Kerala High Court
Susamma Thomas And Ors. vs Narayana Kurup And Anr. on 9 March, 1992
Equivalent citations: I(1992)ACC607, 1992ACJ1034
JUDGMENT G.H. Guttal, J.
1. The claimants, who are the legal representatives of the deceased Thomas Philip, impugn the award of the Motor Accidents Claims Tribunal, Alleppey in O.P. (M.V.) No. 330 of 1984, whereby the learned member of the Tribunal awarded a sum of Rs. 58,760/- as compensation against the petitioners' claim of Rs. 10,00,000/-.
2. In this judgment the parties are referred to by their nomenclature ir the original proceedings before the Tribunal. Petitioner No. 1 is the widow of the deceased. Petitioner Nos. 2, 3 and 4 are the children of the deceased. Petitioner Nos. 5 and 6 are the parents. Respondent No. 2 is the K.S.R.T.C. whose vehicle was driven by respondent No. 1 at the relevant time. On 19.2.1984 at Pullad, the deceased, then aged 39 years and employed on a monthly salary of Rs. 1,032/-in Malayala Manorama was knocked down and killed by the vehicle owned by the respondent No. 2.
The deceased had planned to emigrate to the U.S.A. with his wife and children. The petitioner No. 1 and the deceased had secured immigrant visas. Exh. A-7 is the xerox copy of the passport and immigrant visa of the deceased. The immigrant visa was presumably granted on the basis of the letters of appointment in the U.S.A. issued by the Regina Company, New Jersey. The deceased was offered a job on a monthly salary of 1,200 dollars (Exh. A-5) and the petitioner No. 1 was offered a monthly salary of 960 dollars (Exh. A-6). Exh. A-4 is the salary certificate issued by the Malayala Manorama showing monthly salary of Rs. 1,032/-.
3. The learned member of the Tribunal has awarded Rs. 2,200/- and Rs. 56,560/-respectively on account of (a) pain and suffering to the deceased and (b) on account of loss of dependency. Rs. 200/- were granted as expenses of the journey to the hospital and back and Rs. 2,000/- were granted as expenses of burial.
4. We are of the opinion that the quantum of compensation is far too inadequate and unreasonable having regard to the circumstances of the case. The deceased, 39 years old, was killed in the midst of his life resulting in sudden end of his expectations based on the promise of new life in the U.S.A. At the age of 39 he aspired to emigrate to U.S.A. and lead a new and prosperous life with his wife and children. The petitioner No. 1 has lost the consortium of her husband and the children have lost the guidance of their father. A consolidated amount of Rs. 25,000/- for the loss of consortium to the wife and the children is reasonable.
The expenses of taking the deceased to the hospital and back to the house, claimed by the petitioners, are entirely reasonable having regard to the present cost of travelling, hiring ambulance etc. We grant Rs. 2,000/-on this account. We also grant Rs. 2,000/-as the expenses on account of burial of the body.
5. The deceased, no doubt, lived for a very short duration after the accident. The accident must have caused severe excruciating pain. We have no doubt that the sum of Rs. 5,000/- claimed on this account is also reasonable. We grant Rs. 5,000/- on this account.
6. The next question is about the value of the dependency. The admitted income of the deceased was Rs. 1,032/-. He maintained his wife and children as also parents. It is reasonable to hold that he spent Rs. 750/-per month on his dependants. This sum of Rs. 750/- represents the amount lost to the petitioners due to the death of Thomas Philip. The deceased was 39-40 years old. He was of normal health. The evidence does not reveal history of* serious ailment. Having regard to these facts, the increased life expectancy caused by better medical facilities, good nutrition, increasing awareness of health care, and so on, we are of the opinion that the deceased would have lived the full life and would have continued to earn till the age of 70. Therefore, a multiplier of 30 appears reasonable. However, the unforeseen circumstances that might befall the family, receipt of compensation in one lump sum and the imponderables need to be taken into account. Instead of applying multiplier of 30 and then deducting a certain sum, we think that the multiplier should be reduced to 20. This will make deduction from the value of loss of dependency unnecessary. The reduction of the multiplier by 10 years accounts for all imponderables and no further deduction is called for in the amount that may be arrived at on the basis of the multiplier. Therefore, the amount of compensation on account of loss of dependency comes to Rs. 1,80,000/- (750 x 20 x 12 = 1,80,000/-).
7. However, the petitioners have made a wider claim, the substance of which is this: The deceased and the petitioner No. 1 had planned to emigrate to the U.S.A. where jobs fetching monthly salary of 1,200 dollars and 960 dollars respectively awaited them. The immigrant visa (Exh. A-7) and the two separate letters offering jobs (Exhs. A-5 and A-6) are relied upon. The prospect of employment in the U.S.A., receipt of income in dollars and the resultant betterment of living standard have been denied to the deceased by the untimely death caused by the tortious act. Thus the estate of the deceased lost substantial amount of future gains through the employment with Regina Company, New Jersey, which was within the grasp of the deceased.
8. In most cases that come before the courts, the income of the deceased on the date of the death is taken into account for determining the value of the dependency. But this case presents a new dimension of the complexity of the claims for compensation. Emigration of Indians to foreign countries is not a new phenomenon. The post-war era brought into focus the urge for economic progress of people of different countries. The independence of the Afro-Asian countries spurred them into developmental efforts. The inequalities in the economic development of different countriesthe developed and the developingnecessarily meant greater opportunity in some and less in the other countries. The opportunities in some countries stimulated the urge of Indians to emigrate to countries which offered the prospect of better life and increased income. Should the loss of such prospect be taken into account in determining compensation under the head 'dependency'?
9. The general damages arising upon death are assessed under certain well-recognised heads, such as pain and suffering, loss of amenities, loss of dependency and so on. Generally speaking, the compensation claimed by the dependants is by way of provision of the equivalent of dependency on the deceased. Had the deceased lived normal span of life, what would have come to the share of the dependants? This is the concept of compensation on account of the dependency on the deceased. This amount is assessed by the method of multiplying annual income by a certain number of years [Madhya Pradesh State Road Transport Corporation, Bairagarh, Bhopal v. Sudhakar 1977 ACJ 290 (SC)]. The amount so calculated represents the measure of support or dependency or maintenance, lost to the dependants due to the untimely death of the bread-winner.
10. Although the assessment of dependency is based on the consideration of the income on the date of the death, it is now judicially accepted that the amount lost to the dependants is related to the probable future earnings which would have been made by the deceased during the 'lost years' [Pickett v. British Rail Engineering Ltd. 1980 ACJ 261 (HL, England)], the years which he would have lived and earned. The reason lies in the fact that the deceased has lost not only the immediate earnings with reference to the date of death, but the earnings for the whole period for which he would have continued to earn had he survived. It follows, therefore, that the estate of the deceased has interest in the earnings which he might hope to make had he not died. Such interest has a value which can be assessed in terms of money [Pickett v. British Rail Engineering Ltd. 1980 ACJ 261 (HL, England)].
11. The gains prevented by the tortious conduct is a reality. Therefore, it is a sound principle to include loss of prospective earnings as a loss to the estate of the deceased. The right to recover prospective damages for the probable loss on account of tortious act is recognised in England [McGregor on Damages, 14th Edn., paras 1252-1254, page 854] and U.S.A. [Theodore Sedgwick: A Treatise on Measure of Damages, 9th Edn., Vol. I, page 147]. In India too, the future income such as the benefit of the incremental scale, likelihood of promotion, likelihood of revision of pay scales etc. is accepted as basis of determining compensation [State Insurance Officer v. Thankamma John 1981 ACJ 77 (Kerala)].
12. The concept of compensation is not static. Growing development, shrinkage of distances due to speedy communications, increasing access to foreign markets not only of commodities but also of services, the enterprise of the job-seekers and the ever-widening horizons of international relations have inevitably multiplied the prospects of employment of those who have the will to seek it. Having regard to the evidence in this case, the probability of the employment of the deceased in the U.S.A. and its loss due to his untimely death is a reality. We have no doubt that the loss of probable future income resulting from the loss of the job in the U.S.A. is a distinctly relevant factor in assessing the dependency of the petitioners.
13. The earnings which the deceased might have made had he lived are a part of his estate. The probable future earnings are assessable in terms of money. The right to recover prospective damages is an accepted rule. We see no reason why this principle should not be applicable to the prospective earnings from a promised job or business in a foreign country.
14. The estimate of prospective loss must be based on a foundation of solid facts. In such cases the claimants must prove the prospective loss by bringing forth relevant facts. Ordinarily these facts are: a regular ladder of promotions, possession of special merits or qualification promising promotion and so on. In the case of businessman, the prospect of increased productivity or sale may be relevant. No doubt allowance would be made for uncertainties of life.
We accept that the estate of the deceased has lost the future income from the job promised to the deceased. But the proof of the probable amount which can be used to assess the value of dependency is another matter. The income of Rs. 1,032/- earned in India is proved. The oral evidence proves that the deceased, with the promise of job, was about to emigrate to the U.S.A. But the original immigrant visa and the letters from the employer in U.S.A. have not been produced. In the absence of the original documents, the actual income remains in realm of guesswork, because the probability of the receipt of 1,200 dollars a month has to be proved by original documents. Besides, we need evidenceoral or documentary of the security of the job, likely duration of stay in the U.S.A. and so on. The copy of the visa contains coded classification like P-5. The validity of the visa expires on 18th May, 1984. The nature and class of visa and these facts are not entirely consistent. They call for explanation. None has been offered. Therefore, in order to assess the quantum of damages on the basis of prospective income of 1,200 dollars per month something more is required.
15. Notwithstanding the absence of best evidence about security of job in U.S.A., the income and so on, we are of the opinion that the deceased did lose the prospective job in U.S.A.which would have fetched wages, the quantum of which is not satisfactorily proved. Had the petitioner No. 1 emigrated, she too would have earned income as she claims. The deceased had the job within his grasp. It slipped out of his hand due to the death caused by the tortious act of the respondents. Although the amount of salary and duration of the job in the U.S.A. have not been proved, loss of the job has been proved by the oral evidence. While it is difficult to assess dependency based on the salary of 1,200 dollars per month, we consider that this is a fit case in which a certain sum should be awarded under this head. We award Rs. 50,000/- on account of loss of prospective earnings in U.S.A.
16. For the reasons stated in the foregoing paras, we award to the petitioners compensation as under:
Expenses of journey to the hospital . ... Rs. 2,000.00 Expenses of burial ... Rs. 2,000.00 Pain and suffering ... Rs. 5,000.00 Loss of consortium ... Rs. 25,000.00 Dependency based on salary on the date of death ... Rs. 1,80,000.00 Loss of future earnings in the U.S.A. ... Rs. 50,000.00
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Total ... Rs. 2,64,000.00
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17. The amount awarded by us shall be paid with interest at the rate of 12 per cent per annum from 15.6.1984.
18. Out of the amount awarded by us in paras 15, 16 and 17 petitioner Nos. 5 and 6, who are the parents, shall each be paid Rs. 50,000/- with proportionate interest. The remaining amount shall be paid to the petitioner Nos. 1 to 4.
19. The amount set out in para Nos. 15 to 17 includes the compensation awarded by the Motor Accidents Claims Tribunal in M.A.C.O.P. No. 300 of 1984. The amount awarded by us shall be substituted for the compensation awarded by the Tribunal.
20. The appeal is allowed.