A.P. State Road Transport Corporation v. S.V. Perumal Chetty

(1) This appeal is preferred by the andhra pradesh state road transport corporation against the judgment rendered by the motor accidents claims tribunal in o. P. No. 33 of 1981, in respect of an accident which occurred on 6 - 1 - 1981 in which one s. Madhusudhana rao died. Cross objections have been preferred by the respondents (petitioners in the o. P.).

(2) The o. P. No. 33 of 1981 has been filed by the parents of the said s. Madhusudhanarao claiming compensation of rs. 1,50,000/ -. In this o. P. The tribunal considered the fact that the deceased was 33 years and was studying m. Sc. In psychology and awarded rs. 56,000/ - in favour of the parents of the deceased with interest at 6% from 28 - 3 - 1981. This was arrived at by treating the monthly contribution of the deceased to his parents at rs. 300/ - and the annual contribution of rs. 3,600/ - and applying the multiplier of 15. The court also awarded conventional damages of rs. 2,000/ - and arrived at the total of rs. 56,000/ -.

(3) It is argued by the learned counsel for the corporation sri. K. Harnadh that the tribunal committed a serious error in applying a multiplier which was suitable to the age of the deceased and that in as much as this is a claim by the parents of the deceased, a multiplier suitable to the age of the parents should have been applied. On the other hand it is contended by sri p. V. Seshayya, learned counsel for the claimants having regard to the fact that the deceased was m. Sc. In psychology in second class and that he was about to either to secure an employment or to go to u. S. A. , the quantum of compensation should not be disturbed. It is also argued that the couru was wrong in estimating the non - pecuniary damages only rs 2,000/ -. In support of this contention it is argued by k. Harnadh, that in as much as the death was almost immediate to the accident, no amount is to be paid towards the loss to the estate under the sub - heads of "loss of expectation of life", "loss of amenities" and "pain and suffering".

(4) So far as the point raised by the appellant's counsel that the court should have granted the pecuniary loss on the basis of the age of the parents is concerned, i am of the view that this contention is well founded. The question of evolving the damages in the case of an unmarried child has been considered in several cases. It has been pointed out that there is a basic difference between the claim of the parents of an unmarried person as opposed to the claims of the widow and children of a married person. Parents who are aged are not generally expected to survive the children having regard to the general mortality, whereas the wife and children of a person are being younger to the deceased are expected to survive the deceased according to the general mortalities. It is therefore made clear in several decisions by the supreme court as well as by the high courts, that in assessing compensation to the parents upon the death of their children, the contribution payable by the deceased to the parents has to be computed on the basis of the age of the parents and not the age of the child. In other words it has to be estimated on the basis that the contribution will lose during the life time of the parents and that it will not lose during the entire expected life time of the child. In c,k. Subrahmanaiah iyer vs. T. Kunhi kattan nair #1 the supreme court observed as follows: "the life expectancy of the deceased or of the beneficiaries, whichever is shorter, is an important factor. " (emphasis supplied) it may be noted that the above said decision was in support of a claim by the parents of a deceased child. A division bench of this court consisting of sheth and jeevan reddi, jj. In united india and g. /. Co. Vs. S saraswathi bai #2 also laid the same proposition. That was a case where claim by the parents, which was observed as follows: "ordinarily in such cases, we try to find out the appropriate multiplier by estimating how long would the deceased have lived? that question does not arise in this case because the parents alone can claim compensation. And the parents, in the normal course, would not have survived the deceased. " (emphasis supplied) these decisions and other decisions were considered by the court elaborately in a. P. S r. T. C. Vs. Ramanaiah #3. From the aforesaid decisions it is clear that the lower court committed an error in applying a multiplier suitable to the age of the deceased.

(5) The question then as to what is the suitable multiplier to be applied having regard to the age of the parents. In the present case the deceased was the 4th son of the claimants and that is why there is consideroble disadvantage to these parents whose respective ages at the time of the death of their son were fairly advanced. The father being 64 years and the mother 54 years. Having regard to the fact that the mother is the real claimant for the deceased son, i am taking the age of the mother instead of the age of the father for the purpose of applying the appropriate multiplier. As per my decision in bhagwan das vs. Mohd arif #4, the multiplier applicable would be 4. 27 for a person aged 55 years. Having regard to the age of the mother at 54, i am applying a multiplier of 4. 50. Because of the higher mortality rate at the higher levels, the multiplier for a person aged 54 becomes smaller.

(6) The question then is as to how much is to be estimated sacontribution of the deceaed to his parents the family is having a higher financial status and the other sons are employed and one of them is already in the u. S. A. There is, therefore, every chance of the deceased earning a higher income in the very near future, he was already a postgraduate in psychology and had excellent career as he has even obtained a scholarship throughout which is proof of his superior merit, i am therefore, adopting a monthly contribution of rs. 500/ - to the parents and an annual contribution at rs. 6,000/ -. Applying a multipier of 4. 5. The amount comes to rs. 27,000/ - this is so far as the pecuniary damages are concerned.

(7) So far as the non - pecuniary damages are concerned, the court below awarded only rs. 2,000/ -. But even this is objected to by the learned counsel for the appellant on the ground that in case where death is almost instantaneous, nothing is payable towards loss of expectation of life or loss of amenities or pain and suffering.

(8) In my opinion, this contention of the learned 'counsel for the appellant is not correct. One of the main items under the head of "pecuniary damages" is the loss of expectation of life. It has been pointed out in winfield and jolowiez on law of torts, 12th edn. 1984 at page 625 as follows, while dealing with the question of pain and suffering and loss of expectation of life : "a person is entitled to damages under this head for the mental suffering caused by his awareness that his life expectation has been shortened by the injuries, but the separate head of "loss of expectation of life" was abolished by the administration of justice act 1982. Before that act a claim lay for the shortening of life expectancy even though the plaintiff was unaware of the loss, and, indeed, even in cases "of instananeous death (rose vs. Ford #5 but the difficulties of valuation of such an item soon persuaded the courts to adopt a modest conventional sum (200 in benham vs. Gambling #6 which would rarely be departed from (for an extrems case in burns vs. Edmari #7 ). In fact, the principal function of this head of damage was to provide in an indirect way for damages for bereavement in certain cases. "

(9) It is again stated in charlesworth on negligence at page 1428 as follows: "injury to health resulting in a shortening of the injured person s expectation of life - the loss of "the prospect of an enjoyable, vigorous and happy old age. This is because "a man has a legal right in his own life. " it is also observed as follows : "the house of lords in rose vs. Ford (5 supra) decided that a claim under this head of damage was also available in an action brought under the law reform (miscellaneous provision) act 1934 on behalf of a deceased person's estate and an award will be be made even although the deceased was killed instaneously (morgan vs. Scouldmg #8.

(10) In rose vs. Ford (5 supra) lord wright observed as follows:

"i think he has a legal interest entitling him to complain if the integrity of his life is impaired by tortious acts not only in regard to pain, suffering and disability, but in regard to the continuance of life for its normal expectancy. A man has a legal right that his life should not be shortened by the tortious act of another. His normal expec acyoflifeis a thing of temporal value, so that its impairment is something for which damages should be given."

Charlesworth further observes as follows :

"further damages for loss of expectation of life may be awarded, notwithstanding that the deceased himself, either from the suddenness of death or the fact of his unconsciousness until death, did not know that his life was shortened. The amount of the damages is to be based on the fact that continuous of life is a thing worth having, and therefore its loss is a thing for which compensation is to be awarded in me same way as pain and suffering is to be the subject of compensation. It is not to be looked upon from the point of view of "what price the man would have put upon his life. " just like pain and suffering, loss of expectation of life is something which is independent of the financial position or the station in life of the persons who suffers it and is accordingly assessed without regard to such circumstances. The damages are in respect of loss of life, not of loss of future pacunmry prospects. " in assessing damages under this head, regard must be had to the injured party's normal expectation of life and not to his expectation of life in his injured condition, or to the fact that his injuries are such that he does not want his life to be prolonged or does not know it has been shortened. "

(11) In benham vs. Gambling (6 supra) house of lords reduced an award of 1,200' to '200 for damages7or loss of expectation of life in the case of a child of two and a half. Upto 1967 the level of damages awarded under this head, had seldom exceeded 500, which was euphemistically referred as to as "the conventional figures. " charlesworth then refers to the attempt by the court of appeal to increase this conventional assessment to a more realistic figure occurred in nylor vs. Yorkshire electricity board #9 when an award for 1,000 was made for loss of expectation of life. This decision reflected not only the changed value of money since 1940 but also the fact that the deceased was a healthy vigorous male aged 20 years who was established in life with some prospects of a successful and happy future compared with that situation found in benham vs. Gambling (6 supra) where' the prospects of such a small child were necessarily uncertain to say the least. This laudable attempt regrettably was doomed to frustration sav charlesworth by a short - sighted decision on appeal by the house of lords in yorkshire electricity board vs. Naylor #10 whereby the figure of 500 was reinstated, on the basis that because the trial judge had arrived at that figur as a result of his great experience in these matters, and it could not be said that it was erroneous, still less wholly erroneous. This reduction made b the house of lords has been criticised by charlesworth (at page 877) by stating that this is begging question for, if the trial court granted upto 1,000 the same would not also have been interfered with by the house of lords. However, in 1973 the court of appeal raised the amount to 750 mccann vs. Sheppard #11. Thereafter, the later law commission recommended that this item should be abolished and it was so abolished by the adaunistration of justice act, 1982.

(12) Munffman in "damages for personal injuries and death", 7th edn. 1985 states at page 118, in case of fatal accidents, that

"before abolition of this head of 'damages' the courts were awarding 1,250. "

(13) As pointed out by a division bench of this court in chairman, a. P. S. R. T. C. Vs. Shafiya khatoon #12 the head of damages corresponding to the 'loss to the estate' awarded under the law , of reforms (miscellaneous provisions) act, 1934 is the one contained in section 2 of the fatal accidents act. That damages have to be awarded separately towards the loss of estate has also been clearly stated by the supreme court in gobald motor service vs. Veluswami #13.

(14) From the aforesaid decisions, it is clear that one of the items under the head of non - pecuniary damages payable towards loss of estate of the deceased is the one for loss of expectation of life. Several high courts in india have been consistently awarding damages on this score. These are contained in the decisions of the gujarat high court in 1966 ac j 290 - 1971 a. C. J. 458 ; 1978 a. C. J. 443 ; 1981 a. C. J. 379 ; 1982 a. C. J. 180;' 1983 a. C. J. 409 ; 1985 a. C. J. 602; and 1986 a. C. J. 280. In most of these cases the gujarat high court has awarded rs. 5,000/ - towards loss of expectation of life, but subsequently it is raised to a figure of rs. 10,000/ - in rafia sultan vs. Oil and natural gas commission #14.

(15) Likewise the karnataka high court has been awarding rs. 5. 000/ - generally towards loss of expectation of life as in 1966 acj 312; 1977 acj 72; 1979 acj 282 ; 1979 acj 393 ; 1981 acj 1 ; 1981 acj 138; 1981 acj 374; 1981 acj 422 ; 1982 acj 1 ; 1984 acj 145 ; 1984 acj 622 ; 1984 acj 680; 1985 acj 199 and 1985 acj 746.

(16) The madras high court has also been awarding rs. 4,000/ - towards loss of expectation of life in 1982 acj 399 ; 1984 acj 492.

(17) The madhya pradesh high court also has been awarding a conventional amount in this regard in 1984 acj 664; 1985 acj 534.

(18) From the aforesaid rulings in england as well as in india, it is clear that the damages for loss of expectation of life should be awarded even in cases of instantaneous death whether the deceased was aware or was unware of the said loss. Even though earlier, a sum of rs. 5,000/ - was being awarded by the gujarat high court the said high court has raised to rs. 10,000/ - in 1986, i am of the view that at least an amount of rs. 7,500/ - is payable in respect of the accident in the present case which occurred in 1981. It maybe that in respect of accidents which have occurred subsequent to this date, the above figure may have to be altered basing on the changes in the cost of living index or inflation.

(19) Next the question is with regard to the other sub - heads under the head of 'loss to the estate'. These are the awards for pain and suffering and loss of amenities. It is again argued that no amount is payable under these heads whenever the deceased died instantaneously. In my judgment in p. Satyanarayana vs. I. B. R. Prasad #15 i have considered the question of award for pain and suffering, in great detail. I have referred to the fundamental concepts in torts - jurisprudence with regard to the subjective approach and the objective approach. The objective approach was that full compensation should be paid, whereas the subjective approach has been that damages are payable as a matter of solace and not as full compensation. 1 have pointed out that the objective approach of the english courts is to be adopted in preference to the subjective approach of australian and canadian courts. I have also stated that while the english objective approach is to be adopted, even there, in respect of pain and suffering, the english courts stated that a smaller amount should be adopted in case of unconscious plaintiffs rather than large amounts. This was because the english courts felt that so far as pain and suffering is concerned, large amounts should not be paid unless there was sufficient interval between the time of accident and the time of death and the deceased was conscious. I have observed that the position in england with regard to these smaller awards for pain and suffering is not quite satisfactory. I observed (at page 335) that the subjective approach of the english courts so far as the pain and suffering is concerned, looks strange enough. The wrong - doer whose negligence makes the victim unconscious is placed in a more dangerous position than one who inflicts a lesser injury which does not render the victim unconscious. During the discussion with regard to loss of expectation of life, i have pointed out with reference to basic concepts that the award of a conventional sum is to be made even in cases of unstantaneous death or in cases where the deceased was unconscious immediately after the accident on the same parity of reasoning. The position of an inconscious plaintiff and the position of a person who died instantaneously, are almost similar. It has to be noted even the english courts have accepted that smaller amounts have to be paid towards pain and suffering of unconscious plaintiffs or those who died instantaneously, but nobody has stated that nothing is payable in such cases. I am of, the view that even in cases of instantaneous death as in cases of unconscious plaintiffs, a sum of atleast rs. 7,500/ - is payable towards pain and suffering. The said amount has to be added to the amount awarded towards loss and expectation of life. It may be noted in gobald motor case (13 supra) the supreme court confirmed an award of a sum of rs. 5,000/ - towards loss to the estate which obviously comprised an award for loss of expectation of life as also for pain and suffering. That case being one in respect of an accident before the year 1960, fain of the view that towards loss of expectation of life anrf pain and suffering and loss of amenities, a total sum of rs. 15,000/ - is payable even in case of instantaneous death. This figure also corresponds to the sum of rs. 15,000/ - which i stated can be awarded in the case of achild between 5 to 10 years whose earning capacities are not yet revealed and the dependency cannot be computed. I; therefore, held that the conventional amount of rs. 15,000/ - is to be adopted. (vide a. P. S. R. T. C. Vs. Ranianaiah (3 supra)

(20) For all the aforesaid reasons, 1 am of the view that a sum of rs. 15,000/ - is to be awarded towards loss of expectation of life, pain and suffering and loss of amenities, in cases where the. Deceased died instantaneously after the accident or where he remained unconscious till the death. However, in case where there is a larger interval between the time of accident and the time of death, the court can award a higher amount towards pain and suffering and loss of amenities.

(21) Thus the total amount of pecuniary and non - pecuniary damages will come to rs. 27,000/ - plus rs. 15,000/ - equivalent to rs. 42,000/ - , this, in my view, is the correct award in the present case. The said sum shall carry interest at 12% p. A. From the date of filing of petition, viz. ,, 28 - 3 - 4981. I have no doubt that the legal representatives of the mother of the deceased, (the mother having since died) will be considerate in allowing their father to use these moneys in his old age. The appeai filed in this regard is accordingly allowed and the decree for rs. 42,000/ - is passed with interest at 12% p. A. From 28 - 3 - 1981. The cross - objections are dismissed. There shall be no order as to costs, in the appeal as well as in the cross - objections.