S.R. Singharavelu, J.
1. Being aggrieved over the award dated 9.11.2006 in Misc. Case No. 97 of 1999 before the Second Motor Accidents Claims Tribunal, Cuttack; National Insurance Co. Ltd. has preferred an appeal in M.A.C.A. No. 103 of 2007 and the claimants have preferred M.A.C.A. No. 1029 of 2006.
2. The first noted appeal is for setting aside the award on the ground that there was no involvement of the offending truck in the said accident.
3. The second noted appeal preferred by the claimant is for enhancement of quantum of the award.
4. The brief facts of the case are as follows:
At 4 p.m. on 2.1.99 while the deceased, a boy of 14 years old was riding a cycle in Cuttack-Paradeep National Highway near Tarapur, the offending truck bearing registration No. OR 05-C 5171 coming from the opposite direction driven in a rash and negligent manner had dashed against the cyclist and the latter got seriously injured and succumbed to the same on his way to the hospital.
5. In this regard, an F.I.R. was lodged by PW 2, uncle of the deceased at 6.30 p.m., i.e., within 2 1/2 hr from the time of accident. PW 3 is an eyewitness who narrated the accident.
6. The investigating agency had registered a case under Exh. 1 and proceeded with the investigation and upon finding the involvement of the offending truck issued the final form as Exh. 2. It was supported by the post-mortem report, Exh. 5; zimanama, Exh. 4 and seizure list, Exh. 3. The driver of offending vehicle and the owner were fixed.
7. The learned Counsel for the insurance company submitted that the F.I.R. contains no name of the driver and no registration number of the truck. Basing upon this, it was argued that there was no involvement of the vehicle bearing registration No. OR 05-C 5171. My attention was also drawn by the learned Counsel to the affidavits signed before the Notary by the driver as well as the owner. That was in the month of June 1999. Both had mentioned therein that the vehicle above-mentioned was not involved in the said accident. Therefore, the learned Counsel for the insurance company vehemently argued that there is no substantial evidence before us to hold that the above-mentioned vehicle had involved itself in the said accident.
8. The learned Counsel for the claimants submitted that in the affidavit of the owner of the vehicle, there was categorical admission made by him that during the said accident, his truck passed through the spot of accident. The driver in his affidavit had suppressed it and simply said that the above-mentioned vehicle did not involve in any accident at any time. The driver had admitted his driving of the vehicle during the time of accident from Cuttack to Para-deep. There is xerox copy of Oriya daily 'Samaj' dated 3.1.1999, marked as Exh. X, wherein the accident was described as made by dumper vehicle.
9. Learned Counsel for the claimants submitted that if really some other dumper had collided with the deceased and as per the owner's affidavit, the driver of the truck should have seen the accident and his failure to report to the police station, especially in the absence of any recital in the driver's affidavit about the fact of his driving the said vehicle during the time of accident through the spot of accident, may only indicate his guilt of involvement in the accident. The affidavits of the owner and driver indirectly show the involvement of the truck in accident. By applying the principle of preponderance of probabilities and the fact of admission in affidavit of the owner and such fact being suppressed by the driver in his affidavit, I am only to hold that the truck was involved in the accident.
10. The learned Counsel for the insurance company next argued that even if there was involvement of the offending truck in the said accident, the failure to implead the driver may absolve the owner from his vicarious liability. For this, he would rely upon Oriental Insurance Co. Ltd. v. Meena Variyal : AIR2007SC1609 , wherein the Hon'ble Supreme Court observed as follows:
(9) ...It may be true that Motor Vehicles Act, insofar as it relates to claims for compensation arising out of accident, is a beneficent piece of legislation. It may also be true that subject to the rules made in that behalf, the Tribunal may follow a summary procedure while dealing with a claim. That does not mean that a Tribunal approached with a claim for compensation under the Act should ignore all the basic principles of law in determining the claim for compensation. Ordinarily, a contract of insurance is a contract of indemnity. When a car belonging to an owner is insured with the insurance company and is being driven by a driver employed by the insured, when it meets with an accident, the primary liability under law for payment of compensation is that of the driver. Once the driver is liable, the owner of the vehicle becomes vicariously liable for the payment of compensation. It is this vicarious liability of the owner that is indemnified by the insurance company. A third party for whose benefit the insurance is taken, is therefore entitled to show, when he moves under Section 166 of the Motor Vehicles Act, that driver was negligent in driving the vehicle resulting in the accident; that owner was vicariously liable and that the insurance company was bound to indemnify the owner and consequently, satisfy the award made. Therefore, under general principles, one would expect the driver to be impleaded before an adjudication is claimed under Section 166 of the Act as to whether a claimant before the Tribunal is entitled to compensation for an accident that has occurred due to alleged negligence of the driver...The Tribunal ought to have, in the case on hand, directed the claimant to implead Mahmood Hasan who was allegedly driving the vehicle at the time of accident. Here, there was also controversy whether it was Mahmood Hasan who was driving the vehicle or it was the deceased himself. Surely, such a question could have been decided only in presence of Mahmood Hasan who would have been principally liable for any compensation that might be decreed in case he was driving the vehicle....
(Emphasis added)
11. The impleadment of the driver was required to be done in the above cited case, in the context of a controversy regarding the person who drove the vehicle. In that case, there was no finding about the person who drove the vehicle. It was further observed that even if there was finding, no evidence to show his negligence. Therefore the facts are different in this case, as the investigating agency had fixed the driver and his negligence and filed charge-sheet against him.
12. True it is that it is desirable if the driver of the vehicle is impleaded in order to primarily fix his liability so as to fasten it upon the owner of the vehicle. On perusal of the entire judgment of the above-mentioned case, I find that there is no dictum making it imperative to implead the driver as a party even when owner himself admitted the liability of the driver who had been fixed, as in the present case.
13. It may be for the reason that in case of driver's liability, the owner of the vehicle will be coming to the shoes of the driver himself and the owner will have to defend the cause of the driver in all times, in order to escape from vicarious liability. So the driver even if, impleaded as a party may remain as ex parte because of the situation that the owner in order to defend himself has to necessarily defend the driver. Therefore, as owner himself is available, he may have to defend the cause of the driver and in that way, the driver's non-impleadment in the present facts of the case, may not deprive the rights of the claimants.
14. Learned Counsel for the insurance company again submitted that since injuries found upon the body of the deceased were superficial in nature, it may not be said that due to the accident, there was death of the injured. In this connection, the report of the post-mortem would show that the cause of death was due to the head injury and the internal injury in the brain. Sometimes, the corresponding external injury may be superficial and the internal injury in brain may be serious in nature so as to cause death and in this case that had occurred as seen from the report of the post-mortem. Therefore, it cannot be said that there was no grievous injury sustained in the accident and so accident was not the reason for the death.
15. Coming to the aspect of quantum although the age of the deceased was 14 years which has to be seen along with the age of the parents who are respectively 42 and 30 and in such a situation the corresponding multiplier lower in number, has to be taken into consideration, so the multiplier was rightly taken as 15 instead of 17.
16. So far as the process of calculation is concerned, the Tribunal has taken into consideration, a notional annual income of Rs. 15,000 for the deceased boy of age 14; and after 1/3rd deduction, the loss of income comes to Rs. 10,000 per annum. Applying the multiplier the total loss of income was calculated at Rs. 1,50,000.
17. The learned Counsel for the claimant has relied upon the case-law in New India Assurance Co. Ltd. v. Satender : AIR2007SC324 , in which case for death of 9 years old child, the Tribunal took notional income at the rate of Rs. 30,000 per annum and the award was passed for a sum of Rs. 4,45,000 including lump sum amount. But the Hon'ble Apex Court has reduced the compensation to Rs. 1,80,000.
18. Also by taking into consideration of the following case-laws:
(1) Mallett v. McMonagle 1969 ACJ 312 (HL, England);
(2) Davies v. Taylor 1973 ACJ 66 (CA, England);
(3) Davies v. Powell Duffryn Associated Collieries Ltd. (1942) 1 All ER 657;
(4) State of Haryana v. Jasbir Kaur : AIR2003SC3696 ; and
(5) Taff Vale Rly. v. Jenkins (1913) AC 1.
19. The Supreme Court has observed in Satender's case, 2007 ACJ 160 (SC), as follows:
(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. 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 stiffen The figure of compensation in such cases involves a good deal of guesswork. In cases where the parents are the claimants, relevant factor would be age of parents.
(10) In the case of death of an infant, there may have been no actual pecuniary benefit derived by the parents during the child's lifetime. But this will not necessarily bar the parent's 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...
(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.
20. In a similar case in Suchitra Das v. Biswanath Sahu : 2000(I)OLR480 , for a girl child of 9 years old, where she was injured in an accident with fracture of occipital bone, being a permanent injury, compensation of Rs. 2,00,000 was held as not excessive.
21. In another case before us in Manju Devi v. Musafir Paswan 2005 ACJ 99 (SC), on accidental death of a boy of 13 years old, the Hon'ble Apex Court fixed the enhancement of compensation from Rs. 90,000 to Rs. 2,25,000 and the principle involved in that case is as follows:
(3) As set out in the Second Schedule to the Motor Vehicles Act, 1988, for a boy of 13 years of age, a multiplier of 15 would have to be applied. As per the Second Schedule, he being a non-earning person, a sum of Rs. 15,000 must be taken as the income. Thus, the compensation comes to Rs. 2,25,000.
22. In this case also the multiplier is applied as '15' by taking into the age of the deceased child as well as the age of the parents. As per the Second Schedule, the deceased being non-earning person, a sum of Rs. 15,000 was held as notional income and after deducting 1/3rd thereof, the loss of income would be at Rs. 10,000. By applying the multiplier '15', the amount will become Rs. 1,50,000.
23. Therefore, by considering the fact, that in an accidental case of death of a minor child, there may have been no actual pecuniary benefit derived by its parents during the child's lifetime, the parents cannot be left without any compensation. In view of uncertainty about their income in future, it is incapable of proper determination on estimated basis. Therefore, we have to evaluate the loss in an approximate manner and that is also conducive for arriving at a compensation to which the parents are entitled to.
24. However, as the learned Tribunal has not awarded any amount on the head of funeral expenses and loss of love and affection and the deceased is the only child of the parents, I deem it fit that to award a sum of Rs. 2,000 on the head of funeral expenses and is Rs. 8,000 for love and affection.
25. The appeal by the claimants is partly allowed in modifying the award to Rs. 1,60,000 which will carry interest at the rate of 6 per cent per annum from the date of application till realisation.
26. The appeal made by the insurance company is disposed of accordingly.