Jatindra Kumar vs Channi Singh and Others

Bhawani Singh, Chief justice.

We propose to decide this group of three Appeals (LPA No. 28/1995, Jatinder Kumar Versus Channi Singh and others, LPA No. 26/1995,

Rameshwar Dayal and others Versus Channi Singh and others, and LPA No. 27/1995, Rameshwar Dayal and others Versus Channi Singh and

others) by common Judgement, since they arise of the same accident, common award and common Judgement of Single Judge impugned in these

Appeals. Briefly stated, the facts of the cases are as under:

Deceased Mohan Lal Khandelwal and Kamla Devi are the parents of the Petitioners. They were on visit to Srinagar with Jatindra Kumar. For

the return journey, they boarded Bus bearing Registration No. MLS9148 in the morning of June 26,1987 for Delhi through Jammu. When it

reached near Magerkote around 11.45 a.m., the Driver failed to negotiate a curve due to fast driving, with the result that the Bus skidded off the

road and rolled into a 3000 feet nallah resulting in instantaneous death of 18 passengers leaving 24 seriously injured. Out of them, some

succumbed to the injuries. Though Jatindra Kumar survived the accident, but sustained injuries. Petitioners have claimed compensation of

Rs.17,24,000/andRs. 13,34,000/for the death of their father and mother respectively. For personal injuries Jatindra Kumar has claimed Rs.

3,75,000/.

Respondents have admitted the accident and the death of passengers including the parents of the Petitioners. However, ignorance has been

claimed about the cause of accident requiring the same to be proved.

On the pleadings of parties, Motor Accidents Claims Tribunal framed the following issues :

1) (a) Whether on 26.6.1987 the driver of Vehicle No. 9148MLS was driving it in a rash and negligent manner while under employment of

respondent Mrs. Saira Khangtan causing injury to Jatinder ?

(b) Whether on 26.6.1987 the driver of Vehicle No. 9148MLS was driving it in a rash and negligent manner while under employment of

respondent Mrs. Saira Khangtan causing death of Kamla Devi?

(c) Whether on 26.6.87 the driver of Vehicle No. 9148MLS was driving it in rash and negligent manner while under employment of respondent

Mrs. Saira Khangtan causing death of Mohan Lal Khandelwal ?

In case the issue No. 1 is proved in affirmative, whether the petitioners are entitled to compensation, if, how much, from whom and in what

proportion ? OPP

Whether the claim petition is time barred ? OPR

Whether there are sufficient grounds for condonation of delay ? OPR

Relief.

On the basis of evidence before the Tribunal issue No. 1 has been decided against the respondent. Tribunal has concluded that negligent driving

of the Bus was the cause of the accident. Finding of issue No. 2 has also gone against the respondent and in favour of the Petitioners.

Consequently, Tribunal has awarded Rs.1,35,000/ compensation for the death of Mohan Lal Khandelwal, Rs. 50,000/ for the death of Smt.

Kamla Devi, Rs. 25,000/ for injuries suffered by Jatindra Kumar in the accident and Rs. 10,000/ incidental expenditure for transporting dead

bodies and the injured to Jaipur with interest at the rate of 12% from the date of application.

The award was challenged before Single Judge of this Court (CIMA No. 114/1992, CIMA No. 11571992, CIMANo.118/1992), which has

been decided by Judgement dated May 25,1995. Petitioners have grievance against this Judgement, hence the same has been challenged through

these Letters Patent Appeals.

Learned counsel for parties were heard, record perused. Shri R. P. Bakshi contended that the Tribunal and the Single Judge committed serious

error in dealing with issues 2/5 for assessing the compensation in these cases, with the result that just compensation has not been awarded to the

Petitioners.

Shri A. V. Gupta, learned Senior Counsel appearing forrespondent3, supported the im

SCAN PAGE 144

It is also pertinent to bear in mind that there is no retirement age for a housewife. She works in a house for as long as she is physically capable of

doing so. Considered in this light, it is to be assumed that Shanti Devi would have continued to provide such services to her husband and children

for many more years to come. Her young age as also that of the claimants must reflect upon the quantum of compensation payable to them.

Keeping these aspects in view, the compensation payable to the claimants deserves to be enhanced to the extent as in Sunny Chugh and others V.

Darshan Lal and others, (1987 ACJ 812 (PandH)) namely, Rs. 50,000. 14. In Sunny Chugh's case (supra), the point was brought home more

elaborately by observing as under:

It is now well settled that the services that a housewife provides for the household even though rendered gratuitously, do indeed have a monetary

value in respect of which compensation is payable, particularly to the beneficiaries of such services which would include the husband and the

children. IN KEMP AND KEMP ON QUANTIM OF DAMAGES, Volume I, various heads of pecuniary loss for the husband on the death of

his wife have been listed out. Included there is the loss of the wife's contribution to the household from her earnings; the additional expenses

incurred or likely to be incurred by having the household run by a housekeeper or servant, instead of the wife; the expenses of buying clothes for

the children instead of having them made by the wife; and similarly having his own clothes mended or stitched elsewhere than by his wife, and the

loss of that element of security provided to the husband where his employment was insecure or his health was bad and where the wife could go out

and work fora living.

The same principle has been followed by High Court of Himachal Pradesh, and Allahabad, Gujarat and Andhra Pradesh High Courts. It would

be relevant to refer to the decision of Andhra Pradesh High Court in

A. Rajam Vs. M. Manikya Reddy and another,(1989 ACJ 542), in which M. Jagannadha Rao,J. as he then was, summarised the position in para

12 after taking note of certain decisions on the subject;

From the aforesaid rulings, the following principles can be summerised;

(1) The loss to the husband and children consequent upon the death of the housewife or mother has to be computed by estimating the loss of

'services' to the family, if there was reasonable prospect of such services being rendered freely in the future but for the death. It must be

remembered that any substitute to be so employed is not likely to be as economical as the housewife. Apart from the value of obtaining substituted

services, the expense of giving accommodation or food to the substitute must also be computed. From this total must be deducted the expense the

family would have otherwise been spending for the deceased housewife.

(2) While estimating the 'services' of the housewife, a narrow meaning should not be given to the meaning of the word 'services' but should be

construed broadly and one has to take into account the loss of constant 'love and affection1 as also of 'personal care and attention by the deceased

to her children, as a mother and to her husband, as a wife. The award is not diminished merely because some close relation like a grandmother is

prepared to render voluntary services.

(3) In case the husband is compelled to give up his job to attend constantly to children who are extremely sickly, the loss of the husband's job can

also be treated as loss to the family. If the deceased was contributing from her earnings to the family, that should also be treated as loss.

(4) If the wife was totally living away and there were no chances of reconciliation, the loss of services cannot be treated as a loss. But if there were

reasonable chances of reconciliation, 50 percent of the loss of services could be awarded.

(5) In the case of an injured housewife, the award from the date of trial on the above basis of 'loss of services' has to be made irrespective of

whether she is in fact, going to employ a substitute or not. Even for the period before trial, if she had not engaged a substitute, the award need not

(DC diminished because the extra burden she had borne could be considered as part of the award for the ""pain and suffering"" and the said burden

could be treated as equivalent to that of engaging a substitute.

In the absence of evidence to the contrary, we have to accept the statement of petitioners that income of deceased was Rs. 2,000/ per month

and family contribution was Rs. 1,000/ per month. Without disturbing the multiplier of 15, the just compensation payable for the death of Smt.

Kamla Devi is (1000 x 12 x 15) Rs. 1,80,000/ with interest at the rate of 12% per annum from the date of claim Petition till the date of payment.

Now we advert to the case of Jatindra Kumar. He suffered the death of his parents at a young age when he needed them most. That apart,

three of his teeth were uprooted causing disfigurement of face at the age of 14. Fracture of collarbone is another deformity he suffered. Towards

treatment, shock and grave loss of amenities of life, medical expenses, he has to be compensated. Tribunal has awarded Rs. 25,000/

compensation. This is a personal injury case. It is well settled that principles for settling compensation in death cases and personal injury cases are

different, it is liberal in latter cases, since the amount of compensation is utilized by the victim on himself, who continues to suffer the aftermath of

the incident throughout his life.

In Himachal Road Transport Corporation Versus Neema alias Seema and another. (1986 ILR (HP Series) 142). Chief Justice P. D. Desai

said :

In such cases, there cannot be any algebraic or mathematical formula for the award of compensation. Compensation in whatever sum awarded

would not really mitigate the lasting effect of the damage 'caused. It is indeed quite impossible to make adequate compensation in terms of money

for the tragic consequence of the injury lasting for the life time of the surviving victim of an accident, for, money cannot renew a physical frame that

has been battered and shattered and alleviate the pain and suffering and restore the lost pleasure and enjoyment of life. This is all the more true

when the victim is a young girl, the course of whole life is fundamentally effected as a result of the disabilities flowing from the accident. The Court

must still assess the compensation, however, bearing in mind by the deceased to her children, as a mother and to her husband, as a wife. The

award is not diminished merely because some close relation like a grandmother is prepared to render voluntary services.

(3) In case the husband is compelled to give up his job to attend constantly to children who are extremely sickly, the loss of the husband's job can

also be treated as loss to the family. If the deceased was contributing from her earnings to the family, that should also be treated as loss.

(4) If the wife was totally living away and there were no chances of reconciliation, the loss of services cannot be treated as a loss. But if there were

reasonable chances of reconciliation, 50 per cent of the loss of services could be awarded.

(5) In the case of an injured housewife, the award from the date of trial on the above basis of 'loss of services' has to be made irrespective of

whether she is in fact, going to employ a substitute or not. Even for the period before trial, if she had not engaged a substitute, the award need not

be diminished because the extra burden she had borne could be considered as part of the award for the ""pain and suffering"" and the said burden

could be treated as equivalent to that of engaging a substitute.

In the absence of evidence to the contrary, we have to accept the statement of petitioners that income of deceased was Rs. 2,000/ per month

and family contribution was Rs. 1,000/ per month. Without disturbing the multiplier of 15, the just compensation payable for the death of Smt.

Kamla Devi is (1000 x 12 x 15) Rs. 1,80,000/ with interest at the rate of 12% per annum from the date of claim Petition till the date of payment.

Now we advert to the case of Jatindra Kumar. He suffered the death of his parents at a young age when he needed them most. That apart,

three of his teeth were uprooted causing disfigurement of face at the age of 14. Fracture of collarbone is another deformity he suffered. Towards

treatment, shock and grave loss of amenities of life, medical expenses, he has to be compensated. Tribunal has awarded Rs. 25,000/

compensation. This is a personal injury case. It is well settled that principles for settling compensation in death cases and personal injury cases are

different, it is liberal in latter cases, since the amount of compensation is utilized by the victim on himself, who continues to suffer the aftermath of

the incident throughout his life.

In Himachal Road Transport Corporation Versus Neema alias Seema and another. (1986 ILR (HP Series) 142). Chief Justice P. D. Desai

said :

In such cases, there cannot be any algebraic or mathematical formula for the award of compensation. Compensation in whatever sum awarded

would not really mitigate the lasting effect of the damage 'caused. It is indeed quite impossible to make adequate compensation in terms of money

for the tragic consequence of the injury lasting for the life time of the surviving victim of an accident, for, money cannot renew a physical frame that

has been battered and shattered and alleviate the pain and suffering and restore the lost pleasure and enjoyment of life. This is all the more true

when the victim is a young girl, the course of whole life is fundamentally effected as a result of the disabilities flowing from the accident. The Court

must still assess the compensation, however, bearing in mind all the relevant circumstances of the case, as they are known upto the time of the trial,

and, as far as they can for the future be reasonably foreseen, guided by the overall consideration that the injured person should be given a sum

even if it appears to some minds to be 'daunting in its immensity' which would ensure a just compensation to him or her.

In the above case, compensation of Rs. 40,000/ awarded by the Tribunal was not interfered with. Claimant being girl of 17 year lost all the

four incisors of the upper jaw and broke the lower left central incisor and the medical opinion pointed out of disfigurement of face due to change of

appearance and nonresoration thereto by artificial teeth or dehture. Taking into consideration, the age of Jatinder Kumar at the time of accident,

injuries he suffered, mental agony he passed through, loss of amenities of life and the inflationary trends, we are of the opinion, just compensation in

this case should be Rs. 40,000/ with interest at the rate of 12% from the date of claim Petition till payment.

Payment of Rs. 10,000/ towards incidental expenses for transporting the dead bodies and injured to Jaipur awarded by the Tribunal is

maintained. Consequently, we direct asunder:

(a) Petitioners are awarded Rs. 3,24,000/ by way of compensation for the death of their father Mohan Lal Khandwal;

(b) Petitioners are awarded Rs. 1,80,000/ compensation for the death of their mother Smt. Kamla Devi;

(c) Petitioner Jatinder Kumar is awarded Rs. 40,000/ for injuries suffered by him in his accident.

(d) Convential amount of Rs. 20,000/ allowed for the death of Mohan Lal Kandelwal and Smt. Kamla Devi, Rs. 10,000/ in each case;

(e) Petitioners are also awarded Rs. 10,000/ towards incidental charges for transporting dead bodies and injured to Jaipur; and

(f) The compensation payable under (a), (b), (c) and (d) above, shall carry interest at the rate of 12% per annum from the date of claim Petition till

realisation (See: Inder Singh V. Haryana State through collector, Hissar and others, (1987 ACJ 94); Punjab State through Secretary, Transport,

Punjab Government, Chandigarh V. Kashmira Singh and others (1987 ACJ 401), Santokh Singh V. Ajay Diwan and others, (1988 ACJ 617),

Dr. M. L Sharma V. State of Haryana and another, (1992 ACJ 443); Sahodra Devi V. Ramnarayan Satyanarayan and others, (1991 ACJ 695);

and Madhya Pradesh Road Transport Corporation V. Laxmi, (1993 ACJ 1273)).

Payment of all the above claims shall be the responsibility of Respondent3 (The Oriental Insurance Company Ltd., Asif Ali Road, Delhi).

No other point was urged.

All the Appeals are decided in terms aforesaid, leaving the parties to bear their own costs.