Karnataka High Court
The New India Assurance Co.Ltd., vs Subhash Kallappa Patil on 21 March, 2012
Author: L.Narayana Swamy
Bench: L Narayana Swamy
MFA 23724.10
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 21ST DAY OF MARCH, 2012
BEFORE
THE HON'BLE MR. JUSTICE L NARAYANA SWAMY
M.F.A NO. 23724/2010 (MV)
BETWEEN:
The New India Assurance Company Ltd.
Satara Division Office 511 700
--
By its Regional Office
Srinath Complex, New Cotton Market
Hubli 580 029
Represented by its Regional Manager
APPELLANT
(By Sri. Ravi 0. Sabhahit, Adv.)
AND:
1. Sri. Subhash Kallappa Patil
Age: 41 years, 0cc: Agriculturist
2. Smt. Lalitha Subhash Patil
Age: 36 years, 0cc: Household work & Agriculture
Both are R/o. Kerur
Tq: Chikodi, Dist: Belgaum
3. Sri. Rao Saheb Virappa Ponagiri
Age: Major, 0cc: Transport Business
R/o. Sadguru Shree Balumana Devalaya
MFA 2372410
2
At/Po: Adamapur, Tq: Chudargad
Dist: Koihapur, Maharashtra 416 001 -
RESPONDENT
(By Sri. Santosh S. Hattikatagi, Adv. for Ri & R2)
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 16.01.2010 PASSED IN
M.V.C.NO.2915/2007 ON THE FILE OF THE MEMBER,
MOTOR ACCIDENT CLAIMS TRIBUNAL AND DISTRICT
JUDGE, FAST TRACK COURT-I, CHIKODI, AWARDING THE
COMPENSATION OF RS.2,75,000/- WITH INTEREST AT THE
RATE OF 9% P,A. FROM THE DATE OF PETITION TILL
REALISATION.
THIS APPEAL COMING ON FOR ORDERS, THE SAME
HAVING BEEN HEARD AND RESERVED FOR PROUNCEMENT
OF' JUDGMENT, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appeal is filed by the Insurance Company challenging the judgment and award dated 16.0 1.2010 passed by the Fast Track Court-I, MACT, Chikodi in MVC No.2915/2007 and sought for modifying the judgment and award of the Tribunal. The Tribunal has awarded a total compensation of Rs.2,75,000/- with interest at 9% p.a. k MFA 2372410
2. Heard the learned Counsel for both the parties and perused the records.
3. The learned Counsel for the appellant/Insurance Company submitted to modify the award on the ground that the award of Rs.2,75,000/- awarded for the death of 10 years old minor girl and the Tribunal has committed an error in awarding the higher amount without looking into the relevant provisions of the Motor Vehicles Act. The learned Counsel referred to the judgment of this Court reported in ILR 2008 KAR 1896 (S Sanaulla and Another Vs. A.R Shivashankar & others), wherein this Court has awarded Rs.1,80,000/-. It is also submitted that the compensation awarded under non-
pecuniary heads is also on the higher side. Further, the interest awarded at 9% p.a instead of 6% p.a is an error committed by the Tribunal and accordingly, sought for modifying the award.
4. The learned Counsel for the respondents resisted the appeal and submitted that, the Tribunal has not awarded just MFA 23724.10 4 and reasonable compensation and though, no appeal has been filed by the claimants for enhancement of compensation, this appeal has to be dismissed since no grounds are made by the Insurance Company for interference of this Court.
5. The 10 years old girl met with an accident on 20.10.2006 when she was crossing the road along with her mother. The minor girl died on the spot itself. The case was registered in Crime No.294/2006 for the said Road Traffic offence. It was contended on the part of the claimants that a notional income of Rs.3,000/- is to be taken and compensation of Rs.2,75,000/- is to be awarded in addition to future prospects. The Tribunal has taken the notional income of Rs.15,000/- per annum and applied the multiplier of 15 and awarded the compensation of Rs.2,75,000/-. The compensation under the head of love and affection has not been awarded. Further, the learned Counsel for the claimants submitted that what has been required under Motor Vehicles Act is just and reasonable compensation which has not been awarded. Though the appeal or cross-objections are not filed MFA 23724.10 for enhancement of compensation, this Court can consider the case of the claimants, while awarding just and reasonable compensation.
6. In the light of the submission made by the parties, the facts leading to the case are not disputed. What is required to be considered is as to whether the Tribunal has committed an error in awarding the compensation of Rs.2,75,000/- instead of Rs.l,80,000/-. The very same issue was discussed by the Hon'ble Supreme Court in the case of Manju Devi Vs. Musafir Paswan, VII (2005) SLT 257, wherein the Hon'ble Supreme Court has awarded the compensation of Rs.2,25,000/- in respect of death of a 13 years old boy by applying the multiplier of 15 and taking the notional income of Rs.15,000/- as per the Second Schedule of the Motor Vehicles Act. The relevant portion of the said judgment is reproduced below:
As set out in the Second Schedule to the Motor Vehicles Act, 1988, for a boy of 13 years of age, a multiplier of 15 would have to be applied. As per the Second Schedule, he being a nonearning person, a sum of Rs.15,000/-
MFA 23724.10 6 must be taken as the income. Thus, the compensation comes to Rs.2,25,000/-
7. In another case reported in II (2006) ACC 1997, in the case of Sobhagya Devi & Ors. Vs. Sukhvir Singh & Ors., which relates to the death of a 12 year old boy, the Rajasthan High Court, by following the judgment in Manju Devi's case (supra) awarded a compensation of Rs.2,25,000/-
by applying the Second Schedule of the motor Vehicles Act.
8. In the case of Syam Narayan Vs. Kitty Tours & Travels, 2006 ACJ 320, which relates to the death of the child aged about 5 years, the Delhi High Court by relying on the judgment of Man.ju Devi's case (supra) awarded a compensation of Rs.2,25,000/- by applying the notional income of Rs.15,000/- and multiplier of 15 as per the Second Schedule and further awarded Rs.50,000/- for loss of company of the child as also pain and suffering by them. The relevant portion of the judgment is extracted below:
"3. By and under the award dated 5.12.2003, a sum of Rs.1,00,000/- has been awarded to the appellants.
MFA 23724.10 7 While awarding sum of Rs.1,00,000/- to appellants, learned M.A.C.T. has held that the income of the deceased child was incapable of assessment or estimation, Recognising that every parent has a reasonable expectation of financial and moral support from his child, in the absence of any evidence led, learned M.A.C.T. opined that the interest of justice requires that appellants are compensated with the sum of Rs. 1,00,000/-.
4. Had the Tribunal peeped into the Second Schedule, as per section 163-A of Motor Vehicles Act, 1988, it would have dawned on the Tribunal that vide serial No.6, notional income for compensation in case of fatal accidents has been stipulated at Rs. 15,000/- per annum.
5. In the decision reported as Manju Devi V. Musafir Paswan, 2005 ACJ 99 (SC>, dealing with the accidental death of 13 years old boy, while awarding compensation under the Motor Vehicles Act, 1988, Apex Court took into account the notional income stipulated in the Second Schedule being Rs. 15,000/- per annum.
6. In the instant case, baby Chanda was aged 5 years. Age of the appellants as on date of accident was 28 MFA 2372410 8 years and 26 years respectively as recorded in the impugned award. Applying a multiplier of 15 as set out in Second Schedule which refers to the said multiplier, where age of the victim is upto 15 years, compensation determinable comes to Rs. 15,000 x 15 = Rs.2,25,000/-.
7. The learned Tribunal has awarded Rs. 1,00,000/- towards loss of expectation of financial and moral support as also loss of company of the child, mental agony, etc. I have found that the parents are entitled to compensation in the sum of Rs.2,25,000/- on account of loss of financial support from the deceased child. I award a sum of Rs.50,000/- on account of loss of company of the child as also pain and suffering suffered by them as a result of the untimely death of baby Chanda. Appeal accordingly stands disposed of enhancing the compensation to Rs.2,75,000/-."
9. In R.K.Malik vs. Kiran Pal, 2009(8) Scale 451, the Honbie Supreme Court has awarded compensation towards future prospects and granted further compensation of Rs.75,000/-. The findings of the Honble Supreme Court are extracted as under:
MFA 23724.10 9
19. The other issue is with regard to non- pecuniary compensation to the appellants- dependents on the loss of human life, loss of company, companionship, happiness, pain and suffering, loss of expectation of life etc.
20. In the Haisburys Laws of England, 4th Edition, Vol. 12, page 446, it has been stated with regard to non-pecuniary loss as follows:
Non-pecuniary loss: the pattern. Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the Courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstance of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award. The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of damages at certain key points in the pattern where the disability MFA 23724.10 10 is readily identifiable and not subject to large variations in individual cases.
21. In the case of Ward v. James (1965)1 All E R 563, it was observed:
Although you cannot give a man so gravely injured much for his lost years, you can, however, compensate him for his loss during his shortened, span, that is, during his expected years of survival. You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid? He may, owing to brain injury, be rendered unconscious for the rest of his days, or, Owing to a back injury, be unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. Yet Judges and juries have to do the best they can and give him what they think is fair. No wonder they find it well nigh insoluble. They are being asked to calculable. The figure is bound to be for the most part a conventional sum. The Judges have worked out a pattern, and they keep it in line with the changes in the value of money.
MFA 23724.10 11
22. The Supreme Court in the case of RD. Hatangadi v.
Pesr Control (India) (P) Ltd.. (1995) 1 SCC 551, at page 556, has observed as follows in para 9:
9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages.
Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non- pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non- pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future;
(ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the MEA 23724.10 12 normal longevity of the person concerned is shortened; (iv> inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.
In this case, the Court awarded non-pecuniary special damages of Rs. 3, 00,000/- to the claimants.
23. In Common Cause, A Registered Society v. Union of India (1999> 6 SCC 667 @ page 738, it was observed:
128. The object of an award of damages is to give the plaintiff compensation for damage, loss or injury he has suffered. The elements of damage recognised by law are divisible into two main groups: pecuniary and non-pecuniary. While the pecuniary loss is capable of being arithmetically worked out, the non-pecuniary loss is not so calculable. Non-pecuniary loss is compensated in terms of money, not as a substitute or replacement for other money, but as a substitute, what McGregor says, is generally more important than money: it is the best that a court can do. In I.cdiana, Re Lord Halsbury, L.C. observed as u ad er:
How is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can MFA 23724.10 13 by arithmetical calculation establish what is the exact sum of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident.... But nevertheless the law recognises that as a topic upon which damages may be given.
24. It is extremely difficult to quantify the non pecuniary compensation as it is to a great extent based upon the sentiments and emotions. But, the same could not be a ground for non-payment of any amount whatsoever by stating that it is difficult to quantify and pinpoint the exact amount payable with mathematical accuracy. Human life cannot be measured only in terms of loss of earning or monetary losses alone. There are emotional attacLments involved and loss of a child can have a devastating effect on the family which can be easily visualized and understood. Perhaps, the only mechanism known to law in this kind of situ.tion is to compensate a person who has suffered non-pecuniary loss or damage as a consequence of the wrong. done to him by way of damges / monetar compensation. Undoubtedly, when a victi:n of a wrong suffers injuries he is entitled to corn 2nsation including compensation for the prospective life, pain and suffering, happiness etc., which is sonetimes described as compensation paid for loss of MFA 23724.10 14 expectation of life'. This head of compensation need not be restricted to a case where the injured person himself initiates action but is equally admissible if his dependant brings about the action.
25. That being the position, the crucial problem arises with regard to the quantification of such compensation. The injury inflicted by deprivation of the life of a child is extrsrnei'r difficult to quantify. In view of the uncs.naiaties and contingencies of human life, what wouki be an appropriate figure, an adequate solatium is diffir alt to specify. The courts have therefore used the expz ssiofl standard compensation" and 'conventional amcant/ sum" to get over the difficulty that arises in quaah;, ag a figure as the same ensures consistency and unif. :mhz in awarding compensations.
26. \bhic quantifying and arriving at a figure for "loss of expectation of life', the Court have to keep in mind that this is not to be calculated for the prospective loss or :aahr pecuniary benefits that has been awarded undr another head i.e. pecuniary loss. The corn ation payable under this head is for loss of life and loss of future pecuniary prospects. Under this heah, compensation is paid for termination of life, which resubs in constant pain and suffering. This pain and 1 suf ç does not depend upon the financial position of MFA 2372410 15 the victim or the claimant but rather on the capacity and the ability of the deceased to provide happiness to the claimant. This compensation is paid for loss of prospective happiness which the claimant/victim wou ld have enjoyed had the child not been died at the tender age.
27. In the case of Lata Wadhwa (supra), wherein seve ral persons including children lost their lives in a fire accident, the Court awarded substantial amount as compensation. No doubt, the Court noticed that the children who lost their lives were studying in an expensive school, had bright prospects and belonged to upper middle class, yet it cannot be said that high er compensation awarded was for deprivation of life and the pain and suffering undergone on loss of life due to financial status. The term "conventional compens ation"
used in the said case has been used for non pecu niary compensation payable on account of pain and suffe ring as a result of death. The Court in the said case refer red to Rs. 50, 000/- as conventional figure. The reaso n was loss of expectancy of life and pain and suffering on that account which was common and uniform to all regardless of the status. Unless there is a spec ific case departing from the conventional formula, non- pecu niary MFA 2372410 16 compensation should not be fixed on basis of economic wealth and background.
28. In Lata Wadhawa case (supra), wherein the accident took place on 03.03.1989, the multiplier method was referred to and adopted with approval. In cases of children between 5 to 10 years of age, compensation of Rs. 1.50 lakhs was awarded towards pecuniary compensation and in addition a sum of Rs. 50,000/- was awarded towards conventional compensation. In the case of children between 10 to 18 years compensation of Rs. 4.10 lakhs was awarded including conventional compensation. While doing so the Supreme Court held that contribution of each child towards family should be taken as Rs. 24,000/- per annum instead of Rs. 12, 000/- per annum as recommended by Justice Y. V.Chandrachud Committee. This was in view of the fact that the company in question had an un-written rule that every employee can get one of his children employed in the said company.
29. In the case of M.S. (Jrewal v. Deep Chand Sood MANU/SC/0506/2001, wherein 14 students of a public school got drowned in a river due to negligence of the teachers. On the question of quantum of compensation, this Court accepted that the multiplier method was normally to be adopted as a method for assigning value V MFA 23724.10 of future annual dependency. It was emphasized that the Court must ensure that a just compensation was awarded.
30. In Grewal case (supra), compensation of Rs. 5 lakhs was awarded to the claimants and the same was held to be justified. Learned Counsel for the respondent No. 3, however, pointed out that in the said case the Supreme Court had noticed that the students belonged to an affluent school as was apparent from the fee structure and therefore the compensation of Rs. 5 lakhs as awarded by the High Court was not found to be excessive. It is no doubt true that the Supreme Court in the said case noticed that the students belonged to an upper middle class background but the basis and the principle on which the compensation was awarded in that case would equally apply to the present case.
31. A forceful submission has been made by the learned Counsels appearing for the claimants- appellants that both the Tribunal as well as the High Court failed to consider the claims of the appellants with regard to the future prospects of the children, It has been submitted that the evidence with regard to the same has been ignored by the Courts below. On perusal of the evidence on record, we find merit in such submission that the Courts below have overlooked that aspect of the matter MFA 2372410 18 while granting compensation. It is well settled legal principle that in addition to awarding compensation for pecuniary losses, compensation must also be granted with regard to the future prospects of the children. It is incumbent upon the Courts to consider the said aspect while awarding compensation. Reliance in this regard may be placed on the decisions rendered by this Court in General Manager, Kerála S. R. T. C. v. Susamma Thomas(1994) 2 SCC 176; Sarla Dixit v, Balwant Yadav (1996) 3 SCC 179; and Lata Wadhwa case (supra).
32. In view of discussion made hereinbefore, it is quite clear the claim with regard to future prospect should have been be addressed by the courts below. While considering such claims, child's performance in school, the reputation of the school etc. might be taken into consideration. In the present case, records shows that the children were good in studies and studying in a reasonably good school. Naturally, their future prospect would be presumed to be good and bright. Since they were children, there is no yardstick to measure the loss of future prospects of these children. But as already noted, they were performing well in studies, natural consequence supposed to be a bright future. In the case of Lata Wadhwa (supra) and M. S. Grewal (supra), the Supreme Court recognised such future prospect as basis MFA 23724.10 19 and factor to be considered. Therefore, denying compensation towards future prospects seems to be unjustified. Keeping this in background, facts and circumstances of the present case, and following the decision in Lata Wadhwa (supra) and M. S. Grewal (supra), we deem it appropriate to grant compensation of Rs. 75,000/- (which is roughly half of the amount given on account of pecuniary damages) as compensation for the future prospects of the children, to be paid to each claimant within one month of the date of this decision. We would like to clarify that this amount i.e. Rs. 75,000/- is over and above what has been awarded by the High Court.
33. Besides, the Courts have been awarding compensation for pain and suffering and towards non- pecuniary damages. Reference in this regard can be made to R. D. Hattangadi case (supra). Further, the said compensation must be just and reasonable. This Court has observed as follows in State of Harvana v. Jasbir Kaur (2003) 7 SCC 484:
7. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is to be in the real sense damages which in turn appears to it to be MFA 23724.10 20 "just and reasonable. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations.
It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just' compensation which is the pivotal consideration. Though by use of the expression which appears to it to be just" a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a MFA 23724.10 judicious approach and not the out come of whims, wild guesses and arbitrariness.
The expression "just" denotes equitability, fairness and reasonableness, and non-arbitrary.
If it is not so it cannot be just.'
34. So far as the pecuniary dam age is concerned we are of the considered view both the Trib unal as well as the High Court has awarded the compen sation on the basis of Second Schedule and relevant multiplier under the Act. However, we may notice her e that as far as non-
pecuniary damages are concerned, the Tribunal does not award any compensation und er the head of non-
pecuniary damages. However, in appeal the High Court has elaborately discussed this asp ect of the matter and has awarded non-pecuniary dam ages of Rs. 75,000.
Needless to say, pecuniary damage s seeks to compensate those losses which can be translat ed into money terms like loss of earnings, actual and pro spective earning and other out of pocket expenses. In contrast, non-pecuniary damages include such immeasura ble elements as pain and suffering and loss of amenity and enjoyment of life.
In this context, it becomes dut y of the court to award just compensation for non-pecun iary loss. As already noted it is difficult to quantif y the non- pecuniary compensation, nevertheless, the end eavour of the Court MFA 2372410 must be to provide a just, fair and reas onable amount as compensation keeping in view all rele vant facts and circumstances into consideration. We have noticed that the High Court in present case has enhanced the compensation in this category by Rs.
75, 000/- in all connected appeals. We do not find any infirmity in that regard.
10. In the light of the judgments referred sup ra and also in view of the facts and circumstan ces, now the question is as to whether the Tribunal has awarded a just and reasonable compensation. What has been awarded by the Tribuna l is to be held as reasonable and just compen sation. In adopting the multiplier of 15 and taking the notional income of Rs. 15000/-, it is rational and according to the judgments relied on.
However, it is found in the judgment that the Tribunal has not awarded just and reasonable compen sation as it is awarded in R. K. MaUk Vs. Kiran Pal, 2009(8) Scale 451. The claimants are also entitled to a further sum of Rs.75,000/-
towards non-pecuniary damages in term s of the judgment.
MFA 23724.10 23
11. In view of the above, the award passed by the Tribunal is required to be modified, though the claimants have not filed any cross-objections, in the ends of justice and in the light of the judgments passed as above this Court is inclined to enhance the compensation by awarding Rs.75,000/- towards non-pecuniary damages and Rs.50,000/- for future prospects of the child. In total, the claimants are entitled to Rs.4,00,000/- as against the compensation of Rs.2,75,000/-
awarded by the Tribunal. The enhanced amount also carries interest. The interest portion is reduced from 9% to 6%.
12. With these observations, the appeal filed by the Insurance Company is dismissed and the order of the Tribunal stands modified enhancing the compensation.
Sd/ 3UDG gab!