1. Heard learned Advocates on both sides.
2. This appeal is preferred by the parents of a 17 year old college student by the name of Sudhir who was injured on the evening of 14-12-1989 near Belekeri pursuant to which he died on the spot. The claimants before the Tribunal were the father and mother of the boy. They had pointed out that he was 17 years old, that he was studying in the First Year Diploma Course in the Govt. Polytechnic College, Karwar. They have also submitted that they are agriculturists and that they had virtually sacrificed all that they could for purposes of giving their son a good education and that they were very confident that he would secure a good job shortly thereafter and they were having all their hopes on him. Significantly enough, what they have contended was that they have virtually invested whatever they could afford on the education of the boy and that as a result of his death, not only have they lost everything that they had put in but more importantly their dear son leaving them high and dry as a result of his sudden demise, all their expectation that he would be of support to them in the years to come has been dashed to the ground.
3. It is true that since the deceased was only a college student, that he was admittedly not earning and therefore, that there could be no computation in respect of loss of earnings in the strict sense of the term. I need to add here that the main submission canvassed by the learned Advocate appearing on behalf of the appellants is that this approach of the learned trial Judge was erroneous because he points out, and with some justification, that the boy was virtually on the brink of completing his education and therefore, within the next few years one could reasonably assume that he would secure some good employment, that he would be able to possibly repay his parents all that they had spent on him or at least assist them financially in their old age. This submission of course has been countered by the respondents' learned Advocate who stated that this is virtually within the realm of conjecture in so far as the boy was yet to complete the diploma course and therefore, it was a matter of some years and some more investment before this happened. More importantly, respondents' learned Advocate adverted to the difficult situation on the employment scene and he submitted therefore that one cannot straightway assume that immediately when he walked out of college that he would be able to secure a good job. I shall deal with these rival contentions subsequently.
4. The Tribunal after a careful consideration of the matter computed the various heads and held that the parents are entitled to a compensation of Rs. 55,000/- under the main head, in addition to Rs. 3000/- towards funeral and last rites and Rs. 2000/- under the head loss of expectation of hopes. Out of the aggregate of Rs. 60,000/-, 25% was deducted because the learned Judge came to the conclusion that there was some contributory negligence on the part of the deceased and that consequently the claimants who are his parents would be entitled to Rs. 45,000/-. This appeal is directed against that order and effectively proceeds on the footing that the compensation claimed must be substantially scaled up.
5. The main submission advanced by the appellant's learned advocate is that there was no warrant for the learned trial Judge to hold that there was contributory negligence on the part of the deceased. Firstly he submits that the legal requirement namely that where contributory negligence is alleged, the party so alleging must establish it has been overlooked by the learned trial Judge. He points out that even though the insurance company took up the contention in the written statement that there was contributory negligence on the part of the deceased, that no material was placed before the trial Court nor was there any such material elicited in the course of the trial through the witnesses and consequently, that this particular reduction in compensation on the ground of contributory negligence must be set aside. Respondents' learned advocate has defended the order and he points out to me that there is a variance between the version in the F.I.R wherein it was stated that the deceased was crossing the road and the version set out before the Tribunal wherein it was made out that the deceased was walking on the side of the road. Learned counsel submits that there is a world of difference between the two situations in so far as if the deceased was in fact walking only by the side of the road, then the liability could be said to have been entirely that of the driver but if the F.I.R itself indicates that the deceased was crossing the road, then it shows that he was not on the side of the road and to that extent, there would be some degree of negligence on his part because the road in question was the National Highway No. 17 where venicles normally go at a fast pace and the deceased ought to have been extremely cautious before crossing the road in these circumstances.
6. As far as this aspect of the matter is concerned, though I must accept that the submission canvassed by the respondents' learned Advocate is faultless, the position that remains is that as far as the present proceeding is concerned, none of the witnesses were contradicted by the F.I.R nor have the contents of that document been put to them subsequently even though the F.I.R was produced in these proceedings. This aspect of the matter is of paramount importance because the witnesses ought to have been given an opportunity of stating before the Court as to which of the two was in fact the correct version. We have the sworn testimony in the present proceedings that the deceased was walking on the side of the road and if this version is to be discarded, it can only be done after confronting the witness with a statement that mentions otherwise and establishing as to which of the two versions is correct. To this extent, therefore, on the basis of the production of the F.I.R the finding that there was contributory negligence on the part of the deceased is erroneous and the same will have to be set aside.
7. Coming to the main heads, appellants' learned advocate argued vehemently that they come from an agricultural background, that their son Sudhir meant everything to them in so far as they had spent all their money in giving him a good education and that in the normal context of the situation that obtains in this country, this was done not only to ensure that their son had a head-start in life, and that the legitimate expectation for all that the parents had done for him, would be a support to them both in his capacity as a son but more importantly by way of economic assistance. From this angle, the appellants' learned advocate submitted that the compensation which has been computed is too meagre and that the Court must award something substantial which if capitalized, would off-set what the parents would normally have got by way of return from their son. On the basis of this, he submits that the Court cannot go by the fact that the deceased was not earning. The Court would have to presume that in the normal course of things and in the absence of evidence to the contrary that the deceased would have completed his diploma course and that having obtained this qualification, he would have secured employment that was commensurate with his qualification. He further submitted, that there is nothing on record to indicate that the life span of the deceased would have been curtailed, being a young man and therefore, the tremendous shock and trauma apart from the deprivation of his future support and company which are aspects which must be reasonably compensated for in terms of money. He therefore contended that the Court must substantially enhance the compensation that has been awarded particularly under head No. 1.
8. Learned advocate representing the respondents has submitted that the arguments of the appellants' learned advocate totally overlook life uncertainties. He also drew my attention to the fact that no specific evidence was led before the Court to indicate the exact economic status of the appellants to decide whether what they have stated about their having spent virtually all their money on his education is in fact correct or not. More importantly, respondents' learned advocate stated that the Court must go by realities and not merely by hopes and expectations that are projected by the appellants learned advocate. He stated that, without meaning any offence to the other side, that the economic situation and the employment situation being what it is in this country, one does not really know even if the deceased had obtained his qualification as to whether he would have got a job, where this would have been and at what point of time. In the light of all these uncertainties he submitted that there was no guarantee even to his parents that he would turn out to be of support to them and under these circumstances he contended that the learned trial Judge has gone by the normal global assessments that are done in such circumstances and that the scale of compensation awarded is fair and just and that the same should not be interfered with. In this context, appellants learned advocate placed reliance on a Division Bench judgment of this Court reported in ILR 1985 KAR 2979 in the case of Managing Director v. Vaidya. Among other things, in that case the Division Bench of this Court had occasion to deal with a case where a 12 years old boy had been killed by a bus and the Tribunal had awarded compensation in the aggregate amount of Rs. 22,800/-. The K.S.R.T.C had come up to this Court against the order of the Division Bench and while disposing of the appeal and refusing to interfere the Division Bench did have occasion to make some observations to the effect that even the aspect of quantum of compensation did not require to be interfered with. The appellants' learned advocate submitted that this judgment which takes into consideration a lot of case law under the head of compensation and which examines several Indian and English cases would be squarely applicable to the present proceedings, and he hastens to add that in the present case also the deceased was a teenage boy and therefore, the compensation of Rs. 45,000/- is very much in order. The judgment is sought to be distinguished by the respondents' learned advocate who points out to me that the basic issue before that Court was as to whether the aspect of culpability and liability on the part of the KSRTC was established and whether the award against the corporation was justified in the facts and circumstances of that case. The client's parents had not preferred any appeal to this Court and an examination of the judgment indicates that the aspect of adequacy of compensation was examined by the Division Bench only in passing. Apart from that aspect of the matter, I need to point out that the Division Bench has culled out the principle in that decision based on several reported English decisions which is to the effect that when the death of a child occurs, that the Court has to take cognizance of the fact that there is a long period of time involving a lot of expenditure that has to elapse before the child reaches its earning stage and that consequently. This is an aspect which must tonsiderably water down the quantum of compensation. On the other hand, in the same case their Lordships had occasion to refer to the 1913 AC (1) (Taff Vail Railway Co. v. Jenkins) which is a leading case on the point even as of today under English law and where the Court held that in the case of the death of teenage girl who had just become an apprentice and who was virtually on the threshold of a career, that her potential and future earning capacity must be taken into account by the Court while computing the compensation. On an analogy, this is the principle which must be pressed into service on the facts of the present case.
9. I am conscious of the various uncertainties referred to by the respondents' learned counsel. But Courts as far as the short term time frame is concerned, are required to proceed on the basis of what is most likely to happen rather than the possibility of such an event not taking place. I have no reason to hold that the deceased would not have completed his diploma and had he done so, that within a short time, that he would have been able to secure some reasonably good employment. There is nothing on record for me to come to the conclusion that he would not have been loyal and helpful to his parents which in the Indian context, one may assume with a much higher degree of certainty. Under these circumstances, therefore the expectations of the present appellants were quite legitimate. I do accept the position that having regard to their status in life and the fact that under current economic conditions the deceased himself would have had several of his own responsibilities to look after and therefore that the monetary help that he would have been able to give to his parents would have been quite moderate. The respondents' learned advocate also alluded to the fact that the deceased would have had apart from his own economic commitment, his first duty to his own wife and family and therefore as far as the aspect of dependency is concerned that the Court would have to take a realistic view of what he would have been able to spare for his parents. I have referred, in passing to the statement made by the parents that they had virtually invested everything they had on bringing up and educating their son and this is one aspect of the matter which is of some consequence because in his death all this has been wiped out all of a sudden.
10. It is on the basis of these cumulative considerations that the Court will have to assess what would be a reasonable compensation in the aggregate. Having regard to the fact that the finding under the head of contributory negligence has been set aside, the original aggregate of Rs. 60,000/- arrived at by the Tribunal would get restored. I take into consideration the aspect that the parents are only growing older, and any compensation for the shock and the hurt in the loss of their son and the loss of dependency should be compensated at least to the extent of about Rs. 1000/- per month. In order to achieve this, the compensation will have to be scaled up by another Rs. 40,000/-. To my mind, having regard to the fact that this amount would be received in a lump sum along within a little amount by way of interest etc., the claimants would still come close to the figure that I consider reasonable and just.
11. I do concede that the award of compensation in cases of this type is within the realm of a very fluid consideration. Unlike in the case of persons who are earning, everything has to be assumed by the Court on the basis of a reasonable and fair expectation after which, a certain amount of adjustment and discounting is required to be done. The respondents' learned advocate submits that as a guideline, it would only be fair and proper that this Court should evolve a formula that could be accepted in cases of this type. The facts and circumstances being so dissimilar, the ages being different and the circumstances varying from case to case, that would not be possible. It is ultimately the judicial discretion coupled with the principles that have been applied in various cases that are the guidelines for the Court to follow. Under these circumstances, the appeal succeeds. The award stands modified to the extent that the aggregate compensation payable to the appellants is scaled up from Rs. 40,000/- to Rupees 1,00,000/-. The rest of the order of the Tribunal to remain unchanged. Out of the amount payable to the claimants, an amount of Rs. 50,000/- shall be invested in a nationalised bank for a period of two years renewable for two further periods of two years each. On the expiry of the period of six years, the amounts shall be paid over to the claimants and the bank shall be directed to pay the interest quarterly to the claimants during the period that the amount is deposited with the bank. The balance amount Rs. 50,000/- plus interest shall be paid to the claimants. The respondents are directed to deposit the balance amount in the Tribunal within a period of eight weeks.
12. Order accordingly.