Hayath Basha and Another vs Pushpavathi

C.J.R. Paul, J.—In this appeal which is against the order of the Motor Accidents Claims Tribunal, Madras awarding a compensation of Rs.

17,000/- in favour of the Respondent to be paid by the Appellants the first of whom is the owner of the lorry MDS 4033 which, while being driven

rashly and negligently, had knocked down the Respondent''s son aged about 10 years as a result of which accident the boy died and the second of

whom is the Insurance Company with which the aforesaid vehicle was insured. The only question is with regard to the quantum of compensation

awarded by the Tribunal which compensation according to the Appellants is excessive.

The Appellants do not challenge the finding of the Tribunal that the lorry was driven in a rash and negligent manner and as a result of such rash

and negligent driving it knocked down the boy and caused his death. Now, the facts which were put forward before the Tribunal having relevance

to the question of quantum of compensation are that the deceased boy was 10 years old at the time of his death and was studying in the third class.

No other facts which would have relevance to the quantum of compensation were placed before the Tribunal. The Tribunal, taking into account the

age of the boy, fixed the compensation for the loss of expectation of his life at Rs. 12,000/- and allowed a further sum of Rs. 5,000/- under the

head of loss of the estate for the prospects of a predominantly happy life and in all awarded an aggregate compensation of Rs. 17,000/-.

It is now contended that the Tribunal erred in awarding compensation under the two heads and had also failed to make a deduction of 20% in

consideration of the fact that the compensation is paid in a lump sum. Ordinarily, the appellate Court would not interfere with the finding of the

Motor Accidents Claims Tribunal with regard to the quantum of compensation, unless the appellate Court could say that the amount awarded was

unconscionably high or unconscionably meagre. In Bingham''s Motor Claims cases, Sixth Edition, at page 312 it has been observed:

The principle on which the Court of Appeal reviews the assessment of damages whether too high or too low, is not because the Court of Appeal

might have given rather more or rather less, but only (a) if the judge has omitted some relevant consideration or admitted some irrelevant

consideration, (b) if the amount is so excessive, or insufficient, as to be plainly unreasonable, vide: Greenfield v. London and North Eastern Rly.

(1845) K.B. 89 In Flint v. Lovell (1935)I K.B. 354 ; Greer, L.J. observed: ""I think it right to say that this Court will be disinclined to reverse the

finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have

given a lesser sum. In order to justify reversing the trial Judge on the question of amount of damages, it will generally be necessary that this Court

should be convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very

small as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the Plaintiff is entitled.

The learned Counsel for the Appellants pointed out that in the Motor Insurance Co. Ltd v. A.N. Pattammal and Anr. 1972 A.C.J. 380

Maharajan, J., had held that the damages in respect of the death of an infant may, normally be fixed at Rs. 5,000. There, the child was aged abut 3

1/2 years, but in the same decision Maharajan, J. has observed ""I have held there Perumal v. State of Madras 1971 A.C.J. 144 that the damages

may normally be fixed at Rs. 5,000. No doubt, there may be other peculiar circumstances which might influence the court to reduce or enhance

this amount.

In Perumal and Anr. v. State of Madras where a girl who lost her life was 8 years old at the time of the accident and her father was working as

a coolly earning Rs. 5/- per day, the Tribunal, after considering the uncertainties of life and the status of the family in with the deceased was born,

fixed the sum of Rs. 3,000/- as just reasonable compensation for the loss of the life of the child. Maharajan, J. has observed as follows.

The question raised before me has vexed many courts in India and England and has provoked some Judges to embark upon metaphysical

investigation into the value of human life and ultimately to exclaim that the answer to the question is far from simple in Benham v. Gambling; Simon,

L. C, said:

Such a problem might seem more suitable for discussion in an essay on Aristotelian ethics than in the judgment of a court of law, but in view of the

earlier authorities ; we must do our best to contribute to its solution.

The noble Lord disagreed with the view that human life is on the whole good and preferred to award damages in respect of the shortened life of a

given individual on the basis of the length of life that was lost. This view is in ill-accord with Indian thought, which regards human life as precious, as

much for the joys it brings as for the sufferings it inflicts. Whichever view is sound, the difficulty of measuring its worth in terms of money is real.

There are some aspects of human life, which were susceptible of monetary measurement, but the totality of human life is, like the beauty of the

sunrise or the splendor of the stars, beyond the reach of the monetary tape measure.

Yet another difficulty that besets the courts is this. Most appellate courts refuse to interfere with the quantum of compensation awarded by the trial

courts on the ground that the sum awarded is neither unduly high nor unduly low. This principle of judicial neutrality has resulted in a lack of

uniformity in the decisions of the trial courts. In my experience, I have found that the compensation awarded for the death of an infant of the same

age varies from Rs. 1,000/- to Rs. 10,000/- according to the discretion of the Judge concerned. The range of variation between one trial Judge

and another in fixing the amount of compensation is almost whimsical and bewildering. In these circumstances, it is desirable that the Legislature

lays down guide lines, which would enable the courts to fix the quantum of compensation in such matters in the light of prevailing sociological

values. In fact in England, the Council of Law Society to the Departmental Committee on the Alternative Remedies, recommended for the purpose

of securing uniformity in fatal cases, that a statutory scale should be provided for the calculation of damages for the loss of expectation of life. The

following scale was suggested though not accepted:

Loss of life upto Age �

7 200

7 to 14 250

99 14 to 21 300

21 to 30 350

30 to 40 300

40 to 50 250

50 to 60 200

60 to 70 150

70 to 80 100

80 50

upwards

(Vide: page 427 Motor Claims Cases by Bingham, fourth edition)

In the absence of statutory guide-lines, I think that for the purpose of securing uniformity, some workable formula should be evolved, which can be

usefully followed by the trial courts, after making marginal adjustments in the light of the peculiar 1. 1941 A.C. 157 facts of each individual case. In

Benham v. Gambling 1941 A.C. 157 an infant child of 1 1/2 years old was so injured by a running car that it died the same day. The trial Judge

fixed the damages at � 1200. The appellate court confirmed it. But the House of Lords reduced the figure to � 200. After fixing the amount at

�. 200 the House of Lords observed as follows:

In reaching this conclusion, we are in substance correcting the methods of estimating this head of loss, whether in the case of children or adults,

which have grown up in a series of earlier cases, and which Asquith, J. naturally followed, and are approving a standard of measurement, which

had it been applied in those cases, would have led at any rate, in many of them, to reduced awards. I trust that the view of this house, expressed in

dealing with the present appeal, may help to set a lower standard of measurement than has hitherto prevailed for what is in fact incapable of being

measured in coin of the realm with any approach to real accuracy.'' ""This decision was rendered in 1941.

Subsequent to this ruling, courts in England have been awarding � 400 to � 500 on the ground that since the above decision of the House of

Lords there has been depreciation of the value of money.

I see no reason why the same standard of measurement should not be adopted in India. In my view, the damages in respect of the death of an

infant may be fixed at Rs. 5,000. 1 may add that there may be other peculiar circumstances in a given case which may influence the court to reduce

or enhance this amount, but neither wealth nor the status of the child should be regarded as relevant in fixing the quantum. I may also say that there

is justification for my interfering with the award of the court below because the lower court has failed to take into consideration relevant factors

bearing upon the quantum of compensation.

In the result the learned Judge increased the amount awarded by the lower court to Rs. 5000/-.

In Joginder Kaur v. The Punjab State and Ors. 1969 A.C.I. 28 the deceased was a boy aged about 9 years and a sum of Rs. 5,000/- was

awarded as damages. It was observed there:

There is always expectancy of pecuniary benefit for the parents of a child, whatever the status or vocation of the family be and whether the child is

on way to a certain career or not. An element of speculation in assessing the amount of damages will surely creep in, but the fact remains that

liability to pay damages is always there. There are large number of factors to be considered in assessing the amount of damages and immediate

pecuniary benefit is just one of them.

In the Concord of India Insurance Co., Ltd. v. L.J. Machado and Ors. 1966 A.C.J. 321 compensation of Rs. 5,000/- as loss of expectation of

life was awarded to the parents in regard to the death of their son aged about 8 years. It was observed there that it is well settled that

compensation which is claimable for the loss of expectation of life where the person who was killed was an adult who had so established himself in

life that no one could have any doubt about his being able to live in happiness and comfort during reasonably long time of which there has been a

deprivation on account of the accident which killed him, is also claimable even where the victim is a child or a boy who is still undergoing his

education and has to travel a long way before he can acquire any earning power. Viscount Simon, L.C., in Benham''s case (1941) I All E.R. 7

observed:

In the case of a very young child, there was unnecessarily so much uncertainty about the child''s future that no confident estimate of prospective

happiness could be made, as contrasted with the case of an individual who had reached an age with such prospects, having encountered the risks

and uncertainties of infancy, and having in some measurable degree attained an established character, and firmer hopes, which make the future

more definite and less incalculable.

Viscount Simon. L.C., further observed that it was necessary, before damages could be given for the loss of expectation of life, for the Court to

be satisfied that the circumstances of the individual life were calculated to lead, on balance to a positive measure of happiness, of which the victim

has been deprived by the Defendant''s negligence. He further observed:

I would further lay it down that, in assessing damages for this purpose, the question in not whether the deceased bad the capacity or ability to

appreciate that his further life on earth would bring him happiness ; the test is not subjective and the right sum to award depends on an objective

estimate of what kind of future on earth the victim might have enjoyed, whether he had justly estimated that future or not. Of course, no regard

must be had to financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life, not of

loss of future pecuniary prospect.

He further observed that the loss is ''incapable of being measured in the coin of the realm with any approach to real accuracy.'' 10. Holroyd

Pearce. L.J., said in Wise v. Kaya (1962) I Q.B.D. 638

There is no distinction between damages for loss of expectation of life awarded to a living Plaintiff and those awarded to the executors of a dead

man.

The ingredients that go to make the final figure have been scrupulously weighed in the judgment. We can only alter it if we are satisfied that it is

a wholly erroneous estimate of the damage, if we are satisfied that, broadly speaking, there is only one reasonable answer to the problem and that

the Judge has failed to give it.

One cannot seek for precision or certainty in many cases which are tried by the Courts in their anxious task of weighing imponderables. Often,

there is a norm, whether established by common sense or reason or the convention of the Courts. Then one can decide how great a departure

from it justifies the description ""wholly erroneous.

It was observed in the aforesaid decision, the Concord of India Insurance Co. Ltd. v. L.J. Machado and Ors. 1966 A.C.J. 321

On the evidence which we have discussed and which the Subordinate Judge carefully considered, we do not find it possible to say that the

assessment made by him was wholly erroneous. On the contrary, we are satisfied that he made a proper assessment. We are not prepared to think

that the award of Rs. 5,000/- as compensation for the loss of expectation of life requires any paring.

In Naylor v. Yorkshire Electricity Board 1967 A.C.J. 223 it was observed that the damages for the loss of expectation of life in the case of

death of a child of tender age would be substantially less than in the case of an adult, because in the case of a child the prospects of life were more

uncertain than in the case of an adult.

Another judgment to which my attention has been drawn is the one in W.S. Bhagsingh and Sons and Anr. v. Om Prdkash Kaith and Anr.

1971 A.C.J. 324 where an award of Rs. 6,000/- in respect of the death of a girl aged about 5 years belonging to an ordinary family was upheld.

Likewise, in P.S. Kothandam and Anr. v. V.N.S. Pothi Naickar and Ors. 1971 A.C.J. 456 the award of Rs. 5,000/- by the Claims Tribunal in

respect of the death of the deceased girl of 8 years belonging to an ordinary family was upheld. Therefore, it seems to me that in the absence of

statutory guidelines, some workable formula should be evolved as observed by Maharajan in Perumal and Anr. v. State of Madras 1971 A.C.J.

144 and it also seems to me from the aforesaid decision that in the case the death of an infant a sum of Rs. 5,000/- appears to have been the usual

sum awarded.

In this case the boy was aged about 10 years and was studying in the third class. No other data are available which would persuade the

Tribunal to fix such a high figure at Rs. 12.000/- for the loss of expectation of life and for the award of further sum of Rs. 5,000/- under the head of

loss of estate for the prospects of a predominantly happy life.

It is also contended that the Tribunal erred in allowing compensation under the two heads for the loss of expectation of life and loss to the

estate for the prospects of a predominantly happy life. In Gobald Motor Service Ltd. and Another Vs. R.M.K. Veluswami and Others, their

Lordships of the Supreme Court have observed ""that the rights of action under Sections 1 and 2 of the Fatal Accidents Act are quite distinct and

independent. If a person taking benefit under both the sections is the same, he cannot be permitted to recover twice over for the same loss. In

awarding damages under both the heads, there shall not be duplication of the same claim, that is, if any part of the compensation representing the

loss to the estate goes into the cancellation of the personal loss u/s 1 of the Act, that portion shall be excluded in giving compensation Section 2

and vice verse."" In that case also, both the Courts gave compensation for the Plaintiffs in a sum of Rs. 25,200/- and this sum was arrived at by

taking into consideration, inter alia, the reasonable provision the deceased, if alive, would have made for them. u/s 2, both the courts awarded

damages for the loss to the estate in a sum of Rs. 5,000/- that figure representing the damages for the mental agony, suffering and loss of

expectation of life; and it was held that there was no duplication in awarding damages under both the heads. There the suit was under the Fatal

Accidents Act and it was not a claim made before a Motor Accidents Claims Tribunal. But the principle is applicable even to claims under the

Motor Vehicles Act.

It was held in W.S. Bhagsingh and Sons and Anr. v. Om Prakash Kaith and Anr. 1971 A.C.J. 324; that the provisions of the Fatal Accidents

Act regarding the mode of compensation would not apply to cases under the Motor Vehicles Act, but the same principles may be applied in

determining just compensation. This High Court has also held in Chinnaponnu Ammal v. T.N. Mooka Pillai 1968 A.C.J. 24 to the same effect.

Therefore, it cannot be said that the award made by the Tribunal under the two different heads as stated above is illegal. But, under the

circumstances of the case, I find that the amount awarded is unduly excessive. I feel that in the circumstances of the case a lump of Rs. 7,000/-

would be the proper compensation that should have been awarded, and it is so awarded. To this extent, the order of the Tribunal is modified and

the appeal is allowed. In the circumstances of the case, there will be no order as to costs.