Union Co-operative Insurance Society Ltd. and Another Vs Bhartiben and Others

P.D. Desai, J.

1-2. x x x x x x x x x

3. The deceased was a medical practitioner holding B. A. M, IS. and L. m. P degrees. Since Sept. 1968 he had established private practice at-Pethapur. At the time of his death he was aged about 32. The first respondent, widow of the deceased, was at the material time about 27 years of age. The second respondent, daughter of the deceased, was at the material time aged about 3 years. The third respondent, father of the deceased, was at that material time aged about 63 years.

4. It might be stated that the claim petition was originally filed only by the first and second respondents. The third respondent was originally joined as the fourth opponent. Subsequently, however the Tribunal permitted the transposition of the third respondent as applicant No. 3 at the request of the said respondent. So far as the claim put forward by the first and second respondents in their claim petition is concerned, the total amount claimed as and by way of compensation was Rs. 3,00,000/-. The said claim was split up under different heads as per the particulars mentioned hereinbelow:

Rs.

1.32,000/-                  pecuniary loss caused to the first respondent.

                                  

   25,000/-                  pecuniary loss caused to the second respondent.

   

   10,000/-                  Mental shock and suffering caused to the first respondent,

     5,000/-                  Mental shock and suffering caused to the second respondent.

   10,000/-                  Marriage expenses of the second respondent.

   30,000/-                  pecuniary loss caused to the child in the womb of the first respondent, at the time of the

                                   accident

     5,000/-               Mental shock and pain and suffering caused to the deceased.

     1,000/-                    Medical expenses.

90,000/-                    Loss to the estate.

1,500/-                    Damage to the Motor-bike.

________

3.09.500/-

________

Although on the aforesaid basis, the first and second respondents were entitled to claim the sum of Rs. 3,09,500/- as compensation, they restricted their claim to Rs. 3,00,000/-.

5. The third respondent who, as earlier stated, was originally cited as opponent No. 4 filed his written statement, which is at Ex. 35. In the Written Statement it was his case that the deceased was paying him Rupees 300/- per month towards his maintenance. On that basis the third respondent claimed one-third share in the sum of Rs. 1,32,000/claimed by the first respondent as pecuniary loss caused to her by the death of the deceased. The third respondent further claimed one-half share in the sum of Rs. 10,000/claimed by the first respondent on account of mental shock and pain caused to her as a result of the death of the deceased. The third respondent similarly claimed one-third share in the claim made by the first and second respondents under the head of loss to the estate, On the aforesaid basis, the third respondent claimed to be entitled to a sum of Rs. 80,000/- out of the total claim Rs. 3,00,000/- made by the first and second respondents.

6-7: x x x x x x x x x x

8. An analysis of the award made as aforesaid in a tabular form yields the following result -

First and second respondents                                                                              Third respondent

................................................................................................................................................

Rs.                                                                                                                       Rs.

1,20,000/- Dependeney benefit                                                                       5,000/- mental shock &suffering

     5,000/-Mental shock and suffering caused to the first respondent.  10,000/- Loss to the estate

     5,000/- Pain and suffering to the deceased.                                              

       500/- Madical expenses                                                              

       800/- Damage to the Motor-bike 

 20,000/- Loss to the estate

________                                                                                                             ________

 157,300/-                 15,000/-

________       ________

Out of the amount of Rs. 1,57,300/- awarded as above, the sum of Rs. 5000/- was exclusively awarded to the first respondent and, therefore, the amount jointly awarded to the first and second respondents came to Rupees 1,52,300/- The Tribunal opportioned the said amount between the first and second respondents in the proportion of two units for the first respondent and one unit for the second respondent. Accordingly, it awarded out of the sum of Rs. 1,52.300/-, the amount of Rs. 1,06,534/- to the first respondent and Rs. 50,766/- to the second respondent.

9-14. x x x x x x x x x

15. That takes us to the question of compensation. As earlier stated, different amounts have been awarded to the first and second respondents on the one hand and in the third respondent on the other. We will first take up for consideration the appeal in so far its it is directed against the amount awarded to the third respondent.

16. The first part of the award in favour of the third respondent consists of the amount of Rs. 10,000/-, which is awarded to the said respondent out of Rs. 30,000/- which the Tribunal found to be the estimated loss to the estate on account of the premature death of the deceased. So far as ''the amount awarded as aforesaid is concerned, for the reasons which follow, we are of the view that the award is wholly unsustainable.

17. As would be apparent from the narration of facts given above, the Tribunal was in error in separately computing the sum of Rs. 30,000/- as loss to the estate. The Tri- bunal found that though the actual income of the deceased at the time of his death amounted to about Rs. 9000/- per annum, taking into consideration the possibility of increase in the income in future as also the possibility of some reverses which a professional man might encounter during his professional career, .the average income of the deceased was required to be computed at Rs. 1000/- per month. Out of the income of Rs. 12,000/- per annum arrived at as aforesaid. the Tribunal deducted a sum of Rs. 3600/- as the sum which the deceased would have spent on him-self. The Tribunal, on the basis of this reasoning, computed "the average annual economic utility" of the deceased to the respondents at Rs. 8400/- per annurn and 15 vears multiplier was applied to the said datum figure in order to arrive at the just and fair compensation awardable to the respondents. It would thtis appear that the Tribunal took the entire balance of the estimated income of the deceased (minus that which he would have spent on himself) as the datum figure for the purpose of arriving at just compensation on application of the proper multiplier. It is difficult to appreciate, under these circumstances, as to how the Tribunal held that the deceased could still have laid aside something out of his income and that that something was the loss to the estate on account of his premature death, The possibility of the deceased having laid aside something by way of saving could have been contemplated only if it was found by the tribunal that even after spending for himself and for the maintenance of his dependants there was left some surplus out of the income of the deceased which would have gone into his savings. On the reasoning of the Tribunal, however, the entire estimated balance income of the deceased (minus that which be spent on himself) was taken to have been spent on the family and it is on that basis that after application of 15 years'' multiplier, compensation was determined as payable to the first and second respondents. In such a case in our opinion there is no scope for awarding any amount by way of compensation for loss to the estate under the head of savings. Besides, any compensation on account of loss to the estate which is awardable under S. 2 of the Fatal Accidents Act,1855 is in respect of the pecuniary loss to the estate of the deceased resulting from the accident. Damages for the loss caused to the estate are to be claimed on behalf of the estate and when recovered form part of the assets of the estate. The claim for such compensation could only be made by those who would succeed to the estate or on their behalf. It could not be made by some one who has no legal right to succeed to the estate. In the present case, the deceased left behind him his wife and a minor daughter. At the time of his death his wife also carried a child in the womb. It is nobody''s case that the deceased had left behind him any Will. The parties are Hindus and they are governed by the Hindu Succession Act 1956. Under S. 8 of the said Act the property of a male Hindu dying intestate devolves according to the provisions made in Chap. II and, accordingly, the property devolves firstlv upon the heirs being the relatives specified in Class I of the Schedule. When one turns to the Schedule, one finds that daughter and widow are amongst the heirs of Class 1, whereas father is an heir of Class IT. Under the scheme of S. 8, an heir belonging to Class IT would succeed only if there are no heirs in Class 1. Therefore, the third respondent could not have laid any claim to the estate of the deceased so long as the first and second respondents are there. It appears to its clear, therefore, that in any compensation awarded by the Tribunal on account of the loss to the estate of the deceased, the third respondent could not possibly have laid any claim and no amount out of such compensation, even if awardable, could have been directed to be paid over to the third respondent. On both these grounds, therefore, we are of the view that the Tribunal erred in awarding the sum of Rs. 10,000/- to the third respondent as and by way of compensation for the loss to the estate. The appeal must, therefore, succeed to this extend.

18. Then comes the award in the sum of Rs. 5,000/- made in favour of the third respondent under the head of mental shock and suffering on account of the accidental death of the deceased. This award also, in our opinion, is wholly unsustainable. There is no dispute that compensation under this head is claimed de hors Section 1A and Section 2 of the Fatal Accidents Act, 1855 and that the liability, if any, to pay this compensation is based on the principles of common law regarding the tort of negligence. The law in regard to damages for mental shock and suffering shows beyond doubt, however, that the claim herein advanced on behalf of the third respondent under this head cannot possibly be sustained.

19. The law at one time was that there could not be damages for nervous shock. However, this view has been abandoned since long. For the last several years it is well settled that damages can be given for nervous shock caused by the sight of an accident, at any rate to a close relative. (See Hinz v. Berry (1970) 1 All ER 1074 at p. 1075). The fundamental principles underlying the award of damages in respect of the tort of negligence must, however, govern an action for compensation for mental or nervous shock. The first of such principles is that such damage must be attributable to the breach by the defendant of some duty owing to the plaintiff; damnum sine injurie (See Hay (or Bourhill) v. Young INS 92 AC 106 Per Lord Wright). In case of negligence, the duty is to take reasonable care against harm which a reasonable man would foresee as likely, Therefore, there is no liability for damage which was not of a foreseeable type within the scope of the duty of care. Foreseeability is now the sole test of whether damages are recoverable in negligence (See Halsbury''s Laws of England, Fourth Edition, Vol. X11, Para 1138). It is obvious, therefore, that the test of liability for shock is foreseeability of injury by shock (see observations of Denning L. J. in King v. Phillips (1953) 1 QB 429, at p. 441. cited with approval by Viscount Simonds in Overseas Tankship (UK) v, Morts Dock and Engineering Co. 1961 AC 388 at pp. 425-426). The second principle is that no damages are awardable for grief or sorrow caused by death of a close relative because, in any event, such death would have caused much sorrow and mourning. The Court must draw a line between mental anguish and suffering for which damages are not recoverable and nervous shock that is to say, any recognizable psychiatric illness which manifests itself on account of one having witnessed the accident for which damages are recoverable. In other words, to claim damages on account of mental shock and suffering there must be positive evidence showing that there is something more than mere sorrow or grief or mourning, and that that additional or extra element has taken the form of any recognizable psychiatric illness which is attributable, and really wholly attributable, to the misfortune of having actually witnessed the accident (See Hinz v. Berry (1970) 1 All ER 1074 (Supra).

20. Let us now proceed to examine in the light of the aforesaid principles whether the claim for damages advanced on behalf of the third respondent on the ground of his having suffered mental shock and suffering on account of the death of his son is well-founded. Taking up first the question whether there was breach of duty, if any, on the part of the driver, it is well to remember that the duty consisted of driving the vehicle with such reasonable care as would avoid the risk of injury (including injury by shock although no direct impact occurred) to such persons as lie could reasonably foresee might be injured by his failure to exercise that care. The third respondent was not within the area of potential danger arising as a result of the driver''s negligence, if any, since the said respondent was not present at the site of the accident. The driver, therefore, owed no duty to him and he was not guilty of negligence in relation to him. In Bourhill''s case (supra) the House of Lords on the basis of this reasoning declined to award damages to a fish-wife who was standing about 45 feet away from tile Point of impact and who had heard the noise but not seen the accident, although it was proved that she had suffered fright resulting, in severe nervous shock which disabled her from carrying on her trade for sonic time and she gave birth about a month later to a child which was still-born owing to the mental injury sustained by her. Similarly, in King''s case (supra), the mother of a child who had sufferred trembling fits and who was under treatment for a period of nearly three months on account of her having heard the scream of the child and seen taxi-cab backing on to the tricycle which lie was riding, from an upstairs window in a house situate at a distance of about 70 or 80 yards away from the site of the accident, was denied damages on the ground that the taxi-driver could not reasonably have contemplated that if be backed his taxicab without looking where he was going, he might cause to the mother the injury complained of. Both these Cases, therefore, support the view which we are inclined to take herein, namely, that the driver owed no duty to the third respondent who was faraway from the scene of the accident and that he was not guilty of negligenc�e in relation to him. The matter, however, does not rest merely at this. Damages cannot be awarded to the third respondent under this bead also for the reason that there iso positive evidence showing that the said respondent has suffered something more than mere sorrow or grief or mourning, that is to say, sonic recognisable psychiatric illness which again has resulted from his having witnessed the accident, It would thus appear that both the principles referred to earlier and governing award of damages in cases of tort of negligence and particularly in cases of mental or nervous shock and suffering rule out any compensation being awarded to the third respondent under this head. In our opinion therefore the award in the sum of Rs. 5,000/- made in favour of the third respondent under the head of mental shock and suffering is wholly unsustainable. The appeal in so far as it is directed against that part of the award must also, therefore, succeed.

21-22. x x x x x x x x x x x

23. The result of this discussion is that the appeal will fully succeed, in SO, far as it concerns the award made in favour of the third respondent. We will give suitable directions in this behalf in the final part of our judgment.

24. That leaves in field the appeal against the award made in favour of the first and second respondents and the cross-objections filed on their behalf. Before proceeding to deal with the appeal as well as the cross-objections on merits, we would like to make it clear that before us now there are only two claimants left and the principal claim for compensation on their behalf has to be considered under S. 1A and S. 2 of the Fatal Accident� Act, 1855. The claim for compensation under S. 1A arise out of the pecuniary loss sustained by the persons mentioned therein -on account of the death of the deceased. The claim for compensation under S. 2 arises out of the pecuniary loss to the estate of the deceased resulting from the accident. As held in Gobald Motor Service Ltd. and Another Vs. R.M.K. Veluswami and Others, , the rights of action under S. 1 (equivalent section now being S. 1A) and Section 2 of the Act are quite distinct and independent. If a person taking benefit under both the sections is the same, he cannot be permitted to recover twice over for the same loss.'' In other words, in awarding damages, under both the heads, there shall not be duplication of the same claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under S. 1A of the Act, that portion shall be excluded in giving compensation under S. 2 and vice versa. As observed in Hirji Virji Transport and Others Vs. Basiranbibi and Others, , the claims under the two heads might be different because under the first head, the loss assessed is to the dependants, while under the second head, the loss assessed is loss to the estate. But in a case where there is no dispute that the sums claimed are to be awarded only to the same claimants for the entire loss-the loss to the dependants as well as the loss to the estate the entire claim can be jointly considered and there is no need for any separate calculation. In the present case, once the third respondent is out of the picture, only the first and second respondents will stand entitled to 61aim compensation under both the distinct heads covered by S. 1A and S. 2 and, therefore, it would be proper to consider the claims under both the heads jointly.

25. to 27. x        x              x             x             x 

28. We have stated earlier that even the Tribunal has proceeded on the footing that the net income of the deceased was Rs. 12,000/- per annum. What has been overlooked, however, is that the deceased who was a professional man of young age had many years to go and that having regard to the actual progress made by him even within the short span of two years, namely, 1970 and 19-11, his income would have progressively increased in course of time. Having regard to the longevity in his family and the good health enjoyed by him, the deceased could be reasonably expected to be in active practice till he attained the age of about 65 to 70. He had, therefore, a long career of about 33 to 38 years ahead of him and it would be unrealistic to assume that his income would have continued to be static at the same figure of Rs. 1000/- per month. Such an approach would mean closing eyes to the obvious. At the same time, certain other factors such as decline in income on account of competition and the professional career coming to an end suddenly on account of various factors not within human control cannot also be overlooked. Having regard to all these circumstances, in our opinion, for the purpose of assessment of damages under S. 1A and Section 2 it would be reasonable to proceed on the basis that for the remainder of his life the average monthly income of the deceased would have been Rs. 1250/- that is to say, Rs. 15,000/- per annum. The datum figure which we have arrived at the above takes care of all relevant factor which have to be borne in mind.

29. x x x x x x x x xx x x x x x

The deceased accordingly would have had a net amount of Rs. 10,000/- available with him per year out of which he would have been required to spend on the maintenance of his family and to lay aside certain amount for the rainy days. it is on the basis of this datum figure of Rs. 10,000/- that we must work out the compensation under both the heads covered by Sees. 1-A and 2.

30. x x x x x x x x x x x x x x

31. The Tribunal has applied the multiplier of 15. An attempt was made before us on behalf of the first and second respondents to raise the multiplier from 15 to 18 or 20. We do not think that this is a fit and proper case by which we should differ from the Tribunal and to raise the multiplier from 15 to any higher figure. In C.K. Subramania Iyer and Others Vs. T. Kunhikuttan Nair and Others, , the Supreme Court has cited with approval the passage from Winfield on Torts, 7th Edition, at pp. 135 and 136 to illustrate as to how in England damages are calculated where the system of basic figure being capitalized by certain number of years'' purchase is adopted. In the extracted passage it is pointed out that the number of years purchase is left fluid and from 12 to 15 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. The principle, of course, will apply where the deceased was a breadwinner of the family. In Gobald Motor Service Ltd. and Another Vs. R.M.K. Veluswami and Others, , the deceased was aged 34 at the time of the accident. The Supreme Court maintained the award on the basis that it represented capitalization at 8 years'' purchase. In Municipal Corporation of Delhi Vs. Subhagwanti and Others, one of the deceased was 30 years old. In the said case, it was found that since the basic figure of annual dependency was multiplied by the multiple of 1.5, the estimate of damages was based on correct principles. In Sheikhupura Transport Co. Ltd. Vs. Northern India Transport Insurance Co., , the deceased was aged about 42 and in that case the multiplier of 15 was approved. In Hirji Vidi''s case (19711) 12 G LR 783 (supra), this Court in terms referred to some of the above decisions and held that when this common multiplier was accepted in the English decisions as varying normally from 12 to 15, the said factor clearly took into account the element of annuity. That is why the Supreme Court adopted the purchase factor of 15 years in the case of persons who were in thirties and forties. It was pointed out that that was the factor which led the Court to apply the outer multiple of 15 years'' purchase in that case, where the deceased was aged 43. In British India Insurance Co Ltd. v. Khagesb jani 1977 ACj 416 (Guj), where the deceased was aged about 29 the multiple of 15 was applied. In Chandrakanta Jayrambhai Amin and Another Vs. Pravin Mangaldas and Others, , the multiple of 10 was adopted in a case where the deceased was 42 years old. In First Appeal No. 435 of 1970 decided on 5/6-7-1972 this Court observed that the Supreme Court had not laid down that the common multiplier cannot exceed 15 in any, case. It was possible to conceive of a case where it would be necessary to apply a multiplier of above 15. However, even in that case where the deceased was aged about 35, 15 was found to be the correct multiplier.

32. It would appear from these illustrative cases that the trend has been to capitalize the loss of dependency benefit at 15 years'' purchase on the outer side in the case of persons in thirties and forties when they were the breadwinners of the family. These decisions must be held as providing the guide-line for the determination of the correct multiple in similar cases.

33. It was urged on behalf of the Ant and second respondents, however, that in some of the later decisions of the Supreme Court a higher multiple has been applied or approved. In Smt. Hardeep Kaur and Another Vs. State of Punjab and Another, an award in which datum figure was capitalized at 20 years'' purchase, when the deceased was about 25 years of age, was upheld. Similarly, in M. P. S. R. T. Corporation v. Sudhakar AIR 1977 SC 1189 , it was found that the Tribunal''s award which was arrived at by applying 20 years'' purchase factor in the case of a deceased who was 23 years old was not "too low". It is true that in these two cases a higher multiple has been approved. It may, therefore, be right to say that no uniform or absolute rule can be laid down and multiplier in each case has to be selected bearing in mind the facts and circumstances of the cue. However, it cannot be gainsaid that by and large the multiplier of 15 has been adopted even in cases where the deceased was in the range of thirties and forties. In these later decisions, the Supreme Court has not departed from and disapproved its earlier view as expressed in C.K. Subramania Iyer and Others Vs. T. Kunhikuttan Nair and Others, that 12 to 18 has been quite a common multiple in the case of a healthy man who was the breadwinner. In our opinion, therefore, having regard to all the circumstances of the case, if the Tribunal has adopted the multiplier of 15, we see no reason to disapprove the same. Even by application of the said multiplier, we are satisfied that what has been awarded is just compensation.

34. By applying the multiplier of 15 to the datum figure of Rs. 10,000/- we arrive at a total compensation of Rs. 1,50,000/- under both the beads, namely S. 1A and S. 2.

35-36. K X X X X

37. Then comes the award of the Tribunal wider the head of loss to tile estate. As earlier pointed out, the Tribunal estimated the loss to the estate at Rs. 30,000/- and apportioned the said amount between the first and second respondents on one hand and tile third respondent on the other in the proportion of Rs. 20,000/- and Rs. 10,000/- respectively. While dealing with this part of the award in favour of the third respondent we have pointed out that the Tribunal was in error in separately computing loss to tile estate at Rs. 30,000/-. That apart in tile method that we have adopted following Hirji Virji Transport and Others Vs. Basiranbibi and Others, we have made a global estimate of tile loss to the dependants as well as tile loss to the estate. Having regard to the adoptation of tile said method no separate award call possibly be made for the loss to the estate. Under these circumstances, in our opinion, the separate award made for loss to the estate will have to be set aside. We would, however, have to take into account even on the basis which we have adopted the compensation which becomes awardable to the estate on account of the loss of expectation of life which has been cut short so cruelly. The conventional amount of Rs. 3000/-, as pointed out in Hirji''s case (supra) will have to be awarded under tile said head.

38. The Tribunal has furthermore awarded a sum of Rs. 5000/- as compensation due to pain and suffering caused to the deceased. The deceased, as earlier pointed out, survived for about two days after lie met with the accident. He had suffered multiple injuries. Under these circumstances, if the Tribunal has estimated compensation under this head at Rs.- 5000/-, we see no reason to interfere with it.

39. The result, therefore, is that though the amount of Rs. 20,000/- awarded by the Tribunal to the first and second respondents under the head of loss to the estate on the reasoning adopted by it cannot be sustained, an amount of Rs. 8,000/- (Rs. 3000/- plus IN. 5.000/-) will become awardable u/s 2 to the first and second respondents.

40. The Tribunal, in the last place awarded to the first respondent a sum of Rs. 5000/- for her mental shock and suffering oil account of the death of the deceased which she had the misfortune to witness. We have discussed the principles in regard to award of compensation for such shock and suffering while dealing with the, case of the third respondent. Of course, the case of the first respondent stands on a different footing t all that of the third respondent inasmuch as she has not only witnessed the accident but was herself so placed that she could as well have suffered physical injury had she not left the pillion and gone forward to warn the driver of the truck in question while he was taking it in the reverse gear. Under these circumstances, it must be held that the driver owed a duty towards her and he was negligent in not taking proper care and caution qua her. The first test is, therefore, satisfied. The difficulty, however, arises on account of the fact that no specific evidence has been led to show that the first respondent had suffered such mental shock which resulted in any manifest ailment on account of her have witnessed the accident. From the principles to which we have referred earlier, it is apparent that unless such specific evidence is led, no claim for compensation can be entertained under this head. Mere pain, suffering, mourning or emotional upset arising out of the death of the dear or near one does not qualify for compensation under this head. What is required is some kind of psychiatric illness resulting from the shock suffered on account of having witnessed an accident. In the absence of such evidence in the present case, we are satisfied that the claim for compensation under this lead was not justified and that no amount could have been awarded to the first respondent under the said head. Therefore, the award of Rs. 5000/made in her favour will have to be set aside.

41. The foregoing discussion results into the following compensation being awarded to the first and second respondents :-

Rs. 1,50,000/- under S. 1A and 2 jointly

Rs.      5,000/- under S. 2 for pain and  suffering to the deceased

Rs.      3,000/- conventional amount  under S. 2.

Rs.      1,000/- medical expenses

Rs.        900/- damage to the motorbike.

__________

Rs. 1,59,800/-

 __________

We will round up the compensation awardable as aforesaid to the figure of Rupees 1,60,000/- as against the joint award of Rs. 1,52,300/- in favour of the first and second respondents.

42. [x          x     x  x      x  x] 

43. We find that the Tribunal has apportioned the amount of compensation of Rs. 1,52,300/- between the first and second respondents in the proportion of two units and one unit respectively. It has accordingly directed that out of the amount awarded by it, Rs. 1.01,534/- should be paid to the first respondent and Rs. 501766/- should be paid to the second respondent. We are Dot wholly satisfied that this is the correct apportionment. However, we do not propose to disturb that apportionment. In order to adopt a just and fair basis of apportionment, we direct that the entire additional amount to which the first and second respondents have be come jointly entitled under our decision should be apportioned in favour of the second respondent exclusively. The second respondent, as earlier stated, is a minor. The first respondent will, therefore receive the said amount on behalf of the second respondent and will keep the amount deposited in a Scheduled Bank until the second respondent attains majority. The first respondent will, however, be at liberty to, receive the interest income and spend it for the welfare of the minor second respondent.

44, 45 and 46. [x  x            x        x 

47. Appeal partly allowed.