Union of India v. Jyotikana Bhowmick and others — 1973 DIGILAW 11 (GAU)

Judgement SEN, J. :- This is an appeal by the Union of India against the award of a sum of Rs. 20,000/-, granted by the learned Claims Tribunal, Tripura, to the claimant-respondents, upon their application under Section 110-A of the Motor Vehicles Act, 1939. 2. The respondents claimed a sum of Rs. 25,000/- as compensation for the death caused to Bhupendra Chandra Bhowmick, their husband and father, as a result of an accident arising from the impact with a Government jeep, driven by a person in the employment of the Government. In the present appeal, the learned Government Advocate has not canvassed that the driver was not negligent or that the Government did have no vicarious liability for the personal act of the driver. In other words, the only point that has been taken by the learned Government Advocate is as regards the excessive nature of the amount awarded as compensation by the learned Tribunal. 3. Mr. R. Ghosh, the learned Government Advocate, has submitted that the amount earned by the deceased at the time of his death did not exceed Rs. 210/- per month and that too only for six months in a year. For this submission, he seeks support from Ext. A-1 and Ext. A-2, which are two salary receipts of the deceased. In other words, Mr. Ghosh submits that the deceased was not in regular employment but was only working casually under his brother, who was a class I P. W. D. contractor. Mr. Ghosh also submits that the deceased was incurring an expenditure of Rs. 75/- per month and that his life expectancy could not be taken to be more than eight years, as stated by the respondents in their own application under Section 110A of the Motor Vehicles Act, 1939. In that veiw of the matter, Mr. Ghosh submits that the amount awarded as compensation should never have exceeded a sum of Rs. 12,960/-, that is to say, the multiple of Rs. 210 less Rs. 75 by eight years. 4. We have been taken through the evidence both by the learned Government Advocate and also by Mr. M. R. Choudhury, the learned counsel appearing for the respondents. We find that the evidence of P. W. 1, the widow, has been totally over-looked by the learned Claims Tribunal. 210 less Rs. 75 by eight years. 4. We have been taken through the evidence both by the learned Government Advocate and also by Mr. M. R. Choudhury, the learned counsel appearing for the respondents. We find that the evidence of P. W. 1, the widow, has been totally over-looked by the learned Claims Tribunal. P. W. 1, who was in the best position to know what used to be earned by her late husband, and whose deposition was not challenged in any material respect, stated in her deposition - "My husbands elder brother is a contractor and my husband was an employee under him earning Rs. 210/- per month. My husband working as a P. W. D. contractor and by undertaking contract works of private building earned about Rs. 175/- or Rs. 200/- per month." ............................................."We had to spend about Rs. 400/- towards our maintenance and educational expenses of children. My husband spent about 30/- to 40/- as his personal expense." 5. P. W. 1 has also produced two documents, namely Ext. A-4 and Ext. A-5, showing that her late husband was working independently under the P.W.D. as a contractor. It will thus be clear from the evidence of P. W. 1, as corroborated by the evidence of P. W. 5, the brother of the deceased, that the deceased was not employed exclusively by his brother (P. W. 5.), but used to be employed by him, as and when it was so required, and that he also worked independantly. There is also evidence to show that his total income was to the extent of Rs. 400/- per month, including the sum of Rs. 210/-, which he would get from his brother, while employed by him. In other words, there is nothing in the evidence on record to warrant a conclusion that the deceased remained unemployed, while not serving under his brother (P. W. 5) and that his entire income comprised of what he used to get from his brother. We have, on the other hand, no hesitation in accepting the evidence of P. W. 1, as corroborated by the evidence of P. W. 5, that the deceaseds total earnings did amount to a sum o Rs. 400/- or thereabout per month. We have, on the other hand, no hesitation in accepting the evidence of P. W. 1, as corroborated by the evidence of P. W. 5, that the deceaseds total earnings did amount to a sum o Rs. 400/- or thereabout per month. We however, take note of the fact that in their own application under Section 110A of the Motor Vehicles Act, 1939, the claimants stated that the deceased used to earn Rs. 375/- per month, out of which he used to spend Rs. 75/- for himself. 6. We also accept, as has been stated in the application by the claimants, that the life expectancy of the deceased, after considering the normal hazards of life would come to eight years. In other words, we accept that the net amount which the claimants used to obtain from the deceaseds earnings would be Rs. 300/-per month and that the deceaseds life expectancy would be eight years. In that view of the matter, the compensation, which the claimants would be properly entitled to will come to Rs. 28,800/-. 7. Our attention has been drawn by Mr. Ghosh, the learned Government Advocate to the decision in C. K. S. Iyer v. T. K. Nair, AIR 1970 SC 376 , wherein their Lordships have enunciated the principles for assessing damages under the Fatal Accidents Act, 1855. Hegde J. in that judgment stated :- "The law on the point arising for decision may be summed up thus: Compulsory damages under Section 1A of the Act for wrongful death must be limited strictly to the pecuniary loss to the beneficiaries and that under Section 2, the measure of damages is the economic loss sustained by the estate. There can be no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations but the amount recoverable depends on the particular facts and circumstance of each case. The life expectancy of the deceased or of the beneficiaries whichever is shorter is an important factor. Since the elements which go to make up the value of the life of the deceased to the designated beneficiaries are necessarily personal to each case, in the very nature of things, there can be no exact or uniform rule for measuring the value of human life. Since the elements which go to make up the value of the life of the deceased to the designated beneficiaries are necessarily personal to each case, in the very nature of things, there can be no exact or uniform rule for measuring the value of human life. In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable. As a general rule parents are entitled to recover the present cash value of the prospective service of the deceased minor child. In addition they may receive compensation for loss of pecuniary benefits reasonably to be expected after the child attains majority. In the matter of ascertainment of damages, the appellate Court could be slow in disturbing the findings reached by the Courts below if they have taken all the relevant facts into consideration." Hegde J., also observed - "The mode of assessment of damages is not free from doubt. It is beset with certain difficulties. It depends on many imponderables. The English Courts have formulated certain basis for calculating damages under Lord Campbells Acts. The rules ascertained by the English Courts are set out in Winfield on Torts 7th Edn. at pp. 135 and 136 as follows : "The starting point is the amount of wages which the deceased was earning the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a number of years purchase. That sum, however, has to be taxed down by having regard to the uncertainties, for instance, that the widow might have again married and thus ceased to be dependant, and other like matters of speculation and doubt." The number of years purchase is left fluid, from twelve to fifteen has been quite a common multiple in the case of a healthy man, and the number should not be materially reduced by reason of the hazardous nature of the occupation of the deceased man." 8. Mr. Mr. Ghosh, with his usual fairness, also drew our attention to the decision in Vishwa Mitra v. Amrit Kaur, AIR 1972 All, 408, wherein the compensation awarded was arrived at after capitalising the net income by twelve years purchase in the case of a deceased of the age of 50 years. The deceased, in the instant case, was 54 years of age at the time of his death. 9. In this connection, we may also refer to the observations of Lord Wright in Davies v. Powell Duffryn Associated Collieries, Ltd. 1942 AC 601, at p. 617. - "It is a hard matter of pounds, shillings and pence, subject to the element ofs reasonable future probabilities. The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend upon the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will have a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance that the widow might have again married and thus ceased to be dependent, and other like matters of speculation and doubt." 9A. The well-known author Salmond in his book "Law of Torts" 15th edition at page 784 has mentioned some particular application of the above principles as follows : - (i) The estimate of the probable length of the deceaseds earning period should be the basis for the computation of the plaintiffs loss. This will serve to fix the upper and the lower limits of his claim, for it is impossible to compute the loss on a strictly arithmetical or actuarial basis. Hence no definite figure can be chosen as a multiplier which will give a correct result in all cases: the court has a discretion in the matter. But probably sixteen years purchase is near the upper limit. Whatever figure is chosen ought not to be materially reduced by reason of the hazardous nature of the deceaseds occupation in life. There are many other factors which may serve to increase or decrease the multiplier. But probably sixteen years purchase is near the upper limit. Whatever figure is chosen ought not to be materially reduced by reason of the hazardous nature of the deceaseds occupation in life. There are many other factors which may serve to increase or decrease the multiplier. (ii) There is no right of action on behalf of any relative who cannot show some pecuniary loss in consequence of the death of the deceased. Nothing can be claimed merely by way of solatium for mental suffering and bereavement in England although it may be in Ireland, Scotland and South Australia. There is however a sufficient pecuniary loss if the claimant can show some reasonable expectation of pecuniary benefit from the continuance of the deceaseds life; and it is not necessary that the benefit should be derived from the deceased as a matter of right, for a reasonable expectation of voluntary bounty is enough. Thus a husband can recover damages for the death of his wife in respect of the loss of the pecuniary value of her domestic services. Damages can be assessed under two distinct heads: First, in respect of the sums which the deceased would probably have applied out of his income to the maintenance of his dependants: and secondly, in respect of such portion of any additional savings which he might have accumulated during the period for which but for the accident he would have lived. Tax must be taken into account. On the other hand the fact that the dependant has private means is irrelevant, except in so far as it shows the amount of pecuniary benefit received from the deceased. Nor is it necessary that any benefit should have been actually received from the deceased during his lifetime. The benefit must be derivable, however, from the claimants relationship to the deceased, and not merely from a contract between them, as where husband and wife are in partnership together in some trade or profession. But a merely speculative possibility of pecuniary benefit is not enough. When the dependant himself dies subsequently to the death of the person in respect of whose death the action is brought but before dependence was terminated must be taken into account in determining the amount to be awarded. Funeral expenses may be recovered if they have been incurred by the parties for whose benefit the action is brought. When the dependant himself dies subsequently to the death of the person in respect of whose death the action is brought but before dependence was terminated must be taken into account in determining the amount to be awarded. Funeral expenses may be recovered if they have been incurred by the parties for whose benefit the action is brought. (iii) Conversely any pecuniary benefit or reasonable expectation of pecuniary benefit to the relatives from the death of the deceased must be taken into account in reduction of damages which are given to compensate the recipient on a balance of gains and losses for the injury sustained by the death. Thus the benefits which a wife and children take under a settlement upon the death of the husband must be taken into account. But it is surely paradoxical that if a deceased spends freely on, instead of saving for the benefit of his family they should have a higher claim for dependency on his death. Again when the relatives are also entitled either under a will or on intestacy to a share of the deceaseds estate any damages given under the Law Reform (Miscellaneous Provisions) Act, 1934, will so in reduction of the amount awarded to them under the Fatal Accidents Acts. A deduction must also be made for the inheritance of other assets, unless (for example) these consist of articles of which a widow claimant would have had the use when her husband was alive and at home. In such a case the capitalised value of the acceleration would be very small. Further if the defendant can prove that the dependency originally lost has since been reduced or has ceased entirely, the damages may be reduced as when the mother of a dependant child remarries, and the step-father accepts the child as one of his own family, for in such a case there is in truth a substitute bread-winner." 10. In the instant case, following the principles enunciated by their Lordships in the Supreme Court in the judgment cited supra we find no difficulty in accepting 8 years as the period of life expectancy of the decased for the computation of the respondents loss and Rs. 300/-as their net pecuniary loss per month. We are, therefore, of the opinion that the amount of Rs. 20,000/- as awarded bv the learned Claims Tribunal, is certainly not an unjust or excessive amount. 300/-as their net pecuniary loss per month. We are, therefore, of the opinion that the amount of Rs. 20,000/- as awarded bv the learned Claims Tribunal, is certainly not an unjust or excessive amount. In that view of the matter we feel disinclined to interfere with that award. 11. The appeal accordingly fails. Costs will abide the decision of this Court. Two months time is allowed to the appellant to make the payment failing which they will be liable to pay interest at the rate of 6 per cent per annum. 12. BAHARUL ISLAM, J. :- I agree. Appeal dismissed.