# Bhism Singh & Anr v. Mangal Singh & Anr

- **Citation:** (2021) 9 ILRA 485
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-19
- **Case number:** FAFO No. 2832 of 2012
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhism-singh-anr-v-mangal-singh-anr-47436
- **Pages:** 7

## Headnote

Sri Pawan Kumar, Sri Pawan Kumar Singh

Deceased a 12 year old boy-victim of a
motor accident-quantum of compensation
challenged-compensation under head of"
non pecuniary damages" -Rs. 2, 95,000
granted
relying
upon
Apex
Court
judgment. Amount enhanced.

Appeal partly allowed. (E-9)

List of Cases cited:

## Text

9 All Bhism Singh & Anr. Vs. Mangal Singh & Anr.
485

20. In view of the above, the appeal is
partly allowed. Judgment and decree
passed by the Tribunal shall stand modified
to the aforesaid extent. The respondentInsurance Company shall deposit the
amount along with additional amount
within a period of 12 weeks from today
with interest at the rate of 7.5% from the
date of filing of the claim petition till the
amount is deposited. The amount already
deposited be deducted from the amount to
be deposited.

21. On depositing the amount in the
Registry of Tribunal, Registry is directed to
first deduct the amount of deficit court fees,
if any. Considering the ratio laid down by
the Hon'ble Apex Court in the case of A.V.
Padma V/s. Venugopal, Reported in 2012
(1) GLH (SC), 442, the order of
investment may be.

22. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansaguti P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 2007(2) GLH 291, total
amount of interest, accrued on the principal
amount
of
compensation
is
to
be
apportioned on financial year to financial
year basis and if the interest payable to
claimant for any financial year exceeds
Rs.50,000/-,
insurance
company/owner
is/are entitled to deduct appropriate amount
under the head of 'Tax Deducted at Source'
as provided u/s 194A (3) (ix) of the Income
Tax Act, 1961 and if the amount of interest
does not exceeds Rs.50,000/- in any
financial year, the TDS can't be deducted
on amount of compensation. Registry of the
Tribunal is directed to allow the claimants
to withdraw the amount without producing
the certificate from the concerned Income-
Tax Authority. The aforesaid view has been
reiterated by this High Court in Review
Application No.1 of 2020 in First Appeal
From Order No.23 of 2001 (Smt. Sudesna
and others Vs. Hari Singh and another)
while disbursing the amount.

23.

Fresh
Award
be
drawn
accordingly in the above petition by the
tribunal as per the modification made
herein. The Tribunals in the State shall
follow the direction of this Court as herein
aforementioned as far as disbursement is
concerned, it should look into the condition
of the litigant and the pendency of the
matter and not blindly direct investment of
amount. The same is to be applied looking
to the facts of each case.

24. The amount shall be disbursed in
equal proposition but amount of minor
children if any now be kept in Fixed
Deposit upto 2025 and then be released.

25. This Court is thankful to both the
counsels to see that the matter is disposed
of.

26. The record be sent back to the
Tribunal.
----------
(2021)09ILR A485
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.08.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

FAFO No. 2832 of 2012

Bhism Singh & Anr. ...Appellants
Versus
Mangal Singh & Anr. ...Respondents

Counsel for the Appellants:
Sri Anurag Sharma
486 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
Sri Pawan Kumar, Sri Pawan Kumar Singh

Deceased a 12 year old boy-victim of a
motor accident-quantum of compensation
challenged-compensation under head of"
non pecuniary damages" -Rs. 2, 95,000
granted
relying
upon
Apex
Court
judgment. Amount enhanced.

Appeal partly allowed. (E-9)

List of Cases cited:

1. Rajendra Singh & ors. Vs National Insurance
Co. Ltd. & ors., (2020) 7 SCC 256

2. FAFO No. 3061 of 2007, Smt. Poonam Vs
Amit Kumar & anr.

(Delivered by Hon'ble J.J. Munir, J.)

1. Childhood is a phase of life that
everyone passes through. The greatest of
men, lawyers, judges, jurists, scientists,
inventors, men of medicine, to name the
important few, amongst others, who not
only have made changes to the world, but
often changed the world itself, for the
betterment of humanity, have, at some
point of time, been infants, toddlers and
children. If men of eminence, who did so
much for the humanity in the productive
years of their life, had died as children,
would it be no loss to the dependents?; or
still more, to the humanity? To the
dependents, in many a case, it would be
irremediable loss, and likewise, to the
humanity. In the event an adult were to die
in an accident during the productive years
of his life, there are standards to assess the
loss of dependency. It includes the loss
flowing from future prospects. If a child
dies, not just the dependents, but the entire
humanity does not know what treasure
might have been forsaken forever in his/her
untimely exit from the world. To think,
therefore, that a child's life, snuffed out in a
motor accident, has to compensated by the
award of a token for the damages or the
loss to the child's dependents, is the product
of
a
very
pedantic
and
mediocre
understanding. This appeal under Section
173 of the Motor Vehicles Act, 19881 is
about the quantum of compensation that a
mother and father of a twelve year old boy,
the victim of a motor accident would be
entitled to.

2. The facts giving rise to this appeal
are these :

In the afternoon of December the
30th, 2009 at 2 O' Clock, Aditya, the young
son of the two appellants, Bheeshm Singh
and his wife Smt. Kavita, was cycling on
the Mavana- Falawada Road. A vehicle
proceeding on the road from the direction
of Falawada was being driven negligently
and at a high speed. It bore Registration
No. U.P. 15 B 8625. The rash and
negligently driven vehicle hit Aditya. He
suffered severe injuries in the accident and
died on way to the hospital. Aditya was a
few months shy of his 12th birthday. He
was a student of Class VII and was reading
at the Navjeewan Kishan Shikha Kendra.
He would help his parents with the family's
farming, dairy management and house-hold
chores. It is said that he would earn a sum
of Rs. 3000/- per month.

3. The appellants instituted a petition
before the learned District Judge, Meerut
(sitting as the Motor Accident Claims
Tribunal) under Section 163-A of the Act
of 1988. The petition was registered as
M.A.C. No. 119 of 2010 on 02.02.2010.
Summonses were issued to the respondents,
returnable
on
06.03.2010,
fixing
17.03.2010 being the scheduled date for the
framing of issues. The appellants claimed a
9 All Bhism Singh & Anr. Vs. Mangal Singh & Anr.
487
total
sum
of
Rs.
10,01,000/-
in
compensation under the following heads :

1. Compensation for pecuniary
loss Rs. 5,76,000/-

2. Compensation for mental pain
and agony Rs. 1,00,000/-

3. Compensation for loss of
future prospects Rs. 3,00,000/-

4. Compensation incurred toward
performing

the
deceased's
last
right
Rs. 20,000/-

4. On the total sum of money claimed,
interest @ 18% per annum, from the date
of institution of claim petition, was
demanded.

5. A written statement was put in on
behalf of the first respondent-opposite
party, Mangal Singh, before the Tribunal,
who is the owner of the offending vehicle.
He did not dispute the fact that he is the
owner,
but
denied
his
vehicle's
involvement. Not much is to be commented
about the owner's defence, as the issue here
arises between the appellants, who are the
claimants and the Insurer, who have been
ordered to pay the compensation awarded
by the Tribunal. The second respondent,
that is to say, the Insurance Company, also
put in a written statement and took a
wholesome defence, denying the appellants'
entitlement to receive any compensation,
and in any case, their liability to indemnify
the claimaints. The petition came on for
determination before the learned Additional
District Judge, Court No. 12, Meerut
(sitting as the Tribunal) on 20.03.2012. The
petition was allowed in part and the
Insurance Company, respondent no. 2 were
ordered to pay in compensation to the
claimant-appellants a sum of Rs. 77,000/-
within four weeks of the date of the award.
No interest for the period past and pendente
lite was awarded by the Tribunal, for it was
held that the claimant-appellants were
guilty of delay in commencing action. It
was nevertheless ordered that in the event
the
sum
of
compensation
awarded
remaining
unpaid
by
the
second
respondent-Insurance Company within the
time specified in the award, the Insurance
Company would liable to pay interest @
12% from the date of default till
realization.

6. Dissatisfied with the impugned
judgment and award passed by the
Tribunal, the claimants have brought the
present appeal seeking enhancement of the
compensation awarded.

7. Heard Mr. Anurag Sharma, learned
Counsel for the claimant-appellants and
Mr. Pawan Kumar Singh, learned Counsel
appearing on behalf of the respondentInsurance Company.

8. The only issue that has been suited
in this appeal between the claimantappellants and the Insurance Company is
about
the
quantum
of
compensation
payable, besides the date with effect from
which the claimant-appellants would be
entitled to interest. Mr. Sharma appearing
for the claimant-appellants submits that the
fact that the victim was a child, who had no
income in presenti, does not mean that his
otherwise priceless life, is just worth the
miserably low compensation that the
Tribunal have awarded. He has drawn the
Court's attention to the findings of the
Tribunal, where there are remarks about the
not very bright future prospects about
Aditya, given his family background. These
have been castigated by the learned
Counsel as an insensitive approach by the
Tribunal. He submits that Aditya could
488 INDIAN LAW REPORTS ALLAHABAD SERIES
have blossomed into a young man with a
highly productive life that would have been
of
immense
support,
assistance
and
satisfaction to his parents, the claimantappellants.

9. On the other hand, Mr. Pawan
Kumar Singh, learned Counsel appearing
for the Insurance company, has supported
the impugned award as one that orders a
lawful, just and fair compensation to the
claimant-appellants, for the loss of life of a
child of the age that Aditya was. Learned
Counsel particularly emphasizes that there
is no proof to show that Aditya was, in fact,
earning a sum of Rs. 3000/- per month. He
also urges that from the gross uncertainties
of what the future held for Aditya, in terms
of his productivity, a quantification of the
compensation cannot be built on the edifice
of a mere fantasy or conjuncture about the
victim's imagined productive future. He
submits that there is no index objectively to
determine how productive the boy, who
was just about 12 years old or for the most,
14, would have been. In short, Mr. Pawan
Kumar Singh says that this Court should
refrain from enhancing the compensation
on the basis of a mere optimistic guess
work about Aditya's bright productive
future, later in life.

10. This Court has keenly considered
the submissions advanced and perused the
impugned judgment and record. It is true
that Aditya was a boy, who, by his school
records, was still a few months away from
the age of 12 years; going by his parents'
assertions, he was 14 years old. In either
case, Aditya was not yet in the age group,
where
an
individual
generally
starts
contributing to the nation's economy,
exceptions apart. But, it does not mean that
the victim of an accident, who is a child not
yet in his productive years, is to be written
off on account of the vagaries of an
uncertain future and career prospects, as a
life lost for which no compensation is
payable to his heirs and survivors. There is
little doubt that every human life is
valuable and if the quantum of a child's
productive contribution, later in life, lies in
the womb of the future, is it good reason to
think or presume about it pessimistically?;
or, is it a valid objective assessment of the
future prospects about a child, to go by the
station of his parents in life or their socioeconomic background? This Court says so
because in our opinion, the Tribunal has
precisely
done
that.
This
Court
is
constrained to say that on the quantification
of the compensation payable, based on
Aditya's expected future, there are some
pessimistic, and, rather, as Mr. Sharma
says, very insensitive remarks by the
Tribunal.

11. The Tribunal has observed that
appellant no. 1, Aditya's father, who has
testified as PW-1, has acknowledged in his
cross-examination that he is a home guard.
He has three children, of whom, two
survive.
There
is
then
almost
an
abominable remark by the Tribunal, where
it said that there is no evidence to show that
there was any possibility for Aditya to
become an officer. This remark by the
Tribunal is absolutely unpalatable. Should
it be inferred from this remark that only an
officer's son can become an officer; not a
home guard's son, or a person placed still
lower in the economic strata? This remark
is repugnant to the constitutional creed of
equality of opportunity to all citizens of the
country. Also, the remark is unacceptable
because it suggests that it is only officers
who are well-off in life, and not others. A
person may do well in any walk of life and
contribute immensely in the country's
economy. To say the least, the remarks of
9 All Bhism Singh & Anr. Vs. Mangal Singh & Anr.
489
the Tribunal above referred are entirely
misplaced and unsupportable by sound
legal reasonsing.

12. At the same time, it has to be
acknowledged that the future prospects of a
child can lie anywhere in the broad
spectrum, from utter failure to abounding
success. While everyone envisions a good
future for his child, there is no measurable
scale by which the future prospects of a
child may be judged and on that basis,
compensation determined, by a workable
and tangible formula. The Court, therefore,
has to determine it by sheer estimation
under the head of non-pecuniary damages.
The compensation, nevertheless, ought to
be a figure that is palliative of some kind to
the parents and the survivors; and, not just
an eyewash.

13. This Court is of opinion that what
would be a just, fair and respectable
compensation, to be granted under the head
of non-pecuniary damages, requires some
further consideration in an appropriate
case. However, it is not that the issue is one
about which there is no guidance. In
Rajendra Singh & Others v. National
Insurance Company Limited & Others2
, their Lordships of the Supreme Court
were concerned about the quantification of
compensation payable to the father of a
school-going daughter, aged about 12
years. In the context of compensation
determinable for the untimely loss of a
child of that age, it was held in Rajendra
Singh (supra):

12.The second deceased was a
school-going child aged about 12 years.
She had a whole future to look forward in
life with all normal human aspirations. She
died prematurely due to the accident at a
very tender age for no fault of hers even
before she could start to understand the
beauty and joys of life with all its ups and
downs. The loss of a human life untimely at
childhood can never be measured in terms
of loss of earning or monetary loss alone.
The emotional attachments involved to the
loss of the child can have a devastating
effect on the family which needs to be
visualised and understood. Grant of nonpecuniary damages for the wrong done by
awarding
compensation
for
loss
of
expectation in life is therefore called for.

13.
Undoubtedly
the
injury
inflicted by deprivation of the life of the
child is very difficult to quantify. The
future also abounds with uncertainties.
Therefore, the courts have used the
expression "just compensation" to get over
the difficulties in quantifying the figure to
ensure consistency and uniformity in
awarding
compensation.
This
determination shall not depend upon
financial position of the victim or the
claimant but rather on the capacity and
ability of the deceased to provide happiness
in life to the claimants had she remained
alive. The compensation is for loss of
prospective happiness which the claimant
would have enjoyed had the child not died
at the tender age. Since the child was
studying in a school and opportunities in
life would undoubtedly abound for her as
the
years
would
have
rolled
by,
compensation must also be granted with
regard to future prospects. It can safely be
presumed that education would have only
led to her better growth and maturity with
better prospects and a bright future for
which compensation needs to be granted
under non-pecuniary damages.

14. The income of the minor girl
child is incapable of precise fixation. We
find no reason to interfere with the assessed
notional income of the second deceased. In
R.K. Malik v. Kiran Pal [R.K. Malik v.
490 INDIAN LAW REPORTS ALLAHABAD SERIES
Kiran Pal, (2009) 14 SCC 1 : (2009) 5 SCC
(Civ) 265 : (2010) 1 SCC (Cri) 1265] ,
considering grant of future prospects for
the deceased child aged about 10 years it
was observed as follows : (SCC p. 14,
paras 32-33)

"32. A forceful submission has
been
made
by
the
learned
counsel
appearing for the appellant claimants that
both the Tribunal as well as the High Court
[R.K. Malik v. Kiran Pal, 2006 SCC
OnLine Del 611 : ILR (2006) 1 Del 866]
failed to consider the claims of the
appellants with regard to the future
prospects of the children. It has been
submitted that the evidence with regard to
the same has been ignored by the courts
below.

33. On perusal of the evidence on
record, we find merit in such submission
that the courts below have overlooked that
aspect of the matter while granting
compensation. It is well-settled legal
principle that in addition to awarding
compensation
for
pecuniary
losses,
compensation must also be granted with
regard to the future prospects of the
children. It is incumbent upon the courts to
consider the said aspect while awarding
compensation."

15. In New India Assurance Co.
Ltd. v. Satender [New India Assurance Co.
Ltd. v. Satender, (2006) 13 SCC 60 : (2008) 1
SCC (Cri) 96] , the deceased victim of the
accident was a nine year old school-going
child. Considering the claim for loss of future
prospects in absence of a regular income, it
was observed that the compensation so
determined had to be just and proper by a
judicious approach and not fixed arbitrarily or
whimsically. The uncertainties of a young life
were noticed in the following terms : (SCC p.
64, para 12)

"12. 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."

16. The deduction on account of
contributory negligence has already been
held by us to be unsustainable. The
determination
of
a
just
and
proper
compensation to the appellants with regard
to the deceased child, in the entirety of the
facts and circumstances of the case does
not persuade us to enhance the same any
further from Rs 2,95,000 by granting any
further compensation under the separate
head of "future prospects".

14. During hearing of this appeal, the
decision in Rajendra Singh was relied
upon by Mr. Anurag Sharma, and though as
a principle the figure of Rs. 2,95,000/- in
that case does not appear to be approved by
their Lordships as a universal figure for a
just compensation to be granted under the
head of "non-pecuniary damages" in event
of the unfortunate loss of a child, it was
refused to be interfered with by assessing
further compensation under a separate head
of "future prospects".

15. My attention has been drawn to a
recent decision by my esteemed brother
Hon'ble Vivek Agarwal, J. in FAFO No.
3061 of 2007, Smt. Poonam v. Amit
Kumar & Another, decided on January
9 All Hakimuddin Vs. State of U.P. & Ors.
491
the 21st, 2021, where ,in, the claim that
arose out of a motor accident, the deceased
was a ten-years old boy and a student of
Class V. Compensation in that case was
enhanced from Rs. 39,500/- to Rs.
2,95,000/- following the decision of the
Supreme Court in Rajendra Singh. The
facts in Rajendra Singh, going by the age
of the victim of the accident, are close to
the facts here, but it must be said that these
are decisions on facts, which do not lay
down the law. Nevertheless, the principle
in Rajendra Singh is clear that damages
have be to be awarded in the case of death
of a child under the non-pecuniary head.

16.

In
the
totality
of
the
circumstances, this Court is of opinion that
ends of justice would be met by modifying
the impugned award passed by the Tribunal
to
the
extent
that
instead
of
the
compensation of Rs. 77,000/- awarded to
the claimant-appellants, the same shall
stand enhanced to Rs. 2,95,000/-. The
compensation payable shall carry Simple
Interest @ 7% per annum from the date of
institution of the claim petition, until
realization.

17. This appeal succeeds and stands
allowed in part, and, there shall be an order
modifying the impugned award in the terms
indicated hereinabove.

18. Costs easy.
----------
(2021)09ILR A491
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.09.2021

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Misc. Single No. 23987 of 2019
Hakimuddin ...Petitioner
Versus
State of U.P. & Ors. ...Respondent

Counsel for the Petitioner:
Mohammad Riyaz

Counsel for the Respondent:
G.A.

A. Criminal Law - U.P. Gangster Act, 1986
- Sections 16, 17& 18 - The Court rejected
the bail application on the ground that the
Special Judge (Gangster Act) has not arrived at
any final conclusion regarding the release of his
attached vehicle under Section 17 of the
Gangster Act. (para 13)

Writ Petition Disposed of. (E-10)

List of Cases cited:

1. Rajbir Singh Tyagi Vs St of U.P. & ors.
Criminal Misc. Writ Petition No. 17245 of 2009
(distinguished)

(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1. Heard learned counsel for the
petitioner, learned A.G.A for the State and
perused the material available on record.

2. By means of this petition under
Article 226 of the Constitution of India, the
petitioner has prayed following reliefs:-

"(i) Issue a writ, order or
direction in the nature of certiorari to quash
the impugned order dated 31.-07.2019
which is passed in Gangster Criminal Misc.
Case
No.
08/2018
bearing
name
Hakimuddin Vs. State of U.P. under
Section 14 (1) U.P. Gangster Act by
Additional District Judge, Court No.
10/Special Judge Gangster Act, District
Sultanpur as well as order dated 25.07.2018
which is passed by District Magistrate