Gujarat State Road Transport Corporation, Ahmedabad v. Jashbhai Rambhai & Ors.

V.H Bhairavia, J.:— In the present appeal, the appellant has brought in challenge the judgment and award dated 8-2-1983 passed by Motor Accident Claims Tribunal (Main), Junagadh in M.A.C Petition Nos. 304/81 and 305/81 whereby the petitioners of both the petitions were awarded sum Rs. 87,000/- as compensation with proportionate costs and interest at the rate of 6% from the date of application till realisation under the common award.

2. The unfortunate accident has taken place on 29-5-1981 at about 9-30 a.m on Junagadh-Veraval Highway at the sign-board of village Shantipara. Deceased Karman @ Kama Rama aged about 38 years along with his wife Ashbai Kama, aged about 35 years, had just alighted from a bus and were proceeding towards their village when from the opposite side came another bus and crushed them both. Unfortunate couple died on the spot due to injuries sustained by them. Claimant No. 1 is mother of deceased Kama Rama and claiment Nos. 2 to 5 are the children of deceased couple. Claimants claimed compensation amount of Rs. 60,000/- in respect of deceased Karman Rama while claimants claimed Rs. 50,000/- as compensation in the case of death of Ashbai Kama in two separate claim petitions.

3. Claimants in all claimed Rs. 1,10,000/- by way of compensation from the opponents. However, as both the claim petitions had arisen out of one accident and claimants in both the petitions were same, both petitions were heard together and by composite order, the learned Tribunal awarded sum of Rs. 87,000/- as compensation to the claimants for deaths of both the persons.

4. In this appeal, the short point involved and vehemently contended by the learned Counsel for the appellant-Insurance Company is whether the claimants are entitled to the compensation under the head Pain, Shock & Sufferings - as has been awarded by the learned Tribunal in this case. Mr. M.D Pandya, learned Counsel for the appellant-Insurance Company further submitted that the learned Tribunal has awarded Rs. 10,000/- under the head of Pain, Shock and Sufferings and further Rs. 2,000/- for funeral expenses which the claimants are not entitled to receive. The learned Counsel further submitted that evidence reveals that both victims died on the spot and, therefore, the claimants are not entitled to receive any amount of compensation under the head Pain, Shock & Sufferings. The learned Counsel has submitted that this issue has been dealt with by this Court, in the judgment in the case of Union Co.-operative Insurance Society Ltd. v. Bhartiben, wd/o Hasmukhlal Narmadashankar, reported in 19 G.L.R 820. Learned Counsel has further submitted that this issue is squarely covered by the above-referred judgment and, therefore, claimants are not entitled to the compensation amount of Rs. 10,000/- as has been awarded by the learned Tribunal under the head Pain, Shock & Sufferings.

5. In the case of Union Co-op. Insurance Society Ltd. (supra), in para-20, this Court has observed as under:

“The law at one time was that there could not be damages for nervous shock. However, this view had been abandoned since long. For last several years it is well settled that damages can be given for nervous shock caused by the sight of an accident, at any rate to a close relative. (See: Hinz v. Berry, (1970) All England Law Reports 1074 at p. 1075). The fundamental principles underlying the award of damages in respect of the tort of negligence must, however, govern an action for compensation for mental or nervous shock. The first of such principles is that such damage must be attributable to the breach by the defendant of some duty owing to the plaintiff; damnum sine injuria [See: Hay (or Bourhill) v. Young, 1943 Appeal Cases 92 at page 106 per Lord Wright.] In case of negligence, the duty is to take reasonable care against harm which a reasonable man would foresee as likely: Therefore, there is no liability for damage which was not of a foreseeable type within the scope of the duty of care. Foreseeability is now the sole test of whether damages are recoverable in negligence (See Halsbury's Laws of England, Fourth Edition, Vol. XII para 1138.) It is obvious, therefore, that the test of liability for shock is foreseeability of injury by shock [See observations of Denning L.J in King v. Phillips (1953) I.O.B 429, at page 441 cited with approval by Viscount Simonds in Overseas Tankship (U.K) v. Morts Dock and Engineering Co. (1961) A.C 388 at 425-426.] The second principle is that no damages are awardable for grief or sorrow caused by death of a close relative because, in any event, such death would have caused much sorrow and mourning. The court must draw a line between mental anguish and suffering, for which damages are not recoverable and nervous shock, that is to say, any recognizable psychiatric illness which manifests itself on account of one having witnessed the accident, for which damages are recoverable. In other words, to claim damages on account of mental shock and suffering, there must be positive evidence showing that there is something more than mere sorrow or grief or mourning, and that additional or extra element had taken the form of any recognizable psychiatric illness which is attributable, and really wholly attributable, to the misfortune of having actually witnessed the accident.”

6. In the instant case also, deceased couple was crushed by ST Bus and they died on the spot. There was, therefore, no question of pain, shock and sufferings as the death caused due to accident was instantaneous. In our view, therefore, in view of the principles laid down in the aforesaid Judgment, the claimants are not entitled to the compensation under the head Pain, Shock & Sufferings. In our view, therefore, amount of Rs. 10,000/- awarded to the claimants under the head Pain, Shock & Sufferings requires to be reduced or deducted from the total amount of compensation awarded to the claimants.

7. It has been submitted by Mr. M.D Pandya, learned Counsel for the appellant-Insurance Company that the tribunal has also erred in awarding Rs. 2000/- for funeral expenses which the claimants are not entitled to recover under any head. He submitted that such expenditure is bound to incur in future even in the event of natural death and the claimants are required to discharge their social and religious obligations. In our opinion, the claimants are not entitled to the said amount of Rs. 2,000/- awarded for funeral expenses and this amount also requires to be deducted from the total amount of compensation. In our view, therefore, the learned Tribunal has erred in awarding Rs. 12,000/- (Rs. 10,000/-+Rs. 2,000) under the head Pain, Shock & Sufferings and Fuernal Expenses respectively and said amount of Rs. 12,000/- is required to be deducted from the total amount of compensation awarded to the claimants and award requires to be modified to that extent.

8. Appeal is partly allowed. It is held that amount of Rs. 12,000/- awarded by the tribunal under the head of Pain, Shock & Sufferings (Rs. 10,000.00) and Funaral Expenses (Rs. 2,000.00) is not legal and proper and requires to be deducted from the total amount of compensation of Rs. 87,000.00 awarded by the Tribunal and said amount is ordered to be deducted accordingly. Respondents are directed to repay said amount of Rs. 12,000.00 within eight weeks from the date of receipt of writ of this order with 6% interest. Award stands modified to the aforesaid extent. Decree to be drawn accordingly. No order as to costs.

9. Order accordingly.