M.M Prasad, J.:— These two appeals arise out of an order passed by me Claims Tribunal under Section 110-B of the Motor Vehicles Act 1939 (hereinafter referred to as ‘the Act’). Misc. Appeal 313/65 has been filed by one Champa Banerjee and Misc. Appeal 314/65 by one Chinmoy Kumar Niyogi, both against a common award made by the Tribunal.
2. It is said that on the 6th of May, 1964 at about 7-30 p.m one Mrs. Aloka Niyogi, wife of appellant Chinmoy Kumar Niyogi, along with her son Abhijit Niyogi and a neighbours daughter Kumari Champa Banerjee, was going on a rickshaw on the Circular Road near the office of the Superintendent of Police at Ranchi, when a truck belonging to respondent No. 1 came in high speed from the opposite direction without blowing any horn and without proper lights and dashed against the rickshaw with the result that Aloka Niyogi was thrown on the road and came under the rear wheel of the truck leading ultimately to her death; Champa Banerjee was thrown by her side and sustained some injuries and Abhijit Niyogi was thrown off into a drain away from the road and also sustained injuries. Claim petitions under Section 100-A of the Act were filed by the two injured persons and Chinmoy Kumar Niyogi, the husband of the deceased Aloka Niyogi.
3. The claims were resisted by the owner of the truck aforesaid and the Insurance company by which the truck was insured. Their common defence was that the accident did not occur due to the rash and negligent driving by the truck drives but on account of the fault of the rickshaw puller who was coming in high speed and took the rickshaw on a heap of stones stacked there by the side of the road resulting in tilting of the rickshaw and the throwing down of the occupants on the road itself and that they were not liable to pay any compensation whatsoever. The Insurance Company further said that their liability, if any, was limited to a sum of Rs. 20,000/- for which the truck was insured.
4. The claims Tribunal found that the accident had occurred as a result of the rash and negligent driving of the truck and that the claimants were entitled to compensation on that account to Champa Banerjee it awarded a compensation of Rs. 2000/- besides the expenses incuired over her treatment amounting to Rs. 2031-95 paise as against her claim of Rs. 7,500/-. To Abhijit Niyogi it awarded a solatium of Rs. 1000/- only and to Chinmoy Niyogi it awarded a sum of Rs. 12,000/- as compensation for the shock and mental agony suffered by him due to the death of his wife.
5. As stated above, Champa Banerjee and Chinmoy Niyogi have come up in appeal. There is no appeal, however, by Abhijit Niyogi. Cross-objections have been filed in both these appeals by the respondent-owner of the truck.
6. The questions which arise in this appeal, therefore, are:
(i) Whether the accident occurred due to the rash and negligent driving ofl the truck;
(ii) Whether the appellants were titled to compensation; and
(iii) Whether the quanta of compensation have been decided on correct principles.
7. I must state at the outset that the evidence on record leaves not even an iota of doubt that the accident was the result of the rash and negligent driving of the truck. The Claims Tribunal has come to that finding on a proper consideration of the entire evidence on record and I find no fault whatsoever with that conclusion. It appears that the claimants examined two witnesses who are unconnected with them and disinterested. Their evidence shows that the truck was coming in high speed from the opposite direction, that one of its head-lights was not working, that the driver did not blow any horn, that there was a heap of stones stacked on the road on the left side of the rickshaw, that the rickshaw was on the extreme end of the road and yet the truck came and collided against the rickshaw with the result that Aloka Niyogi and Champa Banerjee were thrown on the road to the right side of the rickshaw and the boy Abhijit was thrown off towards the left into a drain. It appears that there was a distance of a few feet between the extreme end of pitched road and the drain. Their evidence further shows that the wheel of the rickshaw was bent due to the collision. They further say that the right rear wheel of the truck passed over the body of Aloka Niyogi and the girl Champa Banerjee and the boy also received injuries thereby. The truck driver is said to have stopped the truck a few feet away after noticing the accident but thereafter, as usually happens these days, he ran away from the scene of occurrence leaving the truck there. Their evidence shows further that the truck stood on the right side of the road. There can be no manner of doubt from this evidence that the truck driver was rash and negligent.
8. As against the evidence aforesaid the respondents examined three witnesses to support their story. Their evidence is to the effect that the rickshaw was coming in speed and it wanted to cross the truck but the left wheel of the rickshaw went up on the heap of stone chips stacked there and the rickshaw tilted towards the right and the occupants fell down. They, however, admitted that Aloka Niyogi came under the right rear wheel of the truck and that the boy and the girl also received injuries. They have tried to make out a case that the truck was going in slow speed and that in spite of applying the breaks the driver could not stop the truck and the wheel of it passed over the lady who was fallen on the road. Their evidence on this point is unworthy of acceptance. It is clear from their admissions that the two witnesses O.P.Ws 3 and 4 were going behind the truck. It is difficult to accept their contention that they had seen what they claim to have done. O.P.W 2 has conjectured from a sound he heard that the brakes had been applied. He might as well be mistaken and the sound could have been produced by the dashing of the truck against the rickshaw.
9. The very fact that the truck could not stop before running over the lady disproves the evidence that the truck was going at a slow speed and that the brakes ad been applied. O.P.W 3 has admitted that he did not notice whether the headlights of the truck were on or not. It appears further that the story given by these three witnesses is contradictory to each other on some material points, e.g, as to where the occupants or the rickshaw fell. One of them says that the girl fell down on the heap of stones as also the boy; and another, however, says that the girl was thrown into the drain and the other two on the road; and the third one that the boy fell into the drain and the girl and the lady both on the road. Their evidence that the rickshaw tilted throwing down its occupants, as a result of its wheel going up on the heaps of stones, is also unacceptable. If the left wheel of the rickshaw had gone up on the stones all the occupants thereof would have been thrown on the road to the right of the rickshaw, the boy could not possibly have been thrown into the drain towards the left at some distance had there not been a collision between the truck and the rickshaw.
10. Curiously enough, O.P.W 4 has stated that the rickshaw turned turtle on the road. If that were so, all the occupants thereof would have been under the rickshaw itself and the rickshaw would have been crushed to pieces if the wheel of the truck had passed over it. It could not be otherwise if the rickshaw had turned turtle on the road; but his own statement is that the rickshaw suffered no damage whatsoever.
11. From the evidence aforesaid it appears to be quite clear that there was no sufficient space in between the truck and the rickshaw and when there was no sufficient space to pass each other it was the duty of the truck driver to have stopped the truck then and there. Even according to the witnesses for the respondents, the occupants had fallen down before the truck had reached that spot. If the truck had been going in slow motion. I have not the slightest doubt that the truck driver would have been able to stop it and avoid the accident. The evidence of the applicants' witnesses shows clearly that the right head lamp was not on and it is not surprising, therefore, that it was the right rear wheel of the truck which had crushed the lady and injured the girl. It is not uncommon that motor vehicles running only with left lamp on often leave the person coming from the other side of the road bewildered and uncertain as to whether it was the right or left head lamp of the vehicle. The driver was undoubtedly negligent even in driving the truck without both the head lamps being on. If he had blown the horn even in the absence of right head lamp, the rickshaw might very likely have taken notice of the truck coming and stopped earlier. In the absence thereof obviously he does not seem to have done that. It is also apparent that the rickshaw was on the extreme left of the road whereas the truck was not on the extreme left of the road, for, had it been so there would have been no collision at all. The evidence further shows that the wheel of the rickshaw had become bent as a result of the collision. If the rickshaw had merely gone up on the heap of stones, possibly there would have been no such damage to the rickshaw. It is indicative of the fact that there was an impact with the truck. The story that there was no collision is, therefore, absolutely unacceptable.
12. The evidence aforesaid leaves no room for doubt in my mind that the accident occurred as a result of the collision, on account of the rash and negligent driving of the truck.
13. In that view of the matter there appears to be no reason for denying compensation to the claimants. It is not disputed that Aloka Niyogi and Champa Banerjee were injured in the accident aforesaid or that Aloka Niyogi succumbed to her injuries in the hospital the very next day of the occurrence. I find, therefore, that the Tribunal has acted rightly in awarding compensation both to the injured girl and the husband of the deceased lady.
14. The question which arises next is in respect of the quantum of damages. It is well settled that an appellate court would be slow to interfere with the quantum of damages assessed unless the Tribunal has acted on wrong principles in assessing the damages or that the damages awarded are either so excessively high or so excessively low that they cannot be deemed to be a proper estimate thereof. This principle was laid down as far back as the case of Flint v. Lovell, (1935) 1 KB 354 at p. 360. I find, however, that in the present case, as I will show hereafter, the Tribunal has not acted on right principles and its award, therefore, needs interference. In the case of Aloka Niyogi, as stated earlier, it has granted compensation for the shock and mental agony suffered by the husband due to the sudden death or his wife. I am afraid this was not a correct principle to be adopted in a case of award or compensation for death of a person. In the case of Champa Banerjee also it has granted a sum of Rs. 2000/-, apart from the expenses incurred over her treatment, for the disability which has resulted from the injuries received by her. But in doing so, it has gone against the evidence on record and thereby come to an erroneous estimate of the amounts aforesaid. I have, therefore, to consider as to what would be the proper amount of compensation payable in both the cases.
15. In order to do so, it is necessary to decide first as to what should be the principle on the basis of which compensation should be assessed, firstly in cases of death of, and secondly in cases of bodily injuries to victim. It will be useful to consider how similar questions have been answered in other cases by different High Courts in India and in the English cases. It is more so necessary because there appears to be a conflict of opinion on these points.
16. I shall first consider the law relating to compensation in the case of death of the victim. Only one case of our own Court has been brought to our notice, viz. The Bihar Co-op. Motor Vehicles Insurance Society Ltd. v. Rameshwar Raut, AIR 1970 Pat 172. In this case the claim had been made in respect of the death of a lady aged 55 and a child aged about 4 years. In this case their Lordships referred to and accepted the guiding, principle for fixing damages laid down by the House of Lords in Berham v. Gambling, 1941 AC 157, namely, that damages in respect of the shortened life of a given individual should be assessed keeping in view the objective test of what kind of future life on earth the victim might have enjoyed and that no regard should be has to financial losses or gains during the period of which the victim has been deprived. It appears that in the case of 1941 AC 157 the action was in respect of the death of an infant years old.
17. In the case of Bihar Co-op. Motor vehicles Insurance Society Ltd., AIR 1970 Pat 172 also one of the victim was a child aged 4 years and their Lordships presumably accepted the guiding principle laid down in the case or 1941 AC 157 on that account. The other victim was a village woman only looking after the domestic affairs of the family and tending cattle. The instant case before us is in respect of the death of a lady aged 39 years who was working as a lecturer in a Womens College and earning a decent amount of salary. That is a point of distinction between that case and the instant one. It appears that the case of Gobald Motor Service Ltd. v. R.M.K Veluswami, AIR 1962 SC 1 was cited before their Lordships but they found the decision of that case to be of no assistance because it was a case for loss occasioned by the death of a person under Section 1-A of the Fatal Accidents Act.
18. I must state that no case decided by the Supreme Court in respect of a claim under Section 110-A of the Act was brought to our notice. It is, therefore, necessary to refer to the cases under the Act decided by other High Courts in this country. In the case of Smt. Shanti Devi v. General Manager, Punjab Roadways, AIR 1971 Punj & Har 13, the claim was made in respect of death of a person who had been knocked down by a bus. The learned single Judge held that the main idea should be to reasonably compensate the dependents for the loss of that part of the income which the deceased might have made available to them if he had lived out his normal span of life. His Lordship assessed an amount of damages which would yield a monthly income which the deceased would have earned if he would have lived.
19. In the case of T.V Gnanavelu v. D.P Kanhayya, AIR 1969 Mad 180 (another single Judge case), damages were awarded in a case of claim for death under two heads (1) for pains and suffering, and (2) for loss of expectancy of life. In that case the deceased was a retired man of about 60 years of age. The learned Judge relied on a previous case of K.M Krishna Gounder v. P.N Narasingam Pillai, AIR 1962 Mad 309. In that case however, claims had been made under Section 1-A and 2 of the Fatal Accidents Act, 1855, for the death of a boy seven years old. Reliance was placed on the case of 1941 AC 157 for the purpose of awarding damages under the head of loss of expectation of life. Both these cases have been referred to in the case of the Bihar Co-op. Motor Vehicles Insurance Society Ltd., AIR 1970 Pat 172 (Supra).
20. In the case of Pijush Kanti Ghosh v. Sm. Maya Rani Chatterjee, AIR 1971 Cal 229, the claim was made in respect of the death of a person who died having been knocked down and run over by a car. In this case Roy, J. considered at length the provisions or the Motor Vehicles Act and the Fatal Accidents Act and said at pages 236-37:
“From these provisions it follows that what is common to the two statutes, i.e, Fatal Accidents Act, 1855 and the provisions now made in Chapter VIII of the Motor Vehicles Act is that both are exceptions to the old maxim actio personalis moritur cum persona, yet the nature of liability under the two Acts are entirely different. Under the Fatal Accidents Act it is damages for the wrongful act and is for the benefit of the specified persons. Under the Motor Vehicles Act it is compensation arising out of an accident, although this Act provides that the application for compensation may be made by persons specified in Section 110-A. The Act does not say for whose benefit the compensation is to be awarded. As we have pointed out already to whom the compensation shall be payable has been left by the statute in express words to the discretion of the Claims Tribunal. Not only so, the nature of the liability and the considerations that will enter in fixing the quantum of damages under Fatal Accidents Act and compensation under the Motor Vehicles Act, though have common factors, do not exactly coalesce and are not exactly same.
By making the exception to the maxim ‘actio personalis moritur cum persona’ jurisprudential speculations had to be brought into use in England both in the Court of Appeal and also in the House of Lords whether the damages awardable for shortened expectation of life should enter calculation also (see Flint v. Lovell, 1935 KB 354 and Chant v. Read, (1939) 2 KB 346). The dicta in 1935 KB 354 was affirmed in the House of Lords in the case of Rose v. Ford 1937 AC 826. Even so, it has to be kept in mind that the compensation is not given to the injured at all and in its nature is a solatium as Lord Goddard pointed out in the case of Benham v. Gambling, 1941 AC 157. In reality our law has set up Claims Tribunals for awarding solatium to the relatives and consequently question would arise what would be the standard.”
21. On the question of fixation of the quantum of compensation Roy, J. says in paragraph 45:
“On the merits the Tribunal has proceeded to fix the quantum of compensation adhering to the principles applying to Fatal Accidents Act as if the compensation would be limited to only damages as would (if death have not ensued) have entitled the party injured to maintain an action. Mr. Banerjee for the appellant has not contended that the approach was wrong; on the contrary he has argued on the footing that principles applicable to cases under Fatal Accidents Act would wholly apply though we hold that the error has really been in favour of the appellant and against the respondents who are not appealed.”
22. At page 239 Roy, J. says:
“As we have indicated above the basis on which the calculation has been made by the Tribunal is in our view not correct. But at the same time it is also clear that whatever error the Tribunal has committed in assessing the total amount of compensation has been in favour of the appellant and because the respondents have not appealed for raising the amount of compensation, there is no scope for enhancing the amount of compensation awarded in this appeal ….”
23. In the case of State of Punjab v. Smt. Phool Kumari, AIR 1963 Punj 125 the claim had been made by a person injured and by the legal representatives of a person who died as a result of injuries received in a collision between a bus and a truck. Shamsher Bahadur, J. says at page 128:—
“….It is axiomatic to say that the basis of the action is the pecuniary loss suffered by the dependants in consequence of the death of the person involved in the accident. Nothing is to be paid by way of solatium and the fundamental basis of a claim is pecuniary loss suffered by the dependants as a result of the death of the deceased. In the oft-quoted words of Lord Wright in the House of Lords case in Davis v. Powell Duffryn Associated Collieries Ltd., 1942 AC 601 at page 607,
‘there is no question here of what may be called sentimental damage, bereavement or pain and suffering. It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities’.”
24. Further on his Lordship observes:
“…. There can be no certain or precise standard of computation of such loss. The numerous hazards and imponderables of life must be set off against the expected benefits and advantages which the dependants have come to lose by the premature death of the deceased ….”
25. Then his Lordship refers to the case of AIR 1962 SC 1 (supra) and accepts the principle laid down there in respect of the calculation of the pecuniary loss.
26. In the case of Ishwar Devi Malik…Petitioner v. Union Of India…, AIR 1969 Delhi 183, a claim had been made by the heirs of a deceased person who had got squeezed between two buses and sustained injuries resulting in his death. This person was about 40 years of age and earning a monthly income of about Rupees 1700/- per month. Their Lordships, D. Dua, C.J and T.V.R Tatachari, J., considered the provisions of the Fatal Accidents Act and the Motor Vehicles Act and held that the various decisions deciding claims under the Motor Vehicles Act (Fatal Accidents Act?) have no direct application to a claim made under the Motor Vehicles Act in view of the difference between the language of Sections 1-A and 2 of the Fatal Accidents Act and Section 110-B of the Motor Vehicles Act, Their Lordships go on to say:
“…. A Claims Tribunal under the Motor Vehicles Act is empowered to determine the amount of the compensation which appears to it to be just What amount of compensation would be just, has necessarily to depend upon the circumstances in a given case. The word ‘just’ has a wider ambit than the words used in Sections 1-A and 2 of the Fatal Accidents Act. Therefore, a Claims Tribunal dealing with a claim under the Motor Vehicles Act has only to consider what appears to it to be just compensation on the facts and circumstances or the case before it, and need not strictly follow and apply the basis of the assessment of compensation indicated in the various decisions under the Fatal Accidents Act or under English Law.
The said decisions, Indian or English, on at the most, if at all, be of general guidance ….”
27. In this case the compensation claimed was in respect of the loss resulting from the death of the person to the beneficiaries and not in respect of any loss resulting to the estate of the deceased. Their Lordships have said at page 191:
“As regards the first head of compensation the basic rule is stated to be that the beneficiaries are entitled to compensation for a pecuniary or material loss from the death of a person or the support of which the beneficiaries have been deprived. It appears to us that this principle provides a sound and reasonable oasis in assessing just compensation in claims under the Motor Vehicles Act ….”
28. Their Lordships relied on the observation of the Supreme Court in the case of Gobald Motor Service Ltd., AIR 1962 SC 1 referred to above in respect of the mode of estimating the damages under the aforesaid head. Their Lordships have specifically said at page 192:
“….It is clear from the principles enunciated by the Supreme Court, which, in our opinion, should be applied in the present case in determining the just compensation payable to the appellants (applicants), that the pecuniary loss to the claimants has to be ascertained by balancing the loss to them of the future pecuniary benefit and the pecuniary advantage which came to them by reason of the death ….”
29. In the case of Smt. Gulab Devi Sohaney v. Government of Madhya Pradesh, AIR 1971 Madh Pra 113, the claim had been made under the Act for compensation in respect of the death of a young engineer working under the Government of Madhya Pradesh aged about 25 years at the relevant time. Their Lordships relied on the case of AIR 1969 Delhi 183 and the principles laid down in three Supreme Court decisions, namely, (1) Gobald Motor Service Ltd. v. R.N.K Veluswami, AIR 1962 SC 1 (supra), (2) Municipal Corporation Of Delhi v. Subhagwanti & Others, AIR 1966 SC 1750 and (3) C.K Subramonia Iyer v. T. Kunhikuttan Nair, (1969) 3 SCC 64 : AIR 1970 SC 376. All these three cases related to claims under the Fatal Accidents Act. Relying on the aforesaid principles their Lordships held (at page 114):
“….The damages are to be based on the reasonable expectation of pecuniary benefit or benefit reducible to money value. In assessing the damages all circumstances which may be legitimately pleaded in diminution of the damages must be considered. The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing on the one hand the loss to him of the future pecuniary benefit, and, on the other, any pecuniary advantage which from whatever source comes to him, by reason of the death.”
30. In the case of Kasturilal Gopaldas v. Prabhakar Martand Patla, AIR 1971 Madh Pra 145 the victim who died as a result of injuries sustained by him by an accident with a truck was aged 13 years. The discussion in this case mainly relates to questions other than the principles relating to assessment of compensation. While considering the provisions of the Fatal Accidents Act and the Motor Vehicles Act the learned Judges observed (at page 150) that the provisions of the Motor Vehicles Act do not confer any new right but only provide for an expeditious remedy for an action for compensation in matters arising out of accidents from motor vehicles. Reliance was placed on the case of Palani Ammal v. Safe Service Ltd., 1966 Acc CJ 19 (Mad) where it was held that the object of Sections 110-A to 110F of the Act is to provide a cheaper and speedy remedy for recovery of compensation for injuries and deaths caused by the use of motor vehicles and that no new right or even a new remedy has been created by these provisions.
31. In another case, the Indian Mutual General Insurance Society Ltd. v. Helen Minezes, AIR 1971 Mys 207, which also related to the death of a person, only the insurer had gone up in appeal and the question related mainly to the grounds open to the Insurance company to be taken up as a defence and there is no discussion relating to the principles on which compensation should be assessed.
32. In the case of Gobald Motor Service Ltd., AIR 1962 SC 1 their Lordships quoted with approval the principles laid down by Viscount Simon in Nance v. British Columbia Electric Rly. Co. Ltd., 1951 AC 601, According to Viscount Simon—
“at first, the deceased man's expectation of life has to be estimated having regard to his age, bodily health and the possibility of premature determination of his life by later accidents;
Secondly, the amount required for the future provision of his wife shall be estimated having regard to the amounts he used to spend on her during his lifetime and other circumstances;
thirdly, the estimated annual sum is multiplied by the number of years of the man's estimated span of life, and the said amount must be discounted so as to arrive at the equivalent in the form of a lump sum payable on his death;
fourthly, further deductions must be made for the benefit accruing to the widow from the acceleration of her interest in his estate;
fifthly, further amounts have to be deducted for the possibility of the wife dying earlier if the husband had lived the full span of life; and lastly, in case of a claimant who is the widow, it should also be taken into account that there is the possibility of her remarrying much to the improvement of her financial position.”
33. Their Lordships, while adopting the mode of estimating the damages, indicated by Viscount Simon, stated as follows:—
“It would be seen from the said mode of estimation that many imponderables enter into the calculation. Therefore, the actual extent of the pecuniary loss to the respondents may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. Shortly stated, the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependant by the death must be ascertained.”
34. In AIR 1966 SC 1750 (supra), their Lordships referred to with approval the following dictum of Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd., (No. 2), 1942 AC 601.
“It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities. The starting point is the amount of wages which the deceased was earning the ascertainment of which to some extent may depend upon the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance, that the widow might have again married and thus ceased to be dependent, and other like matters of speculation and doubt.”
35. In the case of AIR 1970 SC 876, their Lordships say:
“The life expectancy of the deceased or of the beneficiaries whichever is shorter is an important factor. Since the elements which go to make up the value of the life of the deceased to the designated beneficiaries are necessarily personal to each case, in the very nature of things, there can be no exact or uniform rule for measuring the value of human life. In assessing damages, the Court must exclude all considerations of matters which rest in speculation or fancy though conjecture to some extent is inevitable. As a general rule parents are entitled to recover the present cash value of the prospective service of the deceased minor child. In addition they may receive compensation for loss of pecuniary benefits reasonably to be expected after the child attains majority. In the matter of ascertainment of damages, the appellate Court should be slow in disturbing the findings reached by the Courts below, if they have taken all the relevant facts into consideration.”
36. An other case though not of claims under the Motor Vehicles Act, may also now be considered. In the case of D. Balakrishna v. Sadasivaraju, AIR 1960 Mys 105, the suit had been filed for damages for the death of a person as a result of an accident caused by a lorry. Their Lordships accepted the principle that the compensation to be awarded to the members of the family of a person injuriously affected by an accident must be proportioned to the loss resulting to the plaintiffs from the death of that person which means the loss of the pecuniary benefit to them according to reasonable expectations. Their Lordships further say:
“This assessment of the compensation must undoubtedly be based on reasonable future probabilities. It is not the compensation which is in the nature of and which sometimes is described as sentimental damages caused by bereavement, pain or suffering, and action in such cases being an action which is purely compensatory in nature.”
37. A review of these decisions clearly brings out that there are different views expressed by the different High Courts on the question of application of the principles laid down in the cases under the Fatal Accidents Act to cases under the Motor Vehicles Act. It is true that the language of one Act differs from that of the other. Under the Act the amount of compensation which has to be awarded must be “just”. This expression is much wider in its ambit than the language of Sections 1-A and 2 of the Fatal Accidents Act Under Section 1-A of the Fatal Accidents Act the suit for compensation has to be for the benefit of the wife, husband, parent or child of the person whose death is caused by a wrongful act, neglect or default of another person and the damages have to be “proportioned to the loss resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought.” Under Section 2 of the Fatal Accidents Act a claim can be made for “any pecuniary loss to the estate of the deceased occasioned by such wrongful act, neglect or default, which sum when recovered shall be deemed part of the asset of the estate of the deceased”.
38. It is quite clear, therefore, that these two sections of the Fatal Accidents Act provide firstly for compensation to the family of the deceased and secondly for the pecuniary loss to the estate of the deceased. Even though, the Motor Vehicles Act does not lay down specifically as to what just compensation would be, it would not be wrong to think that the expression “just” should include both the items covered by the Indian Fatal Accidents Act, namely, loss of benefit to the family members of the deceased and loss to the estate of the deceased. Of course, the principles to be applied must depend upon the facts and circumstances of each case and may be applied only in so far as they are applicable. It cannot, however be said that the claim made under the Motor Vehicles Act cannot include a claim similar in nature to that made under section 1-A or section 2 of the Indian Fatal Accidents Act. In that view of the matter, I am inclined to think that the principles laid down by the Supreme Court in cases under the Indian Fatal Accidents Act afford a reliable guide for decision of cases of claims under the Motes Vehicles Act as well. I find myself in respectful agreement with the view expressed by their Lordships Dua, C.J and Tatachari, J. in the case of AIR 1969 Delhi 183 (Supra), that the principles enunciated by the Supreme Court should be applied in determining just compensation payable under the Motor Vehicles Act. It, therefore, follows that the principle relating to the mode of assessment of compensation laid down by their Lordships in the three Supreme Court decisions mentioned above should be the guiding principle in cases of claim for compensation for the death of a person as a result of accident.
39. As regards cases of claims for bodily injuries as a result of an accident, a case of this Court, Hindusthan General Insurance Society Ltd. v. Daya Nath Jha, (1970) 40 Com Cas 796 (Pat), has been brought to our notice. In this case there Lordships were called upon to decide the question of damages for bodily injuries caused to a person as a result or collision between a truck and a motor car. There Lordships referred to some English decisions on the point, namely, British Transport Commission v. Gourley, 1956 AC 185; West (H) & Sons Ltd. v. Shephered, 1964 AC 326 and S.V Distillers Co. (Biochemicals) Ltd., (1970) 1 WLR 114 These cases have laid down the principle that in an action for personal injuries the damages are always divided into two maim parts, (i) special damages, for instance, out of pocket expenses and loss of earnings, and (ii) general damages which the law implies and is not specially pleaded, which may include compensation for pain and suffering and the like, and if the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in future.
40. In another case, New Zealand Insurance Co. Ltd. v. Krishna Naik, AIR 1969 Goa 50, a boy was knocked down by a truck and sustained injuries and remained in a hospital for a few days. In this case their Lordships referred to the case of Champalal v. Venkataraman, AIR 1966 Mad 466 and some English cases and held that the compensation to be awarded to an injured person has to be equivalent to the loss or deprivation sustained taking into consideration the material loss and ??? relevant factors. Damages under two heads, special and general, were held to be awardable.
41. In the case of AIR 1966 Mad 466 (supra), the claimant had become lame as a result of injuries received on account of a motor accident and remained in hospital for a period of 10 months. The Tribunal had awarded compensation under different heads, namely, expenses for medical treatment, nursing, medical appliances and also for loss of earnings as a result of injuries and general damages in respect of pain and suffering which the claimant had to suffer upto the date of the proceedings. It was held that there was no doubt that compensation could not be awarded under all those heads. The learned Judge, however, did not lay down clearly as to which were the heads under which compensation could be awarded and under which not. He addressed himself to the only question as to whether the figure of compensation was excessively high or low.
42. In the case of 1956 AC 185 at p. 206, Lord Goddard observed:—
“In an action for personal injuries the damages are always divided into two main parts. First, there is what is referred to as special damage, which has to be specially pleaded and proved. This consists of out-of-pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation. Secondly, there is general damage which the law implies and is not specially pleaded. This includes compensation for pain and suffering and the like, and, if the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in the future. The basic principle so far as loss of earnings and out-of-pocket expenses are concerned is that the injured person should be placed in the same financial position, so far as can be done by an award of money, as he would have been had the accident not happened ….”
43. The observations of Hinch Cliffe, J. in the case of (1970) 1 WLR 114 (supra), referred to in the case of Hindusthan General Insurance Society Ltd., (1970) 40 Com Cas 796 (Pat) (supra), are worth quoting. His Lordship says:—
“….Three propositions emerged; (1) Bodily injury is to be treated as a deprivation which entitles a plaintiff to damages and that the amount of damages varies according to the gravity of the injury; (2) Deprivation may bring with it three consequences—loss or earnings or earning capacity, expenses of having to pay others for what otherwise he would as for himself, and loss of enjoyment of life or a diminution in the full pleasures of living; (3) in considering the deprivation the Court should have regard to the gravity and degree of the deprivation, that is to say, whether one or more limbs has been lost….”
44. The principles which should govern compensation for bodily injuries are, therefore, quite clear and well settled.
45. In the light of principles enunciated above, I shall proceed to examine whether in the present case compensations awarded to the two claimant-appellants have been correctly arrived at.
46. As stated earlier, in respect of the claim for the death of Aloka Niyogi, the Claims Tribunal has awarded compensation merely for the shock and mental agony suffered by the husband due to the sudden death of his wife. I am afraid this is what has been termed as sentimental damage. It appears that the Tribunal did discuss at length the question of pecuniary loss but has misdirected itself on the point. The Tribunal says in paragraph 22 of the award:
“The claimant husband A.W 11 has nowhere stated that due to the death of his wife he has suffered pecuniary loss.”
47. It is on this ground that it has refused to award any sum in that behalf. I am afraid the Tribunal has committed an error of record on this point. It appears from paragraph 4 of the petition of claim filed before the Tribunal that it has been specifically stated:
“That the deceased was a young lady and was working as a Professor of Bengali in the Magadh Mahila College, Patna, but had come to the Ranchi Women's College, on lien. She had a very good health and due to her death the applicant is suffering a great loss.”
48. It is difficult to read anything other than a claim for pecuniary loss on account of the death of the lady. I find that the Tribunal was in error in disallowing the claim for pecuniary loss.
49. We have been taken through the evidence on the point and it appears from the evidence of A.W 11 C.K Niyogi that the deceased lady was a professor in the Magadh Mahila College of the Patna University drawing a pay of Rupees 320/- per month and getting an average income of Rs. 2,000/- a year from setting question papers, tabulating marks and examining answer books of examinations held by the University. The documents, Exts. 3, 4 and 4(e), show that she had taken leave from the Patna University and joined the Ranchi Women's College as a lecturer in Bengali only nearly two months before the date of the accident. There is no reason to think that she would not have continued in Ranchi College, once she had been appointed to a post there. It seems that the idea behind joining Ranchi College must have been to enable the family to live together. It appears from Ext. 4(a) that she was getting a salary of Rs. 320/- and cost of living allowance of Rs. 60/- per month. Ext. 5 shows that she was aged 39 years on the date of her death. It will thus appear that the lady was getting Rs. 380/- per month as pay and earning nearly Rs. 165/- per month from examinations.
50. The total earnings would come to Rs. 545/- a month. There is, however, evidence of A.W 11 G.K Niyogi that there used to be a deduction of Rs. 66/- as income tax. Therefore, her net monthly income would come to about Rs. 540/-. It appears from the evidence of this very witness that her establishment expenses were more than her pay and that he used to help her with money. The actual amount of money which he used to contribute to the establishment expenses of his wife was not elicited from this witness. The Tribunal has taken this amount to be about Rs. 300/- per month. Thus her own income and her husbands contribution come to about Rs. 840/- per month. It appears that she was staying in a rented house at Patna and paying Rs. 220/- per month as rent. It also appears that her son Abhijit Niyogi was living with her at Patna. He is a boy eleven years of age and it would not be a wrong estimate to assess the expenses over him at a sum of Rs. 100/-. The expenses of a separate establishment had ceased.
51. It will, thus, appear that she was spending over herself and her establishment a sum of nearly Rs. 500/- every month. It will not be a wrong estimate to think that she must have been spending at least half the amount over her personal expenses. It appears that her husband is a businessman and she was a lady from a middle class family and a professor in a college. She must necessarily have to spend Rs. 250/- over herself. It may also be safely assumed that she must have been spending at least Rs. 100/- over her own messing. Even after she had moved to Ranchi, her personal expenses would still have to be made. She could not, therefore, have saved more than Rs. 150/- every month. If the amount of Rs. 150/- be taken to be her net saving every month, her annual saving would be Rs. 1800/-. She was aged 39 years on the date of her death and, as held in several other cases, I am inclined to think that in view of the evidence of her good health she was likely to have lived upto the age of 60 years. For the next 21 years, therefore, she would have saved a sum of Rs. 37,800/-. It has been laid down in several cases that while assessing compensation for future pecuniary loss one must take into consideration the fact that there were chances of the victim not living upto the full age of 60 years but dying earlier and therefore a deduction of 10 to 20 per cent, ought to be made. In the present case I am inclined to make a deduction under that head of 10% which comes to Rs. 3780/-. Am amount of Rs. 34,020/- thus becomes the amount which may be supposed to be the income which the lady would have saved had her life not been cut short on account of the accident in question. I will assess this amount at the round figure of Rupees 34,000/-.
52. The likely losses have to be offset against the likely benefit which would accrue to the members of the family. In the instant case, there is evidence to show that she had taken a Life Insurance policy of Rs. 15,000/. Obviously this amount inures to the benefit of the husband and the son of the late Mrs. Niyogi. This amount must, therefore, be deducted from the aforesaid amount of Rs. 34,000/. The remaining amount would, therefore, be Rs. 19,000/. In my view, this amount would be a just and reasonable compensation for the death of the lady. As against this, the Tribunal has awarded a sum of Rs. 12,000/- only on no particular basis. The award on this point must be set aside and the compensation enhanced to Rupees 19,000/-.
53. Coming now to the case oil Champa Banerjee, it is not disputed that as a result of the injuries sustained by her during the accident, she was in the hospital at Ranchi for nearly four months and a half and that even thereafter she was treated at home and then again at Patna. It appears that she has become lame as a result of the injuries. The evidence of Dr. U.K Saran, a surgeon who treated her is to the effect that the girl had developed contraction in her right leg and was limping at the time she was discharged from the hospital and that she has incurred a permanent disability. The doctor has quite clearly stated that the limping may improve by plastic surgery but not completely. It has been necessary to refer to this evidence because the Tribunal has, as against the evidence aforesaid, gone into the realm of conjecture and held as follows:
“I am of the view that with plastic surgery the girl may improve considerably so much so that by the time she grows up to be a young woman fit for marriage, she might recover completely.”
54. While assessing the amount of compensation it has been strongly influenced by this consideration. I am afraid there was no room for this speculation in view of the definite evidence of the doctor to the contrary. It must also be mentioned that the Tribunal has not taken into consideration that if the girl limps all her life her prospects of marriage will be dim or at any rate she will not be able to lead as full a life as she would have done had she not been disabled on account of the injuries received by her during the accident. The girl being merely three years and a half of age she has a long life before her and this permanent disability will stare her in the face all her life. I am of the view, therefore, that the amount of compensation awarded by the Tribunal under the head of general damages is much too low. I am inclined to think that this should have been fixed at least at a sum of Rs. 5,000/-
55. Under the head of special damages specifically pleaded in the instant case, the Tribunal has awarded a sum of Rs. 2,031.95 paise, the amount spent over her treatment. The evidence on the point has been fully discussed by the Tribunal and it is not necessary to refer to it. Nor has it been disputed before us by the respondents that the aforesaid amount was spent.
56. I must, however, state that the claim made by the girl is Rs. 7,500/-. It appears, however, from the petition of claim filed on her behalf that only a sum of Rs. 6,000/- had been claimed initially. It appears, however, that an amendment was made to the claim at the instance of the appellant and the enhanced amount of Rs. 7,500/- was claimed. The Claims Tribunal by its order of that date allowed the amendment. It appears to have been done on the date the nearing of the case before the Tribunal started. In this connection it is relevant to note that the claim petition had been filed on the 3rd of August, 1964 and the amendment to the claim was allowed as late as the 30th of April, 1965. Under sub-section (3) of Section 110-A of the Act (as it stood before, its amendment in 1969) an application for compensation had to be filed within sixty days of the occurrence of the accident. In the present case the occurrence took place on the 6th of May, 1964 and the application was filed on the 3rd of August, 1964.
57. The delay was, however, condoned. It must, however, be noted that it was the delay in filing the application dated the 3rd of August, 1964 that was condoned. The Tribunal, however, does not appear to have considered the question whether the amendment to the claim petition should have been allowed on the 30th of April, 1965 in view of the period of limitation. It is needless to point out that a valuable right had accrued to the other parties as a result of limitation. There appears to be justification in the present case for condoning the delay in filing the petition of claim on the 3rd of August, 1964. There is on record an application for condonation of this delay filed along with the petition for claim on the 3rd of August, 1964 itself on behalf of Champa Banerjee alleging that the condition of the girl was so precarious that no petition of claim before the Tribunal could be filed in time. It is obvious that the girl was in the hospital for a period much longer than 60 days. There does not, however, appear to be any good reason for allowing the enhancement of the claim by an amendment on the 30th of April 1965 on the date the case was being taken up. In the case of Bihar Co-operative Motor Vehicles Insurance Society Ltd., AIR 1970 Pat 172, referred to above also, an application for the amendment of the claim petition for increasing the amount of compensation was filed before the Tribunal and allowed by it. Tarkeshwar Nath, J. held in that case that amendment should not be allowed if a valuable right has accrued in favour of the opposite party on account of the expiry or the period of limitation and that no amendment should be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time. In that case also the prejudice caused to the other side as in the instant case, had been completely ignored and the learned Judge held that the Tribunal had wrongly exercised its discretion and the claim must be limited to the amount originally claimed. I find myself in respectful agreement with his Lordship and I am of the opinion that the Tribunal ought not to have allowed in the present case an amendment resulting in enhancement of the claim as late as the 30th of April, 1965. In that view of the matter any amount in excess of Rupees 6,000/- as originally claimed cannot be allowed. Upon my finding arrived at earlier the total amount awardable would come to Rs. 6,031.95. In view of what I have said above the girl Champa Banerjee will be entitled to a sum of Rupees 6,000/- in total.
58. Now remains to dispose of the two cross-objections filed in both the appeals by respondent Chotanagpur Chemicals and Industries Ltd., the owner of the truck. Learned counsel for the respondents firstly contended that the finding to the effect that the truck was being rashly and negligently driven is wrong on facts. I have already dealt with this question at length and I find that there is no good basis for this contention. I may observe that the arguments made by learned counsel for Chotanagpur Chemicals and Industries Ltd. were adopted by learned counsel appearing for the Insurance Company as well. It is, therefore, necessary to point out that it is not open to the Insurance company to take this defence. A reading of sub-section (2) of Section 96 of the Act which enumerates the grounds open to an Insurance Company by way of defence, will show that it is not open to the insurer (sic), has limited grounds of defence. This question was also considered in the case or Hindusthan General Insurance Society Ltd., (1970) 40 Com Cas 796 (Pat) (Supra).
59. After referring to several cases on the point Untwalia, J. held that it was not open to the Insurance Company to challenge the finding in respect of the accident having taken place as a result of rash and negligent driving. In the cases of AIR 1971 Madh Pra 145 and AIR 1971 Mys 207, referred to earlier, also, the question turned round amongst others the defence open to the Insurance company to challenge the finding in respect of rash and negligent driving, and it was held that no defence other than those mentioned in Section 96(2) of the Act was available to the insurer. Reliance has been placed in all these cases on the decision of the Supreme Court in the case of British India General Insurance Co. Ltd. v. Captain Itbar Singh, AIR 1959 SC 1331. In any case, a finding on the question in the instant case was necessary in view of the point having been raised by the other respondent, namely, the owner of the truck, and I have already held that there is absolutely no substance in the contention that the accident was not a result of rash and negligent driving by the driver of the truck but on the negligence of the rickshaw driver.
60. The second point raised by learned counsel for the respondents is that the petitions for claim in both these cases were filed on the 3rd of August, 1964 beyond the period of limitation and should not have been entertained by the Tribunal. I have already discussed earlier this question with regard to the petition of Champa Banerjee and showed that there was good reason for condoning the delay. It appears that in the case of Chinmoy Kumar Niyogi also a petition had been filed supported by an affidavit that after the death of Mrs. Aloka Niyogi the petitioner had to remove his son Abijit Niyogi, who also had received injuries, to Calcutta for his proper treatment and that after his return therefrom Chinmoy Niyogi fell ill and could not file the claim in time. His application was supported by a medical certificate from Dr. T.B Prasad of Ranchi to the effect that the petitioner was ill until the 2nd of August, 1964. There can be no doubt that the Tribunal was justified in entertaining the claims beyond the period of limitation by condoning the delay which it was entitled to do. This point raised by learned counsel must, therefore, fail.
61. The last point urged by them is that the damages awarded are excessively high. I have already discussed this point at length and I find no substance in this contention either. No other points were raised by learned counsel appearing for the respondents. The cross-objections in both the appeals must, therefore, necessarily fail.
62. It remains, however, to be mentioned that the liability of the Insurance Company in the present case must be limited to a sum of Rs. 20,000/- for which the vehicle was insured, and no more. The total amount of compensation awarded in this case exceeds that amount therefore, I direct that a sum of Rs. 19,000/- shall be paid by the Insurance Company to appellant Chimmoy Kumar Niyogi besides the sum of Rs. 1,000/- awarded to Abhiijt Niyogi. It is hardly necessary to state that the owners of the truck Chotanagpur Chemicals and Industries Ltd. are also liable for payment of the compensation in the present case. In fact their liability for the act of their servant has not been disputed by learned counsel and could not have been justifiably challenged in the circumstances of the present case. I, therefore, direct that the amount of Rupees 6,000/- shall be paid by Chotanagpur Chemicals and Industries Ltd. to Champa Banerjee. In the result, the two appeals are allowed and the cross-objections dismissed. In the circumstances of this case. I am not inclined to make any order for costs.
Untwalia, J.:— I agree.
63. Appeals allowed; Cross-objections dismissed.