The principle of strict liability applies in cases involving young children, and the mental agony of the parents is a crucial factor for awarding damages.

(Prayer: This Civil Miscellaneous Appeal is directed against the judgment and decree dated 29.05.1998 made in MCOP No.84/1997, on the file of the Motor Accident Claims Tribunal (Additional District Judge) at Nagercoil.)

Markandey Katju, C.J.

This Civil Miscellaneous Appeal is filed against the judgment and decree dated 29.5.1998 made in MCOP No.84 of 1997 on the file of the Motor Accident Claims Tribunal (Additional District Judge) at Nagercoil.

2. Heard the learned counsel for the appellants.

3. The respondents are the parents of the deceased, a small girl by the name of Haseena Banu, aged about 31/2 years at the time of the accident. The deceased girl was studying in the 1st Appellant's English Medium School. On 28.08.1996, the Van, belonging to the 1st appellant School, brought the children back to their homes and the deceased girl alighted from the van to reach her home and the driver of the vehicle in question started the bus suddenly without caring for the safety of the child, and in that process the vehicle ran over the child and the girl died on the spot itself. The parents claimed a compensation of Rs.2,00,000/- before the Tribunal and the driver and the owner of the vehicle and the Insurance Company were impleaded as the respondents in the claim petition filed before the Tribunal.

4. Learned counsel for the appellant contended that there was contributory negligence. In our opinion, when the deceased child was only aged about 31/2 years, i.e. of such a tender age, there is no question of considering whether the deceased is to be blamed or not. A child of aged 31/2 years age can hardly be blamed for such an accident even partly. It was the duty of the driver to take care of the children and ensure that such an accident would not happen. Hence, in such cases the principle of strict liability will apply.

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 Vs. T.Kunhikuttan Nair, (1969) 3 SCC 64 and in M.S.Grewal Vs. Deepchand Sod, AIR 2001 SC 3660. He also relied on the decision of the Division Bench of this Court rendered in United India Insurance Co. Ltd. Vs. Bankarappa Nicken and Others, 1994 ACJ 91.

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 31/2 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 the 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.

9. No doubt, the traditional view on thi