Kulsum Bai And Another v. Kallu And Others

1. Heard Mr. K.K. Lahoti, learned Counsel for the appellants.

2. Perused the record.

3. Feeling aggrieved by the quantum of compensation fixed by the Motor Accident Claims Tribunal, Sheopurkalan (hereinafter referred to as the Tribunal) under the impugned award, the parents/claimants have now come up in appeal seeking enhancement of the compensation and modification of the award in question accordingly.

4. The facts in brief shorn of details, and necessary for the disposal of this appeal, lie in a narrow compass :.An application under Section 110 of the Motor Vehicles Act, 1939, was filed on 2.9.1987 by the present appellants claiming Rs. 4,45,000/- as compensation on account of the death of their minor son, Muzaffal Hussain aged about 12 years in a motor accident on 14.3.1987 at about 4.30 p.m., wherein the minor who was riding a bicycle was hit by the offending truck registration No. M.P.G. 5378. It was being driven fastly and in a negligent manner by Kallu who was impleaded as the respondent No. 1 in the claim petition which truck was owned by Noorbano, who was impleaded as respondent No. 2 in the claim petition.

5. It was asserted in the claim petition that the deceased, Muzaffal Hussain who was beautiful and healthy used to give considerable help in the household affairs and was studying in Class IV. In case he had not met the death, he would have lived upto 60-70 years and on his attaining the age of 20 years and thereafter his income would also increase and after his education, he would have occupied good post. For the period of this duration, the loss of income was assessed to Rs. 4.00 lacs. The claimants also asserted that they had suffered shock and pain on account of the inhuman behaviour meted out to their son which resulted in the premature death of their healthy, beautiful and well mannered 12 years old son. This had a very bad effect on their mind and body and had also adversely affected their working. On this count, Rs. 20,000/- was claimed as compensation. It was also asserted that they had procreated the son to carry on their family line but had been deprived of his companionship, love and affection and they will have to lead their life in a sad atmosphere. On this count, they had claimed Rs. 25,000/- as compensation.

6. In the copy of the claim petition which had been supplied to the driver and the owner of the offending vehicle, the age of the deceased was shown to be 10 years at the time of his death.

7. In the reply filed by the respondents, they had denied the assertion of the claimants that the offending truck was being driven rashly and negligently. It was asserted that the area where the accident had taken place was a busy area and the truck was being driven carefully at a low speed. They claimed that Muzaffal Hussain had tried to fastly cross the road riding a bicycle but his bicycle hit the telephone pole and losing the balance, Muzaffal Hussain fell down. The bicycle hit the rear wheel of the truck. After stopping the truck, the driver got down and found that the bicycle had gone under the rear wheel of the truck and the legs of the deceased got pressed. The driver immediately took out the deceased from underneath the truck and got him admitted in the hospital. It was also asserted that Muzaffal Hussain was riding the bicycle alongwith Ali Asgar carrying a bag, of sugar. This bicycle was being driven in a careless manner and they wanted to overtake the truck moving fastly the bicycle and they were themselves responsible for the accident.

8. In the post-mortem report the age of the deceased was disclosed to be 11 years. The post-mortem was conducted at 5.30 p.m. on 14.3.1987. The aforesaid report indicates that the doctor was of the opinion that the cause of death was shock (syncope) due to rupture of pelvic, blood vessel, co-certain of spleen and bladders and haemorrhage.

9. In support of their claim, the appellants examined Hakimuddin as P.W. 1. He showed his occupation to be that of a shopkeeper. He is the father of the deceased. He had stated that he had gone to Kuwait on 14.3.1987. According to him, at the time of death, his son was 13 years old. He disclosed that he was so severely shocked on receiving the information of the death of his son that he lost his eye-sight. He further stated that at the time of his death, Muzaffal Hussain was studying in Class VII. His son was clever, intelligent and bright and on attaining the majority, he would have established a very good business and in case he joined in service, he would have occupied a high post. He stated that he was entitled to as amount of Rs. 6.00 to 8.00 lacs towards the compensation. In his cross-examination, he had stated that he had two sons. The other son had read only upto 9th class and thereafter he had left his studies as he had no interest in further studies. He had four daughters who had read up to Higher Secondary. Another son was younger than Muzaffal Hussain. Muzaffal Hussain used to help him in his business. When the deponent was in Kuwait, at that time Muzaffal Hussain used to do his business in ropes. There was no major person to run his shop. His son used to run the shop. He used to go school and also look after the shop. Whatever goods had been left in the shop, his son used to sell them. He admitted that the business which had been run by him was of selling ropes, threads and needles. He had returned from Kuwait after two years. In his cross-examination, he had further stated that when he remained out in Kuwait, his shop was being run by his son who used to help him when he was in India. He denied the suggestion that his son himself had gone underneath the truck while riding the bicycle. In paragraph 10 of his cross-examination, he had stated that it was incorrect to say that all the sons of his brother had education of less than Intermediate standard.

10. Joyab Ali was examined as P.W. 2. He proved that the offending motor vehicle was being driven rashly and negligently by the driver of the offending vehicle.

11. The claimants had examined Dr. A.R. Khan as P.W. 3 who had proved his post-mortem report.

12. Shabbir was examined as P.W. 4 to prove the rash and negligent driving which had resulted the accident and death of Muzaffal Hussain.

13. On behalf of the contesting respondents, Kallu, the driver of the offending motor vehicle was examined. He tried to assert that the deceased was at fault.

14. The Tribunal after appraisal of the oral evidence brought on record came to the conclusion that the offending truck was being driven in a rash and negligent manner on a busiest road. It was also found that son of the claimants had died on account of the injuries suffered by him in the accident caused by the offending truck. It was also found that the Insurer could not be exonerated as the only objection raised on its behalf to the effect that the offending motor vehicle was being driven by a person who had no valid driving licence was found to have been not established and proved. On the question in regard to the quantum of compensation, the Tribunal expressed its opinion that the mere assertion that the minor son was clever and on his attaining the majority could run a good business and earn money was not sufficient and, therefore the amount of compensation ranging between Rs. 6.00 to Rs. 8.00 lacs was not liable to be accepted. The Tribunal found that the claimants had failed to bring on record any substantive relevant evidence in regard to the educational ability of the deceased, Muzaffal Hussain. It had also not been disclosed as to how many members were there in the family. The Tribunal further found that the claimants had not led any substantive reliable evidence in regard to the financial position of the family of the deceased. In such circumstances, taking into consideration the fact that the deceased was aged only about 12 years, the claimants were held entitled to an amount of Rs. 50,000/- as compensation carrying an interest at the rate of 12% per annum from the date of the application.

15. It has been strenuously urged that the deceased son of the claimants/ appellants was a brilliant student and the amount of compensation awarded by the Tribunal is too meagre to compensate the loss suffered by the parents.

16. It may be noticed that it is not necessary that a claim may succeed under the Motor Vehicles Act only if the deceased is shown to have been earning money or contributing to the support of the claimants at or before the date of death provided that the claimants had a reasonable expectation of service or pecuniary benefit from the continuance of life of the deceased. It all depends on the facts and circumstances of each case. If there is a reasonable prospect of pecuniary benefit from the deceased for support of the family in the near future the same can be taken into account. However, as a general rule parents are entitled to recover the present cash value of the prospective service and pecuniary benefits of the deceased but when the prospect is very uncertain and the nature and quality of assistance is also uncertain, the Court must exclude all considerations of matters which rest in speculation of fancy though conjecture to some extent is inevitable.

17. One cannot be oblivious of the uncertainties of life and the inscrutable future. How the minor child would have turned out in later life is at best a guess only. Nothing has come on the record to indicate that his parents were well-placed in life and could afford him a good education helping him thereby to further his prospects in life, which in turn would have enabled him to provide them financial assistance when the need arose.

18. Really no amount of money can compensate the injured feelings of the parents and can compensate them for what they had lost in Muzaffar hussain, but when we come to calculate the loss in terms of money it is pecuniary loss alone which can be recoverable apart from general damages which can be awarded in the case for pain and suffered alone. The Court has to confine to the "hard matter of rupees and paisa which tinkle well, but mingle ill with sentiments". It should not be lost sight of that justice should be administered as per law. When a claimant comes to the Court of Law to realise compensation in such cases, the Court has to raise above sentimentalities, and try to compensate the claimant not for his injured feelings but for his financial loss real and probable.

19. The Apex Court in its decision in the case of C.K. Subramonia Iyer and Ors. v. T. Kunhikuttan Nair and Ors. where the parents had claimed compensation of Rs. 30,000/- held that an amount of Rs. 6,000/- towards compensation was adequate in the case of the death of their minor son aged about 8 years as the parents could not bring on record enough material to establish the relevant facts, which could indicate the extent of monetary benefit they would have got in the event the child had survived.

20. A Division Bench of this Court in its decision in the case of Rukmani Devi v. Basantilal and Ors. reported in 1984 ACJ 548 : 11 (1984) ACC 71 (DB) had awarded to the mother a sum of Rs. 25,000/- on account of the death of a person who was a law graduate and had recently started practice as an Advocate.

21. The word "compensation" means anything given to make things equivalent, a thing given to or make amends for loss, recompense, remuneration or pay.

22. The expression "compensation" is a more comprehensive term and the claim for compensation includes a claim for damages. There is a distinction between compensation to be awarded and a claim for damages being granted. Damages are given for an injury suffered. Compensation is by way of atonement for the injury ca used with in tent to put either the injured party or those who may suffer an account of the injury in a position as if the injury was not caused by making pecuniary atonement.

23. In the present case in the absence of any evidence worth the name to indicate the family background of the deceased, Muzaffal Hussain and the lack of evidence to show the capacity of the parents and provision which could be made by the parents to render the necessary assistance to the deceased for attaining the object which the father had in mind, no justifiable ground can be said to have been made out for the award at the enhanced rate as claimed.

24. In fact, it seems to us that taking into consideration the decision of the Apex Court and the decision of a Division Bench of this Court referred to hereinabove, and the facts and circumstances as brought on record, and further the overall escalation in the prices, etc., with the reduction of the purchasing power of the rupee, the amount of compensation awarded by the Tribunal does not appear to be unjust so as to warrant an interference in this appeal.

25. In the result, this appeal fails and is hereby dismissed.