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Basheer Bivi Vs. Z. Kuchelar and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Reported in(1970)2MLJ218
AppellantBasheer Bivi
RespondentZ. Kuchelar and anr.
Cases ReferredBenham v. Gambling L.R.
Excerpt:
- - 3,000. 8. as the appellant claimed as the legal representative of the deceased, she is entitled to claim compensation under section a of the act as well. and in any case the thing to be valued is not the prospect of length of days, but the prospect of a predominantly happy life. the ups and downs of life, its pains and sorrows as well as its joys and pleasures, all that makes up 'life's fitful fever' have to be allowed for in the estimate. in my view, the prospect that babjan had of a predominantly happy life was much less bright, in the light of his accomplishments, social status and environment, than rajaratnam......for the entire loss caused to the estate, they cannot claim again under the head of personal loss the capitalised income that might have been spent on them if the deceased were alive. conversely, if they got compensation under section 1 representing the amount that the deceased would have spent on them, if alive, to that extent there should be deduction in their claim under section 2 of the act in respect of compensation for the loss caused to the estate. to put it differently, if under section 1 they got capitalised value of y, under section 2 they could get only the capitalised value of z, for the capitalised value of y+z, i.e., x, would be the capitalised value of his entire income.5. in gobald motor service's case : [1962]1scr929 , one rajarathnam died as a result of injuries.....
Judgment:

S. Maharajan, J.

1. Babjan, the son of the appellant, had appeared for the S.S.L.C. examination at Tiruchirapalli and was enjoying the summer holidays when he died on 30th May, 1955, as a result of injuries sustained in a motor accident. The boy was cycling in a westerly direction along the Tiruchy Thanjavur road, at about 2-30 p.m., on that day, when the car of the first respondent, who is the Chief Technical Officer in the Tiruverumbur Heavy Boiler Unit, struck him and knocked him down. The injured boy was taken by the first respondent to the hospital, where he died the same night. The appellant filed an application as legal representative of the deceased before the Motor Accidents Claims Tribunal, Tiruchirapalli, under Section 110-A of the Motor Vehicles Act and prayed for compensation of Rs. 10,000 for the loss sustained by her as a result of her son's death. The New India Insurance Company, which had insured the first respondent's vehicle, was impleaded as the second respondent.

2. The learned Judge, after considering the evidence, gave the finding that the accident was the result of negligence on the part of the first respondent, and awarded a sum of Rs. 3,000 by way of compensation. The respondents have filed no appeal challenging the finding that the accident was due to the negligence of the first respondent. But the appellant complains that the amount of compensation fixed by the Tribunal is too low. The only point that arises for consideration is, what is the reasonable amount of compensation to which the appellant is entitled ?

3. It is found from the evidence on record that Babjan, the deceased, was about 18 years old at the time of his death. According to P.W. 3, the appellant, the posthumous publication of the results showed that Babjan had passed the S.S.L.C. examination and was declared eligible for admission to the college course. That he must have been a healthy and sprightly boy is shown by Exhibit A-1, a certificate issued in connection with Babjan's training in the N.C.C. The mother's evidence shows that the boy's ambition was to become a pilot. It is also her evidence that she wanted to admit her son in the Sheshasayee Institute, which is near her house. It is on record that the appellant has 5 surviving children, of whom three are daughters who have been married off, and provided, for, and two are sons, one of whom is an optician and the other, as doctor in the Srirangam Hospital. It is proved by the appellant that she owns no property except a house at Kamarajnagar and an inam land in Madurai district fetching an annual income of Rs. 100. After mentioning these particulars the learned Judge, without any discussion of the legal position, expressed his conclusion in the following words. 'Taking all the circumstances into consideration I assess the proper compensation payable to the petitioner at Rs. 3,000. In the remit an award is passed for a sum of Rs. 3,000 in favour of the petitioner'.

4. In Gobald Motor Service v. Veluswamy and Ors. : [1962]1SCR929 , their Lordships of the Supreme Court have authoritatively laid down the principles that ought to govern the award of compensation in cases of this kind. It has been pointed out in that ruling that the cause of action under Section 1 of the Fatal Accidents Act and that under Section 2 are different, and the while under Section 1 damages are recoverable for the benefit of the persons mentioned therein, under Section 2 compensation goes to the benefit of the estate ; whereas under section I damages are payable in respect of loss sustained by the persons mentioned therein, under Section 2 damages can be claimed inter alia for loss of expectation of life. Though, in some cases, parties, that are entitled to compensation under both the sections, may happen to be the same persons, they need not necessarily be so ; persons entitled to benefit under Section 1 may be different from those claiming under Section 2. Prima facie as the two claims are to be based upon different causes of action, the claimants, whether the same or different, would be entitled to recover compensation separately under both the heads. Their Lordships also quoted with approval the following observations of Sir Shadilal, C.J., in Secretary of State v. Gokulchand I.L.R.(1925) Lah. 451:

The law contemplates two sorts of damages; the one is the pecuniary loss of the estate of the deceased resulting from the accident; the other is the pecuniary lose sustained by the members of his family through his death.... An illustration may clarify the position. X is the income of the estate of the deceased. Y is the yearly expenditure incurred by him on his dependants. We will ignore the other expenditure incurred by him. X-Y, i.e., Z is the amount he saves every year. The capitalised value of the income spent on the dependents subject to relevant deductions, is the pecuniary loss sustained by the members of his family through his death. The capitalised value of his income, subject to relevant deductions, would be the loss caused to the estate by his death. If the claimants under both the heads are the same, and if they get compensation for the entire loss caused to the estate, they cannot claim again under the head of personal loss the capitalised income that might have been spent on them if the deceased were alive. Conversely, if they got compensation under Section 1 representing the amount that the deceased would have spent on them, if alive, to that extent there should be deduction in their claim under Section 2 of the Act in respect of compensation for the loss caused to the estate. To put it differently, if under Section 1 they got capitalised value of Y, under Section 2 they could get only the capitalised value of Z, for the capitalised value of Y+Z, i.e., X, would be the capitalised value of his entire income.

5. In Gobald Motor Service's case : [1962]1SCR929 , one Rajarathnam died as a result of injuries sustained in a motor accident. His family owned buildings worth Rs. 2 lakhs and nanja lands worth Rs. 1,20,000, besides motor cars and a Sidha Vaithyasala manufacturing Indian Patent medicines. Rajarathnam, after studying in the Indian School of Medicine for two years, set up his own practice as a doctor and was earning Rs. 200 to Rs. 250 per month in his private practice. He had a status in life as a Vice-Chairman of the Municipality and was aged 34 years at the time of his death and therefore had a reasonably long span of life before him if the accident had not taken place. As he had reasonable prospects of improving his business and he was living in comfort, this Court held that by his early death his children lost their prospects of education, position in society and even possible provisions in their favour, and consequently, awarded Rs. 25,000 as damages under the first head. The Supreme Court refused to disturb this award and made the following observations:

Assuming the Rajaratham had not died, he would have spent, having regard to his means and status in life, a minimum of Rs. 250 on respondents 2 to 7 ; and his income as indicated by the evidence would certainly be more than that amount. The yearly expenditure he had to incur on the members of the family would have been about Rs. 3,000 and a sum of Rs. 25,200, would represent the said expenditure for just over 8 years.

In the circumstances the balance of loss and gain to the defendants by the death of Rajaratnam, in the sense stated by Lord Wright and Viscount Simon, could not be less than Rs. 25,200. Indeed having regard to the circumstances of the case it is a moderate sum ; it is rather a conservative estimate. We therefore accept that figure as representing the damages for respondents 2 to 7 in respect of their claim under the head of pecuniary loss to them by the death of Rajaratnam.

Their Lordships also confirmed the award made by this Court of Rs. 5,000 under Section 2 of the Fatal Accidents Act and in that context, their Lordships observed as follows:....

That figure represents the damages for the mental agony, suffering and loss of expectation of life. Their was no duplication in awarding damages under both the heads. No material has been placed before us to enable us to take a different view in regard to the amount of compensation under Section 2 of the Act.

6. Before applying the above principles to the facts of this case, I may say that the judgment appealed against does not disclose any consciousness of the relevant legal principles. I therefore feel constrained to disregard the finding of the Tribunal and fix the compensation independently.

7. So far as Babjan is concerned, it is true that at the time of his death he was not earning anything. But his potential capacity for earning ought not to be lost sight of, in fixing the compensation. He had survived the peril of childhood and was emerging into majority. The evidence is that the results, which were published after his death, show that he had passed the S.S.L.C. examination. It is difficult to predict what academic course he would have pursued, had he not met with the accident. But even assuming that he did not join any technical course, which might ultimately have qualified him for a pilot's career, he could most certainly have found employment at least as a lower division clerk on a starting salary of Rs. 150 inclusive of allowances. It is reasonable to presume that after meeting the expenses of his own maintenance he would have out of his emoluments paid at least Rs. 30 per month to his widowed mother. The mother is a middle-aged woman and might be expected to live for another ten years. If the son were to pay Rs. 360 annually to his mother for a period of ten years, the total amount would come to Rs. 3,600. As he could have paid this amount not in a lump sum, but in the course of a decade, some deduction has to be made on account of interest. Taking all these circumstances into consideration I think it right to fix the compensation payable to the appellant under Section 1 of the Fatal Accidents Act at Rs. 3,000.

8. As the appellant claimed as the legal representative of the deceased, she is entitled to claim compensation under section a of the Act as well. In the Supreme Court case cited above, a sum of Rs. 5,000 was fixed as compensation for mental agony, suffering and loss of expectation of life. As observed by Viscount Simon in Benham v. Gambling L.R. (1941) A.C. 157.

In the first place, I am of opinion that the right conclusion is not to be reached by applying what may be called the statistical or actuarial test. Figures calculated to represent the expectation of human life at various ages are averages arrived at from a vast mass of vital statistics, the figure is not necessarily one which can be properly attributed to a given individual. And in any case the thing to be Valued is not the prospect of length of days, but the prospect of a predominantly happy life. The age of the individual may, in some cases, be a relevant factor. For example, in extreme old age the brevity of what life may be left may be relevant but as it seems to me, arithmetical calculations are to be avoided, if only for the reason that it is of no assistance to know how many years may have been lost, unless one knows how to put a value on the years. It would be fallacious to assume, for this purpose, that all human life is continuously an enjoyable thing, so that the shortening of it calls for compensation, to be paid to the deceased's estate, on a quantitative basis. The ups and downs of life, its pains and sorrows as well as its joys and pleasures, all that makes up 'life's fitful fever' have to be allowed for in the estimate. In assessing damages for shortening of life, therefore, such damages should not be calculated solely, or even mainly, on the basis of the length of life that is lost.

Having regard to the observations quoted above, it is wrong, I think, to award a higher amount by way of compensation to the appellant merely because her son was younger at the time of his death than Rajaratnam whose dependents were awarded Rs. 5,000 not only on account of loss of expectation of life but also on account of the mental agony and suffering. In my view, the prospect that Babjan had of a predominantly happy life was much less bright, in the light of his accomplishments, social status and environment, than Rajaratnam. But so far as such subjective quantities as mental agony and suffering of the injured persons are concerned, it would be improper, while computing damages, to make a distinction merely on the ground of status or wealth. Taking all the relevant factors into consideration I think it reasonable to fix the compensation under the second head at Rs. 3,000.

9. In the result a total compensation of Rs. 6,000 is fixed, and the award of the Tribunal is modified accordingly. The respondents will pay the appellant the costs of this appeal.


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