OM PARKASH Vs. NATIONAL INSURANCE CO LTD

JUDGEMENT

(1.) THIS is an appeal against the award Dated: 17.03.1994 passed by Motor Accidents Claims Tribunal, Jammu. The facts revealed in the claim petition are that on 01.12.1993 at about 1200 hours a truck bearing registration No. 2125/JK -02 was driven by its driver at a very fast speed in a rash and negligent manner near village Seer, Tehsil R.S. Pura, Jammu. The said vehicle was coming from Chak Mohmedyar towards village Seer R.S.Pura when it hit a cycle on the pillion whereof the deceased Mukesh Kumar alias Bunty was seated. The bicycle was dashed to the ground. The pillion rider fell down and came under the front right tyre of the truck and died on spot. This claim petition was contested by the respondents. Following issues were drawn by the Motor Accidents Claims Tribunal: 1) Whether the accident, causing death of the deceased, has occurred by the use of the offending vehicle driven rashly and negligently by respondent No. 3 on 01.12.19937OPP 2) In case issue No: l is proved in the affirmative, what is the amount of compensation payable to the petitioners and by whom? OPP 3) Whether the Insurance Company is absolved from indemnifying the insured, if so how? OPR 4) Relief.

(2.) Since the present appeal has been filed by the claimants only on the quantum of compensation awarded by the Motor Accidents Claims Tribunal, therefore, findings on issue No:2 only shall be gone into, and findings on all other issues shall be taken as conclusive and final. The evidence shows that deceased was 13 years old boy and was studying in 4th class at the time of accident., The claimants are his parents. The father of deceased at the time of accident was 45 years old. According to the father of the deceased, the deceased was a brilliant child and belonged to the Scheduled Caste Category, therefore, he had bright chances of getting a better employment. He also submitted before the Tribunal that the deceased was of 13 years age, who after school hours, was helping him in agricultural pursuits. It has also come in evidence that the deceased was physically fit. The Tribunal, after discussing the evidence, awarded a compensation of Rs. 70,000/ - to the claimants while assessing the dependency. He has also awarded Rs. 10,000/ - for shock and pain suffered by the claimants.

(3.) The question raised before this Court is as to what should be the proper method in assessing the compensation when death of the child has caused in the accident. In cases K.L.Pasriya V/s Oriental Fire and General Insurance Company Limited; 1986 ACJ 252 Punjab and Haryana; Mangan Dass Mohan lal Patel V/s Union of India, 1982 ACJ 426 (Gujrat); and Mohammad Muzaffar V/s Mohd. Sultan Sheikh 1980 ACJ 516 (J&K), the Courts have approved that the multiplier method can be adopted while assessing the dependency to evaluate compensation in case of deaths of a child. In case of an adult person, who is pursuing a particular vocation, it is always easy to assess the income of such a deceased person for purposes of dependency of the dependants. However, it is difficult to assess the potential income which a child would earn, when he is able to earn. The D.B. Judgment of this court reported in 1980 ACJ 516 (J&K) titled: Mohd. Muzaffar V/s Mohd. Sultan Sheikh was passed in the year 1979 which related to an accident having occurred on 01.11.1973 in which a child of 12 years of age had died, the claimant was given a compensation of Rs. 25,000/ -. The facts of the said case before the Division Bench and the present case are almost similar. It had come in evidence in the aforesaid case, which was dealt with by a Division Bench of this Court, that the deceased child therein was reading in one of the best schools and his school teacher had deposed before the Tribunal that the child was a brilliant one. If Rs. 25,000/ - is taken to be just compensation in connection with an accident having occurred in 1973, I think it will be safe to multiply the said amount by four in order to arrive at a sum which will be just in the year 1993; because in the present case the accident has taken place in 1993. I have gone through all the judgments cited (supra) by the learned counsel for the parties, but I have not been able to lay my hand on an authoritative pronouncement of any Court, in which a method had been given for calculating the dependency, and eventually, the compensation in case of death of a child. In the present case, the deceased child was of 13 years age at the time of accident. He was reading in class 4th. So, it is presumed that, while pursuing his studies, he would have completed his Matriculation at the age of 19 years and his graduation at the age of 25 years. Since, the deceased child belonged to Scheduled Caste category, he had better chances in getting a job; but in any case, for another twelve years he had to remain himself dependent on his parents, and his parents had to incur expenditure on his up -bringing and education. By the time, he would have been able to earn, his father would have been 57 years old, and at that stage, he would expect some monetary help from his son. Considering the background of the family to which deceased belonged and his potential, if he had not died, I think it will be fair if the minimum wages which are earned by a person at the time of accident are taken as the basis for computing the loss of dependency. Thereafter, a suitable multiplier can be applied for calculating the dependency. If we take 1993 as the basis when the accident took place, the basic minimum wages which were required to be paid to a labourer was about Rs. 900/ - Per Month. Out of this, if Rs.700/ - is taken as dependency and multiplied by a suitable multiplier, we can come to a conclusion whereby an amount is derived which would be deemed just. This Rs. 900/ - would be earned by the deceased after 12 years from the date of accident when his father would have been of the age of 57 years, therefore, a multiplier of 12 would be sufficient. On the other hand, it has to be taken into consideration that the parents would have to incure expenses on the up -bringing and education of the child for another twelve years. But since I have taken the basis of deceaseds income the year 1993 and not 12 years hence forth, therefore, the imminent increase in basic wages in next twelve years will take care of that aspect of the matter. Therefore, no deductions are required to be made on that basis. In view of the importance of the cases which are coming off and on before the Motor Accidents Claims Tribunals of J&K State regarding the death of children in motor accidents, I would like that the Tribunals to adopt the following formula with suitable modification depending upon facts of each case: i) The Tribunals should assess the time when the deceased child would have started earning; taking his earning on the basis of minimum wages, those are earned by people in a year in which the accident takes place, and then adopt a suitable multiplier taking into account the age of dependents) in the year in which the child would normally start earning. While assessing the minimum wages, the Tribunals shall keep in mind the family background and the likely potential of the deceased child.