Irla Nagaiah and Another vs Rajkamal Transport and Another

S. Dasaradha Rama Reddy, J.—The parents of the deceased have filed this appeal against the award of the Motor Accidents Claims Tribunal, Guntur, to the extent of denying compensation of Rs. 1,04,529.71.

The case of the claimants is that their son, Srinivasa Rao, aged 22, unmarried, who was working in Jayalaxmi Oil and Chemical Industries Ltd., Dokiparru, as makta coolie, died on 27.12.1986 after being hospitalised for one month and 16 days from 11.11.1986 on which date the lorry bearing No. ABT 2931 belonging to the first respondent hit him. As the lorry was driven rashly and negligently by the driver of first respondent, they are entitled for a compensation of Rs. 1,29,529.71 consisting of Rs. 50,000/- towards loss of dependency of both the appellants, Rs. 10,000/- towards mental suffering by the deceased and the appellants; and Rs. 69,529.71 towards the amounts spent for medical treatment and other expenses. The second respondent is the insurance company with which the lorry was insured.

The owner of the lorry was set ex parte in the Tribunal while the insurance company opposed the claim denying the rashness and negligence on the part of the driver of the lorry and also challenged that the claim is excessive. The Tribunal held that the accident took place as a result of rash and negligent driving of the driver. The Tribunal also found that the expenses for medical treatment were incurred by Jayalaxmi Oil and Chemical Industries Ltd. which was the employer of the deceased and hence disallowed the same as there was no proof that they were repaid to the company. Regarding the loss of earnings to the dependants, the appellants'' claim is that the deceased was earning as coolie at an average of Rs. 120/- per week, i.e., approximately Rs. 500/- per month. Claims Tribunal granted an amount of Rs. 25,000/- on ad hoc basis without giving any reason towards pecuniary damages and did not award any amount towards non-pecuniary damages.

The owner and insurance company have not appealed against the award. The parents of the deceased have filed this appeal claiming balance compensation of Rs. 1,04,530/-.

Pecuniary Damages

PW 1 who is the father and PW 2 who is the makta mistry in Jayalaxmi Oil and Chemical Industries deposed that the deceased was getting on an average of Rs. 500/- per month. This was unchallenged in the cross-examination. But surprisingly the Tribunal says that there was no reliable material in the evidence to show the actual earnings of the deceased. The deceased was a bachelor and would have married in the normal course had the accident not taken place and he would have spent Rs. 350/- on himself and his wife and would have given Rs. 150/- to the parents. So the multiplicand will be Rs. 150/- x 12 = Rs. 1,800/-. As the claimants are the parents of the deceased, the age of the mother on the date of the death of her son has to be taken and not the age of the deceased. As the mother was aged 45 years, the applicable multiplier will be 11 as per the decision of Division Bench of this court in Nirmala Narsava v. Vilas Ramachandra Shangda 1989 ACJ 715 . Thus, under the head of loss of earnings, the compensation will work out to Rs. 1,800/- x 11, i.e., Rs. 19,800/-. As the deceased was in the hospital for V/2 month, the appellants are entitled to Rs. 750/- towards loss of past earnings.

Medical and other miscellaneous incidental expenses

A substantial sum of Rs. 69,530/- is claimed by the appellants under this head. According to the first appellant who is examined as PW 1, the total cost of the medicines incurred both at Guntur and Madras covered by Exhs. A-4 to A-12 and A-14 to A-40 comes to Rs. 3,1747-. Rs. 500/- was paid towards fees of the doctor at Guntur as per Exh. A-13. The bill issued by Dr. H.T. Veera Reddy Hospital, Madras, where the deceased was treated from 15.11.1986 to 17.12.1986 is Exh. A-71 and the sum charged was Rs. 58,926 as the deceased had to be operated 9 times. All the bills are in the name of the deceased. According to the evidence of PW 1, all the expenses for the treatment of the deceased were borne by Jayalaxmi Oil and Chemical Industries Ltd. This was supported by the evidence of PWs 2, 3 and 4 who were employees of the company. They have all stated that Jayalaxmi Oil & Chemical Industries Ltd. has met the medical expenses and as per the medical bill, Exh. A-71, issued by the hospital, balance of Rs. 28,926/- is yet to be paid. According to PW 3 who is the Asstt. Time Officer, Jayalaxmi Oil and Chemical Industries Ltd., the company incurred expenses with a view to get the injured treated and he also stated that he cannot say whether the appellants are liable for that amount or not. Nothing is elicited in the cross-examination of the employees of Jayalaxmi Oil and Chemical Industries Ltd., i.e., PWs 2, 3 and 4, to show that the company is legally bound to meet the medical expenses. From the evidence it is also clear that the deceased was not a regular employee on the rolls of the company drawing a fixed salary. He was only a coolie, perhaps engaged on daily wage basis. It is also not established whether the company has paid the balance of Rs. 28,926/- to the hospital at Madras as per Exh. A-71. PW 4 who was examined on 1.8.1989 has deposed that the doctor has yet to be paid the balance of Rs. 28,9267-.

Now the question for consideration is whether the ex gratia payments made by Jayalaxmi Oil and Chemical Industries Ltd. on compassionate and humanitarian grounds to the deceased when he was in the hospital are liable to be deducted from the compensation claimed by the appellants.

In Concord of India Insurance Co. Ltd. v. Nirmala Devi 1980 ACJ 55 , Krishna Iyer, J. observed as follows:

...The jurisprudence of compensation for motor accidents must develop in the direction of no fault liability and the determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales...

Subsequently, in 1982 the Motor Vehicles Act, 1939, was amended providing for no fault liability both in the case of death and permanent disability of the victim in accidents. The amounts of Rs. 15,000/- and Rs. 7,500/- payable under no fault liability were enhanced to Rs. 25,000/- and Rs. 12,000/- respectively by the Motor Vehicles Act, 1988, which came into force on 1.7.1989.

In Peacock v. Amusement Equipment Co. Ltd. (1954) 2 All ER 689, the husband who claimed compensation against the railway as a result of the death of his wife in the railway accident claimed that some payments made by his children out of affection for their father are not liable to be deducted in assessing the damages. The Court of Appeal upheld the claim of the husband applying the principle that the tortfeasors'' burden should not be lightened by the generosity of others.

In England by the Administration of Justice Act, 1982, which has repealed the Fatal Accidents Act, 1956 and re-enacted the entire law on the compensation in cases of personal injuries and death, it is specifically provided that in assessing the damages in respect of death of persons, all the benefits to any person from his estate or otherwise as a result of his death shall altogether be disregarded.

In the absence of any specific provision against deduction of such amounts in the Motor Vehicles Act, in the light of the principle laid down by the Supreme Court in Concord of India Insurance Co. Ltd. 1980 ACJ 55 , that the law relating to compensation in case of motor accidents must be liberally interpreted, the courts in India have disallowed the deductions of such amounts from the compensation payable which is also in consonance with the law in England now embodied in Administration of Justice Act.

In Kashiram Mathur v. Rajendra Singh 1983 ACJ 152, the Full Bench of Madhya Pradesh High Court held that voluntary payments on charitable grounds on the occasion of death are not deductible. However, on the facts of that case the ex gratia payments made to the deceased Government employee by the Government pursuant to a condition of the contract of service was held to be deductible since it is not a voluntary payment on charitable grounds. A Division Bench of Madras High Court in Pallavan Transport Corporation Ltd. (Metro) v. P. Murthy 1989 ACJ 413 , held that amounts received towards ex gratia from the Chief Minister''s Relief Fund by the Government employee are not intended to relieve the tortfeasor of his liability. This conclusion was reached by the Division Bench without aid of any decision.

In Himachal Road Transport Corporation Vs. Arvind Singh Mann and Others, , Jagannadha Rao, J. (as he then was), made a passing reference to this principle, though this question did not arise in that case. I respectfully follow these decisions and hold that an amount of Rs. 62,600/- (Rs. 3,174/- + Rs. 500/- + Rs. 58,926/-) which is the amount charged to the deceased towards medical bills is not liable to be deducted. In any case there is no evidence that Jayalaxmi Oil and Chemical Industries Ltd. has paid the balance of Rs. 28,926/- to Dr. Veera Reddy Hospital authorities at Madras and thus in any event amount to the extent of Rs. 28,926/- cannot be deducted.

The claimants have also claimed in the petition an amount of Rs. 5,240/- towards transport and miscellaneous expenses including expenses for stay at Madras incurred by the father, maternal uncle of the deceased and PW 4, an employee of Jayalaxmi Oil and Chemical Industries Ltd., to go to Madras and return. But as there is no evidence regarding this, the claimants are not entitled to the entire amount. But it is reasonable to fix a sum of Rs. 2,000/- against this expenditure.

Non-pecuniary damages

It is well settled in the decision of Yerra Varalakshmi v. M. Nageswara Rao 1988 ACJ 354 , that even in fatal cases, whether instantaneous or not, a minimum of Rs. 15,000/- may be awarded for non-pecuniary damages for pain and suffering, mental agony, loss of amenities of life and loss of expectation of life. This has been approved by the Division Bench of this court in Nirmala Narsava v. Vilas Ramachandra Shangda 1989 ACJ 715 . But in the instant case, as the deceased was young and has suffered in the hospital for 1 1/2 month after undergoing 9 operations, I think it is reasonable to fix Rs. 20,000/- as compensation under this head. Though the claimants have claimed Rs. 10,000/- under this head towards the mental suffering of the deceased and the claimants, it is open to this court to award a larger amount provided the total amount awarded does not exceed the amount claimed in the petition. The claim of the appellants for their mental suffering is not admissible, in view of the Full Bench decision of this court in Andhra Pradesh State Road Transport Corporation v. Ch. Narasava 1987 ACJ 419 .

Thus, in all the claimants are entitled to Rs. 1,05,150/- (Rs. 62,600/- + Rs. 2,000/- + Rs. 750/- + Rs. 19,800/- + Rs. 20,000/-) and accordingly the appeal is partly allowed with costs. For the balance of Rs. 24,380/-, the appeal is dismissed with costs. The appellant will also be entitled to interest on this enhanced amount at the rate of 12 per cent per annum from the date of petition till the date of payment.