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U.P. State Road Transport Corporation, Allahabad and Etc. Vs. Km. Deepti and ors. Etc. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. Nos. 525, 589 and etc. etc., of 1982
Judge
Reported inAIR1985All197
ActsMotor Vehicles Act, 1939 - Sections 110B
AppellantU.P. State Road Transport Corporation, Allahabad and Etc.
RespondentKm. Deepti and ors. Etc.
Appellant AdvocateS.K. Sharma, Adv.
Respondent AdvocateK.N. Shahi, ;G.D. Srivastava and ;Swami Dayal, Advs.
Excerpt:
(i) motor vehicles - compensation - section 110b of motor vehicles act, 1939 - necessary conditions to claim - reasonable expectation of pecuniary benefit from continuance of the life. (ii) death of earning woman in motor accident - section 110b of motor vehicles act, 1939 - members of family of deceased woman claim for compensation of gratious service - working ladies render gratious service to their family member - family members are entitled for compensation towards loss of gratious service. - - 2,01,600/- 9. the claimants not feeling satisfied have filed four f. he tried his best to make munna leave the steering seat but he did not budge. there is no doubt that the drivers of the ill fated vehicles are the best person to throw light on the point. munna tried his best to save his bus.....i.p. singh, j.1. all the abovementioned four accidents claims nos. 208 to 211 of 1980 were filed to claim compensation under section 110-a of the motor vehicles act as a result of accident involving motor vehicles. the award in the above accident claims was given by sri s.d.n, singh, the learned accidents claims tribunal, allahabad, on 29-4-1982. the above eight f. a.f.os. have been filed against the said award. however, it appears that by some mistake the date of the said award in km. deepti's f.a.f.o. no. 589 of 1982 and that km diviya's f.a.f.o. no. 592 of 1982 has been wrongly mentioned as 16-8-82.2. all the abovementioned eight f.a.f.os. having arisen out of a common award are hereby being disposed of by a common judgment.3. it is not disputed that on 21-6-80 at about 9.30 p.m. in.....
Judgment:

I.P. Singh, J.

1. All the abovementioned four accidents claims Nos. 208 to 211 of 1980 were filed to claim compensation under section 110-A of the Motor Vehicles Act as a result of accident involving motor vehicles. The award in the above accident claims was given by Sri S.D.N, Singh, the learned Accidents claims Tribunal, Allahabad, on 29-4-1982. The above eight F. A.F.Os. have been filed against the said award. However, it appears that by some mistake the date of the said award in Km. Deepti's F.A.F.O. No. 589 of 1982 and that Km Diviya's F.A.F.O. No. 592 of 1982 has been wrongly mentioned as 16-8-82.

2. All the abovementioned eight F.A.F.Os. having arisen out of a common award are hereby being disposed of by a common judgment.

3. It is not disputed that on 21-6-80 at about 9.30 P.M. in the City of Allahabad army truck No. 73-C/4993Y and U. P. State Transport Corporation (hereinafter referred to as the Corporation) bus No. U.T.B. 5112 collided on Stanley Road Opposite Tej Bahadur Sapru Hospital. Major I.D. Gandhi, his wife Smt, Suman Gandhi, and two daughters Km. Deepti and Km. Diviya were sitting in the rear cabin of the truck. In this accident all these four occupants of the truck received various injuries. Smt. Suman Gandhi however died later in the hospital.

4. The three surviving injured namely Km. Diviya, Km. Deepti and Major I. D. Gandhi individually filed three separate claims Nos. 208/80, 209/80 and 210/80 respectively claiming compensation under various heads to the tune of Rs. 3,10,000/-, 3,10,OOOA and 3,68,325/- respctively. The fourth claim No. 211/80 was filed by the said three claimants jointly claiming compensation for the death of Smt. Suman Gandhi to the tune of Rs. 6,78,000/-

5. In all these four claims it was alleged that the accident had taken place due to the rash and negligent driving of the Corporation bus.

6. The plea of the Corporation was that Corporation bus in question was taken out from Bus Station Kutchery, Allahabad by driver Sharda Prasad for taking it to Bharat Pump Compressor, Naini, Allahabad. Sri Santoshi was its conductor. However Murtna, the other driver of the Corporation who was off duty forcibly occupied the driver's seat of the said bus without the consent of Sharda Prasad the authorised driver. It was Munna who had driven the said bus to Stanley Road telling Sharda Prasad that he would get down near Sir Tej Bahadur Sapru Hospital. But when the bus reached in front of the said hospital army truck in question came from the opposite direction driven at a very high speed rashly and negligently on the wrong side of the road. Munna had given horn, slowed down the speed of the bus and turned it to the extreme left but the army truck dashed against the front portion of the right side of the bus. It was pleaded that as at the time of accident Munna was not an authorised driver of the bus, the Corporation was not liable to pay any compensation.

7. After assessing the parties' evidence the learned Tribunal by his common judgment dated 29-4-82 held that at the time of accident Sharda Prasad, the authorised driver of the Corporation bus was driving the same and the accident had taken place due to the rash and negligent driving of the said bus by him. Accordingly the Corporation was held vicariously liable.

(i)

In claim No.208/80 to Km.Diviya ....

Rs. 10,000/-

(ii)

In claim No.209/80 to Km.Deepti .....

Rs. 10,000/-

(iii)

In claim No.210/80 to Maj. I. D.Gandhi. . . .

Rs. 1,04,000/-

(iv)

In claim No.211/80 to Km.Diviya .....

Rs. 50,000/-

Km.Deepti .....

Rs. 50,000/-

Maj. I.D. Gandhi . . .

Rs. 1,01,600/-

Total

Rs. 2,01,600/-

9. The claimants not feeling satisfied have filed four F.A.F.O. Nos. 592/82, 589/82,590/82 and 591/82. They contend that compensation awarded to them is most inadequate. They want full compensation as claimed.

10. The Corporation feeling aggrieved has filed four F.A.F.O. Nos. 526/82, 525/82, 527/82 and 528/82 respectively. It not only challenges the part compensation awarded to the claimants as excessive but wants the same to be struck down.

11. The following points arise for consideration :

(1) Whether the accident in question took place as a result of the rash and negligent driving of army truck or the Corporation bus.

(2) Who was driving the Corporation bus at the time of the accident and the consequences thereof.

(3) What just compensation has to be allowed to the claimants in the four claim petitions.

12. As regards the second point, the Corporation examined Sharda Prasad (authorised driver) as D.W. 1 on 16-10-1981. He stated that he was driver of the Roadways for the last four years and on the date of the accident i.e. 21-6-80 he had taken out the Corporation Bus in question from the Bus Stand Kutchery, Allahabad, at 9.15 P.M. to take it to Bharat Pump Compressure, Naini. At that time one Santoshi was its conductor. He came out of the Kutchery Bus stand at 9.20 P.M. Out side the Bus stand he met Munna driver who desired that he be dropped at his village Beli. He refused to oblige Munna. At this Munna without the consent of Sharda Prasad forced himself on to the steering seat. He tried his best to make Munna leave the steering seat but he did not budge. Munna started the bus while he felt helpless. The conductor also objected to the driving of the bus by Munna but he would not listen. Thereupon the conductor got down from the bus. Even then Munna drove the bus and brought it to the place of accident.

13. In the first place the statement of Sharda Prasad (authorised driver) D.W. 1 that Munna driver forced himself on to the steering seat despite his protests and resistance does not inspire our confidence. This would not be in consonance with the normal running of such buses. Secondly, Sharda Prasad had given a statement in military Court of inquiry on 2-8-80 (vide Ex. 22 in Claim Petition No. 208 of 1980). He was confronted with his said earlier statement and he admitted to have stated there that at the time of accident he himself was driving the bus in question. He was given opportunity in his cross-examination to explainhow he came to give that statement in the military Court of inquiry contrary to his present statement before the Tribunal where lie took up the case that the time of accident Munna driver was driving the bus. He explained that he had given the statement before the military Court of inquiry out of fear of being beaten (by the military people). But we feel convinced that this explanation is simply an eyewash. Apparently there seems to be no reason to entertain such a fear. He had admitted that regarding that fear he had not moved any application anywhere. His said admission that at the time of accident he himself was driving the Corporation Bus is the last word on this point.

14. We find that Sharda Prasad's statement before the Tribunal very much varied from his statement made before the military Court of inquiry. Thus he does not appear to be a person who can be relied upon. We, therefore, place, no reliance on the statement of Sharda Prasad (D. W. 1). His earlier admission before the military Court of inquiry that at the time of accident he himself was driving the Corporation Bus seems to represent the correct picture. We, therefore, hold and confirm that at the time of accident Sharda Prasad who was the authorised driver of the Corporation Bus was driving it.

15. As regards the First point, consideration of three things would be necessary. These are the direct evidence led by the parties, circumstances of the case and the application of principle of res ipsa loquitur. The parlies have led direct evidence to reveal the facts which led to the accident in question. There is no doubt that the drivers of the ill fated vehicles are the best person to throw light on the point. For that end the claimants examined N. K. Jagdish Pal as P. W. 3 who was driving the army truck and driver Lumxi Dull (P. W. 1) who was sitting by the side of driver N. K. Jagdish Pal (P.W. 3) in the front cabin of the said army truck. Besides, the claimants also examined Maj. 1. D. Gandhi, one of the claimants who was sitting in the rear cabin of the army truck and had the opportunity of observing the road ahead through the glass fitted in the rear cabin. All these three witnesses corroborated each other in deposing to the effect that the army truck No. 73-C/4993Y was being driven by driver N. K. Jagdish Pal (P. W. 3) at a moderate speed on the left side of the road when the Corporation Bus came from the oppositedirection at a very high speed and dashed against the right side front portion of the rear cabin of the said truck. Both the above named drivers have stated that when the Corporation bus was found coming at a very high speed then N. K. Jagdish Pal, driver, gave dipper and moved his truck further to its left on to the foot-path but despite that the Corporation Bus dashed against the right side front portion of the rear cabin. All the above named three witnesses have stated that as a result of the forcible impact of the said collusion the rear cabin of the truck got detached and toppled over and the occupants i.e. the three petitioners and wife of Major Gandhi were thrown out sustaining multiple injuries. Nothing could be elicited in their cross examinations to discredit them.

16. On the other hand, the Corporation has examined its authorised driver Sharda Prasad as D. W. 1. We have already referred to his evidence which narrates as to how the bus was taken oul by him from the Kutchery Bus stand and was driven up to the place of accident. Of course, he deposed that it was Munna, the other driver of the Corporation who had come to occupy the steering seat and happened to be driving the Corporation Bus at the time of accident. He further stated that all this time he was sitting by the side of Munna and was thus able to see in the front. He staled that Munna was driving the bus at that time at the speed of 20 or 25 Kms. per hour and was driving it on the left side of the road. The army truck was found coming from the opposite side in the middle of the road at a very high speed of about 60-70 Kms. p.h. Munna tried his best to save his bus but the rear cabin of the army truck dashed against the front portion of the bus. Munna jumped out of the bus and ran away. In the process the bus swerved right and stopped on the stack of stone ballast. He also ran away and went to Kutchery Bus stand. He could not contact the Station Inchargc. So he went to his house. He was informed of (he accident and he wrote the F.I.R. of the accident at his dictation (Ex.A. 1). He then lodged the said F.I.R. at police station Cantonment. It may be noted that in the said F.I.R. the same case of Munna driving the bus at (he time of the accident was mentioned.

17. We have already held above that in fact Munna was nol an intruder but the Corporation bus was being driven by Sharda Prasad, D. W. 1, the authorised driver of theCorporation bus. Under the circumstances his statement would be read as if he was driving the Corporation bus at that time. The significant point is that he in his statement as D. W. 1 holds the driver of the army truck to be negligent and rash in bumping the rear cabin of the truck on to the Corporation bus. We have already discussed above that Sharda Prasad, D. W. 1 is not a witness on whom implicit reliance can be placed. To our mind, his said version is nothing but a calculated afterthought. We find that this version is diametrically opposite to the initial version of (he incident given by him in the F.l.R. (Ex.Al) lodged by him at P. S. Cantonment. There he stated that Munna brought the bus near Beli Hospital and dashed it againsl the right side of the military truck and then got down from the bus and ran away. What we want to impress is that in the said F.l.R. he frankly stated that it was the driver of the bus (whether it be Munna or Sharda Prasad) of Corporation who had dashed the bus against the military truck. It was not asserted therein that the driver of the army (ruck was driving the said truck negligently or rashly or on the wrong side of the road and had dashed against the Corporation bus. We have no reason to doubt the first version given by Sharda Prasad about the rashness and negligence of the bus driver resulting in the accident in question.

18. Although Sharda Prasad, D. W. I has stated that at the time of accident the Corporation Bus was being driven at a speed of 20 to 25 Km. p.h. while the army truck came along at the speed of 60 to 70 Km. p.h. in the middle of the road but the circumstances appear to be otherwise. Ex. 7 is the site plan which was prepared soon after the accident in connection with the criminal case. The site plan shows that the army truck had gone to the extreme left of its side while the bus had come on lo its wrong side of the road and had dashed against the rear cabin of the army truck which got detached and fell down. The truck had come to a halt at the impact side while the bus moved on and got on to (he stone ballast stacked on the extreme right side of the road anil came to a halt there. This gives a fair picture of events that had happened at the time of the accident. It belies the assertion of Sharda Prasad D. W. 1, that at the time of accident the army truck was being driven at the speed of 60 to 70 Km. p.h, while the Corporation bus was being driven at the speed of 20 or 25 Km. p.h. The very fact thai the army truck had come lo a stand still immediately after the accident indicates that itwas being driven at a very moderate and slow speed. On the other hand the fact that the bus after a very strong impact, which had dislodged the rear cabin of the army truck had still drifted on to an appreciable distance and rolled over to the stone ballast slacked by the side of the road before it could come to a halt, indicates that it was being driven at a very high speed. The very fact that the Corporation bus had instead of being on its left side of (he road, diverted lo the right side of the road and dashed against the army truck which had been taken to the extreme left side of the road is a strong pointer that the Corporation bus was being driven rashly and negligently ignoring all the rules of the road. In this way the circumstances of the case coupled with the deductions flowing from the principle of res ipsa loquitur as appear from the site plan, go a long way to conclusively prove that Sharda Prasad, D. W. 1, the driver of the Corporation bus, was driving it rashly and negligently at the time of the aecidenl. We hold accordingly and confirm the finding of the learned Tribunal on this point.

19. In the case of Concord of India Insurance Co. v. Nirmala Devi, 1980 Acc CJ 55 at P. 56 : (AIR 1979 SC 1666 at p. 1667) the Supreme Court observed :

'The jurisprudence of compensation for motor accidents must develop in the direction of no-fault liability and the determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales.'

20. In the case of Shanli Devi v. General Manager, Punjab Roadways, 1970 Acc CJ 287 at P. 290 : (AIR 1971 Punj & Har 13 at P. 15) the Punjab and Haryana High Court observed :

'The Courts should not allow a misfortune to be turned into a windfall.'

21. On the point of just compensation it was held in the case of Sheikhupura Transport Co. Ltd. v. Northern India Transporters insurance Co. Ltd., AIR 1971 SC 1624 by Ihe Supreme Court as follows :--

'In fixing compensation, the pecuniary loss can he 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 sources come to them by reason of the death.'

22. Tn the case of Gobald Motor Service Ltd. v. R.M.K. Veluswami, AIR 1962 SC 1, it was observed :

'What the Suprme Court wanted to hold was that normally the Court below does not interfere with the assessment of the damages by the trial Judge but where damages assessed appear to be wholly inadequate or for that matter very excessive, then the appellate Court must do its duty and determine as what should be the correct amount of damages.'

23. We deal with the claim of just compensation of the claimants separately keeping the above principles of law in mind :

24. In claim petition No. 208 of 1980 (giving rise to F.A.F.O. Nos. 526 of 82 and 592 of 1982) Km. Diviya, aged 14, has sustained the following injuries as a result of the said accident.

i) Contusion 4 cm X 4 crn on left side of skull on its posterior part.

(ii) Abrasion 5 cm X 4 cm on right side of chin.

25. In claim petition No. 209 of 1980 (giving rise to F.A.F.O. Nos. 525 of 1982 and 589 of 1982) Km. Deepti, aged 8 years, had received the following injuries as a result of the said accident :

(i) Contusion 5 cm. X 4 cm on left side of scalp on the posterior part.

(ii) Abrasion 2 cm X 1/2 em on left side of forehead.

(iii) Abrasion 6 cm X 2 cm on back of left forearm in the middle placed horizontally.

26. Km. Diviya had claimed the following compensation under different heads :

(i) Losson account of performance of high standard of marriage .....

Rs. 50,000/-

(ii)Loss for selection of better bridegroom ....

Rs. 50,000/-

(iii)Loss on account of deprivation of normal parental support after marriage. . .

Rs. 60,000/-

(iv)Loss on account of head and brain injury . . .

Rs. 80,000/-

(v) Losson longivity of life .

Rs. 70,000/-

Total

Rs. 3,10,000/-

27. However, the learned Tribunal awarded the following amount :

(i) For shock,pain and suffering .....

Rs. 5,000/-

(ii) Fortemporary physical and mental impairmentresulting in her confinement and adversely affecting her studies '. .

Rs. 5,000/-

Total

Rs. 10,000/-

28. Km. Deepti had claimed the following compensation under different heads :

(i) Losson account of performance of high standard of marriage ....

Rs. 50,000/-

(ii)Loss on deprivation of normalparental support after marriage .....

Rs. 60,000/-

(iii)Loss for selection better bridegroom .....

Rs. 50,000/-

(iv)Loss on account of head and brain injury . . .

Rs. 80,000/-

(v) Losson longivity of life -

Rs. 70,000/-

Total

Rs. 3,10,000/-

29. The learned Tribunal, however, awarded the following compensation :

(i) For shock,pain and suffering ........

Rs. 5,000/-

(ii)For temporary physical and mentalimpairment resulting in her confinement and adversely affect ingherstudies.

Rs. 5,000/-

Total

Rs. 10,000/-

30. It is in evidence that both the girls were confined in military hospital for about a week before they were discharged. However, there is nothing on record to show as to under what circumstances it was regarded necessary to keep them as indoor patients when the injuries sustained by them were of minor nature. In our opinion, they could be discharged immediately after giving first-aid to the minor injuries suffered by them. Only their father Major I. D. Gandhi (P. W. 2) has stated that as a result of the said accident both Km. Diviya and Km. Deepti have been suffering from insomnia, melancholy and fear fobia etc. and they are undergoing treatment at Chandigarh. No medical evidence has been adduced to substantiate the above. There is nothing on record to indicate that as a result of the injuries sustained by them they had come to suffer even a temporary or partial disablement. Of course, we can appreciate thatboth of then) being minors must have suffered mental shock from the said accident and pain, due to the said injuries, to some degree.

31. In the case of Municipal Corporation of Delhi v. Shanti Devi Dutt, 1975 Acc CJ 508 (Delhi), a lady of 57 years old-was injured due to her involvement in a motor vehicle accident. There was no permanent injury. She had received the following injuries : --

(1) Abrasion on the leg in the front,

(2) swelling in the middle of the left leg,

(3) tenderness in the front of the left leg over the swelling and there was a suspicion of fracture of the tibia of the left leg.

(4) Abrasion on the left knee.

(5) Bruises and small abrasion on the right knee and thigh.

(6) Abrasion on the left knee over the dorsum and

(7) Abrasion on the back of the right elbow.

32. The Tribunal's award of Rs. 4750/- as compensation towards mental suffering which she had undergone as a result of the accident as well as on account of the injuries sustained by her (pain and suffering on account of injuries) was upheld by the Delhi High Court. In the present case we find that the number of injuries suffered by the two girls is far less than suffered by the lady in 1975 Acc CJ 508 (Supra). In our opinion a sum of Rs. 2000/- for each of the two girls in their individual claims towards mental shock, pain and suffering, resulting to them as a sequel of the accident would be just and reasonable. For want of any reliable evidence on the point of alleged temporary physical and mental impairment, or any circumstance necessitating their confinement in the hospital for about a week or so or any appreciable adverse effect on their studies we do not feel inclined to uphold the award of Rs. 5000/-granted by the learned Tribunal to each of the two girls on this count. There is no reliable evidence on record to substantiate any of the other heads of claim made by Km. Diviya and Km. Deepti. We are therefore, satisfied that the compensation awarded to each one of them by the learned Tribunal does not err on the side of inadequacy, rather we find that those awards err on the side of excessiveness.

33. As regards claim petition No. 211 of 1980 of Major I. D. Gandhi, Km. Diviya and Km. Deepti arising out of the death of Smt.Suman Gandhi (giving rise to F.A.F.O. Nos. 528 of 1982 and 591 of 1982), there is no doubt that Smt. Surnan Gandhi died as a result of injuries sustained by her in the accident in question. Her three heirs are her husband Major I. D. Gandhi and two minor daughters Km. Diviya and Km. Deepti. It is also in evidence that Maj. I. D. Gandhi was and is still serving in the military drawing a substantial pay. Evidently then Maj. I. D. Gandhi was not dependent upon his deceased wife, Smt. Suman Gandhi. The question arises as to whether Maj. Gandhi who was not dependent on his wife is entitled to any compensation due to her death. In the case of Madhya Pradesh State Road Transport Corporation, Bairagarh, Bhopal v. Sudhakar, AIR 1977 SC 1189, it was held (Para 4) :-

'........... The husband may not be dependenton the wife's income, the basis of assessing the damages payable to the husband for the death of his wife would be similar.........'

34. It is in evidence that Smt. Suman Gandhi had obtained a Bachelor's Degree in education. There is certificate from Adarsh Modern Middle School, Yamunanagar to the effect that from April 1977 to March 1980 she had served as a teacher in the said institution drawing a salary of Rs. 400/- per month. However, at the time of accident she was not in service. She had joined her husband Maj. I. D. Gandhi on his posting at Allahabad about two months prior to the accident and, as such, at that moment she was playing the role of household wife to her husband and mother to the minor daughters. In our opinion, it is not a condition precedent to the award of compensation that the deceased should have been actually earning money or money's worth or contributing to the support of the claimants heirs at or before the date of the death. We are of opinion that to claim compensation it is sufficient for the claimants to prove that they had a reasonable expectation of pecuniary benefit from the continuance of the life. In other words, they can make out a case of prospective loss. We are supported in our view by the decision of the Supreme Court in the case of C. K. Subramonia Iyer v. T. Kunhi Kuttan Nair, 1970 Acc CJ 110 : (AIR 1970 SC 376). It was no doubt a case arising under Fatal Accidents Act, 13 of 1855 but the principles thereof would equally apply to the claims for compensation arising out of the accidents involving motor vehicles. It was observed in paragraphs 7 and 8 as follows : --

'7. 1 Taff Vale Railway Company v. Jenkins, (1913) AC 1, Judicial Committee observed that it is not a condition precedent to the maintenance of an action under the Fatal Accidents Act, 1846, that the deceased should have been actually earning money or money's worth or contributing to the support of the plaintiff at or before the date of the death provided that the plaintiff hud a reasonable expectation of pecuniary benefit from the continuance of the life. Therein Lord Atkinson stated the law thus : --

'1 think it has been well established by authority that all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues, ft is quite true that the existence of this expectation is an inference of fact. There must be a basis of fact from which the inference can reasonably be drawn but I wish to express my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first, that the deceased earned money in the past, and second, that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence and the necessary inference can, I think, be drawn from circumstances other than and different from them,'

'8. In an action under the Act, it is not sufficient for the plaintiff to prove that he lost by the death of the deceased a more speculative possibility of pecuniary benefit. In order to succeed, it is necessary, for him to show that he has lost a reasonable probability of pecuniary advantage. In Barnett v. Cohen, (1921) 2 KB 461, Mc Cardie, J. speaking for the Court quoted with approval the following observations of Lord Huldane in his judgment in Tuff Vale Ry. Co, v. Jenkins (1913 AC 1) (supra) :

'The basis is not what has been called solatium that is to say, damages given for injured feelings or on the ground of sentiment, but damages based on compensation for a pecuniary loss, but then loss may be prospective, and it is quite clear that prospective loss may be taken into account. It has been said that this is qualified by the proposition that the child must be shewn to have been earning something before any damages can be assessed. I know of no foundation in principle for that proposition either in the statute or in any doctrine of law which is applicable; nor do I think it is really established by the authorities when you examinethem..... I have already indicated that in my view the real question is that which Willes, J. defines in one of the cases quoted to us, Dalton v. South Eastern Rly. Co. (1958-140 ER 1098). 'Aye or No, was there a reasonable expectation of pecuniary advantage?'

35. The three heir claimants in their claim petition had demanded the followingcompensation :

(i)Treatment ....

Rs. 1,000/-

(ii)General Expenses . .

Rs. 6,000/-

(iii)Mental shock and agony .

Rs. 10,000/-

(iv)Loss of love and affection to the children ....

Rs. 30,000/-

(v) Lossof consortium . .

Rs. 50,000/-

(vi)Conventional loss . .

Rs. 5,000/-

(vii)Loss on account of longi-vity of life ....

Rs. 5,76,000/-

Total

Rs. 6,78,000/-

36. Major I. D. Gandhi (P.W. 1) has stated that it could reasonable be expected that his wife would have got a similar job at Allahabad also in the near future. The learned Tribunal also observed that in course of time there could as well be a rise in her salary as teacher and she could have earned more than Rs. 400/-per month which she was drawing in the educational institution at Yamunanagar. He moderately fixed her future earnings, or for that matter, her future capacity to earn on an average of Rs. 500/- per month. She had died at the age of 39, In the cases of Chameli Wati v. Delhi Municipal Corporation, 1982 TAC 558 : (AIR 1982 Delhi 575) and Lanka Saranmia v. Rajendra Singh, (1984) 1 TAC 401 : (AIR 1984 Andh Pra 32) it was held to the effect that life expectancy in India should ordinarily be now taken as 70 or 75 years. But in our opinion fixation of longivity of a particular person does involve certain amount of arbitrariness and approximation. The learned Tribunal has fixed longivity of Smt. Suman Gandhi at 60 and we have no reason to differ from the same as it seems quite reasonable. The Tribunal held that Smt. Suman Gandhi would also be on average spending about Rs. 200/- on her self she had lived, thereby making the balance of Rs. 300/- per month on the average available for her husband and daughters. Calculated at that figure for the period of 21 years the learned Tribunal arrived at a figure of Rs. 75,600/- onthis count. Besides, the learned Tribunal also awarded a sum of Rs. 1,26,000/- as compensation for her gratuitous services calculated at the rate of Rs. 500/- per month for 21 years. The total amount thus awarded was Rs. 2,01,600/-.

37. Sri S. K. Sharma, learned counsel for the Corporation argued that the learned Tribunal erred in awarding compensation on the above two heads simultaneously. According to him, compensation for gratuitous services of the wife should not be given when compensation is awarded for the pecuniary loss calculated on the basis of her earning capacity. In other words, the argument is that if the lady was either earning at the time of her death (on account of the motor vehicle accident) or her earning capacity for future years has been taken into consideration, then no compensation for her possible gratuitous services could be awarded. However, Sri K. N. Tripathi, learned counsel for the claimants argued that there is no legal bar for awarding compensation on both the counts, simultaneously because each proceeds almost on different considerations. It is further argued that there is no reasonable hypothesis to conceive that working ladies do not render gratuitous services to their families in the matter of looking to their daily needs and conveniences in the house. We are of the opinion that it should not be presumed that working ladies would neglect their families and would not render gratuitous services to the members of their families in bringing up the children and looking after their husbands in their day-to-day needs.

38. In the case of Oriental Fire and General Insurance Co. Ltd., New Delhi v. Chuni Lal, 1969 Acc CJ 237 (Punj) in the event of death of a lady compensation was allowed on account of loss of services and marital company. Similarly in the case of P. Anthaiah and Sons v. Kumari Kantha Dibbayya, 1971 Acc CJ 63 : (AIR 1970 Andh Pra 380) in the event of death of the woman aged 32 years, employed as a sweeper, compensation towards loss of service was allowed to her husband and four childern.

39. We, therefore, see no reason to disentitle the claimants for compensation towards loss of gratuitous services which would have been rendered by Smt. Suman Gandhi to her husband and daughters merely because compensation has been allowed on the basis of pecuniary loss calculated on her prospective capacity to earn.

40. The question arises as to whether the compensation on the above two counts, as allowed by the learned Tribunal, is just or inadequate or excessive.

41. We see no reason to differ from the view of the learned Tribunal that future earning capacity of Smt. Suman Gandhi was on an average Rs. 500/- per month. However, we do not agree with the Tribunal's view that out her prospective earnings at the rate of Rs. 500/-per month she would have been contributing a sum of Rs. 300/- per month on the average for the use of her husband and daughters. In Manmohan Sarup Kaushal v. Mela Ram, 1977 Acc CJ 140 (Delhi) it was held :

'The deceased Premlata Kaushal was at the time of the accident 35 years of age. She was B.A., B.T. and was working as a teacher in a secondary school. Her salary was Rs. 435.60 p.m. but she was actually paid Rs. 364,77 and there was a compulsory deduction in salary on account of Provident Fund and house rent. The lady must have been spending sufficient money on her food, clothes, conveyance, studies and equipment and the Tribunal had, therefore, come to the conclusion that she was contributing Rs. 100/- per month to the family and the expectancy has been taken to be 23 years and so the Tribunal has come to the conclusion that she was entitled to Rs. 23,760/- out of which the amount of Provident Fund that had been received after having been deducted and the benefit has been computed at Rs. 20,190/- I do not find any illegality in the said calculation and so affirm the finding. So far as the compensation for death of Miss Shobhana is concerned, she was 11 years old and was studying. She was earning nothing, but the Tribunal below has assessed the pecuniary loss of her affection and service to the family at Rs. 8,000/-' In this ruling it is not clear what was the earning capacity of the husband of Smt. Premlata Kaushal so as to have an idea about the affluency of the family.

42. In the present case deceased Smt. Suman Gandhi was 39 years of age and her future earning capacily is also based on her leaching proficiency. Major Gandhi at the lime of the accident was serving as a Major in the Army and is even serving as such at present. Major Gandhi as P.W. 2 has stated that he has been getting althrough Rs. 2400/- per month as his pay. What we would like to stress is thathe had been and is getting substantial salary for the up keep of the family. Even if his wife Smt. Suman Gandhi deceased might not have been earning anything the family would have been decently supported. In this background if Smt. Suman Gandhi earned about Rs. 500/-per month she did not or would not have any stress on her mind to spare the maximum for the support of her family and impose some self-restraint on her personal expenses. In these circumstances we have every reason to believe that she would have been spending at least Rs. 300/- per month on hereself and thereby making the balance of Rs. 200/- per month available to her husband and daughters. We also feel that the rate of gratuitous services fixed at Rs. 500/- per month by the learned Tribunal is rather high. We are concious that in fixing such a rate there was to be an element of guess work and approximation. In the circumstances of the ease and keeping in mind the status of the family we are of opinion that a sum of Rs. 200/- per month on the average would be just on this count.

43. In this way the total pecuniary loss to the three heir-claimants on the above two counts conies to Rs. 400/- per month on the average.

44. The learned Tribunal has calculated pecuniary loss on the above two counts for 21 years knowing that Smt. Suman Gandhi would have provided the above benefits throughout her life span up to the age of 60/- years. But then the learned Tribunal lost sight of the fact that in such matters the interval of years for which the beneficiaries would enjoy the benefit is also to be taken into account. The fongivity in the family has been taken by the learned Tribunal at 60 years. On that very basis it would be reasonable to hold that Major Gandhi would also have his longivity up to that age. He was 46 at the time of the accident. Therefore, he would be benefited for only 14 years. Similarly the two daughters at the time of the accident were 14 and 8 years. It would be a reasonable expectation that they would get married in that period of 14 years. They would not be entitled to any benefit after their marriage.

45. Therefore, the benefit has to be calculated for a period of 14 years only and not for 21 years as calculated by the learned Tribunal. The amount would come to Rs. 400 X 12 X 14 : Rs. 67,200/-.

46. As regards the other claims, the Tribunal observed that they would be covered by the item of Rs. 1,26,000/- as allowed by him above. However, Sri K. N. Tripathi, learned counsel for the claimants argued that the above amount represented the pecuniary loss calculated on the basis of certain figures representing gratuitous services only and as such could not be deemed to have covered the other claims. We agree with his above contention.

47-48. The other claims could be allowed if there was some evidence to prove the same. Major I. D. Gandhi (P.W.2) is the only witness who could be expected to depose about the remaining individual claims. However, we find that he in his examination-in-chief did not elaborate those claims. He simply stated that on account of the death of his wife the consolidated claim put forward was of Rs. 6,50,000/- (though in the claim petition it is Rs. 6,78,000/-). This overall statement cannot be taken to have proved these claims. Nonetheless, it would be worthwhile to refer to those remaining claims separately :

(a) Treatment : The evidence shows that soon after the accident Smt. Suman Gandhi was removed to the hospital where she struggled between life and death for about 2 or 3 hours and then breathed her last. There is nothing to show that any expenses on her treatment were incurred by the claimants. This claim has, therefore, rightly been rejected by the learned Tribunal.

(b) Funeral Expenses : Nothing has been brought on record as to the exact amount spent on this item but we have no reason to doubt that her funeral rites must have been performed and that would certainly have entailed some expenses. We tentatively fix those expenses at Rs. 1000/-

(c) Mental Shock and Agony : In the case of K. Narayana Reddiar v. P. Venugop'ala Reddiar, 1976 Acc CJ 474 : (AIR 1976 Andh Pra 184) it was observed (Para 34).

'It is well settled that neither under the ordinary law nor under the Fatal Accidents Act a person is entitled to compensation for menial anguish and suffering in case of accident resulting in death,' In the case of Lachman Singh v. Gurmit Kaur, 1979 Acc CJ 170 : (AIR 1979 Punj & Har 50) (FB) it has been held that no compensation on this count can be granted. Accordingly no compensation can be allowed on this count.

(d) Loss of Love and Affection to the Children : In the ease of Lachman Singh v. Gurmit Kaur (1979 Aec CJ 170) : (AIR 1979 Punj & Har 50) (FB) as followed in the case of Agya Kaur v. General Manager, Pepsu Road Transport Corporation, Patiala, 1980 Acc CJ 306 : (AIR 1980 Punj & Har 183) it was laid down that no amount can be awarded towards loss of love and affection which the heirs might have received from the deceased. We reject claim on this item.

(e) Loss of Consortium : In the case of K. Narayana Reddiar v. Venugopala Reddiar (supra) the deceased-wife was 50 years old and the claimant-husband was 56 years. Compensation for loss of consortium was allowed at Rs. 4000/-. In the case of V. Venkatesham v. General Manager, Andhra Pradesh State Road Transport Corporation, Hyderabad (1977 Acc CJ 536 : (AIR 1978 Andh Pra 285)) the deceased wife was 21 years old and the compensation under the consolidated head of 'pain and suffering, funeral expenses, loss of love and affection to the children and loss of consortium to the husband' was assessed at Rs. 6000/-. In the present case the compensation towards funeral expenses have already been allowed. On looking to the overall circumstances we feel that compensation of Rs. 4000/- towards loss of consortium would be a reasonable amount.

(f) Conventional loss : The claims item-wise have already been discussed above. We do not see any basis for awarding any compensation by way of conventional loss.

49. In this way the total compensation, to which the three claimants would be entitled on account of death of Smt. Suman Gandhi comes to Rs. 67,200/- plusRs.1000/- for funeral and Rs. 4000/-towards consortium : total Rs. 72,200/-.

50. Question arises as to whether any deduction should be made or not on account of lump sum payment and uncertainties of life. Sri K. N. Tripathi, learned counsel for the claimants has referred to Union of India v. Viranwali, 1967 Acc CJ 41 (Delhi); Prem Singh v. Tika Ram, 1967 Acc CJ 243 (Delhi); Satyawati Pathak v. Hari Ram, 1983 TAC 572 : (AIR 1984 Delhi 106) in which such deduction was not made for the reason that benefit of getting a lump sum payment was offset by the increase in prices and the progressive decrease in the value of the rupee. In Ganga Devi v. Municipal Corporation of Delhi, (1980 Acc CJ 364) (Delhi) such deduction was not made because no allowance was made for the increments which the deceased would have earned during his service.

51. However, in Punjab State v. Hardeep Kaur, 1970 Acc CJ 150 (Punj and Har) it was observed :

'Deduction of 10 to 20 per cent is generally made out of the total amount of compensation in order to do justice between the parties in view of uncertainty of life and the possibility of the deceased having died early even if the accident had not taken place. The rule of deduction in the matter of claims under the Fata! Accidents Act is no doubt based on justice and fairplay but it cannot be said that deduction must be made in every case when the amount is to be paid in lump sum. We have to look to the circumstances of each case, and no inflexible rule of equity, justice or fairplay can be said to govern all cases. The Tribunal under Section 110B of the Motor Vehicles Act, 1939 is only called upon to determine the amount of compensation which appears to be just and there may be, cases where justice demands that the deduction is not made.'

52. In Maheshwari Transport Co. v. Pritam Kaur, 1980 Aec CJ 157 (Madh Pra) the deceased was a driver aged 50 and was earning Rs. 500/- per month. Claimants were a widow and son. Monthly dependency of widow was assessed atRs. 200/- and 15 years multiplier was adopted. The Tribunal had calculated the amount of compensation as Rs. 36,000/-The Tribunal had then reduced the amount by 15 per cent on account of lump sum payment. But the High Court raised deduction to 20 per cent and awarded Rs. 23,000/-. But in Madhya Pradesh State Road Transport Corporation, Bairagarh, Bhopal v. Sudhakar, 1977 Acc CJ 290 : (AIR 1977 SC 1189) the Supreme Court observed (Para 3) :

'But in assessing damages certain other factors have to be taken note of which the High Court, overlooked, such as the uncertainties of life and the fact of accelerated payment that the husband would be getting a lump sum payment which but for his wife's death would have been available to him in driblets over a number of years. Allowance must be made for the uncertainties and the total figure scaled down accordingly. The deceased might not have been able to earn till the age of retirement for some reason or other, like illness or for having to spend more time to look after the family which was expected to grow. Thus the amount assessed has to be reduced taking into account these imponderables in assessing damages.'

53. Looking to the overall circumstances of the case we think that deduction on account of lump sum payment and uncertainties of life should be made at 20%. This would reduce the total amount payable, as compensation to Rs. 57,760/-This amount should be divisible between the three claimants.

54. Major I. D. Gandhi should get one third i.e. Rs. 19,260/- (approximate rounded figure).

55. Out of the remaining amount of Rs. 38,500/- Km. Diviya aged 14, should gel Rs. 15,100/- and Km. Deepti, aged 8, should be Rs. 23,400/-. This is so because in every likelihood the elder girl would get married much earlier than the younger one.

56. As regards Claim Petition No. 210-80 of Major 1. D. Gandhi (giving rise to F.A.F.O. Nos. 527/82 and 590/82) there is evidence including medical one to prove that in the accident, in question, Major I. D. Gandhi had sustained the following injuries :

1-2. Lacerated injury skull deep.

3. Fracture on skull bone,

4. Fracture on base of right second matacarporal bone.

5. Fracture on super margin of left scapula.

6. Fracture on 3, 4 and 5th ribs of the right side.

57. It is in evidence that on account of above injuries Maj. Gandhi had to remain indoor patient in the hospital on three separate intervals, i.e., from 21-6-1980 to 16-7-1980 (26 days); from 14-8-1980 to 10-9-1980 (23 days); from 9-3-1981 to 26-3-1981 (18 days), total two months 12 days.

58. It is in evidence that as a result of the above injuries sustained during the said accident his right hand has become permanently impaired so much so that he has lost proper grip by right hand. His brain has also been affected and that his capacity of work had considerably been reduced. He cannot take part in games, he cannot aim, he cannot be posted in forward areas and his military career has been adversely affected. All these facts have been stated by Maj. Gandhi as P.W. 2 and he is corroborated by Lt. Col. (Dr.) V. S. Kapoor P.W. 4, Medical Officer, Military Hospital, Allahabad. The latter has stated that he had examined Maj. I. D. Gandhi and had placed him in low medical category. He added that as a result he cannot be assigned duties in field areas or on high altitudes. He also confirmed that there was absolutely no chance for Maj. Gandhi to come out from low medical category because his multiple head injuries had left permanent after effect.

59. There are medical reports and certificates also on the record regarding Maj.Gandhi. Ext, 1/-A dated 9-8-80 shows that the Medical Board of Military Hospital. Allahabad recommended that the duties of Maj. Gandhi need not be of a sedentary nature but he was not fit for duties in combat or hilly terrain and extreme cold climate. Ext. 20-A is a confidential report dated 22-9-1980 about the performance of Maj. Gandhi. It says that ever since he re-joined the unhe unit after discharge from hospital his efficiency to work has considerably gone down. He was advised to improve himself and come up to the expectation desired from a senior Major. He was given further chance for improvement in his performance failing which further necessary action could be taken against him. Ext. 20-B is the confidential report dated 7-2-1981 by his superior Lt. Col. Commanding Officer regarding the discipline of Maj. Gandhi. It was stated that it was noticed on more than one occasion that his approach towards day to day work was rather causal and his efficiency to work has considerably gone down. His performance in his work was below standard In spite of previous warning given to him on 22-9-1980 he was still found lacking his sense of responsibility and there was no improvement in his work. A warning was given to him to be more careful in future with a further advice to improve himself and come up to the desired standard commensurate with his rank and service. He was given three months time to improve himself which disciplinary action could be initiated against him.

60. In the course of hearing of these appeals this Court allowed his application for bringing on the record a few more documents which came into existence after the decision of the Tribunal, Proceedings of Medical Board dated 26-4-1984 held at Military Hospital, Meerut Maj. Gandhi was placed on a permanent low medical category. It was recommended that he was fit for duties any where in peace or field area except the duties involving close combat. He was fit only for non-combat duties which do not involve crouching, running, jumping, long march and hill climbing. He was found unfit to lift weight, use personal weapons in self defence and even stand for over two hours at stretch. He was found not capable of holding an independent command of a unit in operational area, though, he was capable of it in peace area.

61. Another medical certificate dated 29-10-1983 certified that he was unfit to undergo certain courses including those which involved climbing hills or extraneous work.

62. Another certificate dated 30-10-1983 shows that his memory was no longer sharp and he intended to forget things or orders of the superiors and had developed impaired thinking. His functional efficiency due to accident had considerably gone out. He complained of constant body-ache, headache and bone swelling on account of which it was felt by the superior officers that he should seek retirement from the Army or else get treated so that his physical handicaps did not come in his way for future promotion. He was cautioned that unless the above handicaps could be overcome he could not be recommended for any further promotion.

63. As regards the promotion the learned counsel for Maj. I. D. Gandhi has shown us the Army Service Corps List up to April 1982 where in the seniority of Maj. I. D. Gandhi has been listed at page 59 at serial No. 351. Seniority of Maj. Milkha Singh appears at serial No. 350 above Maj. I. D. Gandhi and seniority of Maj. M. D. Kulkarni appears at serial No. 352. below Maj. I. D. Gandhi the seniority of Maj. Jakhmola is at serial No. 365. Photostat copy of posting and promotion order of Maj. A. Jakhmola has been filed to show that he was promoted as Acting Lt. Col. In the accompanying affidavit of Maj. Gandhi it was vouched that his promotion took place since May 21, 1984. The said posting and promotion order does indicate that other officers in the chain shown were required to take charge by May 21. We have no reason to doubt the genuineness or correctness of the above documents. We have no reasons to doubt that juniors to Maj. Gandhi have been promoted and Maj. Gandhi failed to gel promotion.

64. Maj. Gandhi as P. W. 2 in his statement on 21-8-1981 stated that his retirement would come after five years at the age of 52. It is not disputed that he is still serving as a Major which rank, he held on the date of the accident, i.e. 21-6-1980. Obviously no promotion has come in his way. There is nothing on the record to show that he had earned any adverse entry or remark throughout his career prior to the accident in question. We have no doubt that but for the adverse effect on his personality left by the accident in question Maj. Gandhicould get his promotion in due course of service. Maj. Gandhi as P. W. 2 has stated that he would have been promoted to the rank of Lt. Col. and then to the rank of full Colonel.

65. The question arises as to when those promotions would have come in his way. It is not disputed that there are two types of substantive promotions to the rank of Lt. Col. One by selection and other by time scale after completion of 24 years reckonable eommissioned service. The Army service Corps List shown to us reveals that the date of birth of Maj. Gandhi is 22-3-1934. Accordingly his retirement completing 52 years of age would fall on 21-3-86. The same list also shows that he was commissioned in the service on 26-1-1964. He would put in 24 years of reckonable commissioned service by 26-1-1988 which is later than his date of retirement. He, therefore, would not have got his time scale promotion.

66. There is nothing on record to show as to on what date Maj. M. D. Kulkarni, who was immediately below to Maj. Gandhi in the said seniority list, got his promotion on the basis of which it could be said that Maj. Gandhi too would have got his promotion as Lt. Gol. at least on that date. The only evidence which Maj. Gandhi has succeeded to bring on the record is that Maj. A. Jakhmola who was much junior to him was promoted as Acting Lt. Col. on 21-5-1984. There is also nothing on the record to show as to on what date or dates the other officers in between Maj. Gandhi and Maj. A. Jakhmola were promoted by selection. Under the circumstances we can only hold that Maj. Gandhi could have been promoted as Lt. Col. at least by 21-5-1984. However, under Rule 66(l)(i) the substantive promotion to the rank of Lt. Col. is made if the officer has 16 years of reckonable commissioned service and under Rule 66(a)(ii) a major who has not been selected for substantive promotion to the rank of Lt. Col. by the time he completes 20 years reckonable commissioned service is not eligible for substantive promotion by selection to the rank of Lt. Colonel.

67. If the date of promotion is to be taken as 21-5-84, as discussed above, thenreckoning from the date he 'was, commissioned in the service i.e. 26-1-1964 he would not be eligible for substantive promotion by selection to the rank of Lt.Col. after 26-1-1988. However, wefound that Maj. A. Jakhmola was also commissioned on 26-1-1964. It appears that he too could not have been promoted to the substantive rank of Lt.Col. and perhaps that is why he was promoted on 21-5-84 only as Acting Lt.Col., of course, needless to say, with all its pecuniary benefits. Accordingly, there seems no reason why in the normal course of service Maj. I. D. Gandhi could not be promoted at least as Acting Lt.Col., if not as Lt.Col. We have no doubts that he was ignored in the matter of promotion simply on the ground of his handicaps already mentioned above which resulted on account of the accident in questioa Accordingly, Maj. Gandhi is entitled to compensation for special and general damages which he suffered as a result of the accident in question.

68. We now calculate the amount of compensation which can be allowed to Major Gandhi under various heads claimed by him.

Heads :

Claims :

(a)

Pain andsuffering

Rs. 10,000/-

(e)

PermanentPartial disability of right hand

Rs. 20,000/-

(f)

Loss ofdisfigurement on account of nasal fracture

Rs. 2,000/-

(h)

Loss ofnormal pleasures oflife

Rs. 30,000/-

(k)

Loss ofexpectancy of life

Rs. 96,000/-

69. In the case of State of Punjab v. Lt. J.P.S. Kapoor 1973 Acc. C.J. 216 (Punj. and Har.) the claimant, a Lieutenant in Army, aged 22 years, had suffered a fracture of the left leg, head injury and had remained unconscious for two and a half months and thereafter remained in semi-conscious state of mind and mentally inalert for 2 years on bed. During the period large number of operations were performed upon him. This had resulted in permanent disability, physical deformity and paralytic condition. He was deprived of married life. He was declared unfit for future service. Rs. 4000/- were awarded for pain and suffering and Rs. 20,000/- for loss of enjoyment of life due to his disability, physical deformity and paralytic condition. (Obviously Major I. D. Gandhi has not suffered to that extent).

70. In Babu Mansa (now Major in his personal capacity) v. Ahmedabad Municipal Corporation, Ahmedabad 1978 Acc. C.J. 485 :(AIR 1978 Guj. 134) a boy of 15 had sustained fracture of right leg and had remained indoor-patient for four months. His leg was shortened and there was permanent disability to the extent of 20%. A sum of Rs. 15,000/- was allowed for pain and suffering arid loss of amenities and enjoyment of life.

71. In the case of Devendra Raj Mehta v. Kanwar Sen 1980 Ace. C.J. 225 (Raj) the Kerala State Transport Corporation, Trivandrum v. M. Thomas 1980 Acc C.T 417 (Ker)injured claimant was an I.A.S. Officer aged 32. He had sustained severe multiple injuries. He remained in hospital for six months. His leg was shortened resulting in permanent disability. His overall personality was marred. This created impediment in his capacity to enjoy the various amenities of life. Rs. 40,000/- were awarded as compensation for pain and suffering, permanent disability and loss of amenities and loss of pleasures of life. (However, Major Gandhi was 46 at the time of accident).

72. In the case of Kerala State Transport Corporation, Trivandrum v. M. Thomas 1980 Acc C.T 417 (Ker) the injured claimant, aged 56, was an advocate and also a member of Kerala Legislative Assembly. Relevant portions in para 9 at page 421 are as follows :

'It has come out in evidence that in the collision between the two buses the claimant's right leg was caught in between parts of the two vehicles and that for extricating the limb from its jammed position the steel frame of the seat of one bus had to be cut and removed That could be done only after a delay of more than one hour after the occurrence of the accident. During the interval the claimant who was fully conscious had to endure indescribable and excruciating pain and agony. He was profusely bleeding all the time with people merely helplessly looking on. After the leg was extricated and the claimant was ultimately removed to the hospital his right leg had to be amputated. The result was that he was rendered a total invalid inasmuch as he had lost the facility of his right hand even during childhood on account of an attack of polio. The evidence also discloses that for several weeks after the operation the claimant had to be an in-patient in the Medical College Hospital and that during that period also he had to suffer severe pain and discomfort. ....He suffered from 'phantom limb'

on account of which the stump of his right leg (the amputated limb) goes into a kind of uncontrolled conclusive tremor when he isasleep with the result that the claimant immediately wakes up and he is unable to have even sound sleep.'

73. Taking his longivity at 76 years Rs. 20,000/- were awarded on account of pain and suffering, permanent total disability due to becoming totally invalid and loss of amenities and pleasures of life. (However, in the present case Major Gandhi in his claim petition has tentatively taken his longivity at 70 and has presumed shortening of life by 8 years due to this accident and expected to live up to the age of 62). But as discussed above, his span of life has been taken up to the age of 60).

74. In the present case of Major Gandhihe was 46 at the time of accident, his life spanhas been taken as 60. The period comes to 14years. There is no evidence to show that thereis disfigurement on account of nasal fracture. Keeping in mind the overall circumstanceswe are of the opinion that a compensation ofRs. 30,000/- for above five heads would bereasonable and just.

(b) Treatment and nourishing diet Rs. 2325.00 :- The learned Tribunal rejected this claim for cogent reasons and we have no plausible ground to differ. This item is rejected.

(c) Loss for placing the officer in low medical category a the rate of Rs. 250/- per month for 4 years, .....Rs. 12,000/-

75. This in essence means loss of promotions in service and the consequent loss of raise in salary.

(d) Loss of pension on account of not getting promotions at the rate of Rs. 75/- per month..... Rs. 16,000/-

(g) Loss resulting from the head injury and brain damage hampering applicant's progress due to loss of health and memory.....Rs. 60,000/-.

76. This again in essence means loss of promotions in service and the consequent loss of raise in salary.

(j) Loss of post retirement prospects of earning at the rate of Rs. 1000/- per month.....Rs. 1,20,000/-

77. In Smt. Manjushri Rahav. B. L. Gupta AIR 4977 SC 1158 it was made clear in unambiguous terms that in awarding compensation the courts must take intoaccount (i) the salary of the deceased which he would have reached while reaching the maximum of his grade long before his retirement and (ii) must consider the effect of the pecuniary benefits which the deceased would undoubtedly have got after the retirement.

78. Accordingly Major Gandhi must get the following amounts : --

(a) Compensation for the loss of his promotional salary for the period of 22 months from 21-5-1984 to 21-3-1986 the rate of Rs. 250/- per month as claimed by him in the petition, and not at the rate of Rs. 400/- as deposed by Maj. Gandhi as P, W. 2. It would come to Rs. 5500/-.

(b) Compensation for loss of pension which he would have got if he had been promoted at the rate of Rs. 75/- per month as claimed in the petition for 8 years, i.e. Rs. 75 X 12 X 8 Rs. 7200/-.

(c) Compensation for the loss of post retirement prospects of earning, in our view, should be calculated at the tentative average rate of Rs. 500/- per month for 8 years which comes to 500 X 12 X 8: Rs. 48,000/-

79. The compensation payable to Maj. Gandhi in his claim petition comes to Rs. 30,000/-, plus Rs. 5500/-, plus Rs. 72,00/-, plus Rs. 48,000/-: total Rs. 90,700/-

80. As a result of the above discussion R A. F. O. No. 526 of 1982 is partly allowed. The award the learned Tribunal in claim No. 208 of 1980 of K. Diviya is modified and reduced to Rs. 2000/-.

81. F. A. F. O. No. 592 of 1982 is dismissed.

82. F. A.F. O, No. 525 of 1982 is partly allowed. The award of the learned Tribunal in claim No. 209 of 1980 of Km. Deepti is modified and reduced to Rs. 2000/- only.

83. F. A. F. O. No. 589 of 1982 is dismissed.

84. F. A. F. O. No. 527 of 1982 succeeds partly. The award of the learned Tribunal in claim No. 210 of 1980 of Maj. I. D. Gandhi is modified and reduced to Rs. 90,700/-.

85. F. A. F. O.No. 590 of 1982 is dismissed. F. A. F. O. No. 528 of 1982 succeeds partly. The award of the learned Tribunal in claimNo. 211 of 1980 of Major I. D. Gandhi, Km. Diviya and.Km. Deepti is modified andreduced to Rs. 57,760/-. Major Gandhi shall get one third i.e. Rs. 19260/- (approximate rounded figure). Out of the remaining amount of Rs. 38,500/- Km. Diviya aged 14 should get Rs. 15,100/- and Km. Deepti aged 8 should get Rs. 23400/-.

86. F. A F. O. No. 591 of 1982 is dismissed.

87. The amounts of compensation allowed to each one of the claimants shall carry usual , interest at the rate of Rs. 6% per annum, and not at 7 1/2% per annum allowed by the learned Tribunal, for the date of the presentation of the respective claim petitions till satisfaction.

88. Costs in all the above eight appeals are made easy.


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