Kerala High Court
Dr. Jacob Eapen vs Kerala State Road Transport ... on 12 January, 1987
Equivalent citations: I(1988)ACC504
Author: T. Kochu Thommen
Bench: T. Kochu Thommen
JUDGMENT Chettur Sankaran Nair, J.
1. The claimant appeals for enhancement of compensation, while the respondent, Kerala State Road Transport Corporation, cross-appeals for rejection of the claim, if not for reduction of compensation.
2. The appellant was travelling by a bus, belonging to the Kerala State Road Transport Corporation (shortly called 'the K S.R.T.C. hereinafter), KLX 3733 from Trivandrum to Palghat. During the small hours of 8-5-1980, the bus was involved in an accident, It rammed into a fully laden lorry (MYG 7855), pushing it 40 metres forward, before it capsized. Even the chassis was warped. The impact was so tremendous that several passengers were seriously injured. The Tribunal found on good evidence that the accident was solely due to the negligence of the driver of the bus. This finding cannot be disputed ; and has not been seriously disputed.
3. The claimant suffered injuries and underwent prolonged treatment at different hospitals, including the Medical College Hospital, Calicut and Medical College Hospital, Trivandrum. He was subjected to ten surgical operations. He also visited Moscow twice for treatment. From 8-5-1980 to 8-1-1983, for almost three years, he was in and out of hospitals by reason of the injuries sustained in the aforesaid accident. Even thereafter, his left leg was virtually immobilised.
4. The claimant is a person of academic attainments, holding a Masters degree and also a Doctoral degree in Economics from the Keil University in West Germany. He was the Director of Indian School of Social Sciences and Editor of a journal,'Social Scientist', and also a Fellow of the Indian Institute of Economics, Member, State Planning Board and Member of the Syndicate of the Kerala. University. His potential to earn, it is said, is considerable but - due to his personal predilections, he was content with an honorarium of Rs. 1,500/- per mensem. As a result of the accident, he lost the assignments be held. Besides himself (as PW 5), PW 8 speaks of this. The appellant claimed in all a compensation of Rs. 5 lakhs. The Tribunal awarded Rs. 3,67,7/4/- instead. Treating the monthly earning as Rs. 1,500/-and applying a multiplier of 15 years, the Tribunal found that he would have earned Rs. 1,50,000/-. Clearly, there is an error in computation because Rs. 1,500/- per mensem multiplied by 12 months, further multiplied by 15 years would be Rs. 2,70,000/. The Tribunal deducted 25 per cent for future uncertainties. The bone of contention centres round the quantum of damages on account of loss of future earnings, the appellant contesting the award as meagre and the respondent as exaggerated. Award under other heads is only faintly challenged.
5. We shall proceed to consider the rival contentions relating to loss of future earnings. Counsel for appellant would say that Rs, 1,500/-per mensem was a modest estimate and that the appellant had vast career advancement opportunities and prospect of greater recogaitioa in his sphere of life, implying higher potential earning. He was 44 years old at the time of the accident and mellower years lay ahead, according to counsel. Respondent, on the other hand, would say . that future earnings, having regard to the nature of the work he did, were not diminished. That future contingencies could depress his earning capacity, was also suggested.
6. No scales of precision, nor yardsticks of easy measurement are available to ascertain damages. To see ahead the visage of future is no easy task. Forensic process is bound to be conjectural, as estimate can be no real substitute for fact. Future contingencies are not always adverse, nor depressing. Advancements and rewards of fortune are possible.
7. Judicial evaluation has to be made in this twilight zone. Principles have been enunciated and methodology indicated by judicial authority. In the words of Lord Reid in Taylor v. Conner 1971 AC 117:"The general principle is not in doubt. They are entitled to such a sum, as will make good the financial loss which they have suffered. But future loss is generally conjectural."
8. In Mitchell v. Mulholland, (1972) 1 QB 65, Edmund Davis, LJ. stated the methodology:
A satisfactory method of determining compensation is by arriving at a multiplicand and a multiplier. Adjustments in these will have to be made, owing to a variety of factors, viz, the probability of future increase or decrease in earnings, contingencies of life, incidence of inflation and taxation....
9. In Thomas v. British Railways Board 1977 ACJ 222 (CA, England), Scarman, LJ., observed:" the greatest element of damage in a case such as this is the pain, the suffering and the loss of the ordinary pleasures and convenience associated with healthy and mobile limbs. All the court can do is to award such a sum as will enable the plaintiff to acquire some material possessions or to develop a life-style which will offset to some extent her terrible disability."
10. In a more recent case, Birkett v. Hayes 1983 ACJ 697 (CA, England), the position has been stated: "There is nothing to guide us but the feeling of what is fair.... The Judge has to award compensation for the past and also for the future pain, suffering and loss of amenities. The future that lies ahead, beyond the date of trial, is often of more consequence than the past. The Judge awards a lump sum at the date of trial to cover all."
The Court of Appeal then indicated the elements to be reckoned.
11. New nuances have been recognised by courts, viewing the panorama of life in more recent years. The law of Torts has been widening horizons, making headway from conventional concepts of damages. Future care is an element that has received increasing judicial recognition in the last decade. Compensation has been awarded for a high and costly level of continuing care and medical treatment. McGregor and Kemp have noticed the rising scales that courts in England have adopted in recent years. Urn Poh Choo v.Canuden and Islington Area Health Authority 1980 ACJ 486 (HL, England), is a case in point--Scarman, LJ. said:"A genuine deprivation-, be it pecuniary or non-pecuniary, is a proper subject of compensation. where the expectancy of life is not shortened, but incapacity exists there will be a cost of care claim as well as a loss of earnings claim."
12. Again in Hughes v. M.C. Keowen (1985) 3 All ER 284, a very generous award for cost of future care was made.
13. McGregor on Damages, Fourteenth Edition, para 1164, indicates that the most effective'method would be the calculation of a reasonable multiplicand and the application of a reasonable multiplier, and then making adjustments and variations for elements like life expectancy, inflation and taxation etc. and making a discount for a lump sum payment, collateral benefits etc. Kemp & Kemp on Quantum of Damages, Vol. I, states the general principles: "In actions brought in respect of personal injuries the ordinary common law principles for assessing damages apply. Such actions are usually founded upon a tort, but. may be founded upon a breach of contract. Whatever the basis of the action, the principle on which damages are assessed is the same and is stated by Viscount Dunedin in the following words the common law says that the damages due either for breach of contract or for tort are damages which, so far as money can compensate, will give the injured party reparation for the wrongful act."
14. The various aspects to be reckoned and the constituents to be added and subtracted in assessing damages are well recognised. The quantum of damages will be assessed by adding pecuniary and non-pecuniary damages. Under the former head would fall loss of future earnings, cost of medical care and related expenses, cost of future care and the element of inflation and taxes. The latter category--non-pecuniary damages--present greater difficulties because it involves a process of translating intangible elements into tangible terms. Pain and suffering, loss of amenities, loss of happiness and such like fall in this category. In the words of Lord Morris in H, West & Son Ltd. v. Shephard 1958-65 ACJ 504 (HL, England):"Money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation." In Every v. Miles 1964 AC 261, Diplock, LJ. said:"Any such decision involves an attempt to equate incommensu- rable. Such an equation is insoluble, and in the logical sense there is , no answer which is right."
16. After contemplating the compensation, a scaling down will have to be made for uncertainties of future, advantages of a lump sum payment, availability of social security measures and insurances, presence of collateral benefits and such elements.
17. Applying these principles, evolved on high judicial authority, we are of opinion that a multiplicand of Rs. 15,000/- per year and a multiplier of 15 years would be proper. After making a reasonable margin for uncertainties of future we would assess the amount at Rs. 2,20,000/-.
18. A further deduction as contended for by the respondent would not be appropriate because adverse contingency is not the only possibility. The basis that we have indicated would be a fair, reasonable and realistic, as nearly precise as possible. We are not unaware of the fact that the appellant would have the advantage of getting a lump sum before he would have earned it and the prospect of sound investment and enjoyment of interest. We are also not unaware of the trend of inflation and like matters of a disadvantageous nature. In the totality of circumstances, we make an award for Rs. 2,20 000/-under the head of loss of future earnings and care of future needs.
19. As against the other claims, the Tribunal made an award as under:
1.
For treatment expenses Rs. 30,274/-
2. For pain and suffering Rs. 50,000/-
3. For loss of interim earnings Rs. 84,000/-
4. For mental shock to wife andchildren Rs. 5,000/-
5. For future expenses for car Rs. 36,000/-
6. For visit to Moscow Rs. 50,000/-
7. For loss of property Rs. 1,000/-
8. For hire charges Rs. 12,000/-
Rs. 2.68.274/-
20. The loss of earnings for the interim period (the period between the date of accident and date of claim) is shown as Rs. 84,000/- at serial No.
3. This is comprehended in the award of Rs. 2,20,000/- and to avoid overlapping, this will be deducted. The award in respect of the other heads is confirmed. In consequence, an award in the sum of Rs. 4,04,274/- is made.
21. The Tribunal has awarded interest at 9 per cent from 11-11-1980 to 11-4-1986 and at 12 per cent thereafter till date of payment. No specific ground has been raised for a higher rate of interest. Though there have been cases where the Supreme Court has awarded higher rates of interest having regard to the facts of the cases, since no specific ground is raised and taking an overall view of the situation, we confirm the rate of interest awarded by the Tribunal.
22. There is one disturbing aspect revealed in the case and we are constrained to comment on it in view of its serious implications. Rash and negligent driving has been the cause of grave suffering and misery to the appellant and loss to the K.S.R.T.C. Cases have come to our judicial notice where death, misery and deprivation have been caused due to the callous negligence exhibited by drivers of buses. We are not certain whether any action is taken against such negligent drivers: but we are certain that any commercial or utilitarian venture cannot promote or countenance a state of affairs where the negligence of its servants puts the undertaking to huge losses and passengers and pedestrians and users of other vehicles in peril. It behaves not a public sector undertaking to be public hazard, of distressing dimensions. To contain this, the K.S.R.T.C. should instill the right perspective and attitudes in their employees, so that they realise their public accountability and pay due heed to safety. If provisions in this regard do not exist, time has come to bring such into existence. A Unit to oversee the functioning of drivers, periodical assessment of performance and the use of mechanical devices can be thought of. We expect that the K.S.R.T.C. will take necessary action in this regard, without losing time,
23. In the result, the appeal is allowed to the extent indicated above. The cross-appeal is without merit, and is dismissed. The parties will bear their costs. Issue carbon copy.