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M.A. Rahim and anr. Vs. Sayari Bai - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Case NumberAppeal against Order No. 154 of 1969
Judge
Reported inAIR1973Mad83
ActsMotor Vehicles Act, 1956 - Sections 110 to 110-F; Fatal Accidents Act, 1855 - Sections 1, 1-A and 2
AppellantM.A. Rahim and anr.
RespondentSayari Bai
Cases ReferredMcCarthy v. Coldair Ld.
Excerpt:
motor vehicles act (iv of 1939) section 110. b-scope-determination of compensation-applicability of principles enunciated is cases arising under fatal accident act (xiii of 1955) and general law of torts-tribunal fixing compensation-appellate court when can interfere with quantum; section 110-b of the motor vehicles act, newly introduced does not law down any condition as to the manner of the exercise of jurisdiction by the tribunal and all that it states is that it has to hold an enquiry into the claim and make an award determining the amount of compensation which appears to it to be just. the use of the expression just which is very wide and comprehensive in its import is of vital importance while adjudicating upon a claim under section 110-b. the provisions newly introduced, section.....1. this appeal has been preferred against the decision of the motor accidents claims tribunal (hereinafter called 'the tribunal') against the decision awarding a sum of rs. 25,000/- as compensation payable to one sayari bai, the respondent in this appeal and the claimant before the tribunal in m. o. p. 3 of 1968 on its file. sayari bai's only son rupa alias rupraj, aged about 12 years, met with his death as a result of a bus accident in the bazar road, ambattur, opposite to the state bank of india on 18-10-1967 at about 3-45 p.m. m. a. rahim, the first respondent in the petitions, is the owner of the bus no. msw. 2471 involved in the fatal accident and madras motor and general insurance co., is the 2nd respondent. sayari bai, the mother of the unfortunate boy, made the claim for.....
Judgment:
1. This appeal has been preferred against the decision of the Motor Accidents Claims Tribunal (hereinafter called 'the Tribunal') against the decision awarding a sum of Rs. 25,000/- as compensation payable to one Sayari Bai, the respondent in this appeal and the claimant before the Tribunal in M. O. P. 3 of 1968 on its file. Sayari Bai's only son Rupa alias Rupraj, aged about 12 years, met with his death as a result of a bus accident in the Bazar Road, Ambattur, opposite to the State Bank of India on 18-10-1967 at about 3-45 p.m. M. A. Rahim, the first respondent in the petitions, is the owner of the Bus No. MSW. 2471 involved in the fatal accident and Madras Motor and General Insurance Co., is the 2nd respondent. Sayari Bai, the mother of the unfortunate boy, made the claim for compensation under Section 110-A of the Motor Vehicles Act (hereinafter referred to as the Act). She claimed compensation of Rupees 70,000/- and Rs. 5,000/- for expenses, pain and suffering. The Tribunal awarded a sum of Rs. 25,000/-. In support of her case, the father of the boy and one Doraiswami Iyengar, a retired teacher of the school, were examined as witnesses, while on the other side the bus driver, the conductor and the Joint Regional Transport Officer were examined. P.W. 2, the teacher, has given evidence that he was standing opposite to the State Bank of India at about 4 p.m. on 18-10-1967, that school children were coming out of the school, that the bus was going fast from south to north towards the bus stand and the boy was run over by the bus. There is no effective cross-examination and nothing is suggested to him that the accident happened in any other manner that the boy was run over on account of the boy's negligence and no theory is suggested to this witness to make out that the driver of the bus was not negligent and that the accident occurred on account of the negligence of the boy suddenly running across the bus or at the rear side of the bus. In the counter of the bus owner it was stated that the accident occurred because the boy suddenly darted across the road and got himself involved in the accident and that the accident was due to the negligence of the boy. Virtually the second defendant adopted the counter of the first respondent. In the course of the evidence, the driver and the conductor developed a new theory that while the bus was being driven at a slow speed, the boys were chasing the deceased and in that process the deceased ran and dashed himself at the rear end of the bus, sustained injuries, and, as a result thereof, died. The post mortem certificate Ex. A-2 shows that the boy had sustained 19 injuries, of which injuries Nos. 13 to 16 were fractures of the high bone, ribs, etc. The Judge has adverted to the discrepancy between the evidence of R. W. 1 and R. W. 2 as well as the discrepancy revealed in the evidence of R. W. 2 who gave evidence in the criminal case in which the bus driver was prosecuted. From the evidence it is clear that the driver was clearly guilty of gross negligence and rashness in driving the bus. The area is a school zone and just at the time the boys were coming out of the school and therefore the bus driver should have been extremely cautious and careful and mere regulation of speed by itself even if true would not avail. P.W. 1, the teacher, has given clear evidence. The evidence of R. Ws. 1 and 2 shows that they did not even see the boy at the time of the accident and in the cross-examination it is established that they were unable to explain how the accident occurred. It is some theory which they developed in the course of the evidence. Admittedly, there was no passenger in the bus and it is clear that the driver was driving the bus in a rash and negligent manner in a fast speed and without any care and caution, which resulted in the death of boy. We have perused the evidence of the bus driver and the conductor and we have no hesitation to say that their evidence is unreliable. The inspection report of the Motor Vehicles Inspector, which contains a plan attached, also tends to the same inference that death was not due to the boy's dashing against the rear portion of the bus, but it was a clear case of the bus running over the boy. If the accident occurred in the manner claimed by the driver and the conductor, it would have been mentioned so in the forefront in the counter. But, as already observed, in the counter, the case is, the child suddenly darted across the road and got involved in the accident. This evidence is given especially when the criminal prosecution was pending against the driver at that time. We have not the slightest hesitation in accepting the finding of the Tribunal that the death was due to the rash and negligent driving of the bus by the driver without taking any care or caution in the matter.

2. On the question of the quantum of compensation, the learned counsel for both sides invited our attention to several decisions. Learned Counsel addressed arguments based upon a comparative statement as revealed in the several decisions cited with reference to the victim's age at the time of his death, the age of the claimant, if the victim had been in employment, what salary or remuneration he was earning, the prospect in the increase of his emoluments if he had led a normal life up to the end of his career the contributions likely to be made to the claimant out of the victim's earnings, the affluence and the wealth of the claimant and the damages awarded in the individual cases. A study of the decisions reveals how wide is the variation between the judgments of various courts in assessing under comparable circumstances a suitable figure as compensation which, after all should appear "to be just" to the Tribunal exercising jurisdiction under Section 110-B of the Motor Vehicles Act, newly introduced. Section 110-B does not lay down any condition as to the manner of the exercise of jurisdiction by the tribunal and all that it states is that it has to hold an enquiry into the claim and make an award determining the amount of compensation which appears to it to be just. The use of the expression 'just' which is very wide and comprehensive in its import is of vital importance while adjudicating upon a claim under Section 110-B. Sections 110 to 110-F were introduced into the provisions of the Motor Vehicles Act by Act 100 of 1956. Prior thereto several decisions in India and in England had been rendered in claims arising out of Motor Vehicles Accidents in which the compensation was determined by applying the provisions of the Fatal Accidents Act of 1855 and the general law of Torts. Under Sections 110 and 110-F a self-contained machinery has been provided for the adjudication of claims for compensation in respect of claims arising out of motor vehicles accidents. Special claims tribunals have been constituted and a special procedure has been laid down in the Act for the adjudication of such claims. Section 110-F bars the jurisdiction of the Civil Courts to entertain any question relating to any claims for compensation arising out of motor vehicles accidents for which special provision has been made in the Act. When this special procedure was introduced in 1956, a wealth of case law has grown up with regard to adjudication of such claims and the various decisions pronounced by the courts in the solution of the problem in varying contexts in all of which the question was discussed mainly with reference to the Fatal Accidents Act and the general law of Torts, whether in India or in England. If we may say so, the Legislature must have been aware of the fact that eminent Judges have observed that the problem is by no means of easy solution and has been mainly coloured or influenced by certain technical rules and principles evolved from a long course of decisions and is beset with various difficulties, doubts, contingencies and uncertainties and to a large extent the determination of compensation is a work of estimate, balancing the relative weight of several elements which enter into the computation. The precedents while enunciating that the Court has ample latitude in the matter have at the same time laid down certain technical rules in the form of guide-lines which to some extent detract from the amplitude of the discretion of the court. It is in this environment that the new set of provisions were introduced into the Motor Vehicles Act constituting a self-contained machinery. The new provisions do not either impliedly or expressly incorporate the provisions of the Fatal Accidents Act but deliberately leave the jurisdiction, powers and discretion of the court unfettered by imposing the only condition that the tribunal should enquire into the claim and determine the amount of compensation which should be 'just'. Our attention was drawn to certain decisions arising out of the claims under the Motor Vehicles Act as amended in 1956 revealing a divergence of view on the question whether the newly introduced provisions of the Motor Vehicles Act are self contained and constitute an exhaustive machinery or whether the ultimate liability should be determined only in accordance with the provisions of the Fatal Accidents Act and the principles enunciated by decisions rendered under that Act. In a recent decision of the Supreme Court reported in Sheikhpura Transport Co. Ltd. v. Northern India Transporters Insurance Co. Ltd., , the Supreme Court while observing that the powers given to the Tribunal in the matter of fixing compensation under Section 110-B are very wide, has left open the question whether the compensation has to be fixed on the same basis, as is required to be done under the provisions of the Fatal Accidents Act.

3. We may refer to the recent Bench decision of the High Court of Madhya Pradesh reported in Kamaladevi v. Kishan Chand, , in which it was held that Sections 110 to 110-F of the Motor Vehicles Act do not deal with the liability at all, that they only provide a new mode of enforcement of liability in respect of accidents, that so far as the liability is concerned, the provisions of the Fatal Accidents Act and the law of Torts would still apply and that the provisions in Section 110-B that the compensation amount must appear to be just do not create any new basis for assessing compensation and that the basis for the determination of the liability is the substantive law already in force. This decision has differed from the view taken in the earlier decisions in Md. Habibulla v. Seethammal, , Veena Kumari Kohli v. Punjab Roadways, 1967 Acc CJ 297 and Ishwari Devi v. Union of India, , that the words 'which appear to it (tribunal) to be just' are wider in scope than the words used in the provisions of the Fatal Accidents Act and the tribunal is not bound by the technical rules and the limitations evolved in the case law in the interpretation and the application of the provisions of the Fatal Accidents Act. The reasoning of the Bench is that the provisions in Sections 110 to 110-F do not enter into the field of the law of liability which would still continue to be governed by the provisions of the Fatal Accidents Act and the law of Torts and the new provisions are in no way intended to give a go-by to the limits and the basis of the liability which will have to be determined under the provisions of the Fatal Accidents Act and that Sections 110-A to 110-F provide merely a cheap and expeditious remedy for the ascertainment of that liability.

4. In a latter decision of the same court reported in Gulab Devi Sohaney v. Govt. of Madhya Pradesh, , a different view was taken to the effect that the tribunal has to award such compensation as may be 'just' and that the tribunal need not strictly follow the decisions under the Fatal Accidents Act. The attention of the Bench was not drawn to the earlier decision. The Bench observed that the expression 'just' in Section 110-B is wide in ambit than the words used in Sections 1-A and 2 of the Fatal Accidents Act and that the tribunal has to only consider what appears to it to be just compensation and it need not strictly follow and apply the basis of the assessment of compensation indicated in the various decisions under the Fatal Accidents Act, Indian or English, though they may be merely of general guidance. The Bench also observed that the decisions in India and England arising under the Fatal Accidents Act may be applicable only in so far as 'they promote interests of justice' under the facts and circumstances of each particular case to help the Tribunal to award compensation which is just.

5. We may at this stage refer to the Bench decision of this court consisting of Anantanarayanan, C. J. and Ramakrishann, J. in which the Bench observed that Sections 110 to 110-F of the Motor Vehicles Act are self-contained Code providing for compensation and the machinery of adjudication in cases of motor accidents and that the provision in the Act has no connection with the Fatal Accidents Act and it cannot be contended that a claim under the Motor Vehicles Act should be governed by the provisions of the Fatal Accidents Act. The Bench emphasised--

"It is noteworthy that Section 110 to 110-F that we have referred to, make no mention of any kind concerning any of the provisions of the Fatal Accidents Act and do not incorporate any such provision even by the most oblique reference".

It is true that this Bench decision had not to deal with the principles to be applied in the matter of assessment of the compensation but had only to deal with the class of persons who would be entitled to make the claim, i.e., whether the class of persons covered by Sections 110-A to 110-F is the same as the provisions of the Fatal Accidents Act. The question which the Bench had to decide was whether the expression 'representative' in the Fatal Accidents Act means the same thing as the same word used in Sec. 110-A of Motor Vehicles Act and the Bench held that the expression 'legal representatives' in the Motor Vehicles Act is used in the general sense and not in the restricted sense as in the Fatal Accidents Act. The principle of this Bench decision was followed and applied by a Bench of the Delhi High Court in ,

even with regard to the basis for the determination of the just compensation, in the view that the provisions of Sections 110 to 110-F of the Motor Vehicles Act constitute a special law and would therefore prevail over the general law embodied in the provisions of the Fatal Accidents Act. The relevant discussion is to be found in paragraph 40 (pages 189 and 190). With respect, we agree with the view taken in the decision of the Delhi High Court. The provisions newly introduced, Secs. 110 to 110-F purport to consolidate and amend the law relating to claims arising out of the motor accidents and are intended to provide a quicker and speedier remedy by way of application before the claims' tribunal. these provisions are self-contained and exhaustive. Further, as already observed, the case law rendered under the general law of Torts and in the interpretation and application of the provisions of the Fatal Accidents Act has developed considerably for over a century and for over three or four decades motor accidents fatal or otherwise, have increased beyond all proportion. The classical statement of the House of Lords in Rose v. Ford, 1937 AC 826 in the Benham's case, 1941 AC 157 in the oft quoted case Davies v. Powell Duffreyn Associated Collieries Ltd., 1942 Acc CJ 601 will show the many imponderables and difficult problems which the courts have solved in assessing the compensation in each case. Winfield on Tort, 8th Edition, at page 627, in the paragraph under the caption 'Criticism of the existing law' has observed that the law is still not entirely satisfactory and that the Court must discharge a solemn duty (go through the solemn farce of putting a value on such an incalculable thing). It is because of this reason that the Indian Legislature did not want to incorporate the provisions of the Fatal Accidents Act into the Motor Vehicles Act and defined the powers and jurisdiction of the tribunal in a wide and comprehensive term and that what the tribunal decides must be a just compensation on the facts of each particular case. As observed by the Supreme Court in some other context, it is neither feasible nor advisable "to encase a discretionary power within the straitjacket of an inflexible formula." The term 'just' is derived from the Latin word justus. It has various meanings and its meaning is often governed by the context. 'Just' may apply in nearly all of its sense, either to ethics or law, denoting something which is morally right and fair and sometimes that which is right and fair according to positive law. It connotes reasonableness and something conforming to rectitude and justice, something equitable, fair (vide page 1100 of volume 50 Corpus Juris Secundum). At page 438 of Words and Phrases, edited by West Publishing Co., Vol. 23, the true meaning of the word 'just' is in these terms-

"The word 'just' is derived from the Latin justus, which is from the Latin jus, which means a right and more technically a legal right--a law. Thus 'jus dicere' was to pronounce the judgment; to give the legal decision. The word 'just' is defined by the Century Dictionary as right in law or ethics and in Standard Dictionary as conforming to the requirements of right or of positive law, and in Anderson's Law Dictionary as probable, reasonable. Kinney's Law Dictionary defines 'just' as fair, adequate, reasonable, probable; and justa causa as a just cause, a lawful ground. Vide Bregman v. Kress, 81 NYS 1072, 1073 83 App Div. 1."

Again at page 437 of the same book, it is stated--

"Instruction that plaintiff in action for personal injury had burden of proving by preponderance of the evidence that his claim is just, and that he is entitled to recover, was erroneous, as a just claim is not always a legal claim that may be compensated for in damages, and as 'just' may apply in nearly all its senses to either ethics or law, denoting something which is normally right and fair, and sometimes that which is right and fair according to positive law--Lake Mancock and C. R. Co. v. Stinson, 81 So 512, 77 Fia. 333."

There is no need to refer to other dictionaries or cases in which the word 'just', in conjunction with other words like 'just and reasonable' 'just and fair' and 'just and expedient' has been explained by the courts, because the word 'just' will take its colour from the main purpose and object of the enactment, Further, as observed by Rajamannar, C. J., in V. G. Row v. State of Madras, , "Even ideas of what is just differ from age to age. What may seem to be just to one man in one age may appear to another man in another age totally differently". It is enough to hold that the word ' just' in Section 110-B of the Motor Vehicles Act has been used in a very wide and comprehensive sense.

6. We are therefore of the view that there is no warrant for literally importing the provisions of the Fatal Accidents Act into Section 110-B of the Motor Vehicles Act so as to read both the provisions as part and parcel of one provision. By this we should not be understood as saying that the Tribunal can adopt any method which is arbitrary and capricious or in disregard of well-established principles. The decisions rendered under the general law of Torts and under the Fatal Accidents Act will undoubtedly be relevant and constitute broad guidelines, but they would not be binding upon the Tribunal in the sense that the method of approach should be the same and identical as in the cases arising under the Fatal Accidents Act.

7. In the instant case, on the question of compensation, there is the evidence of P.W. 1, the father of the victim, which has been accepted by the Tribunal. There is no contra rebutting evidence. The evidence of P.W. 1 shows that the family of the victim is respectable and fairly affluent, and the members of the family are long-lived. The children of the brother of P.W. 1 are well educated, one is a doctor, and another is an advocate, both having god practice. The victim was the only son born to the parents, rather late in their life. Naturally, they were deeply affectionate and attached to the boy. They were taking all interest in the boy and in building up his career; they had put him in a Convent School giving him the best education even to start with. The boy was a healthy boy and was first in the rank in school.

8. P.W. 1 was carrying on money lending business. There can be no doubt whatever that the boy would have a predominantly happy life if this tragedy had not occurred. There is nothing in the family environment to detract, in any manner, from the full prospects of a predominantly happy life. He would have had no problems or difficulties to worry him. One can easily visualise the feelings and the shock and the sufferings of the parents when their only child met with his death under such tragic circumstances. The question is whether the compensation awarded by the Tribunal is otherwise than just, i.e., so excessive and vitiated by any error of law or principles, so as to call for interference. It is settled law that the Appellate Court should be very slow in differing from the verdict of the tribunal in the matter of the award of just compensation. If the tribunal had taken all the relevant aspects and if it had not taken into consideration any irrelevant or extraneous matter, and no error of law or principle had been committed by the Tribunal, the appellate Court will not interfere merely because it may differ on the question of the quantum. It is obvious, there is no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at in precise mathematical calculation, but the amount recoverable depends on the particular facts and circumstances of each case. To considerable extent the amount of compensation fixed is based upon an estimate, though conjecture, to some extent, is inevitable. The only limitation is, the court must exclude all considerations of matter which rest in the realm of speculation or fancy or mere sentiment or emotion. The amount fixed ultimately depends upon an objective estimate of what kind of future on earth the victim might have enjoyed, the loss of benefit to the parents on the dependents; in the nature of things, no guidelines in the abstract can be laid down.

9. As regards the measure of liability in the case of motor accidents, the decisions of the Supreme Court reported in Gobald Motor Service v. Velusami, and C. K. S. Iyer v. T. K. Nair,

have (after a discussion of all the leading decisions in England) laid down the main principles. Both the decisions did not have to consider the measure of liability under Section 110-B of the Motor Vehicles Act. We may now take it as settled law that under the Fatal Accidents Act the liability under Section 1 and Section 2 are distinct, different and independent. Under Section 1, damages are recoverable for the benefit of persons mentioned therein as loss sustained by them, while under Section 2, damages are awarded for the recoupment of the pecuniary loss to the estate of the deceased as a result of the accident. The two claims are based upon different causes of action and the claim ants would be entitled to recover compensation separately under both the heads. If, however, the person who takes benefit under Section 1 happens to be the same person as entitled to compensation under Section 2, there cannot be duplication of the dame claim and the compensation awarded under Section 2 for the loss of the estate of the deceased will be taken into account in the calculation of the compensation payable to the claimants under Section 1. In both the decisions of the Supreme Court, the statement of the law of Atkinson, L.J., in Taffe Vale Railway Co. v. Jenkins, 1913 AC 1 at p. 7 had been referred to with approval and followed. In 1913 AC 1 it was held that it is not a condition precedent to the maintenance of an action under the Fatal Accidents Act 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 had a reasonable expectation of pecuniary benefit from the continuance of the life. Reference may be made to the following classical statement of the law by Lord Atkinson at page 7 in 1913 AC 1 referred to in the decisions of the Supreme Court:--

"In 1913 AC 1, the 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 had a reasonable expectation of pecuniary benefit from the continuance of the life. Therein Lord Atkinson stated the law thus:--

'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 by 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.' "

The Supreme Court summed up the law in these terms at pages 380 and 381:--

"The law on the point arising for decision can be summed up thus: Compulsory damages under Section 1-A of the Act for wrongful death must be limited strictly to the pecuniary loss to the beneficiaries and that 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 calculations 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 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 case 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. In the matter of ascertainment of damages, the appellate court should be slow in disturbing the findings reached by the courts below, if they have taken all the relevant facts into consideration.

"Now applying the above rules to the facts of the present case, it is seen that the deceased child was only 8 years old at the time of his death. How he would have turned out in life later is at best a guess. But there was a reasonable probability of his becoming a successful man in life as he was a bright boy in the school and his parents could have afforded him a good education. It is not likely that he would have given any financial assistance to his parents till he was at least 20 years old. As seen from the evidence on record, his father was a substantial person. He was in business and his business was a prosperous one. As things stood he needed no assistance from his son. There is no material on record to find out as to how old were the parents of the deceased at the time of his death. Nor is there any evidence about their state of health........."

In even though the case arose out of a claim under

Section 110-A of the Motor Vehicles Act, the Supreme Court discussed the problem with reference to the provisions of the Fatal Accidents Act, leaving open the question whether the power conferred upon the Tribunal under Section 110-B of the Act is wider.

10. It is unnecessary to refer to the several cases cited by counsel on both sides as the determination of compensation turns upon the particular facts of each case. The result of the case law is (1) The thing to be valued is not merely the prospect of the length of life, but the prospect of predominantly happy life of the deceased. This undoubtedly would vary from case to case, depending upon the family environment, the members of the family, the health, and age of the victim, his outlook in life, the interest which his parents were taking in the boy, and the totality of circumstances tending to show whether the victim would have a predominantly happy life or a life of misery or a life of despondence or an insipid life. Even though it depends upon very many uncertain factors, the Tribunal has to take an overall picture and form its estimate though, to some extent, it must be based upon speculation. (2) The pecuniary loss sustained by the persons entitled to claim compensation as a result of the accident. In determining the pecuniary loss, say, the age of the boy at the time of his death, the age of the parents and the prospects of the boy contributing his earnings to the parents will have to be taken note of. In the case of a father and an only son, it is difficult to formulate a uniform rule that, because the father himself is carrying on business with affluence, there will not be any contribution by the deceased if he had not met with the accident. It cannot be said to be arbitrary or capricious to visualise that both the father and the son would have together pooled up their resources and income and augmented their wealth. The pecuniary loss will have to be evaluated with reference to several considerations and the pecuniary loss to the family will be the pecuniary loss to the mother herself on the facts of this particular case, when the family consists only of the father, the mother and the son. In some of the decisions, it is seen that the courts have taken rather a pessimistic view of the future prospects of the young boy who met with the accident, on the ground that no one can be certain about the child's future or correctly estimate his future pecuniary prospects in the view that the boy would have to pass through several risks and uncertainties, in his childhood and young age, and on that account, a moderate sum has been awarded as damages. In some other cases, courts have taken a more liberal view and have awarded damages under both the headings on the basis of predominantly happy life which the victim would have lived but for the accident, taken along with the fact that the boy was a bright boy and that the parents evinced great interest in shaping the career of the boy and in his prospects. If the value is to be ascertained with reference to the bright prospect of a predominantly happy life, it will at once be realised that that does not necessarily depend upon the wealth or status of the family alone. As Sellers L. J. pointed out in Wise v. Kaye 1962-1 All ER 257 at p. 264,

"Wealth and fine physique clearly do not ensure happiness, nor do poverty or disablement necessarily entail unhappiness."

In Garcia v. Harland and Wolff Ltd., 1943-2 All ER 477 at p. 485 Lord Atkinson, J. emphasising that 'life is our most precious asset' observed as follows--

"There, then, is the guidance; but one cannot forget that life is deemed by the law to be our most precious asset. The severest punishment that the law knows is that of depriving a man of his life; it is considered of greater value than liberty and to be a more severe punishment than depriving a man of his liberty for the rest of his natural life, which usually means at the outside, I suppose something under 20 years."

In Oliver v. Ashman, 1961-3 All ER 323 affirming the decision reported in 1960-3 All Er 677, a boy aged 20 months sustained serious brain injuries as a result of a motor accident and he became mentally unable to talk or to understand what was said to him. In the special circumstances of the case, the award of .11,000 was confirmed by the appellate Court. In that case it was observed that the victim was entitled to compensation for loss of the amenities of life like the loss of opportunity to marry, earn a livelihood and to enjoy life. The fact that the father of the infant was an executive earning .1250 per year was also taken into account. Lord Parker C. J. who tried the action and awarded .11,000 as damages, observed as follows, at page 679:

"The infant plaintiff is, I think, entitled to something for what he has lost, whether he knows he has lost it or not, albeit that the amount may well be less than in the case of a person who has enjoyed life and amenities and knows that he has lost them. The trouble, however, is to put that into money. There are so many imponderables, especially in the case of such a young child. As far as loss of earnings is concerned, the considerations involved again cannot easily be put into pounds, shillings and pence. Here against, there are imponderables. What education would the parents have been able to give the child? If not, how far would the child succeed? What trade or profession would he take up and what would he have earned? There is no conceivable clue to that. The only guide, if it be any guide at all--and I do not think it is--is that his father is working in an executive capacity making, I am told, .1250 a year. In addition, there are questions of taxation and other matters, but whatever view one takes as to eventual earnings, the figure must, in the case of such a young child, be heavily discounted.......... Doing the best I can in all the circumstances, I would award to this child a sum of .11,000..............."

In the appeal from that decision, reported in 1960-3 All ER 323, Holroyd Pearce L. J., while adverting to the difficult task in assessing the value of the loss of expectation of a predominantly happy life, observed that the assessment of such a claim involves an investigation in detail of the temperament and health of the victim, his expectation of life and his expectation of material prosperity. After referring to some of the decisions in England, the learned Lord Justice emphasised that the circumstances of that case must lead to the inference that the victim had been deprived of a positive measure of happiness, the test being the bright prospect of a predominantly happly life. At pages 332 and 333, while pointing out the proper approach of an appellate Court in dealing with the award of damages, it was observed as follows:--

"The appeal is more difficult. The ingredients that go to make the final figure have been scrupulously weighed in the judgment. We can only alter it if we are satisfied that it is a wholly erroneous estimate of the damage, if we are satisfied that, broadly speaking there is only one reasonable answer to the problem and that the learned Judge has failed to give it. One cannot seek for precision or certainty in many cases which are tried by the courts in their anxious task of weighing imponderables. Often, there is a norm, whether established by common sense or reason or the convention of the courts. Then one can decide how great a departure from it justified the description 'wholly erroneous'. Here there is no such norm. Both counsel of great experience describe the case as unique. They can cite no comparable case among the many strange and unhappy injuries that have come before the courts.............. But one must award such a sum as represents, artificially, the gravity of the loss. It is hard to give cogent reasons for this figure or for that. One can merely assert. I myself would feel inclined towards a larger figure, but the learned Lord Chief Justice and my brethren all think otherwise. I can give no adequate reason to support a higher figure or to show that on figure is more right than the other. There is no norm by which one can say that this figure is right and the other wrong. To say in Shelley's words, 'I cannot argue I can only feel' may be permitted in a jury-man but it is rarely a sound foundation for a judgment. Here, the Lord Chief Justice has impeccably balanced all the relevant matters with sympathy and anxious consideration and arrived at a conclusion. One certainly cannot say that it was wholly erroneous. I would therefore somewhat regretfully agree with my brethren's view that the appeal must be dismissed."

With respect, these observations apply to the instant case 'which is unique' and we ourselves cannot give any cogent reasons for saying that some other figure would be more right than the figure awarded by the Tribunal. It is unnecessary to discuss the matter further; the appellate Court would be slow to interfere with the verdict of the Tribunal, as it is inevitable that in assessing the damages, elements of estimate and to some extent, conjecture and a balancing of chances and changes of fortune enter into the computation of the quantum. The appellate Court would interfere only if it is satisfied that the result reached was out of all proportion to the circumstances of the case and clearly capricious and arbitrary. In Goodburn v. Thomas Cotton Ltd., 1968-1 All ER 518, while adverting to the difficult and invidious task of the Judge in ascertaining the damages, Edmund Davies L. J. at page 523 observed-

"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."

A reference to the discussion in the recent decision of the House of Lords reported in H. West and Son Ltd. v. Shephard, 1963-2 WLR 1359 = (1963-2 All ER 625), in which the decision in 1962-1 All ER 257 was approved, will show that the trend of later decisions is to limit the scope of the principle enunciated in 1941 AC 157 and that the award of damages is essentially a matter of opinion and experience and the court can pay due regard to 'the range and limits of the current thought.' In Salmond on Torts, 14th Edn. at pages 752 and 753, the learned author discusses the limits on the functions of an appellate Court in the matter of award of damages and has summed up by saying that court would interfere if it said to itself (as observed by Lord Denning in McCarthy v. Coldair Ld., 1951-2 TLR 1226) 'Good gracious me--as high as that'. Taking an overall picture of all the aspects of the case and also bearing in mind that under S. 110-B of the Motor Vehicles Act, the jurisdiction of the Tribunal to award 'just compensation' is very wide and comprehensive, we cannot say that this situation envisaged by Denning L. J. has arisen in this case. Amongst other considerations, the Tribunal has awarded damages on the basis that the victim is likely to contribute a sum of Rs. 100 per mensem for about 45 years. It may be that one can take a view that the likely monthly contribution may be more and the period may be less, but it is not possible to be dogmatic in such matters. If an award of .11,000 in the case of a child of 20 months has been upheld by the Court of Appeal in England, we cannot say that the award of Rs. 25,000 in the case of a boy of 12 years is so excessive as not to be just within the meaning of Section 110-B of the Motor Vehicles Act. For all these reasons, we confirm the decision of the Tribunal and dismiss the appeal with costs.

11. Appeal dismissed.


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