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Vithalbhai Manubhai and ors. Vs. Manjulaben Window of Somabhai Virjibhai Vasava and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1986)1GLR65
AppellantVithalbhai Manubhai and ors.
RespondentManjulaben Window of Somabhai Virjibhai Vasava and ors.
Cases ReferredInsurance Society Ltd. v. Bhartiben Wd
Excerpt:
.....of injury (including injury by shock although no direct impact occurred to such persons as he could reasonably foresee might be injured by the failure to exercise that care. it is now well settlled that even if awarded claim under a particular head is found to be excessive or unjustified, if the total claim awarded under diverse heads can ultimately be justified, the inter-head adjustments are certainly permissible. 4. it must therefore, be held that both on the head of future economic loss as well as on the head, of loss to estate, the award of rs. 61,000/- as granted by the tribunal remains well sustained and justified......addressed itself on the question of computation of proper damages under various permissible heads. the tribunal took the view that on the head of future economic loss rs. 45,000/- were required to be awarded to the claimants. thereafter, the tribunal addressed itself to the award of damages on the head of pain, shock and suffering. the tribunal's view was that claimant no. 1 who is a young widow must have suffered great shock while hearing of the sudden and violent death of her husband and the minor children also would have been considerably bewildered. hence rs. 15,000/- were awardable to the claimants on the head of pain shock and suffering. the tribunal also awarded rs. 1,000/- for funeral and other expenses. thus in all rs. 61,000/- were awarded to the claimants. as stated.....
Judgment:

S.B. Majmudar, J.

1. In this appeal under Section 110-D of the Motor Vehicles Act, 1939, the appellants, who are the original opponents in Motor Accident Claims petition No. 140/78 on the file of the Motor Accident Claims Tribunal No. 1, Bharuch, have challenged the Award of Rs. 61,000/- as passed by the Tribunal in favour of respondents who are the widow and three minor children of deceased Somabhai Virji Vasava who met with a tragic accidental death on 16th June, 1978 while working as driver of appellant No. 2 on truck No. GTE. 7612. The said truck on that fateful day had got stuck up on account of battery failure. Services of another truck No. GTO 3413 were requisitioned for pushing the failed truck from behind. In the process deceased Somabhai got sandwiched between two trucks and instantaneously died having succumbed to his injuries. His widow and three minor children aged 3 years, 17 years and 10 months respectively moved the claim petition before the Tribunal against the concerned opponents-appellants herein and prayed for total compensation of Rs. 75,000/- on various heads, though by way of a rolled-up claim. The Tribunal, after recording evidence offered by the parties and hearing them, held that the accident was caused on account of rash and negligent driving by original opponent No. 1 Vithalbhai who is appellant No. 1 before us and consequently, the owner of the truck as well as the Insurance Company which had insured the offending truck were liable to answer the claim of the claimants. Thereafter, the Tribunal addressed itself on the question of computation of proper damages under various permissible heads. The Tribunal took the view that on the head of future economic loss Rs. 45,000/- were required to be awarded to the claimants. Thereafter, the Tribunal addressed itself to the award of damages on the head of pain, shock and suffering. The Tribunal's view was that claimant No. 1 who is a young widow must have suffered great shock while hearing of the sudden and violent death of her husband and the minor children also would have been considerably bewildered. Hence Rs. 15,000/- were awardable to the claimants on the head of pain shock and suffering. The Tribunal also awarded Rs. 1,000/- for funeral and other expenses. Thus in all Rs. 61,000/- were awarded to the claimants. As stated earlier the aforesaid award has been challenged by the original opponents as appellants before us. There are no cross-objections filed by the claimants-respondents seeking enhancement of compensation. In the present appeal the claim by the appellants is restricted to Rs. 10,000/- meaning thereby that their contention is that the respondents should be awarded not Rs. 61,000/-, but only Rs. 51,000/- in all by way of compensation.

2. M.V. Nanavati, learned Counsel for the appellant vehemently contended that the award of Rs. 15,000/ by way of pain, shock and suffering to the claimants is patently erroneous in law. He submitted that this is a case of fatal accident wherein the victim has died instantaneously. So far as the claimants are concerned, they were not present on the spot. They together could not have foreseen any mental shock or suffering which victim's relatives might have suffered on account of the tortious act of the tortfeasor. They were not on the scene and had not witnessed the accident. Consequently, no amount could have been awarded to the claimants on the head of pain, shock and suffering. In support of his aforesaid contention, he strongly relied upon a Division Bench decision of the Court in the case of Union Co-operative Insurance Society Ltd. v. Bhartiben Wd/o Hasmukhlal Narmadashankar and Ors. reported in XIX GLR 820. P.D. Desai, J., as he then was, speaking for the Division Bench, has made, the following pertinent observations on this question:

Damages can be given for nervous shock caused by the sight of an accident, at any rate to a close relative. The fundamental principles underlying the award of damages in respect of the tort of negligence must, however, govern an action for compensation for mental or nervous shock. The first of such principles is that such damage must be attributable to the breach by the defendant of some duty owing to the plaintiff. In case of negligence, the duty is to take reasonable care against harm which a reasonable man would foresee as likely. Therefore, there is no liability for damages which was not of a foreseeable type within the scope of the duty of care. Foresee ability is now the sole test of whether damages are recoverable in negligence. It is obvious, therefore, that the test of liability for shock is, foresee ability of injury by shock. The second principle is that no damages are awardable for grief or sorrow caused by death of a close relative because, in any event, such death would have caused much sorrow and mourning. A line must be drawn between mental anguish and suffering for which damages are not recoverable and nervous shock, that is to say, any recognizable psychiatric illness which manifests itself on account of one having witnessed the accident, for which damages are recoverable. In other words, to claim damages on account of mental shock and suffering there must be positive evidence showing that there is something more than mere sorrow or grief or mourning, and that that additional or extra element has taken the form of any recognizable psychiatric illness which is attributable, and really wholly attributable, to the misfortune of having actually witnessed the accident.

In judging whether there was breach of duty on the part of the driver, it is well to remember that this duty consisted of driving the vehicle with such reasonable care as would avoid the risk of injury (including injury by shock although no direct impact occurred to such persons as he could reasonably foresee might be injured by the failure to exercise that care. The father of the deceased was not within the area of potential danger arising as a result of the driver's negligence, if any, since he was not present at the site of the accident. The driver therefore, owed no duty to him, and he was not guilty of negligence in relation to him.

Damages cannot be awarded to the father of the deceased under this head also for the reason that there is no positive evidence showing that the father has suffered something more than mere sorrow or grief or mourning, that is to say, some recognizable psychiatric illness which again has resulted from his having witnessed the accident.

In view of the aforesaid settled legal position, it is obvious that the respondents who had not witnessed the accident could not have been awarded any amount on the head of pain, shock and suffering especially when there is no evidence on record to show that after hearing of the tragic death of the victim his widow or his minor children suffered any recognisable psychiatric adverse effects which resulted in shattering of their nerves. It must, therefore, be held agreeing with Mr. Nanavaty, the learned Counsel for the appellants, that nothing could have been awarded on the head of pain, shock and suffering to the respondents-claimants.

2A. However, that does not really put an end to the appellant as to whether any reduction is required to be made in the award of Rs. 61,000/- by way of total damages to the claimants under diverse heads. It is now well settlled that even if awarded claim under a particular head is found to be excessive or unjustified, if the total claim awarded under diverse heads can ultimately be justified, the inter-head adjustments are certainly permissible. All that has to be said is that in the absence of cross-appeal or cross-objections by the applicants, they cannot be awarded more by way of total damages than what are awarded by the Tribunal. We must, therefore, see whether the total award of Rs. 61,000/- as made by the Tribunal in favour of the claimants can be sustained even while not granting any damages on the head of pain, shock and suffering in other words, whether Rs. 15,000/- which are awarded on this head can be adjusted against damages under the legally permissible heads. We, therefore undertake that exercise now.

3. So far as the computation of damages by way of future economic loss is concerned, the Tribunal took the view that deceased must have earned Rs. 300/- per month as salary as driver of the truck. Now it has to be kept in view that the deceased was a young man whose life was cut short by the unfortunate accident. He had a large earning career before him. He was driver of a goods vehicle. The evidence of the widow of the deceased Exh. 39 shows that her husband's age was 34-35 years when he died and he was getting Rs. 500/- per-month plus he was given meals, by the owner of the vehicle under whom be was serving. The Tribunal has taken the view that the deceased must not have earned Rs. 500/- per month but would have earned Rs. 300/- per month. But what has been missed by the Tribunal is that free meals were given by his employer. That would naturally add to the economic advantage received by him from services. Even that apart, the deceased could never have got stuck up at Rs. 300/ per month during the rest of his earning career which could have easily spread over for further period of 20-25 years. It is, therefore, easy to visualise that by the time he would have completed his entire future earning career, he would have at least got Rs. 600/- per month. That would have been the ceiling of his future earning per month, leaving aside the added facilities of free meals which he would have got from his employer. Taking a mean of Rs. 600/- and Rs. 300/-, at least Rs. 450/- per month could have been easily taken as the average future monthly earning of the deceased during his entire earning career had it not been cut off by the unfortunate accident. If Rs. 450/- is taken as his average future monthly earning, deducting Rs. 100/- as his personal expenses, at least Rs. 350/- per month could have, definitely been spared by the deceased for his dependants, namely his wife and children. This Rs. 350/- per month can be the datum figure which will reflect the econemic benefit which the deceased could have yielded to the claimants had he survived. Therefore, if we substitute Rs. 350/- as dependency figure instead of Rs. 250/- per month as the Tribunal had done, the following picture emerges. The annual amount on that basis works up to Rs. 4,200/-. The Tribunal has adopted multiplier of 15 years for capitalising the amount. We will adopt the same. While doing so, the total amount which emerges is Rs. 63,000/-, to this amount is added Rs. 5,000/- by way of loss to estate, being the conventional figure. Thus the claimants would be legally entitled to claim at least Rs. 68,000/- by way of damages on the aforesaid two permissible heads: Instead of that they had been awarded Rs. 61,000/- by the Tribunal. Consequently there is no case for further reduction of the Rs. 61,000/- in any case. Of course the reasoning of the Tribunal will have to be displaced and the final award of the Tribunal will have to be sustained, on the reasoning as aforesaid.

4. It must therefore, be held that both on the head of future economic loss as well as on the head, of loss to estate, the award of Rs. 61,000/- as granted by the Tribunal remains well sustained and justified. Consequently, no case for our interference is made out in this appeal, even though we have agreed with Mr. Nanavaty, learned Counsel for the appellant, that the award of Rs. 15,000/ on the head of pain, shock and suffering was totally unjustified. The result is that the appeal fails and is dismissed. There will be no order as to costs in the facts and circumstances of the case.


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