Law Web: How to assess quantum of compensation in motor accident case of child death?

The second deceased was a school going child aged about

12 years. She had a whole future to look forward in life with all

normal human aspirations. She died prematurely due to the

accident at a very tender age for no fault of hers even before she

could start to understand the beauty and joys of life with all its

ups and downs. The loss of a human life untimely at childhood

can never be measured in terms of loss of earning or monetary

loss alone. The emotional attachments involved to the loss of the

child can have a devastating effect on the family which needs to

be visualised and understood. Grant of nonpecuniary

damages for the wrong done by awarding compensation for loss of expectation in life is therefore called for. Undoubtedly the injury

inflicted by deprivation of the life of the child is very difficult to

quantify. The future also abounds with uncertainties. Therefore,

the courts have used the expression “just compensation” to get

over the difficulties in quantifying the figure to ensure

consistency and uniformity in awarding compensation. This

determination shall not depend upon financial position of the

victim or the claimant but rather on the capacity and ability of

the deceased to provide happiness in life to the claimants had

she remained alive. The compensation is for loss of prospective

happiness which the claimant would have enjoyed had the child

not died at the tender age. Since the child was studying in a

school and opportunities in life would undoubtedly abound for

her as the years would have rolled by, compensation must also

be granted with regard to future prospects. It can safely be

presumed that education would have only led to her better

growth and maturity with better prospects and a bright future for which compensation needs to be granted under nonpecuniary

damages. (See R.K. Malik vs. Kiran Pal, (2009) 14 SCC 1).

13. The income of the minor girl child is incapable of precise

fixation. We find no reason to interfere with the assessed notional

income of the second deceased.

It is well settled legal

principle that in addition to awarding

compensation for pecuniary losses, compensation

must also be granted with regard to the future

prospects of the children. It is incumbent upon the

courts to consider the said aspect while awarding

compensation…”

14. In New India Assurance Co. Ltd. vs. Satender, (2006) 13

SCC 60, the deceased victim of the accident was a nine year old

school going child. Considering the claim for loss of future

prospects in absence of a regular income, it was observed that

the compensation so determined had to be just and proper by a

judicious approach and not fixed arbitrarily or whimsically. The

uncertainties of a young life were noticed in the following terms:“

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.”

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s). 2624 OF 2020

RAJENDRA SINGH AND OTHERS Vs NATIONAL INSURANCE COMPANY LIMITED AND OTHERS

AUTHOR: NAVIN SINHA, J.

Dated: June 18, 2020

Leave granted.

2. The High Court by the impugned order dismissed two

appeals arising from separate orders of the Motor Accident

Claims Tribunal (hereinafter referred to as ‘the Tribunal’) deciding

two accident compensation claims. The appellants had claimed

further enhancement of compensation.

3. The deceased in the first appeal was a housewife aged about

30 years. The second deceased was her daughter aged about 12

years. The claimants are the husband/father of the deceased and

three minor siblings. The two deceased on 25.12.2012 were

travelling in a horse cart along with some others to a religious

congregation. The horse cart was hit by a bus resulting in their

death. The Tribunal assessed the notional income of the first

deceased at Rs.36,000/per

annum and after 1/4th deduction

towards personal expenses, with a multiplier of 17 awarded a

compensation of Rs.4,59,000/.

The Tribunal then deducted 50%

on ground of contributory negligence as the horse cart was stated

to have been in the middle of the road when the accident took

place. A sum of Rs.1,00,000/was

then added as loss of

consortium and Rs.25,000/towards

funeral expenses leading to

an award total of Rs.3,54,500/with

interest at the rate of 7.5%.

4. In so far as the minor child is concerned, the notional

income was assessed at Rs.36,000/per

annum, applying a 50%

deduction towards personal expenses with a multiplier of 15, the

compensation was awarded at Rs.2,70,000/out

of which 50%

was again deducted towards contributory negligence. A sum of

Rs.25,000/was

added towards funeral expenses, leading to an

award total of Rs.1,60,000/with

interest at the rate of 7.5%.

5. The appeal for enhancement of compensation was dismissed

by the High Court and thus the present appeals.

6. Learned counsel for the appellant submits that the notional

income of the first deceased has been wrongly fixed ignoring her

income of Rs.5000/per

month from dairy farm business.

Nothing has been awarded towards future prospects. With

regard to the second deceased it was submitted that she was

studying in a school and her notional income should have been

assessed at Rs.54,000/per

year. Nothing has been awarded

towards loss of estate, loss of consortium and funeral expenses.

The common submission in both the appeals was that deduction

on ground of contributory negligence was unsustainable and

unjustified. Reliance was placed on Kajal vs. Jagdish Chand

& Ors., AIR 2020 SC 776, to contend that the income of the

deceased child should have been assessed at Rs.4846/per

month.

7. Learned counsel for the respondents submitted that the

present appeals do not merit interference. There is no evidence

with regard to the claimed business income of the first deceased.

The finding of contributory negligence merits no interference. In

absence of any proof of income, the question of future prospects

simply does not arise. Similarly, the second deceased was a

minor school going child who also had no income and therefore

the question for grant of future prospects with regard to her also

does not arise.

8. We have considered the submission on behalf of the parties.

No evidence has been led by the appellant with regard to any

income of the first deceased from dairy business. The deceased

were travelling in a horse cart along with others to a religious

congregation. It is not the case of the respondents that the first

deceased was driving the horse cart or was the owner of the

same, much less that it was being driven under her supervision.

The deceased were travelling as passengers along with others.

The fact that the horse cart may have been in middle of the road

at the time of the accident, no fault can be attributed to the

deceased holding them liable to contributory negligence and

denial of full compensation. We fail to understand how the

deceased who were passengers in the horse cart can be held

liable in any manner. The deduction of 50% towards contributory

negligence in both the appeals is therefore held to be totally

unjustified and unsustainable. The finding with regard to

contributory negligence against both the deceased are therefore

set aside.

9. The first deceased was a housewife aged about 30 years. In

Lata Wadhwa vs. State of Bihar, (2001) 8 SCC 197, this court

had observed that considering the multifarious services rendered

by housewives, even on a modest estimation, the income of a

housewife between the age group of 34 to 59 years who were

active in life should be assessed at Rs 36,000 per annum. A

distinction was also drawn with regard to elderly ladies in the age

group of 62 to 72 who would be more adept in discharge of

housewife duties by age and experience, and the value of services

rendered by them has been taken at Rs 20,000 per annum.

10. In Arun Kumar Agrawal vs. National Insurance Co.

Ltd., (2010) 9 SCC 218, the Tribunal assessed the notional

income of the housewife at Rs.5,000/per

month, but without

any rational or reasoning concluded that she was a nonearning

member and reduced the same to Rs.2,500/,

which was affirmed

by the High Court. Disapproving the same and restoring the

assessed income, this Court observed at Paragraphs 26 and 27

as follows:

“26. In India the courts have recognised that the

contribution made by the wife to the house is

invaluable and cannot be computed in terms of

money. The gratuitous services rendered by the wife

with true love and affection to the children and her

husband and managing the household affairs

cannot be equated with the services rendered by

others. A wife/mother does not work by the clock.

She is in the constant attendance of the family

throughout the day and night unless she is

employed and is required to attend the employer’s

work for particular hours. She takes care of all the

requirements of the husband and children

including cooking of food, washing of clothes, etc.

She teaches small children and provides invaluable

guidance to them for their future life. A

housekeeper or maidservant can do the household

work, such as cooking food, washing clothes and

utensils, keeping the house clean, etc., but she can

never be a substitute for a wife/mother who

renders selfless service to her husband and

children.

27. It is not possible to quantify any amount in lieu

of the services rendered by the wife/mother to the

family i.e. the husband and children. However, for

the purpose of award of compensation to the

dependants, some pecuniary estimate has to be

made of the services of the housewife/mother. In

that context, the term “services” is required to be

given a broad meaning and must be construed by

taking into account the loss of personal care and

attention given by the deceased to her children as a

mother and to her husband as a wife. They are

entitled to adequate compensation in lieu of the

loss of gratuitous services rendered by the

deceased. The amount payable to the dependants

cannot be diminished on the ground that some

close relation like a grandmother may volunteer to

render some of the services to the family which the

deceased was giving earlier.”

11. The notional income of the first deceased is therefore held to

be Rs.5000/per

month at the time of death. The compensation

on that basis with a deduction of 1/4th i.e. Rs.15,000/towards

personal expenses with a multiplier of 17 is assessed at

Rs.7,65,000/.

If the deceased had survived, in view of

observations in Lata Wadhwa (supra), her skills as a matured

and skilled housewife in contributing to the welfare and care of

the family and in the upbringing of the children would have only

been enhanced by time and for which reason we hold that the

appellants shall be entitled to future prospects at the rate of 40%

in addition to the loss of consortium and future expenses already

granted. We therefore assess the total compensation payable to

the appellants in the first appeal at Rs.11,96,000/.

12. The second deceased was a school going child aged about