JUDGMENT
Varghese Kalliath, J.
1. This is an appeal by the parents of a child, who was killed in a motor accident. The victim was aged 5 years.
2. The unfortunate event happened on 3.12.1981 at 12.30 p.m. The victim, a five years old boy, was a student in the 1st standard. He was dashed by a motor cycle rashly and negligently driven by the 1st respondent herein. The 1st respondent contended that he was not negligent. But the Tribunal found that he was negligent and the accident was caused because of his rash and negligent driving of the vehicle. After the accident, the boy was removed to N.M. Hospital by a good Samaritan, who found the boy in a helpless condition. From that hospital, he was removed to the Medical Trust Hospital. On the next day, the boy died.
3. The parents claimed that the boy was intelligent, smart and healthy. A criminal case was launched against the motor-cyclist and he was found guilty under Sections 279 and 304-A, Indian Penal Code.
4. The vehicle has been insured by the 2nd respondent and that fact is admitted. There is no dispute that the life of a young child was bumped off by the negligent driving of the vehicle by the 1st respondent.
5. The Tribunal, after considering the evidence in the case, awarded a total compensation of Rs. 10,000/-. The appellants claimed only an amount of Rs. 48,000/-.
5-A The chief question that has to be decided in this case is as to the reasonability of the compensation awarded by the Tribunal. The appellants submit before us that they have claimed only a modest amount of compensation and the Tribunal ought to have allowed that amount in the circumstances of the case. The appellants are very much aggrieved and so they appeal.
6. The appellants claimed compensation under different heads. In part I, they claimed loss to the estate of the deceased Rs. 12,500/-and burial expenses Rs. 500/-. In part II, they claimed loss of expectancy of life Rs. 10,000/-, compensation for excruciating pain and suffering undergone by the injured because of the accident till death Rs. 10,000/- and loss of service of the deceased, their only son, Rs. 15,000/-. The Tribunal did not discuss what would be the reasonable compensation that can be given under the different heads of claim, but awarded a global amount perhaps taking into account all the heads of claim, an amount of Rs. 10,000/-.
7. The adjudication process to determine compensation in the case of loss of life of a young boy in a motor accident, according to us, is of a complex nature. What are the circumstances to be taken into account for awarding a justifiable, fair and reasonable compensation to the parents of a young boy who lost his life in a motor accident is a matter which requires deep consideration and a careful analysis. According to us, it depends upon many circumstances. It involves circumstances like the nature of the accident, the suffering of the boy on account of the accident, age of the victim, agony, pain and suffering of the parents on account of the death of their child, whether the parents have no other children/child, the age of the parents 1/ similar facts.
8. Counsel on both sides referred us to several decisions. Before considering the decisions referred to us by counsel on both sides, we would like to say certain general principles in regard to payment of compensation. If one person by his negligent act causes another person any kind of harm whether it is personal which will include mental and physical pain or damage to property or other financial loss, the remedy which is available in law to the injured person is an action to recover damages. If the harm has caused him deprivation of property, it is easy for the court to direct the party to compensate the person who suffered the loss by restoring the property itself. If restoration of the same property or an equivalent property is impossible, the court has to estimate the money value of the loss suffered by the party and the court can direct payment of, as damages, a sum of money for the harm caused to the person concerned. The fundamental theory behind the law on the measure of damages evolved by eminent judges is not identical at all times. Naturally it must be a changing concept. The changes in all spheres of life on account of the amenities provided by the scientific developments and also the fortuitous as well as dangerous circumstances created by the advancement of human activities have great bearing in the methodology of determining a fair compensation in an accident case. Viscount Denedin in Admiralty Comrs. v. S.S. Veleria (1922) 2 AC 242 at 248 said to indicate the nature of damages, thus:
The true method of expression, I think, is that in calculating damages you are to consider what is the pecuniary consideration which will make good to the sufferer, as far as money can do so, the loss which he has suffered as the natural result of the wrong done to him.
Lord Blackburn in Livingstone v. Rawyards Coal Co. (1880) 5 App Cas 25 at 39, said thus:
Where any injury is to be compensated by damages, in setting the sum of money to be given…you should as nearly as possible set at that sum of money which will put the person who has been injured…in the same position as he would have been in if he had not sustained the wrong.
9. The above two quotes mostly relate to loss of property. It has to be remembered that property can generally be replaced, if destroyed or repaired, if damaged. The only thing that is discernible from what we have quoted is that the law recognises that the primary rule is compensation and that compensation is measured by the cost of repair, or restoring the original position- restitution in integrum. This rule, we would say, is not universally applicable. It can be applied meaningfully only if and so far as the original position can be restored. If it cannot be done, the law which is bound to do justice to the suitors must endeavour to give a fair equivalent in money, so far as money can be an equivalent and in that way ‘make good’ the damage. Perhaps this contingency provoked Lord Morris of Borth-y-Gest to say in Perry v. Cleaver 1969 ACJ 363 (HL, England), that ‘to compensate in money for pain and for physical consequences is invariably difficult but… no other process can be devised than that of making a monetary assessment’.
10. We would like to clear the confusion that the payment of compensation or the system of adjudicating the question of negligence or blame of a person for the purpose of determining compensation to be paid to the sufferer is not a ‘shadow system’ duplicating the criminal law. This aspect of the matter has been cleared up by Lord Goddard in British Transport Commission v. Gourley (1956) AC 185 at 208, thus:
Damages which have to be paid for personal injuries are not punitive, still less are they a reward. They are simply compensation… ? There is nothing punitive in calling on a defendant to pay that which the law says is a just recompense for the injury the plaintiff has been caused: Perry v. Cleaver 1969 ACJ 363 (HL, England).
11. We cannot forget about the traditional picture of justice, holding pair of scales. What we can do is if one scale holds the harm or loss sustained; into the other goes the compensation; and the aim of the law is to make the two balance. This process recovers payment of full and adequate compensation. Field, J. said: “You cannot put the plaintiff back again into his original position, but you must bring your reasonable common sense to bear and you must always recollect that this is the only occasion on which compensation can be given. The plaintiff can never sue again for it. You have, therefore, now to give him compensation, once and for all. He has done no wrong. He has suffered a wrong at the hands of the defendants and you must take care to give him full and fair compensation for that which he has suffered”. Judges should keep self-restraint and they must not be influenced by sympathy to give an excessive sum, since it has to be remembered that what is adjudicated is a cause where the defendant has no malice and had no mala fide intention even if it is proved that he was reckless and negligent and therefore in fixing the compensation, it should be moderate or rather to be fair and not extravagant. We must always be informed of the warning given by eminent judges that the adjudication should not be with a motive to penalise the wrongdoer. We should always hold the balance fairly. Although accuracy and certainty were frequently unobtainable, we must devote ourselves as much as possible to reach a fair assessment on the circumstances of the case. It is not wrong to say that perfect compensation is the same thing as fair compensation. Lord Scarman in the famous case, Lint Poh Choo v. Camden & Islington Area Health Authority 1980 ACJ 486 (HL, England), in answer to the argument that awards should be kept down because high awards increased insurance costs and were a burden on public funds, said ‘of course, awards must be fair. But this means no more than that they must be proper compensation for the injury suffered and the loss sustained’. In short, the aim is to reach a fair balance neither too much nor too little but the golden mean.
Lord Halsbury, LC, said in The Mediana (1900) AC 113, thus:
Of course, the whole region of inquiry into damages is one of extreme difficulty. You very often cannot even lay down any principle upon which you can give damages: nevertheless, it is remitted to the jury or those who stand in place of the jury, to consider what compensation in money shall be given for what is a wrongful act. Take the most familiar and ordinary case: how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident…But, nevertheless, the law recognised that as a topic upon which damages may be given.
12. Award of damages for death always raises complex questions. The treatment of this question varies depending upon the system of law and also the judicial bend and mind of the adjudicator. Of course, courts in India are guided by the general principles formulated and given in decided cases, particularly cases decided by the Supreme Court. If we examine the Indian law, we can see curious methods being adopted by courts for the determination of a fair compensation.
13. At one point of time it was thought by English jurists and judges that all claims to compensation are terminated by death; once the injured person has died, there is no further right or action at all. Later it was found that the rule is to take the identical cause of action which vested in the injured person and enact that it shall survive his death and be enforceable by his legal personal representatives. Indian statutes follow the English Fatal Accidents Act, 1846 known as Lord Campbell’s Act. Since the time the Act was introduced by Lord Chancellor, it was considered as a ‘wrongful death statute’ which gave a new and independent right of action to certain near relatives of the deceased. According to Scottish common law, which had always given a right of action to certain near relatives for (i) loss of support and (ii) solatium for their personal loss. But it has to be remembered that the English courts promptly limited the remedy to pure financial loss. We have followed this rule not rigidly but substantially. It is said that limitations made on Lord Campbell’s Act, 1846 was really a judicial legislation, quite unwarranted by the language of the statute, but it became established law. [See Blake v. Midland Rly. Co. (1852) 18 QB 93]. It is also a lamentable fait accompli if we examine English decisions that ‘financial loss’ was interpreted very strictly and it led to certain amendments to the Act.
14. Solatium for the personal loss of the living on the death of a near relative-son, father, mother, wife, husband-is a more civilised and legitimate claim when we determine not the full compensation, but the fair compensation to be paid by the defendant. We say so, since our thinking is largely expressed in a more sophisticated and civilised manner when the statute provides a no fault liability. The principle behind the no fault liability, as we see, is a payment of solatium rather than on arithmetical calculation based on the income of the deceased, earning power of the deceased, age of the deceased or the survival period of the dependants, since no differentiation is made on the above enumerated materials in the matter of no fault liability.
15. The old English theory that once the injured person has died, there is no further right of action, is no longer good law in England. In America also we see in survival statutes a term which is very apt to convey the concept of action for compensation on death. Now the English rule is based on Lord Campbell’s statute as amended. Our Fatal Accidents Act, 1855, provides a cause of action which vested in the injured person and by a deeming provision a survival of that action which can be given effect to by the living perhaps representing the estate of the deceased. The third rule is to give an independent cause of action to near relatives of the deceased who have been deprived of their bread-winner or at any rate, partial means of support. If we examine the Indian case law, we can see that courts are adopting especially in motor accident claims not a rigid and defined rule based only on deprivation of pecuniary support. Many other relevant and significant consequences are always taken into account for proper determination of a fair and justifiable compensation.
16. There is no clear codification of law of damages. If we take the case of motor accident claims, though the statute is comparatively a complex statute taking different aspects of the law relating to motor vehicles, we do not see any definite mode prescribed for the determination of compensation in accident claims. There is no codified law in regard to the determination of the multiplicand or multiplier to be used in the case of motor accident claims. We have to depend largely on case law. The question of determination of damage is beset with great peril. Perhaps that may be the reason for the legislature to decline to give a codified law regarding the measure of damages on account of motor accident claims. The legislature is concerned with one aspect of the matter in regard to measure of damages that is in case of death or permanent disablement of the victims on account of an accident by the use of the motor vehicle, a quantified no fault liability is fixed.
17. Arther George Sedgwick said in his celebrated book on Law of Damages that codification of the substantive law is no cure. He further says thus:
So, the confusion which for a long time caused the courts to divide on the question of recovery for physical injury, produced by the effects of negligence, through the nervous system of the person injured, producing every year a quantity of irreconcilable cases, has been finally dispelled by the cases of Dulieu v. White and Sinone v. Rhode Island, in which it has been established (wherever the question is not unfortunately held to be foreclosed by authority), that wherever physical injury is proved to have resulted from fright or nervous shock proximately caused by negligence, there is no escape from the conclusion that an action will lie. These decisions, illuminating as argument and essential to the ends of justice, should be compared with the curious logical devices in obstruction of the action which they undermine. This is not at all an instance of new law, but of new light expelling darkness in the old law, a darkness fostered by the old way of not looking at the real connection.
18. In 1982, the English Act of 1846 was amended. The amendment in 1982 introduced damages for bereavement. Section 3 of the Administration of Justice Act, 1982, enacting a new Section 1-A in the Fatal Accidents Act, 1846, has for the first time introduced a remedy of damages for ‘bereavement’, i.e., the personal distress suffered by a close relative. This in fact followed the precedent of Scottish law, which has always given solatium for the personal loss. Damages under this head is a fixed sum of $ 3,500 (which may be increased by statutory order). They are given in two cases only: (i) to a wife or husband; (ii) if the deceased was a minor (under 18) who had never married, then to both his parents if he was legitimate-they would share the single fixed sum-or to his mother if he was illegitimate. In the matter of payment of compensation, the English law even treated differently the question of consortium in the case of a husband and wife. The husband is entitled to damages for loss of consortium, the society and service of his wife, but no such right was given to a wife-Best v. Samuel Fox & Co. (1952) AC 716. This position is not accepted by our courts. Both husband and wife are treated alike in the matter of loss of consortium.
19. Even before the amendment by Section 3 of the Administration of Justice Act, 1982, dealing with the Fatal Accidents Act, 1846, the judicial committee of the Privy Council in Taff Vale Railway Co. v. Jenkins 1913 AC 1, observed that it is not a condition precedent to the maintenance of an action under the Fatal Accidents Act, 1846, that the deceased should have been actually earning money or money’s worth or contributing to the support of the plaintiff at or before the date of the death provided that the plaintiff had a reasonable expectation of pecuniary benefit from the continuance of the life. Therein Lord Atkinson stated the law thus:
I think it has been well established by authority that all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact from which the inference can reasonably be drawn; but I wish to express my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first, that the deceased earned money in the past and second, that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inference can, I think, be drawn from circumstances other than and different from them.
But it has to be noted that in Barnett v. Cohen (1921) 2 KB 461, McCardie, J., speaking for the court quoted with approval the following observations of Lord Haldane in his judgment in Taff Vale Railway Co. v. Jenkins 1913 AC 1:
The basis is not what has been called solatium, that is to say, damages given for injured feelings or on the ground of sentiment, but damages based on compensation for a pecuniary loss. But then loss may be prospective and it is quite clear that prospective Joss may be taken into account. It has been said that this is qualified by the proposition that the child must be shown to have been earning something before any damages can be assessed. I know of no foundation in principle for that proposition either in the statute or in any doctrine of law which is applicable; nor do I think it is really established by the authorities when you examine them…I have already indicated that in my view the real question is that which Willies, J., defines in one of the cases quoted to us, Dalton v. South Eastern Rly. Co. (1858) 4 CB (NS) 296, Aye or No, was there a reasonable expectation of pecuniary advantage?
(Emphasis is ours)
20. In a case where the life of a child is lost in a motor accident, the norms usually adopted for estimating the damages in other cases may not be squarely applicable. It is difficult for a court to depend on the actual extent of the pecuniary loss to the aggrieved party. It may depend on a data which cannot be ascertained accurately but must necessarily be an estimate or even partly a conjecture. Shortly stated, the general principle is that the pecuniary loss can be ascertained only by balancing, on the one hand, the loss to the claimants of future pecuniary benefit and on the other any pecuniary advantage which from whatever sources comes to them by reason of the death, that is, the balance of loss and gain to a dependant by the death must be ascertained. Vide Gobald Motor Service Ltd. v. R.M.K. Veluswami 1958-65 ACJ 179 (SC).
21. A Division Bench of this court, following the decisions in Taff Vale Railway Co. v. Jenkins 1913 AC 1, Blake v. Midland Rly. Co. (1852) 18 QB 93 and C.K. Subramania lyer v. T. Kunhi Kuttan Nair 1970 ACJ 110 (SC), held that the mere fact that the children were not earning any money or money’s worth would not disentitle their parents from claiming the full benefits under the Act. (It was a case under the Fatal Accidents Act, 1855). Of course, the court also observed that “In the absence of statutory guidelines, the court has to make an estimate of the pecuniary loss suffered by the members of the family of the deceased. Greater value is attributed to life while the purchasing power of the Rupee has considerably diminished. Sentiments indeed have no place, but the court has to evaluate the pecuniary loss resulting from death on the basis of a proper appreciation of the relevant circumstances and hard realities. In doing so, the court has to take into account all reasonable probabilities of future benefits, but exclude from its consideration all fancied or bare possibilities or speculative conjectures”. In other words, the damages are to be based on the reasonable expectation of pecuniary benefit and on other non-pecuniary benefit. In the decision in Neelakantanachari Velayudhanachari v. Kerala State Road Transport Corporation 1977 ACJ 474 (Kerala), the court said that non-pecuniary loss such as mental suffering and anguish on the eternal loss of a spouse or a child will be excluded from the computation of damages. What is payable under the Section is not a solatium for injured feelings. The opinion expressed by the Division Bench, we feel, cannot be justified with the provision in the Motor Vehicles Act providing for no fault liability. If the victim was a person who is incapable of making any pecuniary gain or may be a person who was really a burden to the living relatives or one who could have contributed to the financial needs of his family and parents, no distinction is seen made on the basis of the pecuniary capacity of the victim in making the payment to the legal representatives under the no fault liability. We are of opinion that the concept of no fault liability irrespective of the fact that the victim was a person who was/was not in a position to give any pecuniary contribution to the relatives points to the humane approach of the Indian law. We feel the Indian jurisprudence has taken into consideration the anguish, agony and the mental suffering of the living spouse and parents on the death of the victim by providing a provision for payment of compensation under no fault liability.
22. In case of death the pain and suffering of the deceased also is a head of claim accepted and allowed by courts. The amount is paid for the pain and suffering of the deceased to the legal representatives. What is the principle of awarding compensation to the legal representatives for the pain and suffering of the deceased? There cannot be any difference as far as this head of claim is concerned, even if the pain and suffering was endured by a child. We are of opinion that in the case of death of a child on account of an accident, pain and suffering is a valid head of claim.
23. In the case of adults no one even doubts now that the legal representatives can claim a moderate amount under the head ‘loss of expectation of life’. Here also compensation is paid for loss of expectation of life of the deceased and the theory is that that compensation is a compensation claimable by the estate of the deceased and that estate is represented by the legal representatives and when once the estate of the deceased receives the compensation, it becomes assets of the estate of the deceased and those assets devolve on the living legal representatives. A child also can have expectation of life. Normally the expectation of life of a child is much more than that of an adult, of course, misfortunes may happen. So we feel that the loss of expectation of life is a claim in the case of death of a child also. We cannot ignore it.
24. In Dr. M.K. James v. George Joseph 1989 ACJ 31 (Kerala), a Division Bench of this court held that there can be no uniform rule for measuring the value of human life and measure of damages cannot be arrived at by precise mathematics or scientific calculations. The amount recoverable depends upon the particular facts and circumstances of each case. It should be emphasised that the life expectancy of the deceased or of the beneficiaries, whichever is shorter, is very important factor in arriving at the measure of damages. The various aspects, which go to make up the value of the life of the deceased to the designated beneficiaries, are necessarily personal. In the very nature of things, there can be no exact or uniform rule for measuring the value of human life. It is true that to some extent arbitrariness or conjecture is unavoidable. The Division Bench has adverted to the decision of Jagannadha Rao, J. of the Andhra Pradesh High Court in Andhra Pradesh State Road Transport Corporation v. G. Ramanaiah 1988 ACJ 223 (AP). That case deals with the principles for computing damages in favour of the parents for the death of their child. The Division Bench has also given a chart as a guideline to determine the present value of pecuniary loss in case of the death of a child or a minor. The chart has been given on the basis of the decisions of certain High Courts in India. We do not want to give any emphasis to the chart, since we are of opinion that in determining the compensation, pecuniary loss is only one of the items which would go to constitute a fair compensation payable to the parents of the victim-a minor or child. We have already adverted to other relevant aspects to be taken note of in determining compensation. At best the chart given in Dr. M.K. James v. George Joseph 1989 ACJ 31 (Kerala), is only a chart for the guidance of determining the value of pecuniary loss. We are certain that the value of pecuniary loss can never be static. It should vary by the change of time and the change of money value. With great respect we decline to give much importance to the chart. Further we are of opinion that in determining the compensation payable to the parents on the death of a child, the present value of the future contribution which the deceased would have made to them is a legitimate head of claim accepted by all the courts in India. But the compensation cannot be confined to that head alone. We have already discussed certain important aspects which are germane for the determination of compensation payable in the case of death of a child in an accident.
25. Now coming to the facts of this case, the Tribunal has said that “the amount of compensation that the petitioners are entitled to collect should have a nexus to the pecuniary loss they sustained. The boy, no doubt, was of no assistance to them. Perhaps he might have been a source of help to them in later years. The petitioners were right to have hopes on their son”. Observing what we have quoted above, the Tribunal fixed a global amount as compensation payable to the appellants at Rs. 10,000/-. The Tribunal did not advert to the various aspects we have discussed in this judgment. TheMotor Vehicles Act as amended has fixed Rs. 25,000/- as the compensation payable under the no fault liability. We have no hesitation to hold that at any rate, the appellants are entitled to an amount of Rs. 25,000/- simply for the reason that the statute has considered a payment of Rs. 25,000/- as solatium in all cases of death of a human being, whether an adult or a child, man or woman, rich or poor. But in this case, we feel that the appellants are entitled to a larger amount under the various heads of claim we have adverted to. We feel that the claim made by the appellants is only reasonable in the circumstances of the case, viz., Rs. 48,000/-.
26. It is in evidence that the death was not instantaneous. The boy was first admitted in N.M. Hospital and from there to the Medical Trust Hospital and died on the next day. Naturally in the circumstances, a reasonable and fair compensation is payable for pain and suffering endured by the child. Further, certainly a reasonable amount is payable for loss of expectation of life, medical expenses and also the pecuniary loss suffered by the parents.
27. We hold that the appellants are entitled to an amount of Rs. 48,000/- and we modify the award directing payment of Rs. 48,000/- with interest at 12 per cent per annum from the date of application till payment. The respondents are jointly and severally liable to pay the said amount. Since the vehicle was insured by the 2nd respondent, we direct the 2nd respondent to make the payment without delay.
Appeal is disposed of. No costs.