Fateh Narain Hajela vs Rawal Singh and Others

A.R. Navkar, J.—This is an appeal filed by Fateh Narain Hajela against the award given by the Claims Tribunal, Gwalior (M.P.) u/s 110-D of the Motor Vehicles Act, 1939 on 19-2-69.

The case before the Tribunal was that Respondent No. 1 Rawal Singh is the owner of the truck No. USR--232 which is insured with the New India Assurance Co. Ltd., Bombay (Respondent No. 3) and Respondent No. 2 Harvansingh S/o Keshar-Singh was the driver of the said truck, that an accident took place in front of Science College, Jhanshi Road, Gwalior on 26-12-1962 at about 11-00 a.m. The Appellant is the father of the deceased Ramesh Chandra Saxena who, at the time of the accident, was over 20 years of age and was a student of third year (final) of the Mechanical Engineering course of the Polytechnic Institute at Lashkar. Then it is said that the Appellant is the sole heir and the legal representative of the deceased Ramesh Chandra Saxena. At about 11-00 a.m., on the said day, Ramesh Chandra Saxena was proceeding on Jhansi Road on a bicycle and was going on his left hand side of the road. One Subhash Chandra, a class-fellow of the deceased was also sitting on that very bicycle. Harvansingh, Respondent No. 2, at that time, came driving the said truck from the opposite direction with a speeed of about 50 miles an hour. The truck was being driven on its wrong side. Respondent No. 2 was driving the truck in the course of his employment with Mr. Rawal Singh Respondent No. 1. The truck dashed against the bicycle of the deceased, as a result of that the deceased Ramesh Chandra Saxena was run over by the truck and he succumbed to the injuries on the spot. The truck was driven rashly and negligently, as a result of which the accident took place. The Appellant claimed damages against all the three Respondents. He claimed Rs. 500/- as expenses for funeral ceremonies and 5 lacs for the loss of earnings by the deceased. In all, he has claimed Rs. 5,00,500/- for death of his son from all the Respondents. In the trial Court, Respondent No. 2 did not contest the claim and he was proceeded ex-parte. Respondent No. 1 resisted the claim on different grounds, namely, that Respondent No. 2 was not driving the truck at that particular time, nor was he in his service. Respondent No. 1 is not liable for the tortious act of Respondent No. 2, that there was no negligence on the part of Respondent No. 2 in driving the truck and on the contrary because of rashness and negligence on the part of Ramesh Chandra Saxena the accident took place and therefore, the Appellant is not entitled for any compensation. It was also said that the compensation asked for is exorbitant. Respondent No. 3 resisted the claim in the trial Court, saying that because of the negligence of Ramesh Chandra Saxena, the accident took place. On the part of the driver, there was no negligence or rashness in driving the truck. Therefore, they are not liable for and compensation. Alternatively, they also submitted that if there is to be any liability then their liability is to the extent of Rs. 20,000/- according to the terms of the insurance policy and therefore, also they are not liable to the amount which exceeds Rs. 20,000/-. The trial Court framed in all nine issues. The issues framed are as under--

Issues Findings

Whether the Truck No. U.S.R.-2932 was driven by Non-Applicant No. 2 on 26-12-62 in the course of employment as an employee of Non-Applicant No. 1? "Yes"

Whether Non-Applicant No. 2 was driving the truck negligently and rashly? "Yes"

Deleted vide Order dated 19-10-1964.

Whether as a result, R. C. Saxena died on spot and whether the Applicant sustained injuries as alleged in para "Mr. R.C. Saxena died on the spot as a result of

4 of the Applicant? the injuries."

Whether the injuries caused to Subhashchan-dra are of permanent nature and have disabled the Applicant for life? "Not necessary, to decide this case."

Whether the Applicant Subhashchandra is entitled to damages as claimed in para 6?

Whether all the Non-Applicants are liable, if so, to what extent? "All the NA''s are liable to. the extent of Rs. 6,800/-"

Whether the Applicant Fateh Narain is entitled to the damages as claimed in para 5 of the application? "Yes to the extent of Rupees 6,800/-"

In short, it held that the truck belonged to Respondent No. 1 and Respondent No. 2 was driving the truck in the course of his employment as an employee of Respondent No. 1; that Respondent No. 2 was driving the truck negligently and rashly; that Ramesh Chandra Saxena died on the spot because of the injuries he suffered and lastly he held that the compensation be given at Rs. 6,800/-, which he divided in two parts, namely, Rs. 2,000/- for the mental suffering and Rs. 4,800/- for the loss he will be suffering because of the death of his son. The trial Court also held that Respondent No. 3 is also liable to pay this amount. Against this award, the claimant-Appellant has filed this appeal. No appeal has been filed by Respondent Nos. 1, 2 and 3, the findings which the trial Court has given as far as negligence is concerned and course of employment is concerned and the liability of Respondent No. 3 is concerned, we accept those findings.

The only point which was urged before us was that the amount of damages given is neither proper, nor reasonable also. To show this, learned Counsel for the Appellant took us through the whole evidence which was led before the trial Court. Before dealing with the evidence, we must decide the preliminary objection raised by Mr. D.V. Nigudkar, learned Counsel for Mr. Rawal Singh. His objection is that there can be no appeal against the quantum of compensation only. To substantiate his plea, he cited before us Madhya Pradesh State Road Transport Corporation, Jabalpur Vs. Jahiram and Another, .

Before understanding the objection of the learned Counsel, we would like to quote the very paragraph, which deals with the subject of quantum and appeal against it, it is as follows:

The proceedings have to be remitted for another reason. Even otherwise, in general, an appeal upon the damages will not be allowed unless either (i) the Tribunal has applied a wrong principle of law, or, misdirected itself or (ii) the amount awarded either was so inordinately low or was so inordinately high that it must be held as erroneous. See Nance v. British Columbia Electric Railway Co. Ltd. (1951) 2 All E.R. 448. The normal rule, therefore, is that no appeal lies on the quantum of damages unless it involves a matter of principle. This case, however, calls for an interference because the tribunal has misdirected itself by awarding an amount without any basis. The Claims Tribunal has not, at all, applied its mind to the question of ascertaining the quantum of damages. In a schedule annexed to the application, the claimant has assessed Rs. 33,682.84 P. as damages suffered by him, but in para 6 of the application, he had limited his claim to Rs. 20,000 as compensation. The MPSRTC in para 7 of the written statement asserted that the figures mentioned in the schedule was imaginary and also denied its liability for payment of the various amounts claimed. In dealing with this question, the Claims Tribunal has disposed of the matter in a very laconic manner. This is what it states:

The damages of Rs. 20,000 claimed by the Applicant for permanent disablement, loss of business, physical and mental worries and sufferings and for the special damages incurred by the Applicant in the medical treatment are reasonable and fair and the Applicant is entitled to get damages of Rs. 20,000 from the non-Applicant.

The expression "reasonable and fair" used by the Claims Tribunal carries us nowhere. It was the duty of the Claims Tribunal to separately ascertain and determine under different heads, pecuniary and non-pecuniary damages, if any, awardable to the claimant. Although the eventual award must be of a lump sum, nevertheless, the sum awarded must be made up of its constituent parts. In personal injury cases this course has to be followed by Claims Tribunal while dealing with assessment, by indicating different heads under which the damages are awarded, because the appeal to the High Court is by way of rehearing on the question of damages. Unless, this is done, this Court cannot determine whether the Claims Tribunal has acted on a wrong principle of law, or whether it has made entirely erroneous estimate of damages and the very purpose of the appeal would be defeated.

After reading this paragraph, we are satisfied that the principles laid down in this ruling cannot be applied to the present case. In the present case, the damages awarded is not based on any principles of law as laid down in Smt. Sushila Devi and Others Vs. Ibrahim and Another, and therefore, we reject the preliminary objection raised by the learned Counsel and proceed to decide the matter as far as the quantum of damages is concerned.

On the point, when the question of quantum is to be decided, what principles should govern it, the learned Counsel for the Appellant has cited before us two judgments of this Court. The first is in Sushila Devi v. Ibrahim (supra) and the second is in Smt. Gulab Devi Sohaney Vs. Govt. of Madhya Pradesh and Another, , In Gulab Devi Sohaney v. Government of M.P. (supra) the principles for assessing the quantum which are approved by their Lordships of Supreme Court in Gobald Motor Service Ltd. and Another Vs. R.M.K. Veluswami and Others, are given and they read thus:

At first, the deceased man''s expectation of life has to be estimated having regard to his age, bodily health and the possibility of premature determination of his life by late accidents.

Secondly, the amount required for the future provision of his wife shall be estimated having regard to the amounts he used to spend on her during his lifetime and other circumstances;

Thirdly, the estimated annual sum is multiplied by the number of years of the man''s estimated span of life and the said amount must be discounted so as to arrive at the equivalent in the form of a lump sum payable on his eath;

Fourthly, further deduction must be made for the benefit accruing to the widow from the acceleration of her interest in his estate;

Fifthly, further amount have to be deducted for the possibility of the wife dying earlier if the husband had lived the full span of life; and

Lastly, in case of a claimant who is the widow, it should also be taken into account that there is the possibility of her re-marrying much to the improvement of her financial position.

Their Lordships, while adopting the mode of estimating the damages indicated by Viscount Simon J. stated as follows:

It would be seen from the said mode of estimation that many imponderables enter into the calculation. Therefore, the actual extent of the pecuniary loss to the Respondents may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. Shortly, stated the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other hand any pecuniary advantage which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependent by the death must be ascertained.

Their Lordships of the Supreme Court in the Municipal Corporation of Delhi Vs. Subhagwanti and Others, received with approval the following dictum of Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd. (1942) A.C. 601.

It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities. The starting point is the amount of wages which the deceased was earning the ascertainment of which to some extent may depend upon the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years'' purchase.

That sum, however, has to be taxed down by having due regard to uncertainties, for instance that the widow might have again married and thus ceased to be dependent and other like matters of speculation and doubt.

The law on the subject was restated by their Lordships of Supreme Court in C.K. Subramania Iyer and Others Vs. T. Kunhikuttan Nair and Others, in the following words:

The life expectancy of the deceased or of the beneficiaries whichever is shorter is an important factor. Since the elements which go to make up the value of the life of the deceased to the designated beneficiaries are necessarily personal to each case, in the very nature of things, there can be no exact or uniform rule for measuring the value of human life. In assessing damages, the Court must exclude all considerations of matters which rest in speculation or fancy though conjecture to some extent is inevitable. As a general rule parents are entitled to recover the present cash value of the prospective service of the deceased minor child. In addition they may receive compensation for loss of pecuniary benefits reasonably to be expected after the child attains majority. In the matter of ascertainment of damages the appellate court should be slow in disturbing the findings reached by the courts below, if they have taken all the relevant facts into consideration.

As stated in Winfield on Tort, 8th Edn. p. 618, the damages that are given under the Fatal Accidents Act are not awarded as solatium for mental suffering and anguish for the loss of the deceased. If therefore, the relations have suffered only nominal damages, or none at all, they can recover nothing. There is no question here of awarding what may be called the sentimental damages, bereavement or pain and suffering. The damages are given with reference to pecuniary loss, or as observed by the learned author "in reference to a reasonable expectation of a pecuniary benefit as of right, or otherwise, from the continuance of the life."

After taking into consideration these observations, in Smt. Sushila Devi and Others Vs. Ibrahim and Another, , the Hon''ble Judges of this High Court have laid down general principles governing the award of damages.. They are:

The principles governing award of damages for death are well settled and may be briefly stated here:

(i) When the Court awards damages to the dependents for death due to negligence, it awards one lumpsum calculated by taking the yearly pecuniary loss and multiplying it by the number of years'' purchase.

(ii) It does not divide into two parts, such as special damages upto the of trial and future loss after the date date of trial. The Court treats it as damage inflicted once and for all at the time of accident.

(iii) It has to follow the rule of basic figure, a certain number of years'' purchase and allowance for lumpsum down.

(iv) If the period is a long one, the ''multiplier'' will be much smaller than the number of years, even where the contingencies which are allowed for are of small account. The reason is that while in so far as the lump sum of damages is still unspent, it will be earning interest and the damages and interest together will be adequate or to last out for the period. The reason is that prudent person reciving a lump-sum, to make good his loss over a period is expected to invest it and to use it up gradually.

(v) The sum to be awarded as damages should be equal to the cost of purchasing an annuity of the relevant amount for the relevant period.

Now, we are to apply these principles to the present case and to see whether the damages awarded by the trial Court are reasonable or not. If these principles are applied to the present case, we are of the opinion that the damages given by the trial Court are not only inadequate, but are also very low.

Now, we have to see what should be the quantum of the damages. It has come in evidence that the father, the grandfather, the uncle of the Appellant lived upto the mature age of 80 and more. Therefore, we can safely say that the expectancy of life of the Appellant should be at least considered to be 65. Paragraph 14 of the judgment in Gulab Devi Sohaney v. Government of M.P. 1971 A.C.J. 2147, is illustrative of the matter. The said paragraph runs as under:

There is evidence that the parents of the claimant were long-lived. In C.K. Subramania Iyer and Others Vs. T. Kunhikuttan Nair and Others, their Lordships of the Supreme Court, however, stated that the life expectancy of the deceased or of the beneficiaries whichever is shorter is an important factor. The claimant was 45 years of age. On the date of her sons''s death and in the absence of any evidence of longevity in her parent''s family, we take her normal expectancy of life to be 60 years. The Claims Tribunal has more or less kept the relevant principles in view and the quantum of damages determined by it at Rs. 18,000/-, at Rs. 100/- per month for a period of 15 years, appears to us to be fair and reasonable.

In the above paragraph, it is held that if there is no evidence, then the normal expectancy of life should be held to be 60 years. But, in this case, there is a specific evidence that the father, grand-father and uncle were living long. Therefore, we have no hesitation in holding that the expectancy of life should have been held by the trial Court to be at least sixty five years. Accordingly, we hold that the expectancy of life of the claimant be held at 65 years. If we hold the expectancy of life to be 65 years, then the calculation for award should be made for 15 years as on the date the accident took place, the age of the claimant was 50 years.

There is evidence to the effect that if the deceased would have passed his Diploma in Engineering he would have got a Government service in the scale of Rs. 170-170-6-290-12-320. Along with this pay, he would have got Rs. 25/- per month as Dearness Allowance so, total comes to Rs. 195/- per month. To this effect, there is direct evidence of Subhash Chandra, a class-fellow of the deceased, who was subsequently employed in the scale given above. The trial Court has stated that he (deceased) would have spent about Rs. 125/- on himself; we feel that it is a reasonable amount a man will spend on himself. The difference comes to Rs. 195/-. Rs. 125, i.e., Rs. 70/- per month. For one year, this amount comes to Rs. 840/-. When multiplied by 15 (the expectancy of life), the amount comes to Rs. 12,600/-. This amount is to be paid in a lump-sum; therefore, instead of Rs. 12,600/- we think, Rs. 12,000/- will be a reasonable compensation. Consequently, we set aside the finding of the trial Court regarding the amount of Rs. 4,800/- as a financial help the son would have given to his father and instead we hold that the amount should have been Rs. 12,000/-. Then trial Court has given Rs. 2,000/- as compensation for the mental suffering. We think that when the Appellant has lost his eldest son, the compensation given for mental suffering also is less. It has come in his evidence that because the claimant lost his son, he could not look to his profession, namely, that of an Advocate. So, instead of Rs. 2,000/- we think that Rs. 3,000/- would be sufficient compensation for the mental suffering. Taking these two things together, the total compensation comes to Rs. 15,000/-. As the compensation does not exceed Rs. 20,000/-, Respondent No. 3 has no right to challenge the amount.

Therefore, we allow the appeal and modify the award to this extent that instead of Rs. 6,800/- the Appellant is entitled to Rs. 15,000/- and the liability will be of all the Respondents for the claim so awarded with interest at 6 per cent, per annum, from the date of award, till the satisfaction of the claim. In the circumstances of the case, there will be no order as to costs.