Gauhati High Court
Hemdndra Dutta Choudhury And Anr. vs Arun Kumar Bardoloi And Ors. on 2 July, 1988
Equivalent citations: 1(1989)ACC86
Author: B.L. Hansaria
Bench: B.L. Hansaria
JUDGMENT S.P. Rajkhowa, J.
1. All the three appeals arise out of common judgment and award passed on 23-7-76 by Sri G. Hussain, Member, Motor Accident Claims Tribunal, Kamrup, Gauhati, for short "Tribunal", in M.A.C. Cases Nos. 16 (K)/74, 17 (K)/74 and 24 (K)/74. In M.A.C. Case No. 16 (K)/74 Sri Pulak Hazarika, Sri Koushik Hazarika, Sri Soumik Hazarika and Sri Amik Hazarika, the minor sons of the deceased Rajendra Nath Hazarika represented by Smt. SUniti Hazarika, their mother and natural guardian, were the claimants. In M.A.C. Case No. 17 (K)/74 Smt. Suniti Hazarika, the widow of the deceased, was the claimant. In M.A.C. Case No. 24 (K)/74 Sri Arun Kumar Bordoloi was the claimant. By the impugned judgment the learned Tribunal awarded Rs. 4,50,343/- to Sri Arun Kumar Bordoloi in M.A.C. Case No. 24 (K)/74, and jointly awarded Rs. 2,50,000/- to the widow and the minor sons of the deceased in M.A.C. Case Nos. 16 (K)/74 and 17 (K)/74. Being aggrieved at and dissatisfied with the award Sri Hemendra Dutta Choudhury, owner of the offending Ambassador car No. ASZ 8856 and the insurer, Oriental Fire and General Insurance Company Ltd., for short "Insurance Company", have come up in appeal under Section 110-D of the Motor Vehicles Act in M.A. (F) 62/76 impleading Sri Arun Kumar Bordoloi as respondent, in M.A. (F) 9/77 impleading Smt. Suniti Hazarika as respondent and in M.A. (F) 10/77 impleading the minors of the deceased as respondents. As all the three appeals arise out of the common judgment and award it was decided to dispose of all the three appeals analogously.
2. A preliminary objection was raised by the respondents as to the maintainability of these appeals. The respondents submitted that these joint appeals on behalf of the owner and the insurer of the vehicle did not lie inasmuch as the owner could not be said to be a "person aggrieved" because nothing had been ordered to be paid by the owner and the insurer could not challenge the award on the grounds, inter alia, of negligence of the driver of the offending vehicle and quantum of compensation, which are the two points urged in the main in the memoranda of appeal. By the judgment and order dated 7-8 83 of a Division Bench of this Court speaking through one of us (Hansaria, J) this objection was overruled.
3. The awards relate to an occurrence that took place on 4-5-74. On that day the claimant Sri Arun Kumar Bordoloi and deceased Rajendra Nath Hazarika (both advocates) were proceeding towards their home at Kharghuli from the Bar Library, Gauhati on a scooter belonging to the claimant Sri Bordoloi, who was driving the scooter, and deceased Hazarika was riding on the pillion. The scooter reached the crossing of the Bhuban Road and Manik Chandra Road, Uzan Bazar in front of Bhardwaz Pharmacy (now Das Pharmacy) at about 10 P.M. When Sri Bordoloi after slowing down the speed and after following the traffic rules was crossing the aforesaid point of junction of the two roads at that moment an Ambassador car bearing No. ASZ 8856 suddenly came from Manik Chandra Road i.e. from the Brahamputra river side at a very high speed which was driven rashly and negligently in breach of the traffic rules and violently knocked down the scooter. As a result, the scooter and its two occupants were thrown off and were seriously injured and they became unconscious. After the accident the said car fled away. Immediately after the accident people gathered and both the injured were removed to the Gauhati Medical College Hospital where the injured Hazarika succumbed to the injuries on the next night. Sri Bordoloi regained his senses on the following morning at the hospital. Sri Bordoloi sustained grievous injuries in the said accident. There were fractures of different bones, and it was apprehended that there was no chance of his survival. Sri Bordoloi received treatment at the Gauhati Medical College Hospital and also at Assam Medical College at Dibrugarh. As a result of the, accident, his left leg has become shorter by 3/4 inch and so he is limping. He has been permanently disabled and crippled for life. As a result of the accident he is suffering from chronic waist pain. He is also suffering from continuous dizziness and cannot concentrate his mind in his works. In the said accident he also lost a portion of his left hand index finger as a result of which he has lost the grip of the hand and cannot lift anything with that hand. Therefore, Sri Bordoloi filed the claim petition claiming Rs. 18,22,000/- as compensation under the following heads:
1. Loss of income. -- Rs. 5,00,000.00
2. Damage for Mental shock and agony. -- Rs. 5,00,000.00
3. Loss for complete disablement. -- Rs. 3,00,000.00
4. Loss for shortening longivity in life. -- Rs. 5,00,000.00
5. Medical expenses. -- Rs. 20,000.00
6. Damage to scooter. -- Rs. 2,000.00
----------------
Rs. 18,22,000.00.
However, in course of argument before the Tribunal Sri Bordoloi claimed a total sum of Rs. 5,92,600/- under the following heads:
1. For mental and nervous shock, pain and sufferings. -- Rs. 1,00,000.00
2. For medical expenses including conveyance, special shoes, crutches etc. -- Rs. 10,000.00
3. For total loss of income during the period under treatment for 8 months @ Rs. 500/-
per month amounting to. -- Rs. 4,000.00
4. For permanent physical disability,
deformity, amputation, disfiguration and
loss of power of concentration etc. -- Rs. 1,00,000,00
5. For future recurring expenses for
treatment. -- Rs. 20,000.00
6. For loss of future income and
earning capacity. -- Rs. 3,07,200.00
7. For loss of expectation of life. -- Rs. 50,000.00
8. For damage caused to the scooter. -- Rs. 1,400.00
Total -- Rs. 5,92,600.00
4. Smt. Suniti Hazarika claimed Rs. 2,29,000/- on the following heads:
1. Loss of income. -- Rs. 1,60,000.00
2. Loss of conjugal happiness and enjoyment of life. -- Rs. 30,000.00
3. Mental shock and agony. -- Rs. 10,000.00
4. Loss of the Estate. -- Rs. 15,000.00
5. Funeral expenses. -- Rs. 4,000.00
6. Reduction of longivity. -- Rs. 10,000.00
---------------
Total -- Rs. 2,29,000.00
5. Shri Pulak Hazarika and his three brothers (all the four minor sons of the deceased) claimed Rs. 4,24,000.00 as compensation on the following heads:
1. Educational expenses. -- Rs. 2,00,000.00
2. Loss of paternal care and affection. -- Rs. 80,000.00
3. Mental shock & agonies. -- Rs. 40,000.00
4. Marriage expenses. -- Rs. 40,000.00
5. Loss of enjoyment and comfort. -- Rs. 40,000.00
6. Loss of provision on paternal influence and efforts. -- Rs. 40,000.00
---------------
Total -- Rs. 4,24,000.00 (sic)
6. The opposite parties (appellants) resisted the claims by filing written statements mainly on the grounds that the driver of the offending vahicle was not responsible for the accident and the claims were highly inflated. On the pleadings, two separate sets of issues were framed, but on the basis of submission made before the learned Tribunal at the time of argument, 7 issues were taken up for consideration. Issues No. 2 and 3 were framed to determine as to whether the accident was caused due to the rash and negligent driving of the offending vehicle and whether the accident was caused due to the contributory negligence on the part of the driver of the scooter. Issues No. 6 and 7 were framed to determine the points as to whether the claimants were entitled to get compensation as claimed by them and whether they were entitled to any other relief. On the basis of the evidence on record, the learned Tribunal held that the unfortunate accident was the result of the rash and negligent driving of the motor car No. ASZ 8856 (Ambassador car) by its driver and that the plea of the contributory negligence on the part of the driver of the scooter raised by the opposite parties was wholly unreliable as not supported by any cogent evidence. Accordingly the learned Tribunal awarded the compensation as stated above.
7. Sri Guha, the learned Counsel appearing for the appellants, has urged before us mainly two points. Learned Counsel has submitted that the evidence on record does not conclusively prove that the accident took place due to the rash and negligent driving of the offending vehicle. He has submitted that at least there was some amount of contributory negligence on the part of the driver of the scooter. He has tried to bring home this point by referring to the topography of the place of occurrence and the damages sustained by the Ambassador car and the scooter. We have therefore scrutinised the evidence on record. Sri Bordoloi had stated in his deposition before the Tribunal as follows:
On arriving Uzanbazar Chariali I put my hand in the dimmer and blew horn to cross the Chariali. At that moment I did not see light of any car from any quarter nor heard the sound of horn. For that I could cross the Chariali by slowing the speed of the scooter. Suddenly a car came from the river bank of Uzanbazar side at a break neck speed and dashed against the back portion towards left of my scooter. Then and there I fell down flinging at a distance and became senseless.
8. Sri M.C. Gayan (PW 7), Sub-Inspector of Police, Gauhati Police Station, Traffic Branch seized the scooter No. ASK 277 belonging to Sri Bordoloi on 4-5-74 as per Ext. 20 and he found the same in total broken condition. He specifically mentioned that there were bents towards left of the front side bumper and over the back wheel. The left clutch was found broken. The fork was found bent. The same S.I. of Police, on the same day also seized the Ambassador car No. ASZ 8856 as per Seizure list, Ext. 19. The front glass of the car was found almost broken and there was dent in the right side of body of the car near the front seat. In cross-examination it was suggested to Sri Bordoloi that his scooter dashed against the mudguard of the front side and the door of the car. He denied the suggestion and emphatically said that it was the car which dashed severely against the rear side of his scooter by coming at a high speed. The opposite parties unsuccessfully tried to introduce an element of doubt by referring to another car coming at the place just before the accident. It is not clear what for this suggestion was made. It is difficult for us now to conjure up the picture of the actual accident. We cannot re-enact the scene. However, from the evidence on record it could be reasonably explained as to how the accident took place. The car was coming at a great speed and appeared on the scene all of a sudden. The scooterist did not see any light of car coming from a distance and he did not hear any horn. The car appeared at the scene the moment the scooterist also reached the crossing. Instinctively the scooterist tried to save himself and swerved the steering to the right. It may be that at the same moment the car driver swerved his vehicle to the left to save the situation. But it was too late and the situation could not be saved and the car dashed against the scooter. Sri Bordoloi's evidence quite naturally appeals to our reason. The car dashed against the rear left portion of the scooter. That is why the pillion rider had flipped and was flown away on the impact of the accident. His injuries were, therefore, more severe than the injuries sustained by Sri Bordoloi. The pillion rider's injuries were so severe that be succumbed to his injuries soon after removal to the Gauhati Medical College Hospital. Pointing to the broken front glass of the offending car Sri Guha submitted that this could happen only because there had been a head-on collision. But this is a conjecture on which we are not in a position to place any reliance. This could have been explained by the driver of the offending vehicle. This driver, Sri Kishore Das, was examined as OPW 2. But he said that he did not know how the front side glass of his car had broken. It is to be noted that after the accident the car did not stop at the spot and the driver took the car back to the hotel belonging to appellant/owner Hemendra Dutta Choudhury. He parked the car at the hotel and informed the matter to the owner and went home. This shows that the offending car was not seized by the police at the spot.. Many things may happen under such circumstances. Without ruminating the evidence on this point further we agree with the findings of the learned Tribunal that the accident was caused due to the rash and negligent driving of the offending vehicle and that there was no contributory negligence on the part of the driver of the scooter.
9. We now come to the next point, which is, the quantum of damages awarded by the learned Tribunal, Sri Guha, the learned Counsel for the appellants has submitted that the damages awarded by the learned Tribunal have been too high, which are against the spirit of the law which enjoins award of compensation which appears to be just and in support of his proposition has submitted a plethora of decisions which will be referred to at appropriate places.
10. Section 110-B of the Motor Vehicles Act does not lay down any principle for determination of compensation. It simply lays stress on the amount of compensation which appears to the Tribunal to be just (stress is ours). But that branch of law which deals with claims relating to the fatal accidents including automobile accidents, coming to be known as claims jurisprudence, has been developing and the courts have formulated through their various pronouncements some principles which have now been universally applied and followed. It is not easy to point out that a particular decision of a particular court is the sole authority. So, we shall discuss some of the case laws enunciating these principles. This Court itself has laid down some principles over the years. In the State of Assam v. Urmila Dutta 1974 ACJ 414, it was observed that compensation in connection with the personal injury is classified under two heads--(i) non-pecuniary loss and (ii) pecuniary loss. Loss of expectation of life is classified under non-pecuniary loss. In Smt. Gurdev Kaur v. Rash Behari Das , the Calcutta High Court observed that the claim for compensation for personal injuries can be generally characterised in the following manner:
(A) Pecuniary Loss--
1. Expenses caused by the injuries.
2. Loss of earning or profits.
(a) from the date of accident till the date of trial.
(b) prospective loss.
(B) Non-pecuniary Loss.
1. Pain and suffering.
2. Loss of the amenities of life.
3. Loss of expectation of life.
In Lachhman Singh v. Gurmit Kaur AIR 1978 P & H 50 (FB), a large number of cases were discussed. In that case the High Court of Punjab and Haryana approvingly quoted the principles enunciated by Viscount Simon, J. in Nance v. British Columbia Electric Rly. Co. Ltd., 1951 AC 601. These are as follows:
1. The deceased man's expectation of life has to be estimated keeping in view his age, his bodily health and the possibility of premature determination of his life by subsequent accident.
2. The amount required for the future provision of his wife should be estimated having regard to the amount the deceased used to spend on her during his life time.
3. This estimated annual sum should be multiplied by the number of years of the man's estimated span of life.
4. The said amount must be discounted so as to arrive at the correct equivalent in the form of lump sum payable on his death, after making deductions for the benefit accruing to the widow for the acceleration of her interest in the estate.
5. Deductions should also be made for the possibility of the wife dying earlier if the husband had full span of his life and also for the possibility that in case the widow remarries, that may result in improvement of her financial position.
The apex Court also relied on the aforesaid principles in Gobald Motor Service Ltd.. v. R.M.K. veluswamy . In a very recent case, in the case of K. Sapana v. B. Appa Rao, 1988 ACJ 113, Andhra Pradesh High Court has propounded certain principles of assessment of pecuniary losses, both past and future. It includes loss of earnings or earning capacity (total or partial), value of perquisites including free board and lodging, loss of career, unused earning capacity, medical and hospital expenses and transport, nursing services at home, extra or special diet and nourishment, employment of substitute and damage to property. There are so many other reported cases dealing with these principles and the list can never be exhaustive. We will, therefore, forebear from citing more decisions. We will examine the award passed by the learned Tribunal in the light of the aforesaid principles. We propose to take up Sri Arun Bordoloi's case first.
11. Claimant Sri Bordoloi examining himself as PW 1 has inter alia stated before the learned Tribunal that he was under treatment in the Gauhati Medical College Hospital from 4-5-74 to 22-5-74. After regaining his senses he could know that his whole body had been bandaged and that his left leg, collar bone of his left side, the wrist of his left hand had been broken and the fore finger of his left hand torn into two pieces and the left side of his head upto eye and mouth was swelling and he could not see anything. There was cut injury in the left side of his back and in the stomach. There was severe pain in the left side of his chest. The doctors pushed injections on his body, gave medicines and took X-ray. The fore finger was amputed and plastered. His broken left leg, the left hand and collar bone were also plastered. When he was discharged from the hospital he was not in a condition to walk and he was laid in a stretcher and carried home in an ambulance. At home he lay straight in his bed and could not move. In this condition he was laid upto 6-9-74. During this period he had to pass stool and urine on the bed. There was pain all over his body during this period. There was no improvement in his condition and as advised by the doctor he went to Assam Medical College Hospital at Dibrugarh for further treatment and got him-self admitted there as an indoor patient on 9-9-74 and stayed there as such upto 3-10-74. There he was gradually recovering and began to walk with the help of the crutch. On his return home from Dibrugarh he practised to walk with the help of the crutch and on 18-11-74 he could come out of his house with the help of a walking stick. After two months thereafter he could walk without the help of the stick. But he was limping and that limp remained. Because of the accident, his left leg had been shortened by about 1 inch (one inch). By the time he appeared before the learned Tribunal to depose (16-7-75) he could not stand up in the court room at a time for more than half an hour. Till that time there was constant pain in his waist and he felt dizziness and could not give attention to any work. Till that time he could not make a fist of his left hand and could not lift or catch anything because of the broken fore finger of his left hand. He could not ride a bicycle or drive a scooter. Moreover, if his fore finger bit anything it pained him enormously. His left hand became weak and there was pain all the time. Similarly there was constant pain in the left side of the bone of his neck and so he had no strength in his left shoulder and could not sleep on his left side. Eye sight in his left eye became impaired and he had to use a different spectacle because of the hurt caused in the left eye.
12. Dr. G.C. Jain, Assistant Professor of Surgery, Gauhati Medical College Hospital was examined as PW 4. He inter alia deposed before the Tribunal that Sri Bordoloi was admitted in the Gauhati Medical College Hospital as an indoor patient on 4-5-74 at 11.10 P.M. and he was there till 22-5-74 and he was under his treatment. At the time of admission of Sri Bordoloi, be found the following injuries on his person :
(1) Fracture of both bones of left lower leg.
(2) Fracture of the left radius bone in its lower part near wrist joint (collies fracture).
(3) Fracture of the left classical bone.
(4) Transmatir amputation of the distal fallanx of the left index finger.
(5) Eccbymosis of left eye.
Dr. Jain said that the patient was conscious at the time of admission but there was a history of loss of consciousness for some time immediately after the accident. He advised for X-ray of the patient and accordingly X-rays were taken in the hospital. The patient had also bleeding from the nose and as per advice of E.N.T. Specialist, X-ray was taken and the X-ray report confirmed that there were internal injuries of the minor lining of the nose for which there were bleeding and swelling. As per X-ray plates, there were multiple fractures of the Tibia bone in its lower part with displacement and there was transverse fracture of the Fibula bone at the same level. There was also fracture of the left classical in its lateral part. X-ray plate confirmed that there was reverse collies fracture on the left side with the distal fragment having enteriorly displaced. (X-ray plates were duly exhibited and proved). The patient was advised to use improvised shoes for his left leg, which was found short by 3/4 inch due to the accident injury. The fracture of the left leg had resulted in shortening of the leg permanently which had given rise to pain on the back. According to Dr. Jain, it may become permanent unless corrected by improvised means and even improvised means may or may not cure the back pain developed in the patient and this back pain may permanently disable the patient. The shortening of the leg had resulted in limping. The combined effect of these injuries may impair the concentration of the patient to some extent.
13. Dr. Sibanath Barua, Assistant Professor or Orthopedics, Assam Medical College was examined as PW 8. He has inter alia deposed that Sri Bordoloi was admitted in the Assam Medical College Hospital on 9-9-74 and was discharged on 3-10-74 and the patient was under his treatment during this period. He came to the hospital with plaster in the left lower limb above the knee. After admission he removed the plaster and examined the patient. On examination he found the following :
(1) There was pain in the lower part of the left leg.
(2) There was restriction of movement of the left ankle.
(3) There was restriction of the movement of the left knee-joint.
(4) There was restriction and pain on the left wrist joint.
After examination he advised for X-ray which was done.
(1) Left leg X-ray report revealed as follows :
Malunited comminuted fracture of the both bones of left tibia and fibula in the lower third with medial rotation and upward displacement.
(2) X-ray report of the left wrist revealed as follows:
Fracture of the lower end of the radius and non-union of the fracture of ulnarstyloid process.
Dr. Barua also stated that the patient had difficulty in walking due to medial rotation of the left leg at the time of discharge and this defect in walking would be permanent and would continue for ever. The patient also developed limping because there was shortening of the left leg. This limping was permanent and not curable. Due to these defects, mainly due to the shortening of the left leg, in course of time the patient will develop arthritis of the joints on the left side and will develop pain on the back. In his opinion, arthritis is not curable, but only the remedial measures can be taken. He also opined that on normal condition, the fracture of the lower and of the radius should be cured. But in case of Sri Bordoloi, due to non-union of the styloid process of ulna there will be constant pain during movement of the wrist and forearm. Because of this pain there will be definitely some amount of restrictions on the activities of the patient.
14. As regards income, Sri Bordoloi stated that before the accident his monthly income was about Rs. 500/-. But after the accident he became physically handicapped and unfit for practice and his income came down to 100/150 P.M. Before the accident, Sri Bordoloi used to attend the chamber of his senior Sri K.N. Saikia (who was subsequently elevated to the Bench and retired as the Chief Justice of the Gauhati High Court). He was examined as PW 3. He deposed inter alia that Sri Bordoloi had worked under him as his junior consecutively for 3 years before the accident. During that period Sri Bordoloi got Rs. 400/500 P.M. from him. Besides this, Sri Bordoloi also conducted cases independently and thus he had earned additional income from his legal practice. He believed that if the accident had not occurred, Sri Bordoloi would have been an experienced and expert advocate.
15. Sri Guha, learned Counsel for the appellants, has assailed the assessment of compensation by the learned Tribunal at Rs. 3,20,000/- on account of loss of future income and earning capacity and on account of permanent physical disability, disfiguration, loss of power of concentration etc. He has relied on the decision of the Kerala High Court in United India Fire & General Insurance Co. Ltd. v. C.P. Varghese 1988 ACJ 152. In that case there was a collision between a car and a motor cycle resulting in injuries to the motor cyclist. The accident resulted in amputation of right leg above the knee and the right index finger. The injured was aged 34 years drawing Rs. 500/-per month and he lost his job due to permanent disability. The Tribunal awarded Rs. 25,000/- which was enhanced in appeal by the High Court to Rs. 50,000/-.
16. Sri Guha also relied on State of Punjab v. Lt. J.P.S. Kapoor 1973 ACJ 216 (P & H). In that case the claimant was a Lieutenant in Army and was aged 22 years at the time of the accident, which took place on 14-9-64. He suffered fracture of the left leg and head injury which resulted in permanent disability, physical deformity and paralytic conditions and he was declared unfit for future service. Claims Tribunal awarded Rs. 2,80,000/- for loss of service career, Rs. 90,000/- for future pension, Rs. 20,000/- for loss of enjoyment of married life, Rs. 4000/- for pain and suffering and Rs. 2,000/-for travelling expenses incurred by the parents of the claimant and the total award came to Rs. 3,96,000/- and the award was upheld in appeal. What Sri Guha wants to bring home is that the claimant being an officer in the Army, his loss of income could be assessed somewhat accurately But in case of Sri Bordoloi, who began his legal practice by earning about Rs. 500/- per month, it is difficult to make any such calculations. Moreover he laid stress on assessment of compensation on the ground of loss of enjoyment of married life and for pains and sufferings, which were assessed in that case at Rs. 20,000/- and Rs. 4000/- respectively. In Smt. Gurdev Kaur's case (supra) the total claims were assessed at Rs. 48,000/- only. But in that case the deceased had died in the motor accident at the age of 59 years and he was expected to live for another 6 years and the loss of earning was assessed at Rs. 14,400/- only. Sri Guha also relied on Urmila Dutta's case (supra). In that case Rs. 10,000/- was held as adequate compensation on account of loss of expectation of life and another Rs. 10,000/- on account of pain, mental and nervous shock. Sri Guha also relied on Suresh Chandra Saxena v. Union of India 1983 ACJ 436 (Allahabad). In that case the injured was aged 40 years and was serving in Western Railway. In a motor accident he sustained fracture of both femur bones, left collar bone, ribs of left side and serious injury on nasal bone. Power of chewing was reduced, eye sight was weakened, life was shortened and there was permanent disability and defacement. Rs. 14,000/- was awarded as special damages and Rs. 23,000/- was awarded as general damages. Swatantra Kumar Lamba v. Sheila Didi 1988 ACJ 74 (P & H) is a case similar to the one in our hand. A collision between a car and a scooter took place resulting in injuries to the scooterist and the pillion rider. The scooterist was one Arun Nehru and he suffered fractures in both bones of left leg. There was shortening of leg by 2 cms. resulting in limping. Permanent disability was described as 20 per cent, movements of ankle were limited and dorsiflexion was limited to half. The injured found it difficult to stand on tip-toes. He was aged 30 years at the time of the accident and was an Advocate and he could not attend to his professional work for 10 months. He was awarded Rs. 5,600/- for medical expenses and transportation, Rs. 4,800/- for special diet, Rs. 20,000/- for loss of income, Rs. 96,000/- for loss of earning capacity, Rs. 40,000/- for pain, suffering and loss of pleasure of life, Rs. 5,900/- for attendant and gratuitous services and Rs. 1,500/- for damage to the scooter. The total was Rs. 1,73,800/-. The injured pillion rider was a lady and sustained serious multiple injuries leading to permanent disability. She had to undertake treatment abroad In her case award was assessed at Rs. 3,53,500/-, but was awarded Rs. 2,50,000/- as per claim.
17. Relying on these reported decisions Sri Guha has submitted for modifying and reducing the compensation awarded by the learned Tribunal. Sri Guha, has not disputed the award of Rs. 4000/- on account of the loss of income during the period of Sri Bordoloi's treatment. Similarly, he has not disputed the award of Rs. 1343/- on account of damage to his scooter. But he has assailed the awards on each and every remaining heads. While fixing the award by the learned Tribunal under the head "loss of future income", the life expectancy was taken as 65 years. Sri Bordoloi was aged 33 years at the time of the accident. So the Tribunal fixed the multiplier at 32 (65-33). The Tribunal assessed the annual income at Rs. 10,000/- and by multiplying this figure by 32 awarded Rs. 3,20,000/- against the claim of Rs. 4,07,000/-. Sri Guha contends, Bordoloi's income was only Rs. 6000/- per annum, as per his own statement and so, the assessment ought to have been Rs. 1,92,000/-, that too if the multiplier is taken as 32. According to Sri Guha, the multiplier should be at best 25. We find sufficient force in Sri Guha's submission. Sri Bordoloi himself stated that his average monthly income was about Rs. 500/- per month. Taking into consideration normal health hazards and uncertainties of life we hold that the multiplier should be 25. Calculated on this basis the total amount comes to Rs. 500/- x 12 month x 25 years = Rs. 1,50,000/-. This would, according to us, be adequate compensation under the head "loss of future income and earning capacity". The Tribunal did not award anything separately on account of "loss of power of concentration". Under this head we fix an amount of Rs. 10,000/- as compensation. The claimant claimed Rs. 10,000/- on account of medical expenses and Rs. 20,000/- for future treatment. Both these amounts were awarded by the Tribunal. But Sri Guha submitted that these amounts were too high and the medical expenses were not fully supported by proper vouchers. We are unable to agree to all of the submissions of the learned Counsel. It is not possible to collect and retain vouchers for every item of medicine purchased and the nature of the injuries and the treatment of Bordoloi at Gauhati Medical College Hospital and also at Assam Medical College Hospital, Dibrugarh, which is 450 K.Ms. away from Gauhati, induce us to believe that an amount of Rs. 10,000/- had been spent as medical expenses including transportation. In this regard Sri Bhattacharjee, learned Counsel for the respondent relied on Bharat Premjibhai v. Municipal Corporation, Ahmedabad , wherein it was held that maintenance of account in relation to expenditure incurred on medical treatment is not necessary and also that it is permissible to award higher amount under one particular head, if on the true assessment of the evidence in the light of the settled legal position, the claimant is found entitled to the same. So, we hold that the Tribunal rightly awarded Rs. 10,000/- under the head "medical expenses". However, we reduce the amount awarded on account of future treatment from Rs. 20,000/- to Rs. 10,000/-.
18. The learned Tribunal awarded Rs. 20,000/- on account of loss of enjoyment of life and Rs. 25,000/- on account of loss of expectation of life. Sri Guha has submitted that awarding of these two amounts were excessive and his argument was based on the decisions of the various cases referred to above. But Sri Bhattacharjee, learned Counsel for the respondent submitted that there was no scope for reduction of these amounts and relied on Rose v. Ford (1937) 3 All ER 359 and Walker v. John Mc Leans and Sons 1980 ACJ 429. In Rose's case Lord Wright observed:
In one sense, it is true that no money can be compensation for life, or the enjoyment of life, and, in that sense, it is impossible to fix compensation for the shortening of life. But it is the best the law can do. It would be paradoxical if the law refused to give any compensation at all, because none could be adequate.
In Walker's case, £ 35,000 were awarded for pain, suffering and loss of amenity including expectation of life. It is true that a man who is injured in a motor accident resulting in limping in one leg would be deprived of enjoyment of life to a great extent. There will also linger a constant fear of shortening of his life because of the deformity and body pain. But it all depends upon the will power of a crippled or disabled person to overcome his fears. We are not to forged about the normal health hazards which may cut short one's life even if one does not meet with any accident. In Rose's case (supra) Lord Wright had made a passing reference to an unfortunate episode which his Lordship recounted from personal experience. In 1934, in a personal injuries case, the question of awarding of damage on account of loss of expectation of life was left to the jury without objection, even though the plaintiff was kept in ignorance that his life was being seriously shortened by cancer supervening on the injury. Relying on the broad principles enunciated by different High Courts we would think that the Tribunal had rightly a warded an amount of Rs. 20,000/- on account of loss of enjoyment of life. Another amount of Rs. 10,000/- on account of loss of expectation of life would be just compensation and accordingly we reduce the award under this head. Similarly Sri Guha had submitted that the award on account of mental and nervous shock, pain and suffering was too high. The Tribunal awarded Rs. 50,000/- under this head. For the reasons given aforesaid we reduce the award under this head to Rs. 25,000/-which would be, according to us, just compensation. So, the total claims come upon Rs. 2,40,343/-. The award of the learned Tribunal in respect of Sri Bordoloi is modified accordingly as above.
19. We now come to the claims of Smt. Suniti Hazarika, widow of the deceased Rajendra Nath Hazarika, and their minor sons. On perusal of the impugned judgment we find that although the learned Tribunal very labouriously discussed the evidence on record before assessing the quantum of compensation under various heads in respect of claimant Bordoloi, yet we find that the learned Tribunal did not assess the quantum of compensation under various heads in respect of claims of Smt. Hazarika and her minor sons and simply discussed about the income of the deceased and awarded Rs. 2,50,000/- in lump sum to them. We are thus handicapped in weighing this assessment. We think that the learned Tribunal ought to have give n its assessment under different headings, such as, loss of dependency of the widow and the minors, loss of conjugal happiness and enjoyment of life, mental shock and agony, loss of expectation of life, loss of paternal care and affection etc.
20. Sri Guha, learned Counsel for the appellants has assailed the award on two counts:
(i) The claimants did not produce any income certificate in respect of deceased Rajendra Nath Hazarika and so the conclusion of the Tribunal that Smt. Hazarika received Rs. 1500/- per month from the deceased for their maintenance, is not correct.
(ii) That the Tribunal had assessed compensation to be paid to the minors treating their case at par with their widowed mother inasmuch as the Tribunal applied the same multiplier (21 years) uniformly in respect of the widow and also to her minor sons and that the Tribunal did not consider the fact that on attaining majority the minors would no longer have been dependent on the income of the deceased.
21. We have perused the evidence tendered by the widow (PW 11) and Sri Girija Kanta Das (PW 9) and we find that the Tribunal had relied on their evidence and held that the deceased had earned more than Rs. 1500/- per month and Smt. Hazarika used to receive Rs. 1500/- per month from the husband for the maintenance of the family. Sri Guha may be right on the point of non-submission of income-tax returns, but the deceased was an advocate and as a member of the Bar Sri Guha himself knows the obvious reasons. The Tribunal deducted Rs. 300/- from this monthly allowance on the ground that the widow continued to receive this amount as house rent even after the death of her husband. By deducting this amount from Rs. 1500/- the Tribunal fixed the dependency of the whole family consisting of the widow and her 4 minor sons at Rs. 1200/- per month. The deceased had died in the accident at the age of 44 years. Taking the life span at 65 years, the dependency was calculated for the remaining 21 years. Rs. 1200/- per month multiplied by 12 months comes to Rs. 14,400/- per year. When multiplied by 21 years this comes to the total of Rs. 3,02,400/-. But the Tribunal again deducted some amounts on account of insurance policy, postal savings etc. and then fixed the amount of compensation in lump sum at Rs. 2,50,000/-. In our opinion, deductions on account of insurance policy money, postal savings etc. ought not to have been made by the Tribunal. Wind of change is blowing on all directions and even this Court held in Smt. Saminder Kaur v. The Union of India (1986) 1 GLR 446 (FB) that benefits received by the legal representatives of the deceased consequent to his death in a motor accident, such as, insurance policy amount, family pension, gratuity, provident fund are not to be deducted from the amount of compensation which the claimants are found to be entitled under Section 110-B of the M.V. Act and this Court's earlier decision in Hira Devi v. Smt. Bhaba Kanti Das AIR 1977 Gau. 31 was overruled. However, the claimants (respondents) did not file any cross claim and we are not addressed from the Bar to enhance the quantum. Rather we are addressed not to make further deductions and the learned Counsel for the Respondents relied on C.K.S. Iyer v. T.K. Nair , wherein a note of caution was struck in its observation that the appellate court should be slow in disturbing the findings reached by lower courts, if they have been taken all relevant facts into cons deration. That was a case of assessing damages under the Fatal Accidents Act, 1855. We think the Tribunal should have awarded some amount to the widow on account of loss of comforts of the conjugal life and some amounts to the minors on account of loss of parental care. The evidence is on record that the widow was not going to marry again. On the reasons given above we refrain from disturbing the quantum of award assessed by the Tribunal and reject all the contentions raised by the learned Counsel for the appellants.
22. The Tribunal allowed 6 per cent interest per annum on the amount awarded from the date of filing of the claim petitions till realisation from the Insurance Company. Cost of Rs. 1000/- was also granted in favour of the claimant in M A.C. Case No. 24 (K)/74 and a similar amount as cost in the remaining two cases. In view of the fact that no cross objection had been filed for enhancing the rate of interest, we would not like to interfere with this part of the order. The insurer would however pay the awarded amount within one month from today failing which the rate of interest shall accrue @ 12% from today.
23. In the result, M.A. (F) 62/76 is partly allowed. The award of Rs. 4,50,343/- is reduced to Rs. 2,40,343/ as indicated above. M.A. (F) 9/77 and 10/77 are dismissed.