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State of Assam and ors. Vs. Nalini Kanta Doloi - Court Judgment

LegalCrystal Citation
Subject;Motor Vehicles
CourtGuwahati High Court
Decided On
Case NumberMisc. First Appeal No. 44 of 1976
Judge
ActsMotor Vehicles Act, 1939 - Sections 110B
AppellantState of Assam and ors.
RespondentNalini Kanta Doloi
Appellant AdvocateD.C. Mahanta, Adv.
Respondent AdvocateB. Sarma and Y.K. Phukan, Advs.
DispositionAppeal partly allowed
Prior history
Hansaria, J.
1. An unmarried girl aged about 15/16 years, as was Renubala Doloi at the relevant time, met her end to a motor accident which took place at bout 8-30 A.M. of 22-9-1974 on National High Way No, 37 near Dharamtul Marriage of Renu was however in sight. Only a few months were left to see her depart from the parents' loving care--she was to be wed in Magh, the accident being in Aswin. Renu was a student of Class IX and had gone to a nearby house to fetch a pencil, not knowing that i
Excerpt:
.....the best school. we have to confine ourselves to the 'hard matter of rupees, annas and pies' which tinkle well, but mingle ill with..........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.'13. it has been earlier observed in this case that in ascertaining pecuniary loss, it must be borne in mind that these damages are not to be given as solatium, but are to be given with reference to a pecuniary loss which has to be calculated with reference to a reasonable expectation of pecuniary benefit from the continuance of the life of the deceased. it is, however, not a condition precedent that the deceased should have been actually earning money or money's worth or contributing to the support of the person making claim. reasonable expectation of pecuniary benefit will also do. 14. applying these.....
Judgment:

Hansaria, J.

1. An unmarried girl aged about 15/16 years, as was Renubala Doloi at the relevant time, met her end to a motor accident which took place at bout 8-30 A.M. of 22-9-1974 on National High Way No, 37 near Dharamtul Marriage of Renu was however in sight. Only a few months were left to see her depart from the parents' loving care--she was to be wed in Magh, the accident being in Aswin. Renu was a student of Class IX and had gone to a nearby house to fetch a pencil, not knowing that it was going to cost her life. According to the claimant she was returning to her house by the left side of the road- A vehicle bearing registration No. ASZ 9639 knocked her from behind. The car was in high speed. Despite the accident, the car did not stop, maybe because a Minister of the Government of Assam was travelling in the vehicle. The girl sustained grievous in-juries and was shifted to Nowgong Civil Hospital where she succumbed on 24-9-1974. A claim of Rs. 50,000 was lodged by the father of the deceased girl as compensation, without giving any breakup.

2. The State of Assam to whom the vehicle belonged denied the allegations relating to any negligence on the part of the driver as according to it the vehicle was driven in a normal speed and the girl having run from her right to the left got herself dashed against the vehicle, The claim of Rs. 50,000 was said to be excessive.

3. In support of his case the petitioner examined five witnesses before the learned Motor Accidents Claims Tribunal and the opposite parties did not adduce any evidence. The learned Tribunal on being satisfied about the negligence of the driver has awarded a sum of Rs. 30,000 as compensation without, however, indicating the basis of the same. The State of Assam has filed this appeal to which a cross-objection has also been taken by the petitioner which relates to the question of quantum. The learned, Government

Advocate has not addressed, and rightly, on the issue relating to negligence on the part of the driver, which finding is based on a proper appreciation of the evidence led by the claimant. The only controversy, therefore, which requires our determination relates to the amount of compensation. According to the State, award of Rs. 30,000 is not justified, whereas the claimant asks for Rs- 50,000 saying that the Tribunal erred in holding that the petitioner 'could not have got pecuniary benefit from his deceased daughter,'

4. This small question has, however, raised a big issue before us as we felt that it would be in. fitness of things to first apprise ourselves about the position of an unmarried daughter in our social set up to enable us to fix compensation on the basis of known principles. The Supreme Court had an occasion to say something about the position of a daughter ('putrika') in a Hindu society in the recent case of Shyam Sunder v. State of Bihar, AIR 1981 SC 178. The point examined was whether 'putrika-putra' could take the place of a begotten legitimate son, and in a scholarly judgment Ven-kataramiah, J., examined the various source materials on this question which included reference to various texts of the Smritls, The one to which we can refer with profit is what was stated by Manu, the most renowned Smritikar of India, noted in para 29 of the judgment. The English rendering of the text is:--

'A son is even one's self a daughter is equal to a son, how can another (heir) take the estate while (such daughter who is) one's self lives,'

Thus, a daughter has been placed on an equal footing with a son. History, however, shows that the daughter lost many a round subsequently, may be because of her being a member of weaker sex and more properly belonging to the family of her husband. The Hindu Succession Act, 1956, however, restored the past position of a daughter as regards her right to succeed the estate of her father. She now occupies a place equal to that of a son in this regard.

5. Despite this it cannot be forgotten that the normal presumption about an unmarried daughter specially who is in her teens or twenties is that she would be given in marriage and would thereafter become a member of the other family. In the instant case, Renu was to be married soon. But then by marrying away a daughter do we not get a son-in-

law? Of course, how far a son-in-law can replace a son depends on a number of circumstances some of which lie on the realm of imponderables. We may not enter into the zone of uncertainties because for the case at hand this is not required, as we have to confine our attention to thg question of compensation which in a case like this is awarded on two counts-- (1) general damages or non-pecuniary loss; and (2) special damages, or pecuniary loss.

6. General damages are those which are assumed to exist in such cases, whereas special damages must be specifically pleaded and proved- General damages consist of (1) pain and suffering, (2) loss of amenities of life, and (3) shortened expectation of life. In Winfield and Jolowieczi's 'Law of Tort', the injury itself has been regarded as another and distinct head of damage apart from the above, noted in Salmond's 'The law of Tort', by stating that compensation may be awarded for an injury itself, quite apart from pain and suffering, even though it causes no disability. Pain and suffering may include mental agony due to, say, claimant's appreciation that his life has been shortened. Damage for loss of amenities will depend on nature of the injury and circumstances of the injured, e.g., a young and active man who has been crippled or blinded might recover substantial damage. Damages for shortened expectation of life require many circumstances to be borne in mind which were spelt out in Benham v. Gambling, 1941 AC 157, and for the purpose of this case, a discussion of the same is not called for. (See, however, pp. 577-8 of Salmond's 'The Law of Tort', 17th Edn).

7. Special damages are awarded on two counts: (1) expenses and (2) loss of earnings. A claimant is entitled to recover all expenses, such as, medical, travelling, nursing, etc. actually and reasonably incurred. Loss of earning is calculated to put it shortly, by balancing loss of future pecuniary benefit and advantage due to death from whatever source, i.e., it is a balance of loss and gain.

8. Let it be acknowledged before proceeding further in the words of Lord Atkinson in Garcia v. Harland & Wolff Ltd., (1943) 2 All ER 477, that:

'Life is deemed by law to be our most precious asset. The severest punishment that the law knows is that of depriving a man of his life;'

9. Where a life is lost, and that too of a budding flower, the loss is really

irreparable. No amount of money can be a solatium or substitute for a near and dear one snatched away by cruel hands, Still then sentiments do not have a place when we come to quantify the loss in terms of money in a case of this type, though hard currency can hardly be a substitute for the loss sustained. Law is sometimes not only blind, but deaf also.

10. At common law no action in tort lay against a man who caused the death of another person. This result arose from two distinct Rules: (1) the death of person gave no cause of action to others either for mental suffering or material loss; (2) the wrong done to the deceased himself died with him -- actio personalia moritor cum persona. (See p. 462 of Bin-gham's Motor Accident Claim Cases, 7th Edition). Therefore statute had to intervene and the provisions in Fatal Accidents Act and Motor Vehicles Act are some of these, so far as we are concerned. Our Fatal Accidents Act has its forerunner in English Statute of the same name.

11. The basic principle for the measure of damages in tort as well as in contract is that there should be restitutio in integrum. Apart from the cases in which exemplary damages are awarded the principle is:

'Where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages we should as nearly as possible get at that sum of money which will put the party who has been injured or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting the compensation or reparation'. (See pages 561 and 562 of Winfield and Jolowicz's 'The Law of Tort', 10th Edn.).

12. It is, thus, a 'hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities', as stated by Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd., 1942 AC 601. In Gobald Motor Service Ltd. v. Veluswami, AIR 1962 SC 1, attention was primarily paid to the loss on account of probable future earnings, on which count a sum of Rupees 25,200 was paid, apart from which an award of Rs. 5,000 was made representing mental agony, suffering and loss of expectation of life. It was made clear in C. K. S. Iyer v. T. K. Nair, 1970 Ace CJ 110: (AIR 1970 SC 376 at p. 380), by stating:

'In assessing damages the Court must exclude all considerations of matter

which rest in speculation or fancy though conjecture to some extent is unavoidable. 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.'

13. It has been earlier observed in this case that in ascertaining pecuniary loss, it must be borne in mind that these damages are not to be given as solatium, but are to be given with reference to a pecuniary loss which has to be calculated with reference to a reasonable expectation of pecuniary benefit from the continuance of the life of the deceased. It is, however, not a condition precedent that the deceased should have been actually earning money or money's worth or contributing to the support of the person making claim. Reasonable expectation of pecuniary benefit will also do.

14. Applying these principles, the award of Rs. 6,000 by the High Court (Rs. 5,000 Under Section 1A of the Fatal Accidents Act and Rs. 1,000 Under Section 2) was not regarded as inadequate by the Supreme Court for the death of a bright boy aged about 8 years in a motor accident, though the father was a substantial person and though there was reasonable possibility of the deceased becoming a successful man in life. Still the award was not interfered with because (1) the son would not have given any financial assistance till he was at least 20 years old; (2) age of parents was not on record; and (3) there was no evidence about their state of health.

15. Some attention is required to be paid as to whether any compensation is payable for loss of companionship. In none of the Supreme Court cases which have come to our notice any amount was awarded on this score. (See Gobald Motor Service (AIR 1962 SC 1) (supra); Municipal Corporation v. Subhagwanti, AIR 1966 SC 1750; C. K. S. lyer (AIR 1'970 SC 376) (supra), Sheikhapura Transport Co. v. Northern India Transport Insurance Company, AIR 1971 SC 1624; and M. P. State Road Transport Corpn. v. Sudha-kar, AIR 1977 SC 1189).

16. Under English law also, no damage is awarded for loss of companionship. In Preston v. Hunting Air Transport Ltd., 1956-1 QB 454, claim for a child aged about 2 years on the ground that it had lost loving care of the mother (who had been killed) was not entertained pointing

out that as in law a husband who had lost his wife could not recover anything for loss of companionship of a wife, nor a wife for loss of her husband's companionship, no distinction could be made in the case of an infant.

17. In Hira Devi v. Bhaba Kanti, AIR 1977 Gauhati 31 (FB), a Full Bench of this Court, however, accepted an award of Rs. 10,000 towards the loss of companionship also. The amount too was regarded as reasonable. That case had dealt with the death of a person whose widow was the claimant on behalf of self and minor children. The accident had also seen the death of a son of the couple.

18. Before applying these principles to the case at hand, certain decisions may be referred which will show the unsatisfactory condition of this branch of law, and absence of any cohesive approach. In Sabir Ali v. Dewalal, 1979 Ace CJ 76, the learned single Judge of Madhya Pradesh High Court did not feel inclined to enhance the 'nominal compensation' of Rs. 2,500 which had been awarded for the death of a girl who must have been minor but whose age cannot be ascertained from the judgment. This has been done because the deceased was not an earning member and being a girl 'she was expected to remain as a liability till her marriage.' Phuggilal v. U. P. State Transport Corporation, 1981 Ace CJ 296, saw the Allahabad High Court awarding a sum of Rs. 7,200 as compensation for the death of a 8 year old girl, to the claimant who was a small cultivator and was earning Rs. 5/- per day as daily labourer. This had been done because it was expected that the girl must have rendered service to her parents at least for 10 years, even if the age of marriage is taken to be around 16 years. The service rendered by the deceased girl was quantified at Rs. 25/- per month. On this basis Rs. 3,000/- was calculated on account of loss of service and Rs. 4,000/-as general damages. (Rs. 200/- had been awarded towards funeral expenses). The Punjab and Haryana High Court dealt with the case of death of a boy aged 13 years who was studying in Class VII. This was in Afgan Bus Service v. Gurbachan Singh, 1981 Ace CJ 299 (Punj & Har). The amount awarded by the Tribunal was Rs. 6,000/- and nothing was brought to the notice of the Court on the basis of which the compensation could be enhanced. In M. A. Rahim v. Sayari Bai, 1972 Ace CJ 470 : (AIR 1973 Mad 83), a Division Bench of Madras High Court had, however, awarded a sum of

Rs, 25,000/- for the death of a 12 years old boy- Of course, this has been done because the Court found that the boy came from a well-to-do family being the only son of the parents who were taking all efforts to build up his career and it was evident from the fact that he had been put in the best school. That apart the boy was found to be healthy and was first in rank in school.

18-A. No doubt, some amount not only of estimation but of conjecture is unavoidable in fixing the just compensation, but should it vary with the foot of Chancellor? It is humbly felt that something is required to be done to put the juristic jungle of this branch in order.

19. To assist us to determine compensation in the case in hand, particular reference to M. P. State Road Transport Corporation v. Sudhakar, AIR 1977 SC 1189, may be made. Therein a Division Bench presided by Krishna lyer, J., scaled down the enhanced sum of Rupees 50,000/- awarded to a husband, who had lost his 23 year old wife who was an earning member of the family drawing a salary of Rs. 190/- per month, to Rupees 15,000/-, which was the sum awarded by the Claims Tribunal. Though the husband had married within a year of the accident, this is not what had weighed with the Supreme Court in cutting down the compensation, awarded by the High Court. It was rather done on the score that the claimant's loss due to his wife's death reasonably worked out to Rs. 50/- per month, i.e., Rs. 600/- per year, and not what was accepted by the High Court. A multiplier of 20 was thought as reasonable 'keeping in view the relevant facts and contingencies. The figure of loss thus came to Rs. 12,000/-. The sum of Rs. 15,000/- as awarded by the Tribunal was, therefore, not regarded as too low though it was not based on proper grounds.

20. In the present case, there is no evidence about the type of assistance, if any, Renu was offering to the family. Even if some assistance in household affair be assumed, as Renu was to get wedded in few months time, whereafter she would have ceased to render such assistance to her father, financial loss to the claimant on this count was very nominal. Whether her would-be husband would have contributed anything as pecuniary benefit to the claimant's family is a highly conjectural question which may not be gone into. What the Court can award in such cases is the loss based

on 'reasonable prophecy', as stated in| Sudhakar (supra).

21. Of course, Renu must have undergone some suffering during the 48 hours from 8-30 A.M. of 22nd Sept. 1974 to 8-30 A.M. of 24th Sept., when she expired. Some amount must have been spent by the claimant in sending her to Nowgong Civil Hospital by hiring a car as stated by him. If something is also to be paid on account of loss of companionship on the ratio of Hira Devi (AIR 1977 Gauhati 31) (FB) (supra), the just compensation on all these counts cannot exceed, according to me, Rs. 10,000/-. Not that this sum represents value of a human life in present day India in terms of money: not that Renu was worth these chips to her parents. Really no amount of money can soothe the injured feelings of her parents and can compensate them for what they had lost in Renu; but when we come to calculate the loss in terms of money, it is pecuniary loss alone which is recoverable, apart from general damage which can be awarded in this case for pain and suffering alone. We have to confine ourselves to the 'hard matter of rupees, annas and pies' which tinkle well, but mingle ill with sentiments; and on this hard surface, where is the case of the claimant for more? Justice, after all, has to be administered as per law. When a claimant comes to the Court of law to realise compensation in such cases, the Court has to rise above sentimentalities, and try to compensate the claimant not for his injured feelings, but for his financial loss -- real and probable. On the facts of the present case, I do not think if reasonably more than the aforesaid sum can be awarded, if we are to obey and act (where is the alternative?) as per the law enunciated and explained by the apex Court of the land.

22. Accordingly, I would partially allow the appeal, reject the cross-objection and fix the quantum of compensation payable to the claimant at Rs. 10,000/-(Rupees ten thousand). This sum would carry interest @ 6% per annum from the date of filing of the claim petition as per the provisions of Section 110-CC of the Motor Vehicles Act which came into effect from 2-3-1970.

23. In view of partial dismissal of the appeal, we have thought it fit to award cost to the respondent as we understand that no amount at all towards compensation was paid to him though it is about 7 years by now that the accident had

taken place. We assess the cost of both the Courts at Rs. 500/- and the Advocate's fees at Rs. 500/-.

K. Lahiri, J.

24. I agree.


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