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CASE NO.:

Appeal (civil) 5453 of 2003

PETITIONER:

The Divisional Controller, KSRTC

RESPONDENT:

Vs.

Mahadeva Shetty and Anr.

DATE OF JUDGMENT: 31/07/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

(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

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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

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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

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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

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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

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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,

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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.