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General Manager, Orissa State Road Transport Corporation Vs. Maheswar Rout and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal Nos. 104 and 108 of 1979
Judge
Reported inAIR1983Ori128; 54(1982)CLT619
ActsMotor Vehicles Act, 1939 - Sections 110B
AppellantGeneral Manager, Orissa State Road Transport Corporation
RespondentMaheswar Rout and ors.
Appellant AdvocateM. Manwar, Adv.
Respondent AdvocateA.K. Mohanty and ;B.K. Beura, Advs.
Cases ReferredBishan Devi v. Sarbaksh Singh
Excerpt:
.....approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 3,500/- and was contributing the amount for the maintenance and well being of the parents, grandmother and younger brothers. the courts have tried their best to reach at the sum which appeared to them to be just in the facts and circumstances. jenkins, (1913) ac 1 are worth noticing :i 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. but the intervention would not be effective and real if such minors and others are not assured that the pecuniary benefits which they would have otherwise enjoyed, if..........miscellaneous appeal no. 104 of 1979 is by the owner impugning the decision on the ground that the damages awarded were excessive and miscellaneous appeal no. 108 of 1979 is by the claimants seeking enhancement of the damages. the claimants are the parents, grandmother and younger brothers of the deceased. 2. it was alleged that the vehicle proceeding on the national highway no. 42 was being driven rashly and negligently on account of which it went off the road and rolling over twice came to a halt. in the process, the deceased who had been thrown out was crushed and expired at the spot. it was said that the deceased, a young man of 22 years of age, was a highly resourceful person and out of his business activities, he was earning a sum of rs. 3,500/- and was contributing the amount for.....
Judgment:

R.C. Patnaik, J.

1. One Sarbeswar Rout, who was travelling in a public service vehicle O. R. D. 1685 owned by the Orissa State Road Transport Corporation, died in an accident that took place on 10-1-1977 around 3,30 P. M. on National Highway No. 42. The Tribunal awarded compensation of Rs. 21,000/-. Miscellaneous Appeal No. 104 of 1979 is by the owner impugning the decision on the ground that the damages awarded were excessive and Miscellaneous Appeal No. 108 of 1979 is by the claimants seeking enhancement of the damages. The claimants are the parents, grandmother and younger brothers of the deceased.

2. It was alleged that the vehicle proceeding on the National Highway No. 42 was being driven rashly and negligently on account of which it went off the road and rolling over twice came to a halt. In the process, the deceased who had been thrown out was crushed and expired at the spot. It was said that the deceased, a young man of 22 years of age, was a highly resourceful person and out of his business activities, he was earning a sum of Rs. 3,500/- and was contributing the amount for the maintenance and well being of the parents, grandmother and younger brothers. It was alleged that he was engaged in various profitable activities and had high prospects for larger income. These benefits were lost to the claimants.

3. The owner refuted the allegations and alleged that the vehicle met with the accident not on account of any rash and negligent driving but in course of the driver trying to save the life of a cyclist who suddenly appeared in front of the vehicle.

4. On an analysis of the materials the Tribunal held that death of Sarbeswar was due to the rash and negligent driving of the vehicle. It further found that the deceased was 17 years and a half of age at the time of the accident and having regard to the accident and having regard to the facts and circumstances, a sum of Rs. 21,000/- was the entitlement of the claimants as damages.

5. Mr. Manawar, the learned counsel for the owner of the vehicle, endeavoured for a reversal of the finding regarding rashness and negligence. But having regard to the materials the contention has no leg to stand on. Having regard to the facts and circumstances, the application of the principle 'res ipsa loquitur' is apposite. The fact that the vehicle while moving on a national highway went off the road and rolled over twice is presumptive evidence of rash and negligent driving. The burden was on the owner to establish that there was no rashness and negligence. But no material was placed by the owner before the Tribunal by way of examining witnesses or proving documents to substantiate the plea taken in the written statement. The finding of the Tribunal on the question of rashness and negligence cannot, therefore, be faulted.

6. The next question is the quantum of compensation to be awarded having regard to the facts and circumstances. The claimants grieve that the amount is low while the owner says that it has been excessive.

The learned counsel for the claimants referred me to a large number of authorities and based his contentions on a comparative statement relating to the victim's age at the time of death, his prospects in life, the age of the claimants, the pecuniary loss sustained and the damages awarded. In an exerciser of this nature, many imponderables are to be taken into account and the damages awarded in various cases have, therefore, been rightly not uniform. The Courts have tried their best to reach at the sum which appeared to them to be just in the facts and circumstances. One aspect that should, however, be kept in mind while quantifying the damage is that the legislature advisedly has not prescribed any principle or formula according to which the damage is to be quantified. It has left the quantum to the discretion of the Tribunal; to award such amount as damages which appears to it to be just. It is enough to observe that the word 'just' has been used in a very wide and comprehensive sense. Edmund Davies L. J., in Goodburn v. Thomas Cotton Limited, (1968) 1 All ER 518 has said regarding the task of assessment of damages:

'The task is frequently perplexing, and its performance cannot be regarded as affording one of the most impressive examples of the exercise of the judicial function. Certainly it is one of the most difficult.'

and though the award of damages is essentially a matter of opinion and experience, the Court can pay due regard to 'the range and limits of the current thought'. The observations of Lord Atkinson in Taff Vale Railway Company v. Jenkins, (1913) AC 1 are worth noticing :

'I 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. It 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 the 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.'

It is profitable to take note of the observations of the Supreme Court in C.K. Subramonia Iyer v. T. Kunhi Kuttan Nair, 1970 Acc CJ 110 : (AIR 1970 SC 376 at p. 380).

'... ... .. 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 calculations but the amount recoverable depends cm 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 things, there can be no exact or uniform rule for measuring the value of human life. In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable. As a general rule parents are entitled to recover the present cash value of the prospective service of the deceased minor child. In addition they may receive compensation for loss of pecuniary benefits reasonably to be expected after the child attains majority.'

7. It was alleged that the income of the deceased was from Rs. 3,000/- to Rs. 4,000/-a month. On that basis a sum of Rs. 2 lakhs was claimed as damages. The Tribunal, however, disbelieved that the age of the deceased was 22 years and held that he was aged 17 years and a half basing on the School Leaving Certificate filed on behalf of the claimants. The evidence of P. W. 5, the father, goes to show that he had read up to Class VII. Exts. 5, 6 series and 7 were relied upon to show that the deceased was dealing in cashewnuts. No other document was at all placed before the Tribunal in support of the large scale business, which the claimants alleged, was being carried by the deceased; and the Tribunal on the materials produced before it held that the deceased was not earning anything and was not rendering any financial help. However, holding that the deceased had read up to Class VII and he would have been a help and of service to the family in the management of the property and other affairs, the Tribunal has awarded a sum of Rs. 21,000/- for loss of affection and prospective service and Rs. 2,000/-towards the expenses of the Sudhi ceremony of the deceased. The Tribunal has not indicated the process by which it reached at the figure Rs. 19,000/-. In my opinion, the amount awarded is not supportable on the reasonings given. However, taking into consideration the fact that the deceased was a young lad of 17 and half and was helping the family and rendering assistance, I assess the loss to the parents at Rs. 125/- per month.

I agree with the finding of the Tribunal that the evidence adduced on the side of the claimants regarding the alleged income of the deceased from his personal business is not believable. The father at the time of the application was 47 years of age and the mother was 40 years on the date of application. Taking into account the uncertainties of life and the fact that a lump sum amount is being awarded, I assess the damages, payable by the owner, at Rs. 25.000/-, though on a different ground. I further direct that the amount awarded shall bear interest at the rate of six per cent per annum from the date of application but if the amount is not deposited before the Tribunal within one month hence, the amount shall carry interest at the rate of 10 per cent per annum.

8. In its anxiety to alleviate the sufferings of those who are suddenly struck by the bolt of misfortune, the legislature provided a cheap and summary remedy before the Tribunals. The contribution of the Tribunals and the Courts should be to ensure that the benefits reach the helpless persons. Complaints are rife that benefits received ultimately by the claimants are only nominal and the anxiety of the legislature and the exercise by the Tribunals and Courts are all in vain. The fruits of the beneficial measures do not reach the real beneficiaries. Large slices of the amounts are snatched by persons lurking around the corner and the unfortunate minors, widows, aged parents and the injured look helplessly on. The Tribunals and the Courts, to be effective delivery agents, having regard to the salutary object, should ensure that the benefits are real and lasting and not empty and ephemeral. A mode has to be devised so that the amounts awarded as damages are not frittered away or snatched by the person assisting in the litigation. Where minors are involved, the responsibility is the greater. They have lost their dear one. The law intervenes with a view to substituting the pecuniary loss in terms of damages.

But the intervention would not be effective and real if such minors and others are not assured that the pecuniary benefits which they would have otherwise enjoyed, if the accident had not taken place, are to be had in future too. It is proper in equity that the Tribunals and Courts extend that assurance. The way lies in devising a mode for enjoyment. In the litigation some amount may have been spent and other expenses may have been incurred. The Tribunals could, having regard to facts and circumstances direct payment of a portion of the amount outright and investment of the balance, so that the corpus remaining intact, the return therefrom would continue to contribute to the welfare of the dependants. I may in this connection refer to a pregnant observation of the Supreme Court in Bishan Devi v. Sarbaksh Singh, 1979 Acc CJ 496 : (AIR 1979 SC 1862):

'.. .. ... In most cases it is seen that a lump sum payment is not to the advantage of the dependants as large part of it is frittered away during litigation and by payment to persons assisting in the litigation... ... ...'

In the facts and circumstances, I direct that out of the sum awarded and interest payable thereon, a sum of Rs. 5,000/- be paid to the parents of deceased. Sarbeswar outright and the balance amount be invested by the Tribunal in a nationalised Bank for a fixed term of 10 years in the names of the parents, interest payable annually.

9. In the result, Miscellaneous Appeal No. 304 of 1979 is dismissed and Miscellaneous Appeal No. 108 of 1979 is allowed in part. A consolidated cost of Rs. 200/- is awarded against the owner.


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