Orissa High Court
Braja Mohan Jena And Ors. vs Haripada Bayan And Anr. on 15 April, 1996
Author: Dipak Misra
Bench: Dipak Misra
JUDGMENT Dipak Misra, J.
1. There is no question here of what may be called sentimental damages, bereavement or pain and suffering. It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities."
The aforesaid is the pronouncement of Lord Wright in his inimitable and impeccable style in the case of Davies v. Powell Duffryn Associated Collieries Ltd. (1942) AC 601. This has settled the law that no solatium is payable. There is no compensation for sentimental agony, no damage for heart's anguish and no financial assistance for mental tribulations. The whole essence is computation of the loss sustained and adjudicated by pragmatic parameters. True it is, payment of solatium is not permissible. But should the dependants or the legal representatives of the victim of an accident be deprived of just compensation? Precisely, this is the challenge in the present miscellaneous appeal preferred by the desolate parents who are aggrieved by the award passed by the Third Motor Accidents Claims Tribunal, Balasore, in Misc. Case No. 223/35 (C) of 1988/87 whereby the Tribunal has held that the present appellants are entitled to get compensation of Rs. 36,000/- from the respondent No. 2, United India Insurance Co. Ltd.
2. The brief facts of the case are that on 25.11.1986 at about 9 p.m. the deceased, son of the present appellants, was coming from Deua Hat to his village by his cycle. While he was moving by the left side of the road near Jaleswar a truck bearing registration No. WGB 6018 came in a high speed from his front and dashed against him. Resultantly, he fell down and died at the spot. Police was informed about the accident and criminal action being set in motion, G.R. Case No. 1562 of 1986 was initiated. The deceased, as claimed by the claimants-appellants, was 16 years old and had passed matriculation. As expected by the parents, the victim, if would have lived his normal length of life, would have been in a position to contribute substantially to the family. The probable contribution was computed at Rs. 1,00,000/- by the claimants, the said sum being just and reasonable. Thus, the claimants claimed Rs. 1,00,000/- as compensation from the respondent-opposite parties. The opposite party No. 1, respondent No. 1 to the present appeal, filed his objection refuting the allegations in entirety and disputing that the accident did not take place due to the rash and negligent driving of the driver. In addition to this, the owner advanced the plea that the offending vehicle was insured with opposite party No. 2 and, therefore, the liability was absolutely of the insurer in the event of passing of award granting compensation. The stand of the insurer is that onus is on the claimants to prove that the death took place due to the rash and negligent driving of the truck and that the driver concerned was entitled to drive the vehicle having a valid licence. It was also canvassed that the petitioner had to satisfy that the offending vehicle had valid insurance at the material point of time.
3. The Tribunal framed as many as six issues and came to hold that the driver of the offending truck was rash and negligent and that was the cause for accident; and the vehicle in question had valid insurance at the relevant point of time. Having concluded in favour of the claimants in these aspects, the Tribunal addressed itself with regard to the quantum of compensation. Taking into consideration the educational qualification of the deceased, the age of the claimants, the approximate income the deceased would have earned had he lived, the amount of contribution that the deceased would have probably made and such other ancillary factors, the Tribunal awarded Rs. 36,000/- as compensation to be paid by the opposite party No. 2, the respondent No. 2 herein. The Tribunal did not grant interest from the date of application as insurance company was added as a party at a belated stage but granted simple interest at the rate of 6 per cent from 19.6.1991 till payment of the awarded sum.
4. Mr. R.P. Kar, learned Counsel for the appellants, while assailing the award, submits that fixation of income of the deceased at the rate of Rs. 500/- per month is grossly low and no basis has been indicated by the Tribunal to arrive at this figure. The claimants having brought the matriculation certificate on record, the Tribunal should have considered that the deceased could have obtained a job for himself in any class IV post or would have been in a position to get an appointment in any private firm or company, may be in the lowest category. Submission of Mr. Kar is that the income of Rs. 500/- as arrived at by the Tribunal is not only low, but also against all canons of calculation. It is also his submission that the Tribunal has deducted Rs. 300/- from the gross income towards personal expenses of the deceased and has determined Rs. 200/-towards the contribution to the family, but these conclusions are not in accordance with law. As per the present trend 1/3rd of the income is to be deducted towards personal expenses and 2/3rd is to be taken into consideration while determining the contribution for the family. He also submits that the non-granting of interest from the date of application is unreasonable and amounts to illegal exercise of jurisdiction.
5. Mr. A. Mohanty, learned Counsel appearing for the insurer, on the other hand, supported the award and contends that no valid grounds are advanced for enhancement of the quantum. It is sub-nutted that the calculation made by the Tribunal is justified. The deceased being young and without a job, the calculation had to be done in a speculative manner and he being only a matriculate, there was no possibility of his getting a job as claimed by the claimants and, therefore, income fixed at Rs. 500/- per month is a probable and reasonable one and cannot be regarded as grossly low. The learned Counsel further submits that there is no strait-jacket formula for determination of percentage of contribution for the family members or the dependants and, therefore, the quantum of Rs. 200/- fixed per month by the Tribunal is justified and the award is not illegal on that score.
6. The factual position being not disputed, the only question that arises for consideration is relatable to quantum. It cannot be held for certain that deceased would not have been in a position to procure a job. He being a matriculate, the possibility of getting a job either under the Government or semi-Government organisation or in any private firm or company, cannot be totally brushed aside. Even if he would not have got a job, he being a healthy young man with the passage of time, he would have been in a position to get a monthly income in the vicinity of Rs. 1,000/-. There might have been circumstances which would have curtailed the earnings of the deceased. But in any case, it could not have been below Rs. 750 per month. Taking into consideration the qualification, the possibility of getting a job and other ancillary factors as indicated before, I am of the considered view that the probable income of the deceased should be fixed at Rs. 750/- per month. The contribution towards the family as arrived at by the Tribunal is also not acceptable. Ordinarily, the 1/3rd of the gross income has to be deducted towards personal expenses of the deceased and 2/3rd is to be taken as the contribution for the family. Calculated on that basis, the deceased would have contributed Rs. 500 per month. It would be unpragmatic to hold that there would have been absolute consistency in the contribution. With the passage of time, the needs of the deceased were likely to go up and thereby contribution for the parents would have decreased. No arithmetical formula can be adopted to arrive at the exact figure. In the matters of this nature probabilities and speculations have their own role. The milieu, the social backdrop, the sphere to which the claimants and the deceased belong and the arena in which they function and such other subsidiary factors that govern their lives are also to be taken into consideration. Abstaining from precise calculation, it can be assessed that the contribution would have been about Rs. 350/- per month or Rs. 4,200/- per year. As the multiplier of 15 has been accepted by both the learned Counsel, I do not intend to address myself with regard to the same and hold that the multiplier of 15 is appropriate and adequate. Thus, the appellants are entitled to get compensation of Rs. 63,000/- from the respondent No. 2. The extent of liability of the insurance company is limited or unlimited has not been raised by the learned Counsel for the insurance company. Therefore, I hold that the insurance company has unlimited liability. The claim for interest from the date of application has not been pressed by learned Counsel for the appellants in course of hearing.
7. In view of the preceding discussions, compensation is enhanced to Rs. 63,000/-. It has been told at the Bar that the amount of Rs. 36,000/- as awarded by the Tribunal has been paid within the stipulated time by the insurer. As patience of job is not a desirable expectation from the anguished and afflicted parents, the balance amount of Rs. 27,000/- should be paid within a period of six weeks from today, failing which the amount would carry 12 per cent interest from the date of application.
As a result, the appeal is allowed in part. However, there shall be no order as to costs.