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Shriram Hari Tambey Vs. Diwakar Ramchandra Kharabe and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 41 of 1964
Judge
Reported inAIR1975Bom227; ILR1976Bom1570
ActsFatal Accidents Act, 1855 - Sections 1-A and 2
AppellantShriram Hari Tambey
RespondentDiwakar Ramchandra Kharabe and ors.
Appellant AdvocateV.R. Thakur, Adv.
Respondent AdvocateM.N. Delekar and ;M.T. Dharmadhikari, Advs.
Excerpt:
the case discussed the mode of calculating the damages under sections 1-a and 2 of the fatal accidents act, 1855, that resulted in the death of a minor child in a motor vehicle accident - it was held that the calculation of damages in the said case would be made in favour of parents of the child under the guiding principles that were laid down - - on behalf of the appellant plaintiff who is the head of the family who was expecting sulabha to grow up and help in the waning years of the father, it is said there is a good case made out for granting damages both under section 1-a as well under section 2 of the fatal accident act and that rs. it appears to be well intended in the provisions of the act itself to leave the matter to be worked out upon the facts and circumstances of each case.....1-22. (after discussing the evidence, his lordship proceeded). these position having been ascertained, then comes the question as to the award of damages, which in principle is in the nature of restitution to those who depended on the deceased, and, secondly, for the loss of the life of the deceased itself. it is not punitive in any manner and the court is called upon to balance every interest as much as possible and to arrive at the reasonable sum which will meet not only the expectation of life but commensurate the demands of those who expect to depend on such life.23. as far as the present appeal is concerned there are tow divergent approaches canvassed before me. on behalf of the appellant plaintiff who is the head of the family who was expecting sulabha to grow up and help in the.....
Judgment:

1-22. (After discussing the evidence, his Lordship proceeded). These position having been ascertained, then comes the question as to the award of damages, which in principle is in the nature of restitution to those who depended on the deceased, and, secondly, for the loss of the life of the deceased itself. It is not punitive in any manner and the Court is called upon to balance every interest as much as possible and to arrive at the reasonable sum which will meet not only the expectation of life but commensurate the demands of those who expect to depend on such life.

23. As far as the present appeal is concerned there are tow divergent approaches canvassed before me. On behalf of the appellant plaintiff who is the head of the family who was expecting Sulabha to grow up and help in the waning years of the father, it is said there is a good case made out for granting damages both under Section 1-A as well under Section 2 of the Fatal Accident act and that Rs. 10,000/- is the minimum measure put by the father on the loss of this brilliant life.

24. On the other hand, the respondents submit that life and the facts of lie are to be kept in vie while determining the question of damages. It was for the plaintiff to establish as the what would have been the probable life's span and what would have been the probable earnings of the deceased. The evidence the learned counsel submits, is absolutely wanting and mere guess work cannot be the substitute for the proof that is required in these matters. At any rate, it is submitted that this being an appeal against the quantum of damages the figures arrive at by the trial judge should be treated as standard and there is no case for its enhancement Certain decisions were cited at the Bar on behalf of both sides and they will be noticed in the later part of this judgment.

25. Suffice it to say, therefore the approach of both the parties is diametrically opposite. In fact at one stage it was canvassed by the respondents that the trial Judges judgment is not based on any evidence and is purely a guess work which is not in accordance with law.

26. Now in the matter s of damages of such kind, there cannot be any hard and fast rule nor the estimates given by the witnesses can conclude with accuracy the damages and its award. It appears to be well intended in the provisions of the Act itself to leave the matter to be worked out upon the facts and circumstances of each case and there is not rule of rightly indicated. As I said earlier, it is for the Court to balance all the circumstances and to work out the sum which will answer a sort of restitution for the loss of life because of an accident caused by negligence. Under Section 1-A of the Fatal Accident Act, it is provided by the legislature advisedly that the Court may give such damages as it may think proportionate to the loss resulting form such death to the parties respectively. Thus the matter rests in the discretion of the Court to be worked out by balancing out of all interest and further taking an over all view of the whole matter. But the principal underlying Section 1-A is the loss resultant because of the death to the parties claiming the damages. Section 2 is more or less a proviso, though independently en acted to Section 1-A . By the first part of Section 2 only one action or one suit is contemplated and by the second part it is made clear that in such action or suit the executor, the administrator or the representative of the deceased could insert a claim for and recovery of any pecuniary loss to the estate of the deceased. The distinction between the two section is obviously clear. Section 1-A speaks of loss resulting from such death to the parties claiming in such a suit while Section 2 speaks of pecuniary loss is the estate of the deceased.

27. The nature of these provisions have been the subject-matter of consideration by the Supreme Court in Gobald Motor Service Ltd v.Veluswami, : [1962]1SCR929 as well in C. K. Subraminia Iyer v. T. Kunhi Kuttan Nair, : [1970]2SCR688 . The distinction between these types of losses has been clearly brought out in the former case by referring to the judgment of Lahore High Court in Secretary of State Government. gokal Chand, ILR 6 Lah 451: AIR 1925 Lah 636 and quoting the observation s form the judgment of Sir Shadi Lal,. Chief Justice (as he then was) by the Supreme Court with approval. The learned Chief Justice had observed:

:'the law contemplates to sorts of damages: the one is the pecuniary loss to the estate of the deceased resulting from the accident; the other is the pecuniary loss sustained by the members of his family through his death. The action for the latter is brought by the legal representatives, not for the estate but as trustees for the relatives beneficially entitled; while the damages for the loss caused to the estate are claimed on behalf of the estate and wen recovered form part of the assets of the estate'.

In Gobald Motor Service Ltd's case the Supreme Court further observed with reference to Section 1 and 2 of the act as follows:-

'The law on this branch of the subject maybe briefly stand thus: The rights of action under Section 1 and 2 of the Act are quire distinct and independent. if a person taking benefit under both the section is the same he cannot be permitted to recover twice over for the same loss. In awarding damages under both the heads, there shall not be duplication of the same claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under Section 1 of the Act, that portion shall be excluded in giving compensation under Section 2 and vice versa'. It is to be observed that in the case before the Supreme Court in Gobald Motor Service Ltd's case, a sum of Rs. 25,200/- was given as the damages under Section 1 being the reasonable provision which the deceased would have made if alive, while a sum of Rupees 5,000/- was awarded for the loss to the estate representing the damages for the mental agony, suffering and loss of expectation of life. All that was taken to be covered by the provisions of Section 2 of the Act. Therefore, it appears that the words of Section 2 which permit recovery of any pecuniary loss to the estate of the deceased occasioned by the wrongful act has been understood to include the damages of the kind which were upheld in Gobald Motor Service Ltd's case, the same begin for the mental agony, suffering and loss of exception of life to the deceased. The said case and the principles thereunder were further applied in the latter case mentioned supra (C. K. Subraminia iyer's case). There a body of about 8 years was killed in a motor accident. After noting the passage of law in England and difficulties in assessment of damages, the Court observed:

'The mode of assessment of damages is not free firm doubt. It is beset with certain difficulties. It depends on many imponderables. The English Courts have formulated certain basis for calculating damages under Lord Compbell's Acts. The rules ascertained by the English Courts are set out in Winfield on Torts 7th Edn. at pp. 136 as follows:

The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularly of his employment. Then there is an estimate of how much was required or expended of his own personal and living expenses. The balance will give a datum or basis figure which will generally be turned into a lump sum by taking a number of years' purchase. That sum, however, has to be taxed down by having regard to the uncertainties, for instance, that the widow might have again married and thus ceased to be dependent, and other like matters of speculation and doubt'.

The number of years' purchase is left fluid, from twelve to fifteen has been quite a common multiple in the case of a healthy man and the number should not be materially reduced by reason of the hazardous nature of the occupation of the deceased man. These principles are however only appropriate where the deceased was the breadwinner of the family. Obviously they cannot be applied for example where the claim is in respect of a mere exceptions of the pecuniary benefit from the deceased or where the deceased's contribution to the family was in kind and not in cash. In truth, each case must depend appoints own facts. In Dolbey v. Godwin, ILR 1955 1 553(?), the plaintiff was the widowed mother of the deceased, an unmarried man 29 years of age and he had contributed substantially to her upkeep. The Court of appeal held that it would be wrong to assess the damages on the same basis as if the plaintiff were the widow of the deceased, principally on the ground that it was likely that he would have married in due course and that ten his contribution to his mother would have been reduced'.

From this paragraph which appears to have been approved as a mode of calculation or damages it appears that it is permissible first to take into account the earning capacity of the deceased, taking into account the regularity of this employment and taking the reasonable personal expenditure of his to work out a balance and by taking a number of years purchase make out a figure in lump sum. All this is said with a qualification that everything must depend on its own facts. Referring to another English decision in Nance v. British Columbia Electric Tely. Co. Ltd., (1951) Ac 601 the Supreme Court referred to another modality of arriving at damages by observing:-

'(1) First estimate what was the deceased man's exception of life if he had not been killed when he was and (2) what sums during those years he would have probably applied to the support of the dependent'. Referring to Gobald Motor Services Ltd's. case (supra) the Supreme Court observed:

'.................. The general principle is that the pecuniary loss can be ascertained only by balancing on the once 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 dependent by the death must be ascertained ............'

The law was summarised as follows by stating:-

'Compulsory damages under Section 1-A of the Act for wrongful death must be limited strictly to the pecuniary loss to the beneficiaries nd the under Section 2, the measure of damages is the economic loss sustained by the estate. There can be no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculation but the amount recoverable depends on the particular facts and circumstances of each case., 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 thing, there can be no exact or uniform rule for measuring the value of human life. In assessing damages the Court must exclude all consideration of matter which resting speculation or fancy though conjecture to some extent is inevitable. As a general rule parent are entitled to recover the present cash vale 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 chief attains majority.......'

On the facts of that case the Supreme Court further observed that the deceased child was only 8 years old and the father was a substantial person being in a prosperous business, that the father needed no assistance from his son and it was not likely that the son would have been of any financial assistance to the parents till the age of twenty. There was no evidence to indicate what was the age of parents, there was no material to indicate as to how old the parents of the deceased at the time of the death were nor there was any evidence about the state of health. In those circumstances, the appeal to increase the damage which were quantified by the High Court under Section 1-A at Rs. 5,000/- and under Section 2 at Rupees 1,000/- was negatived.

28. These two cases thus lay down the guiding principles in this regard. Firstly, the parents are entitled to recover the cash valued of the service, of the deceased minor. Secondly, they are further entitled to have compensation for the lost of pecuniary benefits that can reasonably be expected after the child might have attained the majority.

29. I have already indicated in the present case that there is evidence coming from Shriram who was aged about 54 years that within a period of three years he would be out of service. There was a firm evidence that Sulabha was about 12 years of age and was expected to help the family. In fact she was helping like any other member her mother in her works in the family. I have also referred to various ages of the other members of the family and she would have been Matriculate by the age of sixteen and Graduated herself by the age of twenty three one of her sisters was taking M.A. education. Putting the reasonable expectation Sulabha would have had the same sort of career of being the Graduate at the age of twenty. Her mother was of 48 years age and father 54 years. After graduation, it is possible to conceive that Sulabha would have been of an obvious pecuniary help to the family and all that was a loss to this family which was immediately in end of the support and services for the father, as he stated, was going to retire within a period of three years. It is however, conceivable that these being other earning members like soon these being other earning members like sons and daughters. Sulabha might not have been the only source for the purpose of dependence by the father and mother, bu that is all a matter of guess in this regard.

31. Therefore, the standard applied and upheld by the Supreme Court in maintaining Rs. 6,000/- upon the death of 8 years boy, where threw was no evidence about the need of the help of such a boy to the family, can also furnish a relevant clue while considering the present case.

32. I may briefly consider the other cases which have been brought to my notice to arrive at some such figures, though every case has to be considered on its own merits and facts.

33. In the case reported in concord of India Insurance Co. Ltd. v. L.J. Machando 1966 ACJ 321: AIR 1966 Mys 346 the Mysore High Court was considering a case of the loss of a boy of eight years and awarded his father and mother Rs. 5,000/- as loss of expectation of life land Rs. 1000/- as compensation for pain and agony caused to the claimants themselves. The facts taken into account were that the boy was a sufficiently bright one and was enjoying good health. His father was earning Rs. 3/0 to Rs.4/- per day and his mother Rs.34/- per month. There were three members in the family. Applying the test of normal expectation, it was assumed that the educational career of the deceased would have been satisfactorily terminated and after that he would have been able to acquire sufficient earning power. Relying on the decision and considerations available in Krishna Gounder Narasingam Pillai. : AIR1962Mad309 where the death of 7 years old child was considered the Court found that these indicate that the victim would have easily earned Rs.50/- per month, and had he been appointed to Class IV post or clerical post, the earning would have gone to Rs. 100/- per month. After considering the English Cases on the point, the Court found that the award in that sum was a proper assessment as the circumstances of the life of the deceased were calculated to lead on balance to a positive measure of happiness of which he has been deprived. Therefore, under Section 1-A, the Court was pleased to grant Rs.1,000/- while under the latter Rs. 5,000/-.

34. In Shiv Prasad Gupta v. S.M. Sabirzaidi, : AIR1968All186 the Allahabad High Court was concerned with the death of a eighteen-year old young man. There the Court found that the average Indian span of life should be put at 70 years and taking that the deceased would have started earning at the age of 25, made an award in the sum of Rs. 12,000 calculating the pecuniary assistance from the deceased to the family of Rs.100/- per month for a period of 12 years. The Court took into account the circumstances of the family, the position which the deceased occupied in his family, the mental and physical equipment of the deceased, his age also the age of the plaintiff and the standard of living of the particular family. There the plaintiff was 52 particular family. There the plaintiff was 52 years of age and the deceased of 18 years. The earning age was treated to start with 25 and ending with 60 years and taking the mean the sum of Rs.12,000/- was calculated.

35. In Perusal v. State of Madras, 1971 CJ 144 (MAD)again the Madras High Court was considering the death of a child of 8 years, and the claimants were the parents. While considering the principle of assessment, the Court took in to account the change of attitude of the Courts in England itself because of the depreciation of the value of the money and increased the damages from Rs.3,000/- to Rs.5,000/-. While fixing the damages it was observed that neither wealth nor the status of the child should be regarded as relevant in fixing the quantum. The English case: Benham v. Gamling 1941 AC 157 was concerned with the death of a child of 21/2 years. The court applying the principles following by the English Courts after that decision was minded to raise the amount of compensation. The High Court of Delhi considered in the earlier case W.S. Bhansingh & Sons v. Om Prakash Kaith, 1971 ACJ 324 (Delhi) a case of a child of five years killed in an accident and upheld an award in the sum of Rs.6,000/-. The Court observed that the potential earning capacity of the deceased, the normal expectation of his life, the status of the family of the deceased and the estimate of the financial assistance which the petitioners expected from the deceased if he had lived, his normal age, were all the relevant considerations.

36. In P.S. Kothandani v. V.N.S. Pothi Naikar, 1971 ACJ 456 (Mad), the Madras High Court again granted Rs. 5,00/- for the death of a girl of the age of the eight years. She was from a very ordinary family. It was a family of having daughters only and the victim girl was second. The evidence was that she was active and intelligent. On those facts the award of Rs. 5,000/- was held to be reasonable. In Hirji Virji Transport v. Basiram Bibi, 1971 ACJ 458 (Guj), the Gujarat High Court considering the case of a deceased at the age of 45 having earning capacity of Rs.4,500/- per annum and awarded Rs. 45,975/-. There the Court found even at the age of 45, he being an active person the maximum purchases year should be fixed at 15. Thus for the purpose of computing the compensation the reasonable earning age was put at 60. The Court further clarified that under the Act the loss to the dependents in synonymous to the loss to the dependents is synonymous to the loss of maintenance to the dependents, while the loss to the estate, is the loss of savings that the deceased could have made during his life and the damage for mental agony, suffering and loss of expectation of life and all include in the second head, i.e. in Section 2 of the Act. The method that found favour with the Gujrat High Court appears to be to determine the basic annual dependency of the family and then to multiply it by years purchase factor ranging between 12 to 15.

37. There is yet another decision of the Delhi High Court in : [1970]2SCR688 where that Court granted Rs. 5,000/- under Section 1-A and Rs.1,000/- ) where that Court granted Rs. 5,000/- under Section 1-A and Rs.1,000/- under Section 2 of the Act as compensation upon the death of a son aged about 8 years.

38. As far as this Court is concerned, a Division Bench of this Court in Abdulkadar Ebrahim v. Kashinath Moreshwar Chandani, : AIR1968Bom267 was considering a case of loss due to death of a wife to her husband at the age of 60 and one of the tests laid down was that loss under the head of loss of expectation of life should be assessed by applying an objective test of whether the deceased would have led a predominantly happy life and in doing so all relevant circumstances such as the social position of the deceased would have led a predominantly happy life and doing so all relevant circumstances such as the social position of the deceased should be taken into consideration. There also the Court observed that the present value of the rupee is also a valid consideration while assessing the damage. In Abdul Mahomed v. Petter Leo D'Mello : AIR1965Bom21 a boy of six was done to death. The total amount of compensation was Rs.6,000/- which was affirmed by this Court. On account of loss of exception of life, a sum of Rs. 5,000/- was treated to be reasonable and the Court observed that the evidence of the fatter of the boy shows that the circumstances of the family and the standard of life were reasonably good, the parents took interest in their life and the child had a fair chance of having a happy life./

39. All these cases in India indicate certain basic principles to be followed in assessing the damage under both Section 1-A. as well as section 2, of the Act. The capitalised value of the reasonable services rendered to the dependents can thus be given under Section 1-A, while the award can be made for the loss of fairly happy and healthy life under Section 2 of the Act. The cases range as I have noted above between the age group of 5 to 8 and the assessment of damages under both counts has been Rupees 5.000 to Rs.6,000/- More or less the conditions in a given family of the child has been taken note of. The case of this Court referred to above i.e. Abdul Mahomed's case : AIR1965Bom21 dealt with a child of six years and awarded Rs. 1,000/- for the loss of service and Rs. 5,000/- for the loss of expectation of life. From this judicial approach to the death of a child below the age of ten in this country upon proof of normal family conditions to assess damages within the range of Rs. 5,000/- to Rs. 6,000/- during the period till about 1970. That is how reasonable desideratum or quantum itself is furnished and once basic facts are established, that would constitute far quantification. Every case may have however its own facts either requiring increase or decrease in this ratio.

40. Coming to the present matter, the learned Judge has not make any such effort to find out what should be the reasonable assessment of damages awardable to the plaintiff. The method does not disclose any foundation. It does not take into account the say of the plaintiff abbot the circumstances in which deceased Sulabha was placed and the possible indications how she smite have grown and become an earning member. The approach clearly suffers from the charge of pure guess work.

41. It has to be remembered that under the scheme of the Fatal Accidents Act the life that is lost has to be teamed as 'an economic unit'. That subserves the needs of those who depend reasonably on such life and further it has the potentiality of happiness and as well to earn an estate by reasonable means of livelihood to itself. Therefore, at the outset the attempt should be to find out the basic circumstances in which the life lost was set and by taking in the reasonable measure to arrive at a possible expectation in the matters of succour or help which might have occurred to those who clam and further the matters of savings which may have been gained buy enjoying the life-spoon with its possible utility. On and oft it has been said that the test is to offset together all 'the imponderables', but that is no reason why full probable and possible pecuniary circumstances and factors out of a given case cannot be constructed to find to restate measure in favour of a suitor.

42. Looking to the present case, it does appear that the family expects the children to learn and earn. The evidence of shriram is clear in this matter. As I have said earlier therefore it can be easily expected that sulabha would have embarked upon a career of economic utility both for her benefit as well as for the benefit of her family. Starting with the age of 20, even till the age of 25, and leaving all other possible period of her life expecting that she would have married by that time, she can be expected to be a source of earning at lest for five years. I am making all allowances for vicissitudes both till the age of 20 and beyond 25 though it is clear that parents are entitled to clam even for services to family. The learned trial Judge has put her earnings at Rs. 150/- pre month on an ad hoc basic. That is obviously a very low estimate in the year 1969. I am inclined therefore to fix the value of the remuneration's of a graduate in the year 1969 at Rs. 300/- per month. Taking that figure, the family could have expected from that amount for both the retired father and the aged mother at least one-third i.e., Rs. 100/- per month. If even on the reason able basis only of five years that is the benefit to which these aged parents have been deprived, they would be entitled to be compensated to the extent. Thus on the count of loss suffered by dependents the measure would work to Rs. 1200/- per year and for five years it would be Rs. 6,000/-. The claim of the plaintiff had been Rs. 5,000/-. Thus taking all the factors into account, I do not think that the claim made by the plaintiff in the sum of Rs. 5,000/- on unreasonable. In fact that takes n the entire period of life and including services expected of the parted soul and as calculated above the sum claimed is entirely fair and equitable.

43. That leaves the question of award on account of loss of life to itself, It is eminently clear that Sulabha was having good health and there was reasonable expectation of good happy, healthy life. She was deprived of all that happiness and enjoyment and in awarding damages on that count, applying the tests of Section 2, it appears on a reasonable view that she could have saved for herself at least Rs. 50/- per month, spending Rs. 150/- of there own self-maintenance; even during the period of five years if that can be treated to be the active period of service. If that is so, she would behaving about Rupees 600/- per year and that would mean within a period of five years a sum of Rs. 3,000/- would have been earned and saved by an active healthy economic employee. I find that on these counts the plaintiffs are claiming two items one in the sum of Rs. 2,500/- and again in the sum of Rs,. 2,500/- and again in the sum of Rs. 2,500/- though they have differently described the same said items, but the total claim is to the tune of Rs. 5,000/-. On a fair calculation of the active earning life which is the minimum that can be granted to a Graduate n this country I am inclined to grant Rs. 2,500/- on account of loss of life of Sulabha an thus loss of estate that could have been earned by reasons able expectations, had Sulabha been available as an earning unit.

44. Now this working, no doubt, in voles little but building up the premises on the matters available on record. That is, however, a permissible mode. The total thus works out to Rs. 7,500/- Even the ratio of the reasonable grant indicated by the various precedents mentioned by me above in the past five years indicate that the Courts have assessed the value on child-death between Rs. 5,000/- to Rs. 6,000/- where the loss was at ages 6 to 8. The economic condition prevailing which is also a relevant factor including the value of rupee would have the upset increase in this assessment. Thus taking the life of Sulabha as it is and it emerges from the evidence and even assessing five years as the best earning years of her life. I am inclined to hold that under Section 1-A and under Section 2 of the Act an award of Rs. 7,500/- would meet the ends of justice.

45. In the result, the decree of the learned Judge in the sum of Rs. 3150/- will be modified and substituted by the figure of Rs. 7,500/- and decree in this term shall be made. Appellant to get proportionate costs throughout. As the result of the above findings the cross-objection filed would stand dismissed with costs.

46. Appeal allowed and cross-objection dismissed.


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