground that there is a breach of the terms and conditions of the policy as driver was not having any driving licence. The Tribunal also directed to the appellants to refund back the amount of Rs. 50,000 which was deposited by the insurance company which was awarded by the Claims Tribunal while deciding the application under Section 140 of the Motor Vehicles Act for no fault liability. Against which the claimants have filed this appeal. In the appeal claimants not only prayed for enhancement of the compensation but challenged the finding by which the insurance company has been exonerated.
3. Mr. M.K. Jain, learned Counsel for the appellants submitted that the learned Tribunal has committed illegality in not awarding proper compensation and exonerating the insurance company. He submitted that in view of the decision in the case of National Insurance Co. Ltd. v. Swaran Singh : AIR2004SC1531 , in which the Apex Court has clearly held that the liability of the insurance company vis-a-vis the owner would depend upon several factors of the case and the owner would be liable for the payment of compensation. In a case where the driver was not having a licence at all, it was the obligation on the part of owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle. The question as regard the liability of the owner vis-a-vis the driver being not possessed with a valid licence is considered in the said case.
4. He also placed reliance on a decision of the Apex Court in the case of National Insurance Co. Ltd. v. Kusum Rai : AIR2006SC3440 , in which it was held that though the insurance company was not held liable but the insurance company was directed to pay the amount to the claimants and, thereafter, liberty was granted to the insurance company to recover the amount paid by it to the claimants from the owner of the vehicle. The learned Counsel for the appellants also placed reliance on another decision of Apex Court in the case of New India Assurance Co. Ltd. v. Satender : AIR2007SC324 , in which the Tribunal has awarded the compensation of Rs. 4,40,000. The Supreme Court reduced the amount of compensation and awarded compensation of Rs. 1,80,000 to a child of 9 years old. He also placed reliance on a decision in the case of Lata Wadhwa v. State of Bihar : (2001)IILLJ1559SC , in which compensation of Rs. 2,00,000 was awarded to a 6 child between the age of 5 and 10 years.
5. In reply Mr. M.P. Agrawal, learned Counsel for respondent insurance company submitted that the compensation awarded by the Tribunal is perfectly justified and the Tribunal has rightly exonerated the insurance company from its liability. The claimants can recover the amount from the owner of the vehicle and this appeal is not maintainable, as the appellants have not deposited back the amount of Rs. 50,000 as the award of refund was passed and has not made the compliance of the award passed by Tribunal.
6. As argued by learned Counsel for the parties, the following questions arise for our consideration in this appeal:
(i) The question of the liability of the insurance company in third party risk cases, where the driver of the offending vehicle was not having valid licence.
(ii) What should be the adequate compensation in a case of death of a young boy of 9 years old?
(iii) Whether in such cases principle of notional income is applicable as per the Second Schedule to the Motor Vehicles Act?
7. We have considered the evidence produced on behalf of the claimants. The claimant examined Santosh Kumar himself as AW 1 and Rajaram as AW 2. Santosh Kumar, AW 1, has deposed that Krishna Kumar was his son who was about 8 years and on the date of accident he was going to market from his house and he succumbed to the injuries in the hospital on account of the injuries sustained in the accident. He has also produced the copy of the criminal cases which were filed as Exh. P1 to Exh. P7, arrest memo, dehati nalishi and the charge-sheet. Claimants also examined Rajaram, AW 2, who was an eyewitness of the accident and he has deposed that when deceased was going towards the market a tractor-trolley No. MP 04-L 2795 which was being driven by driver Prashant Singh rashly and negligently dashed deceased Krishna Kumar, who was taken to hospital by him and he has lodged the report and, thereafter, in the hospital deceased died. Prashant Singh, DW 1, entered into the witness-box and deposed that he was not driving the tractor but he was only sitting on the tractor as on that day he had come from village to purchase the goods. The same is the evidence of Prawesh, DW 2. Admittedly the owner of the tractor did not enter into the witness-box and was not examined. The insurance company examined one Jequp to prove the terms and conditions of the insurance policy.
8. After considering the evidence the Tribunal did not believe the evidence of Prashant Singh. Prashant Singh has not deposed that if he was not driving the vehicle then who was the person driving the tractor as he has admitted that he was sitting thereon, therefore, Tribunal disbelieved his statement. The Tribunal found that the evidence of Santosh Kumar, AW 1 and Rajaram, AW 2, is reliable and held that Prashant Singh, the respondent No. 2 was driving the vehicle. If the owner has not entered into the witness-box, the court can also draw adverse inference against the owner and in that case it can be held that the owner cannot be absolved from his liability, as it was the burden on the owner to prove that who was driving the vehicle and whether the person who was driving the vehicle was holding a valid driving licence or not? In these circumstances, the evidence of Prashant Singh will not be helpful to the owner of the vehicle, therefore, we hold that the learned Tribunal has not committed any illegality in recording the finding that Prashant Singh was driving the vehicle and he was not having driving licence. More so against the finding recorded by the Tribunal, insurance company has not filed any appeal or challenged the finding by filing cross-objections.
9. As has been consistently held by the Apex Court in the cases of Swaran Singh : AIR2004SC1531 and Kusum Rai : AIR2006SC3440 and in catena of decisions that in such cases though the insurance company is not liable but the insurance company, under third party claim cases can pay the compensation to the claimants and recover the same from the owner of the vehicle. In the case of Oriental Insurance Co. Ltd. v. Nanjappan : AIR2004SC1630 , the Apex Court has also elaborately laid down the procedure of recovery of the amount. Therefore, we hold that in this case, where claimants are third party and as provided under Section 149 of the Motor Vehicles Act it is the duty of the insurance company to satisfy the award, the insurance company will pay the compensation and will have liberty to recover the same from the owner of the vehicle.
10. The next question for consideration is what should be the adequate compensation in a case of death of a young boy of 9 years old? Tribunal has awarded lump sum compensation of Rs. 50,000. But the question is whether the same is reasonable and what principle can be applied in determining compensation in such cases?
11. In a case of New India Assurance Co. Ltd. v. Satender : AIR2007SC324 , the Hon'ble Supreme Court after placing reliance on its earlier judgment in State of Haryana v. Jasbir Kaur : AIR2003SC3696 , in which it was held as under:
(8)...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 to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that 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 court 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 the 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 the 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 in 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 fairness, equitability and reasonableness and non-arbitrariness. If it is not so it cannot be just. [See Helen C. Rebello v. Maharashtra State Road Trans Corporation : AIR1998SC3191 ].
(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 splendour of the stars, beyond the reach of monetary tape-measure. The determination of damages for loss of human life is an extremely difficult task and it becomes all the more baffling when the deceased is a child and/or a non-earning person. 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 calculation of compensation in such cases involves a good deal of guesswork. In cases, where parents are the claimants, relevant factor would be age of parents.
xxx xxx xxx(12) 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.
Again Hon'ble Supreme Court in case of Lata Wadhwa v. State of Bihar : (2001)IILLJ1559SC , while computing compensation in case of children between the age group of 5 and 10 due to fire in pandal awarded Rs. 1,50,000 plus Rs. 50,000 as conventional amount; total Rs. 2,00,000 for each child and Rs. 4,10,000 for the age group of children 10 to 15 years.
12. In such cases generally we take help of the Second Schedule appended to Section 163-A of the Motor Vehicles Act for determining compensation on the basis of multiplier method and principle of notional income for determining the compensation to those who had no income prior to accident and income of Rs. 15,000 per annum can be considered in such cases where the age of the deceased is below the age of an earning person. It was argued that the Second Schedule is not binding, may that be, but it provides guidelines and it is settled law that it is a good guide which provides guidelines to adopt a particular mode, on estimated basis to arrive at reasonable compensation. In the case of General Manager, Kerala State Road Trans Corporation v. Susamma Thomas : AIR1994SC1631 , the Supreme Court has culled out the basic principle governing the assessment compensation and held:
(8) There were two methods adopted for the determination and for calculation of compensation in fatal accident actions, the first the multiplier mentioned in Davies v. Powell Duffryn Associated Collieries Ltd. (1942) AC 601 and the second in Nance v. British Columbia Electric Railway Co. Ltd. (1951) AC 601.
The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalising the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants, whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed up over the period for which the dependency is expected to last.
13. Principle of law laid down in this judgment is followed and reiterated by the Supreme Court subsequently in the cases of U.P. State Road Trans Corporation v. Trilok Chandra : (1996)4SCC362 ; New India Assurance Co. Ltd. v. Charlie : AIR2005SC2157 and U.P. State Road Trans Corporation v. Krishna Bala : AIR2006SC2688 .
14. Thus, considering the aforesaid principle, law laid down by the Apex Court and in view of the aforesaid discussion and looking to the future prospects of a young boy, who was a student of class III and other facts and circumstances of the case, we can safely apply the multiplier method and the principle of notional income in this case as deceased boy was a non-earning person and assess the yearly income of the deceased as Rs. 15,000 and after deducting 1/3rd amount towards the personal expenses determine the amount of dependency as Rs. 10,000 per annum. The parents are the claimants. In the claim petition the age of the mother has been shown as 30 years and as per the Schedule on the age group of 30 to 35, multiplier of 17 is applicable. On application of the multiplier of 17 the amount of compensation is calculated as Rs. 1,70,000. On this amount, we further allow a sum of Rs. 15,000 under other heads like funeral expenses, loss of love and affection and loss to estate, etc. and award total compensation of Rs. 1,85,000, which is enhanced from Rs. 50,000 to Rs. 1,85,000. Claimants shall be entitled for interest on the enhanced amount at the rate of 8 per cent from the date of filing of the appeal. Counsel's fee Rs. 1,000.
15. Consequently, this appeal is allowed as indicated above.