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IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT AURANGABAD BENCH
A.M. Dhavale, J.
New India Insurance Company Ltd. - Appellant
Versus
Chandrakant Gangadhar Kandalkar - Respondent
First Appeal No. 4288 of 2017
Decided On : 13-08-2018
Motor Vehicles Act, 1988 – Section 163A, 166 – Order of pay and recover against the insurer for death – Compensation Claim –Motor Accident Claim Petition – Insurance Company has filed this appeal challenging the judgment and order in Motor Accident Claim Petition delivered by the learned Member of the Tribunal at Shrirampur whereby, the claimants were awarded compensation payable by the owner with order of pay and recover against the insurer for death – As per the record, the deceased Jalindar was proceeding on his bicycle, when school bus bearing belonging to respondent no.1 gave dash to him, as a result he died – Vehicle was insured with respondent learned Trial Judge found that the vehicle was plied on road without valid permit and therefore the insurance company was not liable – Relying on the judgment in case, he awarded compensation payable by respondent – There was order for pay and recover against respondent – Hence this appeal –Held, However, in some cases no personal deductions are made in respect of the children – It is well settled that in cases of applications under section 166 of Motor Vehicles Act, 1988 the principles laid down under Section 163A could be applied – Schedule II applicable to applications under also full of mistakes. In case of non-earning person it shows that his income should be taken chart shows that when a person is having a income he should and a person having income should get – It is not clear whether, this income is to be considered after deducting ^rd amount towards personal expenses as prescribed – In such case, a person having income would get around with nominal damages towards conventional heads like Loss of Estate Funeral Expenses Medical Expenses maximum – Schedule under Section 163A prescribes uniform deduction of ^rd towards personal expenses irrespective of number of dependents – In case of minor, normally there would be only two dependents, father and mother – It is necessary that Schedule II should be suitably amended, so as to bring uniformity for grant of compensation in case of death of minor children – Coming to case, the child was 10 years old, but at the time of accident, he was working on the tractor in the field. There are some cases where apex Court has awarded higher compensation in case of brilliant children – In the present case, the child was aged around 15 years and was studying in 5th Std. Considering all the aspects, in my opinion, the compensation of for Loss of Income and Loss of Estate and for Funeral Expenses would meet the ends of justice – Compensation awarded by the learned Trial Judge is on much higher side – Appeal is partly allowed.
JUDGMENT
A.M. Dhavale, J. (Oral) - The Insurance Company has filed this appeal challenging the judgment and order dated 26.11.2015 in Motor Accident Claim Petition No. 15 of 2012 delivered by the learned Member of the Tribunal at Shrirampur whereby, the claimants were awarded compensation of Rs. 5,00,000/- payable by the owner with order of pay and recover against the insurer for death of a 15 year old child.
2. As per the record on 06.01.2012, the deceased Jalindar was proceeding on his bicycle, when school bus bearing No. MH17T5855 belonging to respondent no.1 gave dash to him, as a result he died. The vehicle was insured with respondent no.2. The learned Trial Judge found that the vehicle was plied on road without valid permit and therefore the insurance company was not liable. Relying on the judgment in case of Kishan Gopal and Anr vs. Lala and Ors, 2014 (3) Mh. L.J. 560 , he awarded compensation of Rs. 5,00,000/- payable by respondent no.1. There was order for pay and recover against respondent no.2. Hence this appeal.
3. The learned Advocate Shri Mohit Deshmukh holding for Shri Chapalgaonkar argued that the appeal was filed on two grounds, there was fundamental breach of policy and therefore there could not have been order of pay and recover against the insurance company. He submits that in view of the subsequent judgments, the appellant does not press this grounds. He challenges the quantum and submits that the present case cannot be compared with the facts in Kishan Gopal''s case (Supra) and therefore grant of compensation of Rs. 5,00,000/- was on higher side. The deceased was studying in 5th Std in a village. There is no proper evidence about his age. Considering the facts, the grant of compensation should be reduced. The learned Advocate Shri Rahul Tambe supports the impugned judgment. He submits that the deceased was only child of his parents and was having bright future. Therefore, the learned Trial Judge has properly considered the facts and had awarded compensation, which is a reasonable compensation and it calls for no interference.
4. The points for my determination and findings thereon are as follows:
| Nos. | Points | Findings |
| 1 | Whether the Trial Judge has awarded excessive compensation? | ...In the affirmative. |
| 2 | What Order? | The appeal is partly allowed. Compensation is reduced to Rs. 3,30,000/- with interest @ 9%. |
5. Loss of a life cannot be computed in terms of money. It is always difficult to determine the quantum of compensation in case of death of a person. In the judgment in the case of Smt. Sarla Verma vs. Delhi Transport Corporation, (2009) 6 SCC 121 and National Insurance Company Limited vs. Pranay Sethi, (2017) 16 SCC 680 the apex Court has issued guidelines to bring equality in the grant of compensation. Still, there are grey areas like grant of compensation to the children.
6. As held in Megh Singh vs. State of Punjab, 2003 Cr. L.J. 4329 SC , there cannot be any precedent on the question of facts. No two cases are having similar facts, therefore merely because in Kishan Gopal''s case, the Apex Court has awarded compensation of Rs. 5.00. 000/-, the same cannot be followed in cases of all minor children. There are several judgments of Apex Court giving different amount of compensation in case of death of children.
7. The difficulty starts with assumption of income of the deceased. The Second Schedule provides for assumption of income of Rs. 15,000/-p. a., but it has been prescribed long back and there are no proper changes in the schedule according to the changes in the economical status and devaluation of rupee.
8. There are also grey area about deductions towards personal expenses. Normally, when unmarried person dies as per Sarla Verma and Pranay Sethi''s case, the age of the deceased is taken into consideration for selecting multiplying factor and 50%
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