The
Divisional Controller, KSRTC Vs. Mahadeva Shetty and Anr [2003] Insc 339 (31 July 2003)
Doraiswamy
Raju & Arijit Pasayat.
(Arising
out of S.L.P. (C) No. 15861 of 2002 ARIJIT PASAYAT,J
Leave
granted.
Mahadeva
Shetty (hereinafter referred to as 'the claimant') suffered serious injuries on
4.6.1995 as a result of a vehicular accident where a bus bearing No.KA-01/F
5097 belonging to Karnataka State Road Corporation (hereinafter referred to as
'the Corporation') was involved. According to the claimant, the accident took
place on account of rash and negligent driving by driver of this bus. As a
result of the accident the bus plunged into a ravine resulting in serious
injuries to the spinal cord of the claimant and made him a paraplegic. He filed
an application for compensation before the Civil Judge (Senior Division) &
JMFC, Nanjangud, (hereinafter referred to as 'the Tribunal') claiming
compensation of Rs.9.83 lakhs. According to the claim petition filed under
Section 166 of the Motor Vehicles Act, 1988 (in short 'the Act') the claimant
was a Mason by profession. The bus in which he was he was a passenger plunged
into a pit by rolling down from a great height, and he sustained injuries and a
few persons lost their lives on account of the accident. He was hospitalized
for about 7 weeks i.e. days from 5.6.1995 to 23.7.1995. There was fracture of
T12 vertebra and consequent damage to nerve system of the whole body below the
hips and the body has been functionless. Limbs have become functionless
permanently due to failure of nerve system due to accident and he has also lost
sexual power. He was earning Rs.3,000/- per month at the time of accident. It
was stated that that he was of good health at the time of accident.
Stand
of the Corporation in reply to the claim petition was that the accident was not
due to rash and negligent driving, but an act of God and that there was no
rashness and/or negligence as claimed by the claimant.
On
consideration of the materials on record and the evidence of witnesses
examined, the Tribunal awarded compensation of Rs.2.20 lakhs. It was stipulated
that the amount be paid with interest @ 6% p.a. from 28.12.1999, i.e. the date
when claimant tendered evidence in support of the claim.
Matter
was carried in appeal by the claimant before the Karnataka High Court for
enhancement of compensation. The Corporation supported the order dated
24.5.2000 of the Tribunal taking the stand that there was no infirmity in the
order. In appeal the High Court raised the amount of compensation to Rs.6.25 lakhs.
Under various heads, the amounts of compensation as awarded by the Tribunal and
the High Court are as follows:
________________________________________________________________
Heading Tribunal High Court ________________________________________________________________
(a)Pain
& Suffering Rs.25,000/- Rs.1,00,000/-
(b)Mental
agony Rs.25,000/- Both under the head injury, pain and suffering
(c)Medical
Expenses Rs.15,000/- Rs.15,000/-
(d)Transportation
Rs.5,000/- Rs.5,000/-
(e)Loss
of marital life Rs.75,000/- Rs.1,50,000/-
(f)Loss
of future income Rs.75,000/- Rs.2,55,000/-
(g)Future
expenses ------ Rs.1,00,000/-
(h)Interest
@ 6% from the @ 9% from the date of recording date of petition.
Evidence.
_______________________________________________________________
Learned counsel for the appellant submitted that without any rational basis the
High Court has enhanced the compensation, while the Tribunal under the Act had
indicated cogent reasons for the award made by it. It is pointed that the claimant
was working as a Mason and he did not have permanent job. His engagement
depended on several factors, like availability of engagements. When it rains,
and in several other periods, normally a Mason would not have work.
That
being the position the High Court was not justified in taking Rs.15,000/- as
monthly income. The rate of interest justified by the High Court is on the
higher side. In any event the accident was an act of God and no compensation is
payable.
In
response learned counsel for the claimant submitted that the High Court has
considered all the legal and factual factors and has rightly awarded the
amount, particularly when disability was 100% and the claimant has become a
cripple. Strong reliance was placed on a decision of this Court in Nagesha v.
M.S. Krishna and Anr. (1997 (8) SCC 349) to contend that the quantum of
compensation awarded was meet and the proper.
Rival
stands need consideration.
The
expression "act of God" signifies the operation of natural forces
free from human intervention, such as lightening, storm etc. It may include
such unexpected occurrences of nature as severe gale, snowstorms, hurricanes,
cyclones, tidal waves and the like. But every unexpected wind and storm does
not operate as an excuse from liability, if there is a reasonable possibility
of anticipating their happening. An act of God provides no excuse unless it is
so unexpected that no reasonable human foresight could be presumed to
anticipate the occurrence, having regard to the conditions of time and place known
to be prevailing at. For instance, where by experience of a number of years,
preventive action can be taken. Lord Westbury defined act of God (damnum fatale
in Scotch Laws) as an occurrence which no human foresight can provide against
and of which human prudence is not bound to recognize the possibility. This
appears to be the nearest approach to the true meaning of act of God. Lord Blancaburgh
spoke of it as "an irresistible and unsearchable providence nullifying are
human effort".
The
term 'compensation' as stated in the Oxford Dictionary, signifies that which is
given in recompense, an equivalent rendered. 'Damages' on the other hand
constitute the sum of money claimed or adjudged to be paid in compensation for
loss or injury sustained, the value estimated in money, of something lost or
withheld. The term 'compensation' etymologically suggests the image of
balancing one thing against another; its primary signification is equivalence,
and the secondary and more common meaning is something given or obtained as an
equivalent. Pecuniary damages are to be valued on the basis of 'full
compensation'. That concept was first stated by Lord Blackborn in Livingstone
v. Rawyards Coal Co. (1980 AC 25).
The
"Rule of Law" requires that the wrongs should not remain unredressed.
All the individuals or persons committing wrongs should be liable in an action
for damages for breach of civil law or for criminal punishment.
'Compensation'
means anything given to make things equivalent, a thing given or to make amends
for loss, recompense, remuneration or pay: it need not, therefore, necessarily
be in terms of money, because law may specify principles on which and manner in
which compensation is to be determined and given. Compensation is an act which
a Court orders to be done, or money which a Court orders to be paid, by a
person whose acts or omissions have caused loss or injury to another in order
that thereby the person damnified may receive equal value for his loss; or be
made whole in respect of his injury; something given or obtained as equivalent;
rendering of equivalent in value or amount;
an
equivalent given for property taken or for an injury done to another; a
recompense in value; a recompense given for a thing received; recompense for
whole injury suffered;
remuneration
or satisfaction for injury or damage of every description. The expression
'compensation' is not ordinarily used as an equivalent to 'damages', although
compensation may often have to be measured by the same rule as damages in an
action for a breach. The term 'compensation' as pointed out in the Oxford
Dictionary signifies that which is given in recompense, an equivalent rendered;
'damages' on the other hand constitute the sum of money, claimed or adjudged to
be paid in compensation for loss or injury sustained.
'Compensation'
is a return for a loss or damages sustained.
Justice
requires that it should be equal in value, although not alike in kind.
It is
true that perfect compensation is hardly possible and money cannot renew a
physique frame that has been battered and shattered, as stated by Lord Merris
in West v. Shepard (1964 AC 326). Justice requires that it should be equal in
value, although not alike in kind. Object of providing compensation is to place
claimant as far as possible in the same position financially as he was before
accident. Broadly speaking, in the case of death basis of compensation is loss
of pecuniary benefits to the dependants of the deceased which includes
pecuniary loss, expenses, etc. and loss to the estate. Object is to mitigate
hardship that has been caused to the legal representatives due to sudden demise
of the deceased in the accident. Compensation awarded should not be inadequate
and should neither be unreasonable, excessive, nor deficient. There can be no
exact uniform rule for measuring value of human life and measure of damage
cannot be arrived at by precise mathematical calculation; but amount
recoverable depends on broad facts and circumstances of each case. It should
neither be punitive against whom claim is decreed nor it should be a source of
profit of the person in whose favour it is awarded. Upjohn L.J. in Charter
House Credit v. Jolly (1963) 2 CB 683) remarked, 'the assessment of damages has
never been an exact science; it is essentially practical'.
The damages
for vehicular accidents are in the nature of compensation in money for loss of
any kind caused to any person. In case of personal injury the position is
different from loss of property. In the later case there is possibility of
repair or restoration. But in the case of personal injury, the possibility of
repair or restoration is practically non-existent. In Parry v. Cleaver (1969 1 All.E.R.
555) Lord Morris stated as follows:
"To
compensate in money for pain and for physical consequences is invariably
difficult, but.....no other process can be devised than that of making monetary
assessment." The main principles of law on compensation for injuries were
worked out in 19th Century, where railways accidents were becoming common and
all actions were tried by Jury.
Though
the cases have antiquated air it is still useful to refer to them. The
necessity that damages should be 'full' and 'adequate' was stressed by the
Court by Queen's Bench in Fair v. London and North-Western Railway Co. (1869)
21 LT 326). The word 'compensation' is derived from Latin word "compensare"
meaning "weigh together" or "balance". In Rushton v.
National Coal Board (1953) 1 All.E.R. 314 it was observed:
"Every
member of this Court is anxious to do all he can do to ensure that the damages
are adequate for the injuries suffered, so far as they can be compensated for
an injury, and to help the parties and others to arrive at a fair and just
figure." It has to be kept in view that the Tribunal constituted under the
Act as provided in Section 168 is required to make an award determining the
amount of compensation which to it appears to be 'just'. It has to be borne in
mind that compensation for loss of limbs or life can hardly be weighed in
golden scales. Bodily injury is nothing but a deprivation which entitles the
claimant to damages. The quantum of damages fixed should be in accordance to
the injury. An injury may bring about many consequences like loss of earning
capacity, loss of mental pleasure and many such consequential losses. A person
becomes entitled to damages for the mental and physical loss, his or her life
may have been shortened or that he or she cannot enjoy life which has been
curtailed because of physical handicap. The normal expectation of life is
impaired. But at the same time it has be to be borne in mind that the
compensation is not expected to be a wind fall for the victim. Statutory
provisions clearly indicate the compensation must be "just" and it
cannot be a bonanza;
not a
source of profit but the same should not be a pittance. The Courts and
Tribunals have a duty to weigh the various factors and quantify the amount of
compensation, which should be just. What would be "just" compensation
is a vexed question. There can be no golden rule applicable to all cases for
measuring the value of human life or a limb. Measure of damages cannot be
arrived at by precise mathematical calculations. It would depend upon the
particular facts and circumstances, and attending peculiar or special features,
if any. Every method or mode adopted for assessing compensation has to be
considered in the background of "just" compensation which is the
pivotal consideration. Though by use of the expression "which appears to
it to be just" a wide discretion is vested on the Tribunal, the
determination has to be rational, to be done by a judicious approach and not
the outcome of whims, wild guesses and arbitrariness. The expression
"just" denotes equitability, fairness and reasonableness, and non-
arbitrary. If it is not so it cannot be just. (See Helen C. Rebello v. Maharashtra
State Road Transport Corporation (AIR 1998 SC 3191).
This
Court in R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. (AIR 1995 SC 755) laying the principles posited:
"Broadly
speaking, while fixing the amount of compensation payable to a victim of an
accident the damages have to be assessed separately as pecuniary damages and
special damages. Pecuniary damages are those which the victim has actually
incurred and which are capable of being calculated in terms of money; whereas non-pecuniary
damages are those which are capable of being assessed by arithmetical
calculations. In order to appreciate two concepts pecuniary damages may include
expenses incurred by the claimant:
(i) medical
attendance;
(ii)
loss of earning of profit up to the date of trial;
(iii) other
material loss.
So far
as non-pecuniary damages are concerned, they may include
(i) damages
for mental and physical shock, pain and suffering already suffered or likely to
be suffered in future;
(ii) damages
to compensate for the loss of amenities of life which may include a variety of
matters, i.e., on account of injury the claimant may not be able to walk, run
or sit;
(iii) damages
for the loss of expectation of life, i.e., on account of injury the normal
longevity of the person concerned is shortened;
(iv) inconvenience,
hardship, discomfort, disappointment, frustration and mental stress in
life."
Here
also because of the accident the appellant had become paraplegic. The principle
has been re-agitated in by the Court in Ashwani Kumar Mishra v. P. Muniam Babu
(1999 ACJ 1105 SC).
A
person not only suffers injuries on account of accident but also suffers in
mind and body on account of the accident throughout his life and a feeling is
developed that he is no more a normal man and cannot enjoy the amenities of
life as another normal person can. While fixing compensation for pain and
suffering as also for loss of amenities of life the features like his age,
marital status and unusual deprivation he has undertaken in his life has to be
reckoned.
Coming
to the injuries, mental agony, pains and sufferings it is noted that the
claimant was hospitalized for about seven weeks. Therefore, the amount of Rs.1,00,000/-
fixed by the High Court is unreasonable.
So far
as the loss of earning capacity is concerned, it is noted that the Tribunal had
calculated the income at Rs.12,000/- per annum, and the High Court enhanced it
to Rs.15,000/-. It referred to Schedule (II) to the Act for fixing national
income and the multiple. Though multiple of 17 as fixed by the High Court seems
to be in order, there is no rational for fixing annual income at Rs.15,000/-.
The Tribunal had taken into account the possibility of non-engagement and the
wages claimed. Same appears to be rational. Therefore, the annual income is
fixed at Rs.12,000/-. Applying the multiple of 17 the loss of future income is
fixed at Rs.2,04,000/-instead of Rs.2,55,000/- as fixed by the Tribunal.
Coming
to the loss of marital life and the non- possibility of marriage, the Tribunal
had indicated basis for fixing the quantum at Rs.75,000/-. Without any basis
being indicated, the High Court fixed at Rs.1.5 lakhs by referring to the case
of R.D. Hattangadi (supra). The special features of that case are non-existent
in the case at hand. The injured in that case was an advocate who was married.
In the case at hand the claimant is a bachelor.
Several
other factors were considered in the earlier case to fix the quantum.
Therefore, the amount awarded by the Tribunal is restored. So far as future
expenses for medicines and wheelchair etc. are concerned, the Tribunal as noted
above had not awarded any compensation. But the High Court has fixed it at Rs.1
lakh. Though High Court has not indicated any basis of award lump sum, it
cannot be denied that the claimant is on the wheel chair and would need regular
medical attention because of the continued complications. The cost of expenses
during hospitalization was small, because treatment was at Government Hospital.
The
situation would not be different for future treatments.
Above
being the position, sum of Rs.50,000/- would be adequate. The other amounts
awarded by the High Court, in our considered opinion, do not call for any
interference.
Similar
is the case for rate of interest awarded. The total amount comes to Rs.4,49,000/-,
which is rounded to Rs.4.50 lakhs.
So far
as Nagesha's case (supra) relied upon by the claimant is concerned, it is only
to be noted that the decision does not indicate the basis for fixing of the
quantum as a lump sum was fixed by the Court. The decision ordinarily is a
decision on the case before the Court, while the principle underlying the
decision would be binding as a precedent in a case which comes up for decision
subsequently. Therefore, while applying the decision to a later case, the Court
dealing with it should carefully try to ascertain the principle laid down by
the previous decision. A decision often takes its colour from the question
involved in the case in which it is rendered.
The
scope and authority of a precedent should never be expanded unnecessarily
beyond the needs of a given situation. The only thing binding as an authority
upon a subsequent Judge is the principle upon which the case was decided.
Statements which are not part of the ratio decidendi are distinguished as
obiter dicta and are not authoritative. The task of finding the principle is
fraught with difficulty as without an investigation into the facts, it cannot
be assumed whether a similar direction must or ought to be made as measure of
social justice. Precedents sub silentio and without argument are of no moment.
Mere casual expression carry no weight at all. Nor every passing expression of
a Judge, however eminent, can be treated as an ex cathedra statement having the
weight of authority.
The
claimant is entitled Rs.4.5 lakhs as compensation along with interest @ 9% p.a.
from the date of application for compensation till payment. Out of the
aforesaid sum a sum of Rs.3.5 lakhs along with entire interest payable shall be
deposited in a fixed deposit for not less than five years in a nationalized
bank. The claimant will be entitled to draw interest on the deposit, which
shall be re-deposited for further terms of five years. In case of urgent need
it shall be open to the claimant to move Tribunal for release of any part of
the amount in deposit.
The
Tribunal shall consider the request for withdrawal and shall direct withdrawal
in case of an urgent need and not otherwise of such sum as would meet the need.
It shall be specifically indicated to the Bank where the deposit is to be made
that no advance or withdrawal of any kind shall be permitted without the order
of the Tribunal. It shall be open to the claimant to approach the Tribunal for
variance of the order relating to deposit in fixed deposit, if any other scheme
would fetch better returns and also would provide regular and permanent income.
The amount awarded along with interest shall be deposited within period of four
weeks from today after adjusting any amount already deposited. The deposits
shall be made with the Tribunal.
The
appeal is allowed to the extent indicated. Costs made easy.
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