V. Dhanapalan, J.
1. Challenging the award of the Motor Accident Claims Tribunal, V Court of Small Causes, Chennai (hereinafter referred to as 'the Tribunal') made in M.C.O.P. No. 639 of 1995 dated 28.04.1997 for a sum of Rs. 50,0 00/- in respect of death of their only son Poovannan aged eight years, the parents of the deceased, have preferred this Civil Miscellaneous Appeal for enhancement of compensation to Rs. 1,50,000/-.
2. In support of their claim, the father of the deceased was examined as P.W.1, one Gnanaprakasam, an eye-witness to the accident, was examined as P.W.2 and one Amaldass, Sub-Inspector of Police, Traffic Investigation Department was examined as P.W.3 besides marking Legal Heir Certificate as Ex.P.1, First Information Report as Ex.P.2, Copy of sketch as Ex.P.3, Post-mortem Certificate as Ex.P.4 and the school Transfer Certificate as Ex.P.5. On the side of the respondents, neither oral nor documentary evidence was let in.
3. The Tribunal, after analyzing the oral and documentary evidence and after holding that the accident was due to the rash and negligent driving of the driver of the car in question, ordered that, a sum of Rs. 50,000/- with interest at the rate of 12% per annum from the date of petition till the date of deposit, may be paid to the claimants by the second respondent Insurance Company on behalf of the first respondent.
4. According to the appellants who were the claimants before the Tribunal, on 12.02.1995 at about 4:30 p.m., when the deceased Poovannan, studying in III standard, was standing on the eastern side of the 100 ft. road opposite to Ottagapalayam, Sri Mandaveli Amman Kovil, a car bearing Registration No. MMU 7425 driven rashly and negligently, coming from North to South, dashed against Poovannan due to which, he sustained injuries and was taken to Government Royapettah Hospital where he died. It is the case of the appellants that the first respondent, as the owner of the vehicle and the second respondent, as the insurer of the vehicle are vicariously and statutorily liable to pay the compensation.
5. The first respondent herein was absent and set ex-parte before the Tribunal and the second respondent Insurance company has filed its counter denying the injuries sustained by the deceased and the place, date and time of the accident and contending that in any event, the compensation claimed is excessive.
6. Heard Mr. Varada Kamaraj for Mr. B.S. Padmanabhan, learned Counsel for the appellants and Mr. M. Krishnamurthy, learned Counsel for the second respondent Insurance Company.
7. The learned Counsel for the appellants has contended that:
a. the Tribunal, having found that the negligence is on the part of the driver of the car, ought to have considered the quantum of compensation claimed by the appellants.
b. the deceased would have got an employment in future and would have supported the appellants till their lifetime
c. that as per Schedule II of Section 163-A of the Act, the appellants are entitled to compensation which works out to Rs. 2 lakhs whereas the Tribunal went wrong in awarding Rs.50,000/- only.
7. In support of his contention, the learned Counsel for the appellants has relied on a decision of the Supreme Court reported in : (2001)IILLJ1559SC (Lata Wadhwa and Ors. v. State of Bihar and Ors.) in which case for the age group of children between 5 and 10 years who died on account of fire in Pandal, apart from a compensation of Rs. 1,50,000/-, a sum of Rs. 50,000/- was awarded towards conventional damage and therefore, it is the argument of the counsel for the appellants that in this case, the age of the deceased being 8 years, the quantum of compensation has to be awarded in the light of the principle laid down in the above ruling.
8. In addition to the above, he has also relied on a decision of the Supreme Court reported in 2005 ACJ 99 (Manju Devi and Anr. v. Musafir Paswan and Anr.) in which case, the deceased was aged 13 years and the award of the Tribunal was increased from Rs. 90,000/- to Rs.2,25 ,000/-.
9. Per contra, Mr. M. Krishnamurthy, learned Counsel for the Insurance Company has contended that the deceased was a school student and was not an earning member to support to the family. It is his further contention that the amount of compensation arrived at by the Tribunal is reasonable and based on the ruling of this Court reported in 2004 (1) TN MAC 172 (Kokila and Anr. v. A.C. Rayan and Anr.) and the ruling in the above case is squarely applicabl e to the facts of the present case and therefore, it may be taken into consideration.
10. He has further relied on a decision of the Supreme Court reported in : AIR2003SC4182 in the case of Municipal Corporation of Greater Mumbai v. Laxman Iyer and Anr. in which case the deceased aged 18 years, belonged to a respectable and educated family and the Tribunal adopted 15 multiplier but the Apex Court adopted multiplier of 10 while assessing the compensation.
11. Further reliance has been placed by the learned Counsel for the second respondent Insurance Company on a judgment of this Court reported in 1997 MLJ II 217 (Managing Director, Dheeran Chinnamalai Transport Corporation Ltd. v. Thangappan and Anr.) in which case, this Court confirmed the compensation of Rs. 75,000/- awarded by the Tribunal for a 3 year old deceased and hence, he argued that the appeal may be dismissed.
12. In view of the fact that the present appeal is for higher compensation and in the absence of any appeal by the owner and the insurer, it is unnecessary for me to go into the finding of the Tribunal regarding negligence and liability and thus, the only point for consideration before me is whether the appellants deserve enhancement of compensation and if so, what is the extent of enhancement.
13. It is seen from Ex.P.5, the school Transfer Certificate which was marked to prove that the date of birth of the deceased was 11.03.198 7 and he was about eight years old and the fact that he was studying in III standard is also proved from the above exhibit. The appellants who are the parents of the deceased would have been subject to grief as they have lost their only son. It is not in dispute that the claimants, being the legal heirs of the deceased, are entitled to get the compensation. Though a claim of Rs. 1,95,000/- was made for pecuniary loss to the estate of the deceased, Rs. 3,000/- for loss of expectation of life and Rs. 2,000/- for funeral expenses totaling to Rs. 2,00 ,000/-, the Tribunal has awarded only Rs. 50,000/-. Further, the Tribunal has not awarded any amount towards conventional damages. It is argued by the learned Counsel for the respondent Insurance Company that for a school going boy, there cannot be any proof of income. In my view, notional income per year for a non-earning person could have been taken as Rs. 15,000/- and this is an accident which took place on 12.02.1995. The Schedule II of Section 163 of the Motor Vehciles Act could have been taken into consideration for applying the proper multiplier which is not followed in this case. The claim made by the appellants is quite reasonable as the loss of their only son should have been given paramount consideration by the Tribunal which has not been done.
14. In view of the above situation, let me now proceed to consider the decisions cited by the learned Counsel for the appellants herein:
15. Firstly, he has relied on a decision of the decision reported in : (2001)IILLJ1559SC (Lata Wadhwa and Ors. v. State of Bihar and Ors.) wherein it was held in paragraph 11 as under:
11. So far as the award of compensation in case of children are concerned, Mr. Chandrachud has divided them into two groups, first group between the age group of 5 and 10 years and the second group between the age group of 10 and 15 years. In the case of children between the age group of 5 and 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, multiplier of 11 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 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. This principle was laid down by the House of Lords in the famous case of Taff Vale Railway Company v. Jenkins 1913 AC 1 and Lord Atknison 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 factthere 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.
At the same time, it must be held that a mere speculative possibility of benefit is not sufficient. Question whether there exists a reasonable expectation of pecuniary advantage is always a mixed question of fact and law. There are several decided cases on this point, providing the guidelines for determination of compensation in such cases but we do not think it necessary for us to advert, as the claimants had not adduced any materials on the reasonable expectation of pecuniary benefits, which the parents expected. In case of a bright and healthy boy, his performances in the school, it would be easier for the authority to arrive at the compensation amount, which may be different from another sickly, unhealthy, rickety child and bad student, but as has been stated earlier, not an iota of material was produced before Mr. Chandrachud to enable him to arrive at just compensation in such cases and, therefore, he has determined the same on an approximation. Mr. Nariman, appearing for the TISCO on his own submitted that the compensation determined for the children of all age groups could be doubled, as in his views also, the determination made is grossly inadequate. Loss of a child to the parents is irrecoupable and no amount of money could compensate the parents. Having regard to the environment from which these children were brought, their parents being reasonably well placed officials of the Tata Iron and Steel Company and on considering the submission of Mr. Nariman, we would direct that the compensation amount for the children between the age group of 5 and 10 years should be three times. In other words, it should be Rs. 1,50,000/- to which the conventional figure of Rs. 50,000/- should be added and thus the total amount in each case would be Rs. 2,00,000/-. So far as the children between the age group of 10 and 15 years, they are all students of class VI to Class X and are children of employees of TISCO. The TISCO itself has a tradition that every employee can get one of his child employed in the Company. Having regard to these facts, in their case, the contribution of Rs. 12,000/- per annum appears to us to be on the lower side and in our considered opinion, the annual contribution should be Rs. 24,000/- and instead of multiplier of 11, the appropriate multiplier would be 15. Therefore, the compensation, so calculated on the aforesaid basis, should be worked out to Rs. 3,60,000/- to which an additional sum of Rs. 50,000/- has to be added, thus making the total compensation payable at Rs. 4,10,000/- for each of the claimants of the aforesaid deceased children.'
16. The learned Counsel for the appellants has also placed reliance on a recent decision of the Supreme Court reported in 2005 ACJ 99 (Manju Devi and Anr. v. Musafir Paswan and Anr.) wherein paragraphs 2 and 3 read as under:
2. In the case of U.P. State Road Transport Corporation v. Trilok Chandra : (1996)4SCC362 , it has been held by this Court that there should be no departure from the multiplier method on the ground that payment being made is just compensation. It has been held that the multiplier method must be accepted method for determining and ensuring payment of just compensation as it is the method which brings uniformity and certainty to awards made all over the country. In view of this authority, it was have to be held that the award of compensation had to be made by the multiplier method.
3. As set out in the Second Schedule of 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/-.
17. In the instant case, the deceased was aged eight years at the time of death and was studying III standard. It is seen from the evidence that the appellants have lost their only son. The Court has to depend upon very many uncertain factors and has to take overall picture and form the estimate. It may be sometime based upon speculation. A just and fair calculation of compensation would be what the beneficiaries would have received from the deceased as support for their maintenance had the deceased lived and earned. The paramount consideration of the matter is only to protect the interest of the claimants so that the amount awarded to them by way of compensation serves the purpose and object of compensation to them for the loss occasioned by the tragedy of the accident. In the present case, the possibility of the deceased becoming successful in the life cannot be ruled out. There can be no exact, uniform rule for measuring the value of human life and the measure of damage cannot be arrived at by precise mathematical calculations.
18. In this context, it is useful to refer to a judgment of the First Bench of this Court reported in 2005 (1) MLJ 677 (The President, Malikdhinar English Medium School and Anr. v. A. Babudeen and Ors.) in which case the school van, while bringing a minor girl aged 3+ years back home from the school, the girl alighted from the van and the driver of the van suddenly started the bus and the van ran over the child for which the Tribunal a compensation of Rs. 1,12,000/-. While dealing with this case, the First Bench of this Court observed as under:
5. The learned Counsel for the appellants then contended that the compensation of Rs. 1,12,500/- with interest awarded by the Tribunal towards the damages was exorbitant and the multiplier method adopted by the Tribunal was not proper and correct because in the case of such a young child, it would be wholly speculative to infer what would be the loss of pecuniary benefits reasonably to be expected after the child attains majority. He has relied on the Supreme Court decision in C.K. Subramania Iyer v. T.K. Unhikuttan Nair : [1970]2SCR688 and in M.S. Grewal v. Deepchand Sod AIR 2001 SC 3660. He also relied on the decision of the Division Bench of this Court rendered in United India Insurance Company Limited v. Bankarappa Nicken and Ors. .
6. We agree with the learned Counsel for the appellant that it is purely speculative to consider the future earning capacity of a child of 3 + years old. We can have no idea at all what the child would have earned when she would have grown up and hence, we cannot fix the compensation on this basis.
7. On the other hand, in our opinion, it is the mental agony of the parents of the child which is the real determining factor for awarding damages in such cases. It must be remembered that in such cases there is bound to be a permanent mental scar in mind, particularly of the mother of the child, which is likely to last throughout her life. The mother will be thinking of that child the rest of her life and would be imagining what the child would have done on growing up, she would imagine about the marriage of the child, the future of the child, and so on. That is the natural and normal mentality of every mother. Hence, the agony of such a mother, whose child has been killed, for the rest of her life is indescribable and unimaginable. The compensation, therefore, must be awarded taking this factor into account. Wounds of the mind can be as damaging and bitter (if not more) than the wounds of the body and the law cannot ignore this.
8. Mental agony is certainly a determining factor which has to be taken into account when awarding damages.
19. In Lata Wadhwa v. State of Bihar : (2001)IILLJ1559SC , where a number of persons, including children, died in a fire accident in a function organized by the Tata Iron and Steel Company (TISCO) at Jamshedpur, parents of children in the age group of 5 and 10 years were allowed Rs. 1,50,000/- and parents of children in the age group of 10 and 15 years Rs. 2,60,000/- as compensation. In addition, in each case, Rs. 50,000/- were awarded as conventional amount presumable towards benefit of the estimate. ' 19. Resisting the same, the counsel for the respondent Insurance Company has relied on a decision of : 2003(6)KarLJ83 (Municipal Corporation of Greater Bombay v. Laxman Iyer and Anr.) which is a case of a fatal accident involving 18 year old student belonging to a respectable and educated family and the father's age was 47 and the mother was aged 43. The Tribunal assessed the income as Rs. 3,000/- per month, adopted multiplier of 15 and assessed compensation of Rs. 5,60,000/- including loss of expectation of life, made deduction of 25% for lumpsum payment and awarded the compensation. The Apex Court, in that case, adopted multiplier of 10 and assessed the compensation and after deduction of 25% for contributory negligence of the deceased, the award has been reduced. Whereas in the present case, the facts are different. Therefore, there is no merit in the argument advanced to apply the same proposition to this case.
20. The learned Counsel for the respondent Insurance Company has placed reliance on a decision of a Division Bench of this Court reported in 2004 (1) TNMAC 172 (Kokila and Anr. v. A.C. Rayan and Anr.) wherein a Division Bench has considered the case of a minor girl aged 10 years studying in III standard and enhanced the compensation of Rs. 25,000/- to Rs. 75,000/- for an accident that took place on 17.07,1992. He has further argued that a positive consideration was decided by a learned Single Judge of this Court in a decision reported in (The Managing Director, Dheeran Chinnamalai Transport Corporation v. Thangaraju and Anr.) and an award of Rs. 75,000/- was granted to the deceased aged 13 years at the time of accident which took place on 09.12.1993.
21. It has to be noted here that the above two decisions are prior to the amendment of the M.V. Act in 1994 during which period, there was no guideline in respect of calculating pecuniary damages based on Schedule II of 163 of the Motor Vehciles Act, more particularly, about the application of multiplier in a case of this kind. Therefore, I am of the view that there is no point in applying the decision in those two cases to the case on hand.
22. In such a view of the matter, taking into account the rulings of the Supreme Court in Lata Wadhwa case and Manju Devi case cited supra and also the decision of the First Bench of this Court, I do not propose to go into any mathematical calculation to arrive at the compensation. Even otherwise, by the method of taking the notional income of a non-earning person as Rs. 15,000/- per annum and applying multiplier of 10, the quantum of compensation would be Rs. 1,50,000/-. Thus, it would be proper for this Court to enhance the compensation from Rs. 50,000/- to Rs. 1,50,000/- as the appellants herein have lost their only son.
23. For the amount awarded by the Tribunal, the rate of interest shall be the same i.e. 12% per annum since it was the rate prevailing at that time and for the enhanced amount of compensation, the rate of interest will be 7.5% per annum.
In the result, the appeal is allowed without any order as to costs.