Managing Director & Others vs Bhuwan Pant

Sharad Kumar Sharma, J

This is a defendants' First Appeal, wherein, the defendants have questioned the judgment and decree dated 06.05.2013 and the decree dated 14.05.2013, by virtue of which the Civil Suit No. 90 of 2009 'Bhuwan Pant vs. Chairman & Managing Director, Uttarakhand Power Corporation Ltd.', had been decreed for the payment of compensation to the petitioner who was injured due to electrocution and the total amount thus payable, which has been determined by the Trial Court was Rs. 4,84,882/-, which was determined to be payable to the plaintiff decree holder along with the interest of 12 %, which was being imposed by the Civil Judge (J.D.), Haldwani.

Briefly put the case as pleaded by the plaintiff in the Suit preferred before the Civil Judge (S.D.), Nainital, on 10.08.2008 was that he had contended that on 02.01.2006, in the morning at about 10:00 AM when the plaintiff was at his home at Gali No. 5, Malla Lohariyasaal, Uncha Pul, Haldwani, District Nainital, near the boundary of his house in the corner there was a dish cable, which was attached to his terrace. On account of the level of 11 K.V. line, which was a town feeder line provided by the respondent, it was so low in height that it got in contact with the dish installed at the terrace of the residence of the plaintiff due to which apart from the fact that various electrical appliances got damaged. Besides this, when the plaintiff had made an attempt to get power again being flowed by the aforesaid cable he attempted to disconnect the supply of electricity, its at that point of time, that he got electrocuted and was grievously injured. Immediately the plaintiff was rushed to Sushila Tiwari Memorial Hospital, and after providing initial treatment looking the Doctors attending upon him considering the seriousness of the injury suffered due to electrocution, which he has suffered due to which his right shoulder was completely affected. He was referred to Safdarganj Hospital, New Delhi, its where his right hand was amputated from below the elbow joint.

The case of the petitioner was that prior to the occurrence of the said accident on 02.01.2006, even much earlier by various correspondences, which was being made by the family members of the plaintiff/respondent with the respondents, they have been consistently praying, the defendants/appellants to rearrange the 11 K.V. power line in the manner, that it is kept at a certain height above his residence and is not below the accessible or is not in situation to get in contact with the person or any living creature coming on the terrace.

His case was that if the said request would have been accepted the accident of 02.01.2006 of his electrocution would have been avoided. It could further have been avoided provided if the pole carrying the cable was re-located at a reasonable safe distance away from the residential house. He has submitted that on account of the aforesaid negligence on part of the defendants/appellants, he has suffered grievous injuries and due to the amputation, almost the right part of the body has been affected, which has resulted into 55 % disability and would have to be placed under consistent treatment in future would always be under medical surveillance. He further submits that looking to the health conditions of the respondent it cannot be ruled out that the petitioner may in future become a 100% disable person, as would be unable to engage himself profitably in any employment.

It was pleaded by the appellant that in order to pacify the said incident and to provide an immediate reprieve to the defendants, they had on 13.10.2006 paid a sum of Rs. 21,000/- as an advance money for getting the treatment but the said amount as determined to be paid by the defendants according to his case it did not commensurate to the nature of injuries, which has been suffered by the plaintiff/respondent, which was of much serious in nature.

The plaintiff/respondent further submits that the amount paid on 13.10.2006 was an articulated payment so as to curb the immediate agitation, which they were apprehending on account of the accident and to pacify the reaction, the amount was paid without even actually determining the loss suffered by the plaintiff/respondent, as he claims that since he was working as a labourer, on account of the nature of injuries suffered by him due to the accident, which has chanced and the extent of disability suffered by him, he has been rendered unemployed, apart from the fact that he has suffered from grievous mental agony as he had been rendered incapable of any future employment and, hence, prayed for that an appropriate compensation to the tune of Rs. 14 lakhs may be provided to him, and thus, had instituted a Suit for the decree for recovery of Rs. 14 lakhs as damages along with a interest at the rate of 12 % from the date of the accident. In the plaint thus filed on 01.08.2008 the plaintiff/respondent claimed following decree:

"12. यह कि वादी उपरोक्त न्यायालय श्रीमान से निम्न अनुतोष प्राप्त करने की प्रार्थना करता हैः-

(अ) यह कि आज्ञप्ति वहक वादी विरूद्ध प्रतिवादीगण मुबलिग 14,00,000/- रूपये बावत क्षतिपूर्ति पारित कर दी जाये।

(ब) यह कि उपरोक्त धनराशि पर मुबलिग 12 प्रतिशत ब्याज दिनांक 02.01.2006 घटना के दिनांक से भी वादी को प्रतिवादीगण से दिलाया जाये।

(स) यह कि खर्चा मुकदमा वादी को प्रतिवादीगण से दिलाया जाये।

(द) यह कि अन्य अनुतोष जो भी न्यायालय श्रीमान उचित समझे और वादी के पक्ष में हो वादी को प्रतिवादी से दिलाया जाये।"

The respondent after being noticed had filed the written statement paper no. 11 ka on 20.02.2010. What is important to be seen in the written statement is that occurrence of the incident, nature of injury and the discrepancy in installation; with regards to the level of 11 K.V. wire was not denied in its specific terms. The only defence, which was taken by the defendants, was that an advance money of Rs. 21,000/- had already been approved and paid to the plaintiff/respondent and that would suffice the gravity of injury suffered by the plaintiff/respondent.

They submitted that the defendants cannot be made liable to pay anymore and further compensation for the reason that the accident, which has occurred in fact was because of the 11 K.V. wire coming in contact with the dish the construction of house of plaintiff was in contravention to the provisions of Electricity Act of 1956 and, in particular, as per the provisions contained under Section 79 and 82 and, thus, defendants are not liable to pay any compensation further.

They further contended that since they have already issued a cheque of Rs. 21,000/- on 18.06.2007 and the plaintiff/respondent has been sufficiently compensated for the loss suffered due to the electrocution. In the written statement they had denied the fact that they ever received any communication or request from the family of the plaintiff/respondent for the purposes of re-location of 11 K.V. line, which was crossing over the terrace of the residence of the plaintiff/respondent. They rather in the written statement contended that the reason for the accident apart from the fact that the house was contructed in contravention to the provisions of the Act and the Rules framed thereunder it also happens to be in violation of Rule 80 of the Indian Electricity Rules, 1956, which provides that if any residence is to be constructed it should maintain a distance of about 6 feet since the construction itself was in contravention to the Electricity Rules of 1956 as the construction should have been made keeping a distance of 1.2 meters from the power supply line. The Corporation cannot be made liable by paying the compensation for the loss suffered due to the electrocution. Hence, they had further contended that the construction work of 11 K.V. line was under taken way back in 1978-80 and the house of the plaintiff/respondent was constructed thereafter in 1990. Hence, the construction was supposed to comply with the provision contained under Rule 80 of The Indian Electricity Rules 1956. On the aforesaid premise, the claim was sought to be denied.

The plaintiff/respondent filed a replication paper no. 22 ka on 20.04.2011 and denied the pleadings of the written statement, and had rather reiterated plaint allegations and he contended that the construction, which was raised of the residence, was in accordance with the sanction granted by the competent development authority and, hence, it cannot be said that it suffered from any illegality because the construction was raised as per the law.

Consequent to the exchange of pleadings, the learned Trial Court vide its order dated 20.04.2011 had framed the following issues for determination in trial:

"4. उभयपक्षों के अभिवचनों के आधार पर पूर्व विद्वान पीठासीन अधिकारी द्वारा दिनांक 20.04.2011 को निम्नलिखित वाद बिन्दु विरचित किये गयेः-

(i) "क्या वादी के मकान की छत पर से जाने वाली 11के0वी0 टाउन् थर्ड फीडर से वादी विद्युत करेन्ट लगने के फलस्वरूप गंभीर रूप से घायल हो गया व उसके दोनों हाथ व दोनों पैर विद्युत करेन्ट से बुरी तरह से जल व झुलस गये? यदि हां तो प्रभाव।"

(ii) "क्या उपचार के दौरान वादी का दायां हाथ कोहनी के नीचे से काट दिया गया तथा वादी का उपचार चल रहा है? यदि हां तो प्रभाव।"

(iii) "क्या प्रतिवादी उक्त विद्युत दुर्घटना के लिए जिम्मेदार नहीं है, जैसा कि प्रतिवादपत्र के पद संख्या-8 में वर्णित किया गया है?"

(iv) वादी किस अनुतोष को प्राप्त करने का अधिकारी है?"

Before venturing further it would be pertinent to mention that the petitioner, who was having a very meager source of earning, was not in a position to meet the expenses of the court fees payable on the claim raised by the petitioner. Hence, he had filed an application under Order 33 Rule 1, to contest the Suit as an indigent person and the same was granted by the learned Trial Court after resorting to the procedure of determination of a person as an indigent person provided under the Code of Civil Procedure.

The Trial proceeded and the plaintiff/respondent in support of his contention has produced two oral witnesses, i.e. he himself has appeared as PW1 and had produced Dr. Puneet Agarwal as PW2. In the statement as recorded by the plaintiff/respondent as PW1 he had almost reiterated the grounds taken in the plaint as well as in the replication and submitted that owing to his poor economic condition and due to loss of his physical power to profitably engage himself and since he used to work as a labourer he used to earn a sum of Rs. 3,500/- per month, which after the accident he would be deprived of the same completely in the statement recorded by PW1, he had specifically contended that the argument as extended by the defendants to the effect that 11 K.V. line was installed prior to the construction of the house is absolutely false, and in response thereto, he has submitted that it was after about 10 years from the date of construction of his house. Thereafter, the respondents have installed 11 K.V. electricity line immediately adjoining to his residence and had failed to comply with the stipulations contained under Rule 80 of the Rules of 1956.

In the statement of PW2, i.e. the Doctor who had treated plaintiff who submitted in his statement by an affidavit submitted on 15.04.2006 and had contended that he has working as a Medical Officer in the Hospital at Haldwani and he was entrusted with the responsibility to provide medical treatment, and according to his expert medical opinion expressed, he has fortified the fact of amputation of right hand below his elbow. He further fortified the fact that due to electrocution his legs have been disfigured and has suffered a disability of 55 %, which is permanent physical disability, and a certificate in that regard was issued by him being Certificate No.42 dated 15.06.2006. Meaning thereby, the plaintiff by producing the PW2, who has provided the certificate of permanent disability to the extent of 55 %, which he has suffered on account of the accident.

Apart from that he has also produced documentary evidence pertaining to the various correspondences, discharge certificate, medical bills, medical report dated 02.01.2006, disability certificate dated 15.04.2006, discharge certificate and the cash memo pertaining to the medical bills paid by him.

In response to the case as settled by the plaintiff, the defendant had produced one of Mr. S.C. Tripathi as DW1, who is said to be working in the Electricity Distribution Division, Gramin Kshetra, Haldwani, and in his statement he has stated "वादी के गांव में विद्युत संचालन वर्ष 1977 से होता चला आ रहा है और वादी के पिता के नाम पर विद्युत संयोजन वर्ष 1993 में जारी किया गया।"

In fact, by this statement he wanted to submit that since the electric connection was installed at a later stage in 1993, it would be deemed that the construction, which has been made, was at a later stage than to the establishment of the electricity line. Apart from that, he has also reiterated the defence taken in the written statement pertaining to the construction being in violation of the Electricity Rules of 1956 as contained under Rule 80 of the Rules.

Apart from it, the defendant/appellant had also produced DW2 Gopal Singh Bagadwal, the Junior Engineer, who has submitted that he has seen the place of occurrence of the accident and he reiterated that the date of installation of power line and the date of installation of power connection in the residence of the plaintiff/respondent is much after the installation of power line.

He supported the contention on the premise that the accident, which has chanced on the account of the 11 K.V. line getting in touch with the dish installed at the terrace of the plaintiff's residence was contrary to the Rules, hence, the defendant was not responsible for the injuries/disability suffered by the plaintiff.

He has submitted that since under the Rules there are various specifications provided for installation of high tension line, which was strictly followed by the department, and they are not responsible for the physical damage caused to the plaintiff. The defendant produced DW3 Devidatt Paldiya, who has submitted that he had not provided any cable connection till 01.04.2005 to 31.03.2006.

The learned Trial Court decided the issue nos. 1, 2 & 3 and held that the accident did occur, on account of the accident the plaintiff has suffered grievous injuries and he was grievously electrocuted. The learned Trial Court while deciding the issue no. 2 accepting the medical report recorded the finding that the right hand was amputated. The controversy only, which was raised, was pertaining to issue no. 3, which was with regards to the liability of the department to pay the compensation.

The learned Trial Court on considering the rival contentions in relation to the factual matrix, which was brought on record by the counsel for the parties, had come to the conclusion, which he has been recorded in para IV of the judgment:

"(IV) उपरोक्त समस्त मौखिक साक्ष्य का गहनता से अवलोकन करने से निम्नलिखित तथ्य परिलक्षित होते हैं-

क- प्रतिवादीगण यह स्वीकार करते हैं कि दुर्घटना डिश केबल के विद्युत लाइन के सम्पर्क में आने से हुई थी और डिश केबल वाली लाइन हेतु उन्हीं का विभाग अनापत्ति देता है। डी0डब्ल्यू0-3 देवीदत्त पलड़िया के अतिरिक्त अन्य व्यक्ति भी मल्ला लोहरियासाल क्षेत्र में केबल कनेक्शन देते थे साथ ही उसके द्वारा प्रस्तुत केबल कनेक्शन धारकों की सूची किस वर्ष की है, यह भी अंकित नहीं है स्पष्ट है कि प्रतिवादी यह सिद्ध नहीं कर पाये कि भुवन पंत न अवैध रूप से डिश कनेक्शन लिया हुआ था जिसके कारण उक्त दुर्घटना घटित हुई हो।

ख- प्रतिवादीगण यह भी सिद्ध नहीं कर पाये कि जब वादी के पिता के नाम विद्युत संयोजन वर्ष 1993 में दिया गया था, तो विद्युत संयोजन की जांच की गई थी अथवा नहीं और क्या वादी के पिता के आवास में दिया गया विद्युत संयोजन तथा उस क्षेत्र में लगाए गए हाईटेंशन तार मानकों के अनुरूप थे अथवा नहीं। यदि वे मानकों के अनुरूप नहीं थे तो वादी के पिता को क्या कोई नोटिस दिया गया था अथवा नहीं।

ग- प्रतिवादीगण की ओर से पत्रावली पर ऐसा कोई भी साक्ष्य प्रस्तुत नहीं किया गया जिससे स्पष्ट हो कि उनके विभाग द्वारा भवन निर्माण विद्युत नियमों के अनुसार कराये जाने हेतु सूचना या अखबार में प्रकाशन कराया गया हो।

घ- वादी द्वारा मौखिक साक्ष्य में यह सिद्ध कर दिया कि दिनांक 02.01.2006 को हुई दुर्घटना के फलस्वरूप वह 55 प्रतिशत विकलांग हो गया था।

ड़- वादी भुवन पंत के साथ दिनांक 02.01.2006 को हुई दुर्घटना को प्रतिवादीगण भी स्वीकार करते हैं।"

The learned Trial Court also considered the various pronouncements laid down by the Hon'ble Apex Court as to the circumstances under which the distributing licencee would be made responsible to pay the compensation, which would be only when they have violated any terms and conditions of the Rules. On considering the evidence the Court had partially decreed the Suit by the impugned judgment dated 06.05.2013 and had awarded compensation of Rs. 4,84,882/- with an interest at the rate of 12 % from the date of the accident till institution of the Suit, and thereafter the Court had awarded 6 % interest from the date of institution of Suit and during its pendency.

This judgment impugned dated 06.05.2013 has been put to challenge in the present First Appeal by the defendants/appellants. Before the Appellate Court they have more or less reiterated their contentions pertaining to the decisions on which they have placed reliance before the Trial Court, as well as, the factual aspect pertaining to the violation of the Rules of 1956 with regards to the installation of the power connection and thus, they have contended that the amount of compensation, which has been paid, is highly excessive and they have further contended that even the interest rate, which has been levied by the learned Trial Court at the rate of 12 % from the date of accident till the date of institution of Suit and 6% interest during the pendency of Suit is excessive and is without application of mind and has been the findings, which was recorded in relation to the quantum of expenses incurred by the plaintiff during the course of treatment.

Heard learned counsel for the parties. The counsel for the appellant had challenged the impugned judgment of the Trial Court on few limited premise:

"(i) That the amount of compensation as determined is on a excessive side.

(ii) The rate of interest as levied by the judgment and decree impugned in the Appeal is excessive and,

(iii) There was no proof of the salary, which the plaintiff uses to earn on account of his engagement with the contractor as labourer."

After having heard the learned counsel for the parties, it becomes essential for the Court to deal with Rule 80 of the Rules of 1956 on which heavy reliance has been placed by defendant/appellant. Rules of 1956 reads as under:

"80. Clearances from buildings of high and extra-high voltage lines-

(1) Where a high or extra-high voltage overhead line passes above or adjacent to any building or part of a building it shall have on the basis of maximum sag a vertical clearance above the highest part of the building immediately under such line, of not less than-

(a) for high voltage lines upto and including 33,000 volts 3.7 metres

(b) for extra-high voltage lines 3.7 metres plus 0.30 metre for every additional 33,000 volts or part thereof.

(2) The horizontal clearance between the nearest conductor and any part of such building shall, on the basis of maximum deflection due to wind pressure, be not less than-

(a) for high voltage lines upto and including 11,000 volts 1.2 metres

(b) for high voltage lines above 11,000 volts and up to and including 33,000 volts 2.0 metres

(c) for extra-high voltage lines 2.0 metres plus 0.3 metre for every additional 33,000 volts for part thereof.

[Explanation.-For the purpose of this rule expression "building" shall be deemed to include any structure, whether permanent or temporary.]"

Particularly a reference, which has been sought to be made is in relation to sub-clause 2, which stipulates the parameters of distance which is required to be maintained while raising of the construction of residential house or any building. The said provision where extra or extra high voltage overhead line passes above or adjacent to any building a stipulation provided therein for 11 K.V. it is 1. 2 meters. Hence, as per Rule 80 it could only be read for the purposes of providing the clearances of construction of a building when there is a pre-existing 11 K.V. power line, in the evidence, which has been adduced before the Court below or even before this Court. Once the respondent was placing reliance with regards to the non-adherence of the provisions of Rule 80 and the restrictions contained therein the burden to prove the same was required to be discharged by the defendants themselves and as per the evidence, which has been adduced by the defendants before the Court below and the findings, which has been recorded by the impugned judgment dated 06.05.2013, they have utterly failed to establish by any independent material evidence that the building was constructed in violation to the provisions of Rule 80 of the Rules of 1956 and further they have failed to establish the age of the building and as to the period when the electric cable was installed. In fact the defendants were responsible to prove the same. Since it was the defendants/appellants, who are trying to take the benefit of the said plea regards the period of installation of 11 K.V. power line, which was the burden to be discharged by the defendants/appellants to show that the construction to be in violation of the provisions contained under Rule 80. Since they have neither led any evidence to prove the non-compliance of Rule 80, hence, this Court is of the view that the plaintiff, who has suffered grievous injuries on account of the accident, cannot be made to suffer. The reference to Rule 79 and Rule 82 also is made by the defendants in their written statement too will not be attracted almost for the same logic as which has been assigned above and, thus, the determination of compensation cannot at all at this stage be said to be in violation of Rule 79 and 82 of the Indian Electricity Rules of 1956, which reads as under:

"79. Clearances from buildings of low and medium voltage lines and service lines.-

(1) Where a low or medium voltage, overhead line passes above or adjacent to or terminates on any building, the following minimum clearances from any accessible point, on the basis of maximum sag, shall be observed:-

(a) for any flat roof, open balcony, verandah roof and lean-to-roof-

(i) when the line passes above the building a vertical clearance of 2.5 metres from the highest point, and

(ii) when the line passes adjacent to the building a horizontal clearance of 1.2 metres from the nearest point, and

(b) for pitched roof-

(i) when the line passes above the building a vertical clearance of 2.5 metres immediately under the lines, and

(ii) when the line passes adjacent to the building a horizontal clearance of 1.2 metres.

(2) Any conductor so situated as to have a clearance less than that specified in sub-rule (1) shall be adequately insulated and shall be attached at suitable intervals to a bare earthed bearer wire having a breaking strength of not less than 350 kg.

(3) The horizontal clearance shall be measured when the line is at a maximum deflection from the vertical due to wind pressure. 1[Explanation.-For the purpose of this rule, expression "building" shall be deemed to include any structure, whether permanent or temporary.]

Erection of or alternation to buildings, structures, flood banks and elevation of roads.-

(1) If at any time subsequent to the erection of an overhead line (whether covered with insulating material or bare), any person proposes to erect a new building or structure or flood bank or to raise any road level or to carry out any other type of work whether permanent or temporary or to make in or upon any building or structure of flood bank or road, any permanent or temporary addition or alternation, he and the contractor whom he employs to carry out the erection, addition or alteration, shall if such work, building, structure, flood bank, road or additions and alterations, thereto, would, during or after the construction result in contravention of any of the provisions of rule 77, 79 or 80, give notice in writing of his intention to the supplier and to the Inspector and shall furnish therewith a scale drawing showing the proposed building, structure, flood bank road, any addition or alteration and scaffolding required during the construction.

(2) (a) On receipt of the notice referred to in sub-rule (1) or otherwise, the supplier shall examine whether the line under reference was lawfully laid and whether the person was liable to pay the cost of alteration and if so, send a notice without undue delay, to such person together with an estimate of the cost of the expenditure likely to be incurred to so alter the overhead line and require him to deposit, within 30 days of the receipt of the notice with the supplier, the amount of the estimated cost.

(b) If the person referred to in sub-rule (1) disputes the suppliers estimated cost of alteration of the overhead line or even the responsibility to pay such cost the dispute may be referred to the Inspector by either of the parties whereupon the same shall be decided by the Inspector.

(3) No work upon such building, structure, flood bank, road and addition or alternation thereto shall be commenced or continued until the Inspector has certified that the provisions of rule 77, 79 or 80 are not likely to be contravened either during or after the aforesaid construction: Provided that the Inspector may, if he is satisfied that the overhead line has been so guarded as to secure the protection of persons or property from injury, or risk of injury, permit the work to be executed prior to the alteration of the overhead line or in the case of temporary addition or alteration, without alteration of the overhead line.

(4) On receipt of the deposit, the supplier shall alter the overhead line within one month of the date of deposit or within such longer period as the Inspector may allow and ensure that it shall not contravene the provisions of rule 77, 79 or 80 either during or after such construction.

(5) In the absence of an agreement to the contrary between the parties concerned, the cost of such alteration of the overhead line laid down shall be estimated on the following basis, namely:-

(a) the cost of additional material used on the alteration giving due credit for the depreciated cost of the material which would be available from the existing line;

(b) the wages of Labour employed in affecting the alteration;

(c) supervision charges to the extent of 15 per cent of the wages mentioned in clause (b); and

(d) any charges incurred by the supplier in complying with the provisions of section 16 of the Act in respect of such alterations.

(6) Where the estimated cost of the alteration of the overhead line is not deposited the supplier shall be considered as an aggrieved party for the purpose of this rule."

The learned counsel for the appellant had contended that for the purposes of determination of compensation for the loss suffered on account of the accident due to electrocution, which has to be determined in accordance with the criteria as laid down under the Act called as the Fatal Accidents Act because the Rules of 1956 itself does not contain any such provisions or criterion for computation of the actual compensation which would be payable. Nor any such provision has been brought to the notice of this Court by the appellants.

At this stage it would be essential to clarify that at the time of trial it had never been the case of the defendants that the compensation has to be determined on the basis of the Fatal Accidents Act of 1855.

The judgment on which the reliance has been placed by the learned counsel for the plaintiff/respondent is that the guiding factors as settled by the said Act for determining the compensation payable to the claimant, who has suffered a physical injury on account of the accident due to electrical fault would always be dependant upon the assessment of the actual loss or disability suffered on account of the accident and the guiding factors for determining the compensation for just and proper, compensation would be under the just compensation as defined under Section 1(A) of the Fatal Accident Act, 1855. Section 1(A) of the said Act is quoted hereunder:

"Section 1A in The Fatal Accidents Act, 1855

[1A. ] Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong.-Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued, shall be liable to an action or suit for damages, notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to felony or other crime.

[***] Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased;

and in every such action, the court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought, and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties, or any of them, in such shares as the court by its judgment or decree shall direct."

For the said purpose the reference is made to the contents of paragraph 31, 32 & 33 of the aforesaid judgment as reported in (2013) 9 SCC 65 'Reshma Kumari & Others vs. Madan Mohan & Another' is quoted hereunder:

"31. Section 168 of the 1988 Act provides the guideline that the amount of compensation shall be awarded by the claims tribunal which appears to it to be just. The expression, 'just' means that the amount so determined is fair, reasonable and equitable by accepted legal standards and not a forensic lottery. Obviously 'just compensation' does not mean 'perfect' or 'absolute' compensation. The just compensation principle requires examination of the particular situation obtaining uniquely in an individual case.

Almost a century back in Taff Vale Railway Co. v. Jenkins[21], the House of Lords laid down the test that award of damages in fatal accident action is compensation for the reasonable expectation of pecuniary benefit by the deceased's family. The purpose of award of compensation is to put the dependants of the deceased, who had been bread-winner of the family, in the same position financially as if he had lived his natural span of life; it is not designed to put the claimants in a better financial position in which they would otherwise have been if the accident had not occurred. At the same time, the determination of compensation is not an exact science and the exercise involves an assessment based on estimation and conjectures here and there as many imponderable factors and unpredictable contingencies have to be taken into consideration.

This Court in C.K. Subramania Iyer and Ors. v. T.Kunhikuttan Nair and Ors.[22], reiterated the legal philosophy highlighted in Taff Vale Railway 21 for award of compensation in claim cases and said that there is no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations. Obviously, award of damages in each case would depend on the particular facts and circumstances of the case but the element of fairness in the amount of compensation so determined is the ultimate guiding factor."

While on the other hand, the defendants had placed reliance on a judgment reported in Division Bench of this Court as reported in 2006(2)U.D. 693 'Kashmir Singh vs. Santosh Singh Patiner and Another'. The said case specifically deals with the procedure, which was required to be followed by the Tribunal while determining the compensation and the procedure, which it has to adhere to under Section 169 of the Motor Vehicle Act. The circumstances under which the said judgment was rendered and the case with which it was dealing with was on altogether a different premise where a claim petition was being considered for the loss, which has been suffered due to sustaining the serious injuries on account of the motor accident. The said judgment is sought to be attracted only for the purposes to show that the document relied for the purposes on computation of the expenditure there has had to be a burden to be discharged by the plaintiff under Section 47 and 67 of the Evidence Act to prove the veracity of the document. The ratio laid down there in the said judgment would not apply in the present case and the circumstances.

On going through the judgment impugned in the present Appeal, this Court is of the view that it is based on altogether a different premise and, hence, deserves to be ignored for its applicability for the purposes of the present case.

After having considered the arguments extended by the learned counsel for the parties at length and after having gone through the statement recorded by the PW2 the Doctor whose statement cannot be denied in relation to the quantum of loss suffered by the plaintiff, this court is of the view that the compensation as awarded by the court below has had to be taken into consideration in the light of the provisions contained under the Fatal Accidents Act, 1855, and thus the determination of compensation as made by the Trial Court cannot be faulted with.

As far it relates to the claim for the payment of the interest and which has been awarded by the learned Trial Court at the rate of 12% from the date of the accident to the date of institution of Suit is on higher side and thereafter the imposing of interest @ 6% during the pendency of Suit is absolutely just and proper, if at all the interest was payable, it would be payable at the rate as prevalent in the Bank rate as applicable in accordance with the circulars issued by the Reserve Bank of India from time to time.

Consequently, the Appeal partially succeeds only to the limited extent only with regards to the rate of interest as imposed by the court below @ 12% from the date of accident, i.e. 02.01.2006, till the date of institution of the Suit, i.e. 10.08.2008, the interest which would be payable for the said period is modified, and this Court is of the view that the interest paid for the said period is on the higher side, and same is modified to the extent that the interest for the period from 2.01.2006 to 10.08.2008 too would be levied @ of 6% only. For rest of the findings, the judgment of the Trial Court determining the compensation stands affirmed.

However, there had been no order as to cost.