The Judgment of the Court was delivered by

Venkatachaliah, J.:— This appeal by the Karnataka Power Corporation Ltd. is directed against the Award dated 26-3-1986 made in M.V.C No. 180/83 on the file of the Motor Accident Claims Tribunal II, Bangalore, Rural District, Bangalore, awarding a compensation of Rs. 1,37,800/- to the dependants of the deceased person in a fatal-accident-action.

Respondent claimants are the widow and minor children of a certain Ravindra, an employee of the Appellant-Corporation. On 20-4-1983, Ravindra, in the course of his employment, was travelling in appellant's van (MYE 5007) to Bangalore. At about 5-00 a.m when the vehicle was approaching the outskirts of Nelamangala Town, the van went-off the road and hit a road-side tree. Ravindra sustained severe injuries to which he succumbed. His widow and children brought a claim before the Tribunal.

2. On a consideration of the evidence, the Tribunal held that the accident was attributable to the actionable-negligence on the part of the driver of the van. In regard to the quantum of compensation, the Tribunal awarded a sum of Rs. 1,37,800/-. The principal component of the award is the capitalised-value of the annual loss of dependency to the claimants. The deceased-person was about 34 years of age. He had another 20 years of service ahead of him. At the time of his death, his salary was Rs. 939/- per month. The Tribunal estimated the loss of dependancy at Rs. 800/- per month and capitalised it on 13 years' purchase. To the sum so arrived at, the Tribunal added the other usual awards of Rs. 5,000/- towards loss of consortium; Rs. 5,000/- towards loss of expectation of life and Rs. 500/- towards funeral expenses.

3. Sri P. Ramachandra Rao, learned Counsel appearing in support of the appeal, assailed the Award under appeal contending:

(i) That the finding of the Tribunal that the accident was owing to the driver's negligence is erroneous;

(ii) That the amount awarded is excessive;

(iii) That the claim was barred under Section 110AA; and

(iv) That, at all events, the rate of interest of 12% awarded by the Tribunal is excessive.

4. Re: Contention (i): Sri Ramachandra Rao urged that the accident occurred on account of the dazzle of the headlight of an on-coming vehicle. The driver of the van was blinded by the dazzling lights of the opposite vehicle and thought it proper to take the vehicle to the extreme left-side of the road and the accident was the result of an error of judgment. Alternatively, it is urged that the occurrence was an inevitable accident.

What a driver should do when his eyes are dazzled by the head lamps of an approaching vehicle is to follow this rule - “Slow down or stop if you are dazzled by approaching head lamps.” This is what is expected of a driver of ordinary prudence. The driver in this case, obviously, did neither. He went-off the road and hit a road-side tree. Res ipsa loquitor. The contention against the correctness of the finding as to the negligence of the driver is, in our opinion, without substance.

5. Re: Contention (ii): As to the size of the Award, the principal contention pressed by Sri Ramachandra Rao is that, while the salary of the deceased person was Rs. 939/- per month, the estimate of the loss of dependency at Rs. 800/- per month, is excessive. It is no doubt true that in the absence of evidence on the point, 65 to 70 per cent of the earnings of a bread-winner is estimated as his contribution to the maintenance of the family. This, of course, depends upon the facts of each case. In the very nature of things there can be no general rule valid for all cases. There ought to be deductions for the personal and living expenses and the habits of the deceased person. There again, the standard of living; the strength of the family etc., are relevant factors. These are matters of evidence. The quantum of the deduction towards personal and living expenses depends again, on the personal habits and whether the deceased was a ‘Spartan’ or a ‘Bohemian’. These are questions of fact. It is no doubt true that if the percentage of 65 to 70 is applied in this case to determine the loss of dependency, the figure would be somewhere between Rs. 600/- or Rs. 650/- per month. But in estimating the multiplicand, acknowledgment should be given to the future prospects of advancement in service of the deceased, had he lived. The deceased-per-son, in this case, had another 20 years of service ahead of him. On a reasonable estimate of the prospects of the future, the higher multiplicand estimated by the Tribunal could safely be justified on the basis of such prospects of the future. All uncertainties of the future need not be baneful; they might be beneficial too.

In this view of the matter, the estimate of the multiplicand of Rs. 800/- per month does not appear so unreasonable as to call for interference. There is no substance in this contention either.

6. Re: Contention (iii): Sri Ramachandra Rao submitted that the appellant, as employer, bad, in respect of this death, deposited sums awardable under the Workmen's Compensation Act, 1923, with the Commissioner. The sums so deposited, it would appear, had been withdrawn by the claimants during the pendency of the proceedings before the Tribunal. Sri Ramachandra Rao says that in view of this withdrawal, the claimants must be held to have claimed compensation under the Workmen's Compensation Act, 1923 and that, accordingly, the claim petition under Section 110A of the Motor Vehicles Act, is barred by virtue of Section 110AA.

Section 110AA provides that, notwithstanding anything contained in the Workmen's Compensation Act 1923, where the death of or bodily injury to any person gives-rise to a claim for compensation under the Motor Vehicles Act, and also under the Workmen's Compensation Act, the person entitled to compensation may claim such compensation under either of those Acts, but not under both.

In this case, claimants did not initiate and prosecute any remedy under the Workmen's Compensation Act, 1923. Wherever there was an employment-injury or death, the employer is required by that law to deposit such amounts as are awardable under the Schedule to that ‘Act’ with the Commissioner within the stipulated time. In depositing the amount, the appellants purported to discharge their statutory obligation under that law. If that amount is paid over to the claimants, all that can be said is that such payment should be given deduction to in the compensation awardable in these proceedings. The bar contained in Section 110AA of the Motor Vehicles Act, is not attracted, because the claimants have not made any election under Section 110AA.

The provisions are a piece of social and welfare Legislation. In the particular circumstances of this case and having regard to the fact that at the time of receiving this sum in response to the notice by the Commissioner, they had already initiated proceeding before the Tribunal under Section 110A, it is not possible to read into their conduct, a conscious choice of a forum which they could be said to have elected. If we accept the argument, the forum would indeed be thrust on the hapless claimants, who never imagined that this will be the legal consequences of receiving the amount from the Commissioner.

A cognate question, though, however, in a different context was considered by the House of Lords in Lissenden v. C.A.V Bosch Ltd. . 1940 AC 412.. The question that was as to the maintainability of the workman's appeal against an award on the ground that the workman could not be heard to prosecute the appeal as he had accepted the compensation awarded and had thereby approbated the Award. The Court of Appeal had held that the workman who had received the sums under the Award could not appeal against any part of it. Workman, it was said, had approbated the award and could not reprobate it in appeal. Viscount Maugham relying on the Bell's Commentaries said that this “Scottish doctrine of approbate and reprobate” approached “nearly to that of Election in English Jurisprudence” and that the phrase “you may not approbate or reprobate” or Latin “Quod approbo Non Reprobo” is no more than a picturesque synonym for the ancient equitable doctrine of election originally derived from the civil law. This principle was held inappropriate in the context of a statutory right of appeal under the Workmen's Compensation Act, 1925 of England. Viscount Maugham said:

“…. but I think the numerous cases reported in the books will be searched in vain for any suggestion that payment by a defendant of what has been found to be done due from him operates without more to prevent the plaintiff from appealing of some further relief.”

The limited assistance from and relevance of this principle to the present case is that a mere receipt of money without more, does not indicate any election, though that principle for election is recognised in Section 110AA.

There is no force in this objection to the maintainability of the claim under Section 110A.

7. Re: Contention (iv): What remains to be considered is the rate of interest. That is a matter of discretion under Section 110CC. But, can the discretion be said to have been exercised judicially and judiciously, if without reference to the circumstances, justifications and compulsions of the particular case, a uniform rate of interest at 12% is awarded? Some Tribunals carry the impression that they are bound to award 12 percent and that the 12 percent is the rule and anything less is the exception. This impression is not justified.

Speaking of the consideration for Award of interest Lord Diplock in Cookson v. Cookson . 1979 A.C 556 H.L. observed:

“…. This is all left to his discretion; but like all discretions vested in judges by statute or at common law, it must be exercised judicially or, in the Scots phrase used by Lord Emslie in Smith v. Middleton, 1972 SC 30 in a selective and discriminating manner, not arbitrarily or idiosyncratically-for otherwise the rights of parties to litigation would become dependent upon judicial whim.

It is therefore appropriate for an Appellate Court to lay down guidelines as to what matters it is proper for the judge to take into account in deciding how to exercise the discretion confined to him by the statute…………”

(Emphasis supplied)

In some pronouncements of the High Courts and of the Supreme Court, interest at 12% per annum has come to be awarded. The pronouncements of the Supreme Court in Narcinva Kamat v. Alfredo Antonio Doe Martins . 1985 ACJ 397. and in Chameli wati v. Delhi Municipal Corporation . 1985 ACJ 645. are decisions on the facts of the cases. They are not declaration of the law under Article 141 of the Constitution, on the point. As the Supreme Court has had occasion to point out that the decision in particular cases are not to be created as the words of a Statute. Supreme Court, in Amarnath Om Prakash v. State of Punjab . 1985 1 SCC 345, observed:

“11. ………… We consider it proper to say, as we have already said in other cases that judgments of course are not to be construed as statutes. To interpret words, phrases and provisions of a Statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret judgments. They interpret words of statues; their words are not to be interpreted as statutes …………

12. ………… It is needless to repeat the off quoted truism of Lord Halsbury that a case is only an authority for what it actually decides and not for what may seem to follow logically from it …………”

Supreme Court recalled with approval aforesaid words of Lord Morris of Borth-y-Gest, in Herrington v. British Rys. Board . 1972 2 WLR 537.:

“There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case …………”

8. In Jefford v. Gee . 1970 2 Q.B 130., the Court of Appeal in England, recognised the need to clarify the principles guiding the grant of interest on damages awarded in personal-injury and fatal accident actions. Lord Denning M.R, said:

“When the Courts award damages to a widow under the Fatal Accidents Act, they award one lump sum calculated by taking the yearly pecuniary loss and multiplying it by a number of years' purchase. The Courts do not divide it into two parts, such as special damage upto date of trial and future loss after the date of trial. They treat it as damage Inflicted once and for all at the time of the accident. The damages are calculated at so many year's purchase, no matter whether the case is tried one month, one year, or three years after the accident. Quite often these claims take some time to investigate, both on the issue of liability and also on damages. A reasonable time should be allowed for such investigation. At the end of that time, if the case is not settled cut of Court, the plaintiffs' advisers should issue and serve the writ and the defendants should make payment. From that time onwards it can properly be said that the widow and dependents have been kept out of their money. In these circumstances, we think that interest should be awarded on Fatal Accidents' damages as from the date of service of the writ….”

In regard to the rate of such interest, Learned-Master of the Rolls, said:

“It was suggested to us that, in principle, the rate of interest on a debt or damages before judgment should be the same as the rate after judgment. It would be anomalous if a defendant paid less interest after judgment than before it.

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To go to the other extreme, it was suggested that bank rate should be awarded. That stands at 8 per cent. We cannot agree with this suggestion. Bank rate fluctuates too much.

A better guide, is, we think, the rate which is payable on money in Court which is placed on short term investment account—”

On the point whether on that part of an award as pertains to the loss of future earnings (which, in a way, is common to personal injury actions as an award for future pecuniary loss attributable to impairment of earning capacity) any interest is awardable at all, it was observed:

“Where the loss of damage to the plaintiff is future pecuniary loss, e.g loss of future earnings, there should in principle been in interest. The judges always give the present value at the date of trial, i.e, the sum which, invested at interest, would be sufficient to compensate the plaintiff for his future loss, having regard to all contingencies. There should be no interest awarded on this: because the plaintiff will not have been kept out of any money. On the contrary, he will have received it in advance.”

(Emphasis supplied)

9. There is a discernible tendency in some judicial pronouncements that the hazards of inflation of the future should be mitigated by a generous rate of interest. There is no reason why this class of holders of funds should alone receive separate treatment. Inflation is an economic and financial condition of general application. Its impact on any particular plaintiff has been neither more nor less than upon everybody else; there is nothing special about it. It affects every one else - other persons who have money in their hands-in the same way. Effects of inflation have to be neutralised - at least partially - by wiser investments. Interest, is not awarded as damages; it is awarded to plaintiff only for being kept out the money which ought to have been paid to him. It takes care of the period between the date of the claim and the date of realisation. It has nothing to do with what erosion the fund suffers thereafter owing to future inflation. Referring to this, the House of Lords in Wright v. British Railways Board . 1983 2 A.C 773., observed:

“Cookson v. Knowles want to the House of Lords (1979) A.C 556 upon the question whether in awarding damages for future economic loss allowance ought to be made for future inflation. The House upheld the decision of the Court of Appeal that no such allowance should be made. The House had no occassion to deal with interest on non economic loss; and it did not do so. The only relevance of the case to the appeal with which your Lordships are now concerned is that, as appears from the speeches in this House, the expert evidence in Cookson v. Knowles had shown that interest rates obtainable by prudent investment, even in what was a time of high inflation between December 1973 and July 1976, ware, very broadly speaking, sufficient to offset the fall in the real value of money due to inflation.”

(Emphasis supplied)

Lord Diplock said:

“….For the reasons I have given I adhere to the opinion Lord Pearson and I had previously expressed which was applied by the Court of Appeal in Young v. Percival (1975) 1 W.L.R 17, 27-29, that the likelihood of continuing inflation after the date of trial should not affect either the figure for the dependency or the multiplier used. Inflation is taken care of in a rough and ready way by the higer rates of interest obtainable as one of the consequences of it and no other practical basis of calculation has been suggested that is capable of dealing with so conjectural a factor with greater precision.”

Learned Lord summarised the principles of award of interest on fatal accident actions, thus:

“To summarise: for the reasons I have given, which follow largely upon the arithmetical basis for the assessment of damages which is called for by the provisions of the Fatal Accidents Act 1976, I consider that:

1. In the normal fatal accident case, the damages ought, as a general rule, to be split info two parts: (a) the pecuniary loss which it is estimated the dependants have already sustained from the date of death up to the date of trial (“the pre-trial loss”) and (b) the pecuniary loss which it is estimated they will sustain from the trial onwards (“the future loss”).

2. Interest on the pre-trial loss should be awarded for a period between the date of death and the date of trial at half the short term interest rates current during that period.

3. For the purpose of calculating the future loss, the “dependency” used as the multiplicand should be the figure to which it is estimated the annual dependency would have amounted by the date of trial.

4. No interest should be awarded on the future loss.

5. No other allowance should be made for the prospective continuing inflation after the date of trial.”

10. Yet, there is considerable irreconcilability in decided cases as to the rates of interest actually awarded. ‘Quot homines, tot sententiae’ (There are as many opinions as there are men). The application of the principles to individual cases appears to have presented difficulties. In Dexter v. Courtaulds Ltd. . 1984 1 All. E.R 70., Lawton L.J, noticed this predicament:

“…This point was brought to the attention of the trial judge by Counsel for the plaintiff, who has told us that the point is of common occurence in personal injuries litigation and that judges are differing about the way interest should be calculated……..”

11. Then again, there is the argument that in fatal accident actions, the multiplier for capitalisation of the dependency is based on an assumed return of 5 per cent per annum appropriate to a stable economy and not on the high rate of returns obtaining in the investment-market which are the result of inflation and that, therefore, if a rate of interest higher than 5% is awarded, it would be open to the tortfeasor to contend that the choice of the multiplier must also be appropriate to such higher-rata of return and be much lower. This position was considered in the House of Lords, in Wright v. British Railways Board. Lord Diplock said:

“My Lord, in Cocksoa v. Knowles I said, at page 571:

“In times of stable currency the multipliers that were used by judges,” i.e to estimate the present value of future economic loss, “were appropriate to interest rates of 4 per cent to 5 per cent, whether the judges using them were conscious of this or not.”

It does not follow from this, however, that, in times of highly unstable currency, the part of the interest rate that represents the reward obtained for foregoing the use of money still remains at 4 to 5 per cent….”

The Insurer says that its liability to satisfy the award arises only when an award is made against the owner and asks why should it be exposed to pay high rates of interest if owing to court-clogging or other reasons, not attributable to the insurer, there is great delay in deciding a claim. These arguments are not without their own logic.

We are also aware of pronouncement of other High Courts that if anything less than 12% is awarded, Tribunal must record reasons for awarding such lesser rates (See: Madhya Pradesh State v. Mahila Shanti Bai9A. Then again, in regard to the rule of the insurer, there is the view that insurer is not expected to wait for the award before meeting claim for compensation and that it should conduct its own investigations and if satisfied about its liability meet the claim in a reasonable way, without drawing the parties to litigation (See: Vadakke v. Vijayan9B)

These are generalisations from experience of individual cases. But, universality cannot be imparted to individual experience. The matter is, in the ultimate analysis, one of discretion. Discretion cannot be bound by rules. General words must remain general; discretion must remain as discretion and should not be reduced to the sum total of the individual cases. Earlier instances can only afford a general guidance as to the manner in which, in similar circumstances, that discretion is exercised. To deduce a principle that in all cases, 12% is the rule and the award of a lesser rate, an exception is to over-simplify and reduce to a rule, what is best left untramelled by any rule. Section 110CC gives a general discretion. It is best that it is kept that way.

12. But this is not to say, having regard to the express language of Section 110CC, that Tribunals cannot award, in exercise of their discretion, higher rates of interest if the circumstances of the case justify. Tribunal can grant interest at, say, 9% or even 12% if the circumstances justify. The matter is essentially one of discretion.

In L.I.C of India v. Raj Kumari Mittal . 1985 ACJ 179., Allahabad High Court said:

“…….. We are of the opinion that under Section 110-CC of the Motor Vehicles Act, interest may be normally awarded at 6% per annum. Where the Tribunal finds that the contesting opposite party has been guilty of dilatory tactics in the disposal of the petition, a higher rate of interest may be considered. We find no merit in the contention of Mr. S.K Vidyarthi that the Tribunal should have awarded interest at the rate of 12% per annum. The claimants are entitled to interest on the amount of compensation at the rate of 6% per annum from the date of petition till the date of final payment.”

This, if we may say so with respect, represents the proper view. There cannot be any general-rule valid for all cases. The only general rule, perhaps, is that there is and ought to be no such general rule. In the present case, the Tribunal has given no reasons at all as to why it considered award of interest at 12% justified.

In an award of interest on damages in fatal accident actions and the rate of it, there is discretion, indeed in appropriate a duty, to differentiate between one component of the damages and another having regard to the nature of the heads of damages between different kinds of losses, that ensue from a fatal accident. There are economic losses and non-economic losses. Both cannot be placed on the same footing for the award and the rate of interest. But having regard to the general discretion under Section 110CC of the ‘Act’, it is not strictly necessary to award different rates of interest on the different heads of damages and a rate can yet be tailored which as a composite rate, may take into account the different considerations that guide the award of interest on the different components on the Award.

13. What emerges from a conspectus of the authorities is that: The determination of the rate of interest is guided, not by a single criterion, but a combination of factors. The purpose in Section 110CC fixing the date of the petition as the earliest part from which interest could be reckoned is to see that a claimant does not stand to gain by his own delay in bringing the action. Unlike the position under the Administration of Justice Act, 1969 in England, the Tribunals under Section 110CC are not compelled to exercise the power to award interest.

The interest should not be awarded for the damage done. It should be awarded to the claimants for being kept out of money which ought to have paid to them. When a composite rate is applied, it is important to make a mental note of what items of the award go to the ‘interest-pool’ and what items do not go to ‘interest-pool’. While special damages-sums actually spent or lost, up to the date of trial such as Medical charges, loss of earnings, and out of pocket expenses, etc. qualify for interest, however, the Award for loss of future earnings or the loss of dependancy cannot be said to be money kept out of the claimants because they pertain to a loss of the future income and are in fact paid in advance. This would mean that any composite rate of interest must take into account the size of the awards in the ‘interest-pool’ and of those in the ‘non-interest’ pool. The provisions for erosion of value of the money could only be so far as special damages are concerned, for the period between the incurring of the special damages and their realisation; and in the case of loss of future pecuniary benefits from the date of the award till date of realisation. But, as stated earlier, a composite rate can be evolved and applied keeping these distinctions in mind.

It is erroneous to predicate that there is anything in the law or the binding precedents that wherever interest is awarded, its rate should not be less than 12%. Both the award and the rate of interest are in the discretion of the Tribunal to be exercised judicially and judiciously, not arbitrarily or capriciously; but in accordance with sound principles.

Generally speaking, a composite rate of 6% should be considered satisfactory without any specific itemisation because the component of compensation in the ‘interest-pool’ is comparatively smaller and the sizable component is the amount awarded for the loss of future dependency. We, however, hasten to add that the Tribunals have an undoubted discretion to award higher rates of interest, if in their opinion, the circumstances of the particular case justify such higher rates.

Contention (iv) disposed of accordingly.

14. In the result, this appeal is allowed in part and while the Award is left undisturbed in all other respects, only that part as pertains to the rate of interest is modified and the rate reduced from 12% to 6% per annum. It shall be calculated on the total sum awarded from the date of the petition, till realisation. In this regard, subsequently, the appellants have filed a memo of calculation. Learned Counsel for the insurer and, the claimants do not dispute the correctness of the calculations contained in the memo. We place the memo on record and direct that the Award of the Tribunal be modified accordingly.

However, there will be no order as to costs.