The main legal point established in the judgment is the application of legal provisions under the Motor Vehicles Act, 1988, and the Second Schedule for calculating just and equitable compensation for the death of a non-earning child in a motor accident.

Avneesh Jhingan, J.

The present appeal is against the award dated 24.03.2005 passed by the Motor Accidents Claims Tribunal, Bhiwani (hereinafter to be referred as the “Tribunal) claiming for enhancement of the compensation of Rs.70,000/- awarded by the Tribunal for the death of 12 years old child.

2. This case was a burnt case and the record has been reconstructed from the salvaged record and the copies supplied by the counsel subject to just exception.

3. The facts relevant for the adjudication of the present appeal are noted that the claim petition was filed by the ill-fated parents who lost their 12 years son in an accident which occurred on 02.07.2003. The tractor bearing registration No.HR-21-4406 was driven by Vinod Kumar in a rash and negligent manner dashed against Vikas. The child suffered injuries and was taken to General Hospital, Bhiwani where he was declared dead. It may be noted that the driver of the tractor sped away from the spot after the accident. An FIR No.259 was also got registered in Police Station, City, Bhiwani.

4. The Tribunal after considering the evidence and the witness, awarded a sum of Rs.70,000/- along with @ 9% per annum from the date of presentation of the petition till realisation of the amount. The said amount was given on account of loss of love and affection.

5. I have heard the learned counsel for the parties and have perused the paper book with their able assistance.

6. The counsel for the appellant argued that the Tribunal erred in not awarding any compensation on the ground that the child was only 12 years old and was not earning. A sum of Rs.70,000/- has been awarded for loss of love and affection only.

7. The counsel relies upon the decision of the Apex Court in Kishan Gopal and others vs. Lala and others, 2013(4) RCR (Civil), 276. Learned counsel for the respondents (driver and the owner) argued that the deceased was only a child and was not earning, therefore, there was no question of awarding any compensation. It is contended that the Tribunal rightly awarded Rs.70,000/- for loss of love and affection.

8. The claim was filed under Section 166 of the Motor Vehicles Act, 1988 claiming a sum of Rs.10 lakhs. The deceased was 12 years old. According to the claimant, he was attending the school and thereafter helping his father in a tea stall. As per the grounds, it is claimed his assistance in the father's shop should have been assessed at Rs.12,000/- per month. I am in agreement with the learned counsel for the appellant to the extent that a sum of Rs.70,000/- awarded by the Tribunal under the head of love and affection is on the lower side.

9. The Hon'ble Apex Court in case of Kishan Gopal's case (supra) has held as under :-

“18. Point Nos.2 and 3 are answered together in favour of the appellants for the following reasons:-

The Tribunal having answered the contentious issue No.1, against the appellants in its judgment the same is concurred with by the High Court by assigning erroneous reasons and it has affirmed dismissal of the claim petition of the appellants holding that the accident did not take place on account of the rash and negligent driving of the offending vehicle by the first respondent and therefore the contentious issue Nos.1 and 2 are answered in the negative against the appellants and it has not awarded compensation in favour of the appellants.

Since we have set aside the findings and reasons recorded by both the Tribunal and the High Court on the contentious issue Nos.1 & 2 by recording our reasons in the preceding paragraphs of this judgment and we have answered the point in favour of the appellants and also examined the claim of the appellants to award just and reasonable compensation in favour of the appellants as they have lost their affectionate 10 year old son. For this purpose, it would be necessary for us to refer to Second Schedule under Section 163-A of the M.V. Act, at clause No.6 which refers to notional income for compensation to those persons who had no in