Ajay Kumar Gupta & Anr. v. Shri Surinder Pal & Ors.

Mr. Neeraj Khanna, Advocate for the insurance company. CORAM:HON'BLE MR. JUSTICE K. KANNAN

1. Whether Reporters of local papers may be allowed to see the judgment ? Yes

2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes K. KANNAN J.(ORAL) -.-

1. The two appeals are connected and they arise out of the claims filed by two sons, father and mother both of whom died in a motor accident by the motor cycle dashing against a truck. The father was driving the motor cycle and the motor was the pillion rider. It was in evidence that the younger son was having a business and at the time of accident, the elder son was unemployed and was dependent on his parents for the support. Both the sons were, however, married.

2. While determining the compensation, the Court found that both the sons were majors and therefore, they could not be taken as FAO No.17 of 1995 -2- dependents and hence, awarded Rs.25,000/- as compensation payable for death of the father and Rs.25,000/- for the death of the mother and Rs.3,000/- as damage to the vehicle.

3. Learned counsel appearing for the claimants would contend that the father was earning Rs.5379/- as per the salary certificate and he was also augmenting his resources by taking tuition and therefore, the contention of the learned counsel was that he was earning about Rs.6400/- and the mother was earning Rs.4751/- and she was also taking tuition and earning an additional sum of Rs.1,000/-. Learned counsel would contend that even without reference to the issue of dependence, the claimants are the legal representatives of the deceased persons and therefore, the extent to which the children were denied the accumulation of the estate of the parents, they ought to have been provided for with the adequate compensation and not merely a token sums of Rs.25,000/- for each one of the parents.

4. It is also further contended that even the issue of dependence, there was specific evidence that the elder son was unemployed and therefore, there was no reason to reject such a contention. The issue of tenability of claims at the instance of persons, who were not entirely dependent on the deceased person have come before several Courts. It must be seen that the expressions found under Section 165 to 168 of the Motor Vehicles Act, nowhere employ the term dependent. It only uses the expression 'legal representatives' of the deceased. The dependency is one of the factors, which will come into reckoning while determining the FAO No.17 of 1995 -3- compensation, especially with the issue of reasonable expenses which the deceased person would have spent on himself if he had been alive and the reasonable contribution that would have come to the family, who could be the claimants. The death of a father or a mother cannot go without a dent for the children financially and emotionally. If the father was earning about Rs.5500/- and the mother was earning about Rs.4500/- and the family had the benefit of about Rs.10,000/-, they make way for pooling the resources that can enhance the quality of life for the children as well. It could just as well be possible when the children themselves are employed and they were living in the same house, the death of the earning members would have cast a depletion resources and that depletion itself is to be duly factored. It may not be a typical situation of some one being wholly dependent but I cannot ignore the Indian reality of the sons and parents living together and being mutually dependent on each other. They would have been benefitted at least to the extent of 25% of the resources of family. I would take, therefore, the monthly benefit, which they would have obtained, to be at least Rs.2500/-. Even without reference to the extent of dependence, the family resources which could have accumulation by the continued living would go to loss to estate of the deceased, which is really a loss only to the legal representatives. Loss to estate is invariably a head of claim that is relevant for determining compensation. This will have an immediate bearing for us to cope with an objection that the claimants were not dependents and therefore, they were not entitled to any amount.

5. There has been a decision of this Court in Smt. Bhagwani FAO No.17 of 1995 -4- Devi Vs. Krishna Kumar Saini and others AIR 1985 Punjab and Haryana 347, which took the view that adult sons employed during deceased's life time would not be dependents and occasional gifts given by parents to grown up children would not justify compensation being awarded to them. With respect, I will not feel obliged to follow that view, for we are not merely affording compensation for financial dependence but for other factors as well which I have discussed above.

6. Learned counsel for the insurance company would rely on a judgment of High Court of Madhya Pradesh Bhuri Devi and others Vs. Omi and others 2009 ACJ 1390 where the deceased was 59 years old and the son who was the major had filed a petition. The Court had awarded compensation only to the widow and did not allow the son to claim any compensation. I would find the difference in that case that the mother was also a claimant and it may not be possible for a grown up son who was independently having resources to stake a claim. I would not apply it in cases where the sons or daughters make claims on stand alone basis with the other spouse not being alive to make a full claim. In New India Assurance Company Ltd. VS. B. Ayyappa and others 2009 ACJ 1391, the son and the daughter, who were grown up made a claim for compensation for the death of their mother. The Court held that the children could not be taken as dependents but rather old parents will have to be looked after by the children. It must be noticed that in the above case, the Tribunal did not dismiss the claim but provided for lesser multiplier. In this case also along with the children, the husband was the FAO No.17 of 1995 -5- claimant and while determining the compensation, the Tribunal had awarded the compensation for the husband and held that the children need not be separately provided for. Both these decisions do not address the issue which we are dealing with in this case where both the parents have died and the claimants were the sons.

7. Therefore, I would take the yearly loss to the two sons, which should be taken as going for loss to the estate of the deceased parents, as Rs.30,000/- and I would adopt a multiplier of 9 and take the compensation as Rs.2,70,000/-. This must be taken to mean as providing for Rs.1,35,000/- for the death of the father and Rs.1,35,000/- for the death of the mother. I would also add towards funeral expenses another Rs.5,000/- each and take the amount payable in each one of the cases to be Rs.1,40,000/-. This amount would be taken equally between the two sons. The amount in excess of what has already been awarded by the Tribunal shall bear interest @6% from the date of the petition till the date of payment.

8. The appeals are allowed to the above extent. December 23, 2010 Pankaj* (K. KANNAN) JUDGE