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CASE NO.: Appeal (civil)  4308 of 2007

PETITIONER: Oriental Insurance Co. Ltd

RESPONDENT: Syed Ibrahim & Ors

DATE OF JUDGMENT: 17/09/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT:

J U D G M E N T

CIVIL APPEAL NOs.  4308                    OF 2007 (Arising out of SLP (C) Nos.8499-8500 of 2005)

Dr. ARIJIT PASAYAT, J.

        1.      Leave granted.

2.      Challenge in these appeals is to the order passed by a  learned Single Judge of the Karnataka High Court.  Appeal  was preferred before the High Court questioning correctness of  the judgment and Award dated 18.01.2000 passed by the  Motor Accidents Claims Tribunal, Shimoga (in short the  ’Tribunal’).  The owner of lorry bearing registration No.MYJ- 6666 had filed an appeal questioning correctness of the order  passed by the Tribunal fixing the liability on him to pay  compensation awarded. A cross-objection was filed by the  complainants questioning the correctness of the compensation  granted.  The claim petition related to an accident which  occurred on 20.11.1994 when a child aged seven years, who  was the son of claimants, had lost his life. The claimants had  filed the cross objections for enhancement of the  compensation.  Considering the materials on record, the  Tribunal awarded a sum of Rs.51,500/- as compensation. The  High Court by the impugned order enhanced the sum to  Rs.1,52,000/-. The appellant (hereinafter referred to as the  ’insurer’) was directed to indemnify the award. Insurer’s stand  before the Tribunal and the High Court was that the driver  driving the lorry was not authorized to drive the lorry because  he was only licenced to drive a Light Motor Vehicle (in short  the ’LMV’).  When the accident took place, i.e. on 20.11.1994,  the driver was authorized to drive LMV. Subsequently, on  11.10.1996 at the time of renewal of licence it was endorsed  that he was authorized to drive Heavy Goods Vehicle (in short  the ’HGV’).  The High Court was of the view that the owner is  not expected to know as to what type of licence the driver  possessed. If the driver was authorized to drive one type of  vehicle and was driving another type of vehicle, it cannot be  said that there was wilfil breach on the part of insured. The  insurer was required to prove that there was violation of terms  and conditions of the policy and wilful breach on the part of  insured as he was holding the licence to drive any type of  vehicle for which he was not licenced.  It was noted by the  High Court that the owner of the vehicle may not be knowing

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as to what was the nature of the licence held by the driver.   Accordingly, the quantum of compensation was enhanced and  the appellant was held to be liable to pay the entire  compensation.

3.      Learned counsel for the appellant-insurer submitted that  the quantum, as fixed, is extremely high and is without any  basis.  Further the insured was the father of the driver and it  is hard to believe that he did not know as to what type of  vehicle the driver was authorized to drive. Reliance is placed  on National Insurance Co. Ltd. v. Swaran Singh (2004 (3) SCC  297) to contend that on the facts established and proved  appellant has no liability.    4.      Learned counsel for the respondents submitted that a  very young child lost his life and the insurance company  should not take such technical stand.

5.      In State of Haryana and Anr. v. Jasbir Kaur and Ors.   (2003(7) SCC 484) it was held as under:

"7.  It has to be kept in view that the Tribunal  constituted under the Act as provided in  Section 168 is required to make an award  determining the amount of compensation  which is to be in the real sense "damages"  which in turn appears to it to be "just and  reasonable". It has to be borne in mind that  compensation for loss of limbs or life can  hardly be weighed in golden scales. But at the  same time it has to be borne in mind that the  compensation is not expected to be a windfall  for the victim. Statutory provisions clearly  indicate that the compensation must be "just"  and it cannot be a bonanza; not a source of  profit; but the same should not be a pittance.  The courts and tribunals have a duty to weigh  the various factors and quantify the amount of  compensation, which should be just. What  would be ’just" compensation is a vexed  question. There can be no golden rule  applicable to all cases for measuring the value  of human life or a limb. Measure of damages  cannot be arrived at by precise mathematical  calculations. It would depend upon the  particular facts and circumstances, and  attending peculiar or special features, if any.  Every method or mode adopted for assessing  compensation has to be considered in the  background of ’just" compensation which is  the pivotal consideration. Though by use of the  expression "which appears to it to be just" a  wide discretion is vested in the Tribunal, the  determination has to be rational, to be done by  a judicious approach and not the outcome of  whims, wild guesses and arbitrariness. The  expression ’just" denotes equitability, fairness  and reasonableness, and non-arbitrary. if it is  not so it cannot be just. (See Helen C. Rebello  v. Maharashtra SRTC (1999(1) SCC 90)

6.      There are some aspects of human life which are capable  of monetary measurement, but the totality of human life is like  the beauty of sunrise or the splendor of the stars, beyond the

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reach of monetary tape-measure. The determination of  damages for loss of human life is an extremely difficult task  and it becomes all the more baffling when the deceased is a  child and/or a non-earning person.  The future of a child is  uncertain.  Where the deceased was a child, he was earning  nothing but had a prospect to earn. The question of  assessment of compensation, therefore, becomes stiffer.  The  figure of compensation in such cases involves a good deal of  guesswork.  In cases, where parents are claimants, relevant  factor would be age of parents.

7.      In case of the death of an infant, there may have been no  actual pecuniary benefit derived by the parents during the  child’s life-time. But this will not necessarily bar the parents’  claim and prospective loss will find a valid claim provided the  parents establish that they had a reasonable expectation of  pecuniary benefit if the child had lived. This principle was laid  down by the House of Lords in the famous case of Taff Vale  Rly. V. Jenkins (1913) AC 1, and Lord Atkinson said thus: ".....all that is necessary is that a  reasonable expectation of pecuniary benefit  should be entertained by the person who sues.  It is quite true that the existence of this  expectation is an inference of fact - there must  be a basis of fact from which the inference can  reasonably be drawn; but I wish to express my  emphatic dissent from the proposition that it is  necessary that two of the facts without which  the inference cannot be drawn are, first that  the deceased earned money in the past, and,  second, that he or she contributed to the  support of the plaintiff. These are, no doubt,  pregnant pieces of evidence, but they are only  pieces of evidence; and the necessary inference  can I think, be drawn from circumstances  other than and different from them." (See Lata  Wadhwa and Ors. v. State of Bihar and Ors.  (2001 (8) SCC 197)

8.      This Court in Lata Wadhwa’s case (supra) while  computing compensation made distinction between deceased  children falling within the age group of 5 to 10 years and age  group of 10 to 15 years.              9.      In cases of young children of tender age, in view of  uncertainties abound, neither their income at the time of  death nor the prospects of the future increase in their income  nor chances of advancement of their career are capable of  proper determination on estimated basis.  The reason is that  at such an early age, the uncertainties in regard to their  academic pursuits, achievements in career and thereafter  advancement in life are so many that nothing can be assumed  with reasonable certainty.  Therefore, neither the income of the  deceased child is capable of assessment on estimated basis  nor the financial loss suffered by the parents is capable of  mathematical computation. 10.     In view of what has been stated in Swaran Singh’s case  (supra) we are of the view that the appellant\026insurer was not  liable to indemnify the award.  However, at this juncture it  would be relevant to take note of paragraphs 11 and 19 of  National Insurance Co. Ltd. v. Kusum Rai and Others [2006(4)  SCC 250].  The quantum, as awarded by the Tribunal and  deposited pursuant to the order of this Court dated 29.4.2005,  is maintained. The claimants shall be permitted to withdraw  the amount so deposited along with accrued interest.

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11.     The appeals are allowed to the aforesaid extent with no  order as to costs.