Smt. Gurdev Kaur v. Rash Behari Das

Monoj Kumar Mukherjee, J.:— For personal injuries sustained in a motor accident, Sri Rash Behari Das, the respondent herein, filed an application under S. 110A of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act) before the Motor Accident Claims Tribunal for Calcutta and 24 Paraganas (hereinafter referred to as the Tribunal) claiming a sum of Rs. 84,000/- as compensation from the owner and Insurer of the offending vehicle, the appellant Nos. 1 & 2 respectively in this appeal.

2. The claimant's case was that on April 12, 1971 at about 3 p.m while he was inspecting his lorry No. WBQ 3048, which was being repaired in the Automobile Welding Shop of Dulal Das situated near the junction of Diamond Harbour Road and Government Quarters thoroughfare, a passenger Bus bearing No. WBS 2837 then plying on Route No. 3B came from north along Diamond Harbour Road and while taking turn towards the Government Quarters Road in a terrific speed and without blowing any horn, came over him as a result of which he got pressed between the bus and the lorry and sustained grievous injuries including multiple fractures. Due to the injuries sustained he had to remain bed-ridden for a continuous period of fourteen months and he has become almost invalid.

3. The claim was resisted by both the appellants by filing two separate written statements though on similar grounds. It was not denied that the Bus belonging to the appellant No. 1 knocked down the respondent. They however, denied that the accident occurred due to any rashness negligence or fault on the part of the driver and contended that the respondent was solely responsible for the said accident. It was further contended that the respondent suffered some injuries of minor nature and in any case he was not entitled to any compensation.

4. In support of his claim the respondent, besides examining himself, examined six other witnesses and exhibited some documents but no evidence was adduced on behalf of the appellants.

5. On consideration of the materials on record, the learned Tribunal in his award dated June 9, 1977 held that the accident took place due to the rash and negligent driving of the offending vehicle and as such the owner was vicariously liable for the tortious act of tier driver and must compensate the injured for the same. Considering the nature of the injuries sustained and the loss in earning capacity occasioned thereby the Tribunal assessed the compensation at Rs. 33,000/-. The Tribunal directed the Insurer to pay the compensation by July 11, 1977 failing which the amount would carry simple interest at 6% per annum from that date until realisation. An all inclusive cost of Rs. 200/- was also allowed. Aggrieved by the said award of the Tribunal, the Owner and the Insurer of the offending vehicle preferred this joint appeal. Having come to know about filing of the appeal, the respondent, before service of notice of the appeal, entered appearance and filed a cross-objection challenging the adequacy of the compensation awarded by the Tribunal.

6. Mr. Chowdhury, the learned Advocate appearing for the appellants firstly contended that the accident having not arisen out of the use of the vehicle in a public place the Insurer was not liable for any claim arising out of the accident in view of the provisions of S. 95(1)(b)(i) of the Act. In support of his contention Mr. Chowdhury referred to the evidence of some witnesses, from which Mr. Chowdhury's inference was that the accident took place inside the Government Housing Estate situated on the west of Diamond Harbour Road and not on any public place. Mr. Chowdhury submitted that the explanation to S. 95(1) also could not come in aid of the respondent as the bus, while entering into the Government Housing Estate, which is a private place, met with the accident. According to Mr. Chowdhury, the accident did not take place nor can it be deemed to have been caused by or to have arisen out of the use of the bus in a public place. Mr. Sett, the learned Advocate appearing for the respondent on the other hand contended that in view of the pleading such a plea was not available to the Insurer.

7. In paragraph 5 of the written statement the Insurer gave its version as to how the accident took place and it reads as follows:—

“On 12th April, 1971 at about 2 p.m while the said bus No. 2837 was entering the Housing Estate Terminus of Route No. 3D upon crossing the Diamond Harbour Road a person who was working under a lorry by which the said bus passed, suddenly came out from under the lorry and negligently dashed against the bus at its rear side as a result he sustained some injuries of minor nature.”

8. According to the Insurer, therefore, the accident took place on the road leading to the terminus of passenger transport vehicles. Such terminus and the road leading to the same must necessarily be a public place and in view of such pleading the contention of Mr. Chowdhury cannot be entertained, far less accepted. Even if it was assumed that such contention was available to the Insurer at this appellate stage, the evidence on record does not lead to the inference sought to be drawn by Mr. Chowdhury therefrom. The consistent evidence of the witnesses who spoke of having seen the accident, namely, P.W 3 Jhinku Jadav, P.W 6 Ranjit Das, son of the respondent and that of P.W 7, the respondent himself was, that when the bus coming from the north along the Diamond Harbour Road, suddenly turned towards west it met with the accident. Much emphasis was laid by Mr. Chowdhury on the evidence of P.W 3 when he said that the bus came from north and entered the Estate (Government Housing Estate) towards west and dashed Rashbehari Babu, to argue that such statement clearly showed that the accident took place inside the Estate. We are, however, unable to agree with Mr. Chowdhury reading a single sentence of his evidence taken out of its context. This witness has categorically stated that the accident took place on Diamond Harbour Road near Government Housing Estate.

9. Reading the evidence of the witnesses together with the pleading of the parties, we have no hesitation in concluding that when the bus was taking a turn towards west from the Diamond Harbour Road the accident took place. The evidence on record clearly establishes that the accident took place on a public place and we find no merit in the contention of Mr. Chowdhury in this regard.

10. Though Mr. Chowdhury on behalf of the owner has not challenged the finding of the Tribunal that the accident took place due to rash and negligent driving of the offending vehicle we have gone through the evidence and we have no hesitation in concluding that the finding of the Tribunal on this score is fully justified. The victim in his evidence stated that while he was standing by the side of his lorry, which was being repaired at the garage of Dulal Mistri facing east, the bus came in a rash manner without blowing horn from the north and when entering into Government Housing Estate, he was pressed between his lorry and the bus. In cross-examination this witness stated that he stood on garage land when he was pressed and at that time the bus faced west and the lorry faced east. P.W 3 Jhinku Jadav, who was the driver of the lorry belonging to the respondent and who was present at the time of accident, also corroborated P.W 7 when he said that the bus came from north and entered the Estate towards west when the accident took place. In cross-examination he denied the suggestion that the injured was below the lorry and suddenly came out before the moving bus. The other witness, namely, Gopal Chandra Bag, who was repairing the lorry at the material time, stated that he was below the lorry and welding the same. On hearing a hue and cry he came out and saw Rash Behari Babu pressed between the lorry under repair and the bus No. WBS 2837. All these evidence clearly show that the bus suddenly turned towards the west speedily and pressed the victim against the lorry and the accident took place due to rash and negligent driving of the bus. Though the defence of the appellants was that the victim, who was working under the lorry, suddenly came out and negligently cashed against the bus at its rear side, no evidence was led on behalf of the owner, nor the evidence on record remotely support such defence.

11. Consequent upon our finding that the accident took place on a public place due to the rashness and negligence of the driver of the offending vehicle the respondent is entitled to compensation for injuries sustained by him. It is to be now seen whether the quantun of compensation as awarded by the Tribunal in favour of the respondent is just in the facts and circumstances of the case. Before we proceed to delve into this matter, we have to answer the question raised by Mr. Chowdhury about the maintainability of the cross-objection.

12. According to Mr. Chowdhury, the right to file cross-objection is a substantive right and in absence of any provision in the Act expressly conferring such a right the cross-objection is not maintainable. Mr. Chowdhury contended that the provisions of S. 110 to 110F of the Act formed a self contained Code and the provisions of the Civil Procedure Code, except to the extent as specifically provided for therein, were not applicable. Since the provisions of Order 41 of the Code of Civil Procedure were not made applicable, there could not be any cross-objection under Order 41, Rule 22 of the Code, argued Mr. Chowdhury.

13. To appreciate the contention of Mr. Chowdhury it would be profitable to refer to the relevant provisions of the Act itself. Section 110 of the Act empowers the State Government to constitute Tribunals for specified areas for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of or bodily injury to persons or damages to any property of a third party arising out of the use of motor vehicles. Sections 110A to 110C and 110E describe the manner in which applications are to be filed and dealt with and also specify the scope and extent of the powers of the Tribunal. Section 110C(2) specifically provides that the Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath, enforcing the attendance of witnesses and of compelling the discovery and production of documents and for such other purposes as may be prescribed. It also provides that the Tribunal shall be deemed to be a Civil Court for certain provisions of the Criminal Procedure Code. Section 110D of the Act provides for appeal against the award of the Tribunal and entitles a person aggrieved by an award, to prefer an appeal to the High Court subject to the limitations mentioned therein.

14. For the purpose of carrying into effect the provisions of S. 110 to 110E of the Act, the State Government has been empowered under S. 111A to make rules and clause (d) thereof entitles the State Government to make rules relating to the form and the manner in which and the fees (if any) on payment of which an appeal may be preferred against an award of a Claims Tribunal. In exercise of the powers conferred by S. 111A the Government of West Bengal formed Rules entitled “Motor Accidents Claim Tribunal Rules” which find place in Chapter IX of the Bengal Motor Vehicles Rules, 1940. All the rules in the said Chapter except Rule 239 relate to proceedings before the Tribunal. Rule 239 prescribes that an appeal against the award of a Claims Tribunal shall be preferred in the form of a memorandum stating concisely the grounds on which the appeal is to be preferred and that the memorandum shall be accompanied by a copy of the judgment and the award appealed against.

15. It would thus appear that except providing for a right to prefer an appeal to the High Court under S. 110D, the Act does not expressly lay down the procedure to be followed by the High Court in dealing with the appeals filed before it nor do the rules contain any provision as to such procedure. The question, therefore, arises whether in absence of any express provision in the Act a cross-objection is maintainable.

16. In the case of National Sewing Thread Co. Ltd. v. James Chadwick & Bros. Ltd., reported in AIR 1953 SC Page 357, while dealing with the question as to whether a Letters Patent appeal would lie to a Division Bench of the High Court from an appellate judgment of a single Judge under the Trade Marks Act, the Supreme Court observed as follows:—

“The Trade Marks Act does not provide or lay down any procedure for the future conduct or career of that appeal in the High Court, indeed S. 77 of the Act provides that High Court can if it likes make rules in the matter. Obviously after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that Court and in accordance with the provisions of the charter under which that Court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice and procedure of that Court. This rule was very succinctly stated by Viscount Haldane L.C in National Telephone Co. Ltd. v. Postmaster General in these terms:—”

‘When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches.’

After referring to two other cases the Court further observed:—

“Section 76 of the Trade Marks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred by S. 76 it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a single Judge, his judgment becomes subject to appeal under clause 15 of the Letters Patent there being nothing to the contrary in the Trade Marks Act.”

17. The above principle was reaffirmed by the Supreme Court in the case of Collector of Varanasi v. Gauri Shankar, reported in AIR 1968 SC 384, with these words:—

“We were informed that neither the Act nor the rules framed thereunder prescribe any special procedure for the disposal of appeals under S. 19(1)(f) (referring to the Defence of India Act). Appeals under that provision have to be disposed of just in the same manner as other appeals to the High Court. Obviously, after the appeal had reached the High Court it had to be determined according to the rules of practice and procedure of that Court. The rule is well settled that when a statute directs that an appeal shall lie to a Court already established then that appeal must be regulated by the practice and procedure of that Court.”

18. The decisions of the Supreme Court referred to above, therefore, expressly lay down that when a special statute merely provides that an appeal shall lie to the High Court, without prescribing the procedure to be followed in the conduct and career of such appeal, such an appellate jurisdiction has to be exercised in the same manner as the High Court exercises its general appellate jurisdiction and the appeal so filed is to be regulated by the practice and procedure of the High Court. Though the decisions of the Supreme Court were in respect of other statutes, in our view, the law enunciated by the Supreme Court is one of general application and the same would equally apply to an appeal under S. 110D of the Act. The inescapable conclusion that follows therefrom is that the cross objection filed by the respondent is maintainable.

19. Mr. Chowdhury contended that the compensation of Rs. 20,000/- awarded by the Tribunal to the respondent for loss of earning capacity is liable to be set aside as no claim for compensation was made on that head. Mr. Chowdhury, further, submitted that in absence of any basis for fixing the amount at Rs. 20,000/- the award of the Tribunal to the above extent is also liable to be set said. Mr. Sett on the other hand, urged that considering the fact that the injured has become invalid, the compensation awarded is inadequate.

20. In an action for personal injuries, the theoretical basis has all along been to compensate the injured by such sum of money which will put the person injured in the same position as he would have been if he had not sustained the injuries for which he is now getting the compensation. In other words, in quantifying the compensation it has to be considered what would be the pecuniary sum which will make good to the injured, so far as money can do, the loss which he has suffered as the natural result of the injuries caused to him. In practice of course it is extremely difficult to assess the pecuniary loss because many factors are involved some of which, will necessary be, matters of speculation and conjecture. Though as a general principle an injured is entitled to have a certain sum of money calculated in a manner so as to make good to him the financial loss which he has suffered and will probably suffer as a result of the wrong done to him, it cannot be reasonably foreseen what he has, in fact, suffered or would suffer in future as many unforeseen factors may intervene. If he had not been injured he might have had the prospect of earning a continuing income for many years but there can also be many uncertainties to such prospect of income and there is always the possibility that he might have died or suffered from some other incapacity at any time or he might as well have met with another accident. While the loss which he has suffered between the date of the accident and the date of the trial may be ascertained with some precision, the prospective loss cannot be. The Court however has to assess such compensation as a lump sum once for all not in respect of loss suffered till the date of the trial but also in respect of prospective loss. Such being the position the compensation that is to be assessed can never be a perfect compensation and the Court shall always try to make out a case for just and fair compensation. It is for these difficulties that S. 110B of the Act provides for determining the amount of compensation which appears it to be just and not perfect. It necessarily follows that in so doing the Court must take a reasonable view of the case and give what it considers, taking all the facts and circumstances into considerations, a just compensation. Then again, in calculating what would be the just compensation, the different forms of damages caused to the victim have to be looked into. All the different forms of damages which are to be taken into consideration may not be present in a given case but there are certain heads of damages which are to be commonly found in claims arising out of personal injuries. Such different heads of claims can again profitably be divided into two categories, those which are capable of being calculated in terms of money commonly known as pecuniary loss as the same can be assessed arithmetically and those which cannot be so assessed, which are commonly known as non-pecuniary loss.

21. In the category of pecuniary loss the first item of claim would necessarily be the expenses caused by the injuries. The victim will be entitled to recover expenses reasonably incurred for medical treatment, nursing etc. Another item of claim which would fail under this category of pecuniary loss would be the loss in respect of the earning or profits suffered by the victim as a result of the injuries till the date of the trial. While in the case of a person employed on fixed wages and salary it is easier to calculate such loss, in the case of a professional or business man, whose earnings fluctuate, the Court has to estimate the loss and award compensation accordingly. Similarly, the prospective loss of earning or profit has also to be assessed.

22. As regards non-pecuniary loss, the first item which the victim can legitimately claim as compensation for, is the damages in respect of the pain and suffering which he has undergone upto the date of the trial and which he is likely to undergo even thereafter. The next item of claim under this category of non-pecuniary loss, comes the claim for the loss of amenities of life. To raise a claim under this item the victim may successfully contend that apart from pain and suffering and apart from any material loss, his enjoyment for the years he will live, has been impaired by the accident. Another important category of claim under this head is the loss of expectation of life. Considering the nature of injuries sustained, the victim in a given case, can claim that by such injuries his expectation of life has been shortened and for deprivation of happiness in the years he might have otherwise lived, he is entitled to claim compensation.

23. To sum up therefore the claim for compensation for personal injuries sustained in an accident can be generally characterised in the following manner:—

(A) Pecuniary Loss

1. Expenses caused by the injuries.

2. Loss of earning or profits

(a) from the date of accident till the date of trial.

(b) prospective loss.

(B) Non-pecuniary loss

1. pain and suffering.

2. loss of the amenities of life.

3. loss of expectation of life.

24. Let us now, therefore, consider the facts of the instant case keeping in view the above criteria. From the evidence of the victim Rash Behari Das we get that due to the accident he was bed-ridden for fourteen moths and at the time of his deposition he was not in a position to move or lift his right hand. Besides he can not speak freely though prior to the accident he had a good physique and no physical trouble. It, further, appears that the Presiding Officer of the Tribunal noted, while recording the deposition of the victim, that he did not appear to be physically fit even then, Dr. N.R Baidya (P.W 2), who was the family physician of the respondent, stated in his deposition that on 12.4.71 he attended to Rash Behari Das and found the patient suffering from shock and injuries over right shoulder joint right clavicle and chest walls. He consulted Dr. S.C Nath, Dr. D. Roy Chowdhury and Dr. Guha Mazumdar. Under their advice Sri Das was X-rayed and number of fractures were detected. According to Dr. Baidya, Sri Das was suffering from malignant hypertension, uncontrolled diabetes mellitus, congestive cardiac failure with dyspnea and pain. According to this Doctor, Sri Das was an invalid person and all his subsequent maladies were due to injuries received in the accident. Dr. Himadri Kumar Deb (P.W 1) an Orthopedic Surgeon, stated that he first examined Rash Behari Das on 17.4.71 and found multiple fractures of ribs of both sides, fracture of neck of right humerus and fracture of right clavicle. His opinion at that time was that the patient may develop lung complications and there was possibility of restriction of movement of chest walls. On being shown the X-ray photographs taken on 16.4.71 he stated that there were fractures of 5th, 6th and 7th ribs on the right side with displacement as also fractures of 4th, 5th, 6th and 7th ribs on the left side. From the X-ray plate he found that there was fracture of humerus. He, further, stated that the patient sustained partial disablement at that time. In cross-examination this witness stated that there was possibility of permanent disablement although most of the infirmities would go. According to this witness though the fractures were treated, the shoulder joint was stiff and the right clavicle fracture was still tender indicating healing was not complete. He explained that his opinion was with reference to the time of his examination. Dr. Sailendra Kumar Saha (P.W 5) who deposed before the Tribunal on 13.5.77 stated that on 3.5.77 he examined Rash Behari Das and found:

“1. Mal united fracture of the junction of the middle and lateral 3rd of the right clavicle.

2. Mal united fracture of the upper end of the right humerus with induration and tenderness of the arm muscles.

3. Mal united fractures of the right 5th, 6th and 7th ribs and left 4th, 5th, 6th, 7th and 8th ribs with pain on compression of chest and diminished air entry to the left chest.

4. Swelling and tenderness of the articular margins of the bones of the right shoulder and acromio-clavicular joints with stiffness, pain and limitation of movements of the arm suggesting chronic sprains.”

He gave opinion that the life expectancy of the patient was reduced and that the injuries that were sustained by the patient could have been caused on being pressed between two vehicles. According to this doctor, the patient sustained permanent disablement.

25. The evidence adduced in this case and the condition of the respondent as observed by the Tribunal unmistakably prove that the respondent sustained grievous injuries for which he was confined to bed for fourteen months and due to the injuries sustained he has become permanently disabled and has been deprived of all prospects of gainful, engagement in future. The materials on record also prove that the expectancy, of life of the patient has been reduced. Keeping in view the injuries sustained and the physical condition of the respondent, we have to ascertain what would be the just compensation.

26. Against the first item of claim under the head “Pecuniary loss”, namely expenses incurred for the injuries, the respondent claimed a sum of Rs. 4,000/- and a sum of Rs. 3,000/- was awarded by the Tribunal. Ranjit Kumar Das, son of the applicant stated that a sum of Rs. 7,500/- to Rs. 8,000/- had already been spent for medicine and special diet. This witness was examined after a period of five years from the date of filing of the application and his estimate of expenses included the money spent after the date of such filing. In support of his contention that the sum of Rs. 7,500/- to Rs. 8,000/- was spent he spent he produced some cash memos and receipts. Though this part of his evidence was not challenged in any way in cross-examination we are unable to accept his claim in full as all necessary documents in support of such claim have not been produced. However, considering the fact that the patient was examined by five eminent doctors and the documents produced in support of prolonged treatment, we are of the view that the respondent is entitled to the entire sum claimed. We, therefore, assess the amount of compensation for medical expenses at Rs. 4,000/-.

27. On the other head of pecuniary loss, namely, loss of earning or profits a total sum of Rs. 25,000/- was claimed and against such claim a sum of Rs. 25,000/- was awarded as loss of earning capacity. Mr. Chowdhury strongly urged that loss of earning capacity and loss of earning or profits are two distinct and different heads of claim and since the respondent did not claim any amount for loss of earning capacity the Tribunal eared in awarding any sum, far less a sum Rs. 20,000/- under that head. In our view, there is no substance in the contention of Mr. Chowdhury. In the facts of the instant case it is clear that Tribunal equated the loss of earning in the business as loss of earning capacity and in that view of the matter the loss of earning capacity as referred to by the Tribunal must be considered as loss of earning in the business. The reference of Mr. Chowdhury to the Workmen's Compensation Act and the decisions of our High Court under the said Act have on bearing whatsover, as under the said Act, which is confined to “Workmen”, as defined thereunder, earning capacity has a different connotation.

28. For the purpose of assessing the compensation under this head namely, loss of earning or profits we have to treat the same under two sub-heads, namely, (1) from the date of accident till the date of trial and (2) prospective loss. It is in evidence that the respondent was carrying on business in building materials under the name and style of “Sri Ram Krishna Building Stores” and for the purpose of the business he owned a lorry by which he was supplying materials. In fact, it was this lorry whose repairing work he was attending to when the accident took place. In support of his claim that he was running such business the trade license was exhibited. The Khata which was maintained in respect of the business was also exhibited. In the application for compensation the respondent showed his income as Rs. 1,000/- per month while in his deposition lie has stated that his monthly income was Rs. 2000/-. In view however of his categorical statement that he did not pay any income tax we are unable to accept the contention of the applicant that he earned a sum of Rs. 1,000/- to Rs. 2,000/- per month as stated by him but, considering the nature of the business and the documents exhibited there cannot be any manner of doubt that he had atleast a monthly income of Rs. 250/- per month from his business. From the date of the accident in April, 1971 till the date of trial in 1977, that is, during a period of six and half years his income from business would have been to the tune of Rs. 19,500/-. We also get in evidence that he sold down his business to meet the expenses of the accident for a sum of Rs. 10,000/-. Excluding that amount of Rs. 10,00 the respondent is thus entitled to a sum of Rs. 9,500/- as loss of earning or profits from the date of accident till the date of trial.

29. As regards prospective loss we can reasonably hold that in spite of the injuries sustained and permanent disability caused thereby he will live upto the age of 65 years and considering the fact that his age at the date of trial was 59 years he is expected to live for another 6 years from that date and during all these period he could have earned the modest sum of Rs. 200/- per month and on this basis the applicant is entitled to a sum of Rs. 14,000/- as compensation for prospective loss.

30. Next comes the question of assessing non-pecuniary loss. For pain and suffering, the first item of claim under this head, the Tribunal has awarded a sum of Rs. 2,500/-. Mr. Chowdhury did not raise any grievance about the quantum of compensation awarded under this item and it appears to us that the amount awarded is just and reasonable. Similarly, for loss of amenities of life, which in the instant case, has rightly been described by the Tribunal as loss due to permanent disablement, a sum of Rs. 7,500/- has been awarded and Mr. Chowdhury has not challenged the quantum. The amount awarded under this item of claim also appears to be reasonable and we uphold the same.

31. We now came to the last item of claim which is for loss of expectation of life. The learned Tribunal has not awarded any compensation for this loss though Rs. 15,000/- was claimed. As we have already discussed, Dr. Sailendra Kumar Saha (P.W 5) has categorically stated that due to the injuries sustained the life expectancy of the injured was reduced. This part of the evidence was not in any way challenged and therefore the Tribunal erred in not awarding any compensation under this head. A person whose expectation of life has been reduced by reason of the injuries is entitled to compensation for such reduction. The claim of compensation under this head cannot be equated with the loss of future pecuniary prospects but has to be considered keeping in view the fact that the injured has to be compensated for the deprivation of the prospective happiness in the years he might have lived, but for the accident. The basis for quantification of such compensation was laid down by Viscount Simons LT in the case of Benham v. Gambling reported in (1941) 1 All England Reporter page 7 with these words:

“I would further lay it down that in assessing damages for this purpose (that is, the loss of expectation of life), the question is not whether the deceased had the capacity or ability to appreciate that his further life on earth would bring in happiness. 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 loss or gains during the period of which the victim has been deprived of. The damages are in respect of loss of life, not of loss of future pecuniary prospects”

32. The above dictum of Viscount Simons LT was approved and applied in the case of Richards v. Highway Ironfounders (West Bromwich) Ltd., reported in (1955) 3 All England Reporter, page 205 while deciding an appeal arising out of a claim for personal injuries.

33. Viewing the facts of the instant case, in the light of the above principle, we get in evidence that the victim was aged about 52 years at the time he met with the accident and was the father of an able bodied son aged about 29 years. The victim was also running a well established business with a lorry of his own. Under such circumstances, it can be safely presumed from these objective materials, that the injured but for the accident, might expect to have enjoyed a predominantly happy life in the years of which he has been deprived. Considering these facts and circumstances, we are inclined to award him a sum of Rs. 10,000/- as against Rs. 15,000/- claimed by him.

34. The total sum of compensation receivable by the respondent therefore comes to Rs. 48,000/- under the following heads:

(A) Pecuniary Loss

1. Expenses caused by the injuries. 2. Loss of earning or profits: Rs. 4,000.00 (a) from the date of accident till the date of Trial. Rs. 9,500.00 (b) prospective loss. Rs. 14,400.00

(B) Non-pecuniary Loss

1. Pain and suffering. Rs. 2,500.00 2. Loss of the amenities of life. Rs. 7,500.00 3. Loss of expectation of life. Rs. 10,000.00 Rs. 47,900.00

Rounded to Rs. 48,000/-

35. Mr. Chowdhury lastly argued that the award of simple interest at 6% per annum by the Tribunal on the entire sum awarded was arbitrary and illegal. According to Mr. Chowdhury, interest could have been awarded only on the special damages, that is, the damages incurred till the date of the trial and not on general damages, namely, the prospective compensation awarded from the date of the trial. The contention of Mr. Chowdhury cannot be sustained as the interest that has been awarded in this case was to be calculated from the date by which the Tribunal directed payment of the compensation. We do not find anything illegal or unjust in awarding such interest and in fact, S. 110CC specifically provides for payment of such interest.

36. In view of our foregoing discussions, we dismiss the appeal and allow the cross-objection in part. The respondent will get a total sum of Rs. 48,000/- as compensation, which shall be paid by the Insurer. In case of failure on the part of the Insurer to pay the money by November 30, 1978 the same will carry an interest at the rate of 6% per annum from 1.12.78 till realisation. The respondent will also be entitled to 30 G.Ms as consolidated costs of the appeal and the cross-objection to be paid by the Insurer.

R. Bhattacherjee, J.:— I agree.

Appeal dismissed.

Cross-objection allowed in part.