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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.