T.V. Gnanavelu and Another vs D.P. Kannayya and Others

Ismail, J.—This is an appeal against an order of the Motor Accidents Claims Tribunal, Madras, awarding a compensation of Rs. 5037.48 to

the respondents herein in respect of the death of one Doriaswami Pillai involved in an accident on 30-11-1961. On 30-11-1961 at about 9-30 a.

m. when the deceased was crossing Kanganathan Chetti Road, Nungambakkam, somewhere opposite to the Indian Bank he was knocked down

by the motor cycle driven by the first appellant herein. The Tribunal found that the accident was due to the rashness and negligence of the first

appellant and awarded a compensation of Rs. 1,000/-, under the head of pain and suffering and another sum of Rs. 4,000/- for loss of expectancy

of life and a sum of Rs. 37.48 being the expenses incurred for taking X-ray totalling a sum of Rs. 5037.48.

Mr. V.S. Subramaniam, the learned Counsel for the appellant, contends that rashness and negligence on the part of the first appellant has not

been established. In this case, the persons who spoke to the occurrence of the accident are P. Ws. 1 and 2 and R. W. 1 namely the first appellant

himself. Obviously, the evidence of the first appellant as R. W. 1 was interested and no reliance could be placed on that. Apart from that, the

evidence is also unbelievable for it is inherent improbability.

According to the first appellant on the date in question, he was overtaking a cycle rickshaw going in the same direction and the pedestrian rushed

from the west end of platform to the other side. The cycle rickshaw man swerved to left to avoid him and on hearing the noise it made by swerving,

he applied brakes; it went 3 or 4 feet and stopped; before it stopped the deceased tripped over to the front wheel of the motor cycle. His knees hit

the wheel, and he fell to his right face upwards on the road. It is the admitted case that later in the same day, Doraiswami Pillai died. Therefore, it is

obvious that the injury sustained by him must have been serious. But if the version of the first appellant has to be accepted, the injuries could not

have been serious because he tripped over only to the front wheel of the motor cycle before it came to a standstill. In such an event, if he had

fallen, he could not have sustained such serious injuries as to cause his death.

Apart from that. P. Ws. 1 and 2 have spoken to the iact that the deceased was knocked down by the negligence of the first appellant. The learned

Counsel asked me to ignore the evidence of P. Ws. 1 and 2 because of the contradictions as between their versions. The one contradiction

pointed out by the learned Counsel was that while P. W. 1 stated that the motor cycle was black in colour. P. W. 2 stated that the motor cycle

was chocolate in colour. I do not attach any significance to this discrepancy. It may also be noted that the parties were not Riving evidence in

English and admittedly they were giving evidence in Tamil and that has been translated into English. I am not sure whether this discrepancy may not

be due to the translation.

The second discrepancy pointed out by the learned Counsel is that according to P. W. 1, there was no heavy traffic at the time of the accident

while according to P. W. 2, there was a heavy traffic at that time. The answer of P. W. 2 as to there being heavy traffic comes after the witness

had spoken to the accident having taken place and the deceased having been iniured. Therefore, the reference to the existence of heavy traffic,

whether it related to the time of the occurrence of the accident or to the time immediately after the accident had occurred when there will be

naturally a crowd and the people going in that direction will stop is not clear. In view of this circumstance, I am unable to accept the contention of

the learned Counsel that the evidence of P. Ws. 1 and 2 should be ignored, with the result, the finding of the Tribunal on the basis of the evidence

of P. Ws. 1 and 2 that the accident was as a result of the negligence of the first appellant is not liable to be interfered with and is hence sustained.

The next argument advanced by the learned Counsel for the appellant is with regard to the quantum of compensation awarded by the tribunal.

Mr. Subramaniam invited my attention to the decision of the Supreme Court in Gobald Motor Service Ltd. and Another Vs. R.M.K. Veluswami

and Others, and Municipal Corporation of Delhi Vs. Subhagwanti and Others, . Those decisions and the decisions of Courts that followed them,

such as the decision of the Mysore High Court in Krishnamma V. Alice Veighes. 1966 ACJ 366 (Mys) and fee decision of the High Court of

Madhya Pradesh (Indore Bench) in State of Madhya Pradesh Vs. Saheb Dattamal and Others, lay down the general principles that have to be

followed in calculating the quantum Of damages awardable in such cases.

The only question that arises is how that principle has to be applied to the tacts of the present case. The Tribunal on the appreciation of the

evidence placed before him came to the conclusion that the deceased was aged 60 at the time of the accident, that he had already retired as a

Junior Superintendent of the Hindu Religious and Charitable endowments department, and that a portion of his pension of Rs. 67.15 was

commuted and was actually drawing a pension of Rs. 35-15. and under those circumstances, it could not be said that he was giving anything to the

respondents so as to warrant the respondents contending that the death of Doraiswami Pillai caused any loss of benefit to them.

On the other hand, as I pointed out already the Tribunal awarded a compensation of Rs. 1,000/- for pain and suffering and a sum of Rs. 4,000/-

for loss of expectancy of life. Mr. Subramaniam does not question the proposition that damages are awardable under the said two heads and all

that he challenges is the quantum. As far as the award of Rs. l,000/- under the head of pain and Buffering is concerned, it cannot be said by any

stretch of imagination that the said figure is excessive. With regard to the sum of Rs. 4,000/- awarded for loss of expectancy of life, Mr.

Subramaniam contended that the deceased was aged 60 and he would not have lived for long, and, therefore, the award of Rs. 4,000/- was

excessive. I am unable to agree with his contention.

In the modern times, the longevity of the citizens of this country is said to be increasing. To say that a man aged 60 will not live for long is to under-

estimate the present position. Several decisions have awarded compensation taking into account the normal life of individuals at 70 or 75. If that be

the case, the award of Rs. 4.000/- for the death of a person at the age of 60 cannot be said to be excessive. Mr. V.V. Raghavan, the learned

Counsel for the respondents drew my attention to the decision of the House of Lords in Benham v. Gambling, 1941 AC 157. Mr. Raghavan drew

my attention to the following passage in the judgment of Viscount Simon. L. C., in the above case:--

The question thus resolves itself into that of fixing a reasonable figure to be paid by way of damages for the loss of a measure of prospective

happiness. Such a problem might seem more suitable for discussion in an easy or Artistotelian 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 Judge observed that the earlier decisions quoted to him

assumed ''that human life is, on the whole, good''. I would rather say that, before damages are awarded in respect of the shortened life of a given

individual under this head, it is necessary 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. II the character or habits of the

individual were calculated to lead him to a future of unhappiness or despondency, that would be a circumstance justifying a smaller award, it is

significant, that at any rate in one case of which we were informed, the Jury refused to award any damages under this head at all. As Lord Wright

said in Rose v. Ford 1937 AC 826, special cases suggest themselves where the termination of a life of constant pain and suffering cannot be

regarded as inflicting injury, or at any rate, as inflicting the same injury as in more normal cases. I would further lay it down that, in assessing

damages for this purpose, the question is not whether the deceased had 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 the 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 prospects"".

This decision and the other decisions of the Courts in England on this matter were elaborately reviewed by Jaga-disan, J.. in K.M. Krishna

Gounder Vs. P.N. Narasingam Pillai and Others, . The learned Judge after referring to those decisions stated as follows:--

There is now no difficulty in stating the principles that should weigh with the Court in awarding damages under this head of loss of expectation of

life, particularly after the classical pronouncement of Viscount Simon in Benham''s case. 1941 AC 157. But the application of the principles to

given set of facts is yet not free from difficulty. The balance of prospective happiness of the individual has first to be ascertained and that has to be

computed in money value. Even the best and at least judicial endeavour to discharge this task of ascertainment of damages cannot possibly

eliminate some speculation or imaginative thinking"".

Bearing these principles in mind, and taking the facts of the present case into account can it be said that the award of Rs. 4,000/- on the ground of

loss of expectancy of life is excessive? The second claimant as P. W. 4 has stated in his evidence that his father was hale and healthy at the time of

the accident. He has further stated in his evidence that he was earning an income of another Rs. 300 per month and his brother was earning an

income of another Rs. 300 per month. Consequently, a man aged about 60 haying two sons in that position, would have expected to be looked

after well and maintained comfortably by the sons for whose education he spent all that he earned when he was in service. Taking this into account,

in my view, it cannot be said that the award of Rs. 4,000/- as compensation for loss of expectancy of life can be said to be excessive.

Apart from this fact, when this Court is called upon to interfere with the quantum of Rs. 4,000/- determined by the Tribunal, certain compelling

factors, which should make the determination of the quantum shockingly excessive should be brought to the notice of the Court The principles that

should apply in compelling an appellate court to interfere with the quantum of compensation awarded by the Tribunal have been elaborately set out

in the judgment of Venkatadri, J., in Champalal Jain and Others Vs. B.P. Venkataraman, . Applying that test and bearing in mind the fact that the

determination of such question has necessarily to be conjectural to some extent, it cannot be said that the fixation of Rs. 4,000/- as compensation

under this head can be said to be excessive in the circumstances of this case.

Under these circumstances, I hold that there are no merits in this appeal and the same is dismissed with costs.