BRAJA MOHAN JENA Vs. HARIPADA BAYAN

JUDGEMENT

(1.) There is no question here of what may be called sentimental damages, bereavement or pain and suffering. It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities.' The aforesaid is the pronouncement of Lord Wright in his inimitable and impeccable style in the case of Davies v. Powell Duffryn Associated Collieries Ltd. (1942) AC 601. This has settled the law that no solatium is payable. There is no compensation for sentimental agony, no damage for heart's anguish and no financial assistance for mental tribulations. The whole essence is computation of the loss sustained and adjudicated by pragmatic parameters. True it is, payment of solatium is not permissible. But should the dependants or the legal representatives of the victim of an accident be deprived of just compensation? Precisely, this is the challenge in the present miscellaneous appeal preferred by the desolate parents who are aggrieved by the award passed by the Third Motor Accidents Claims Tribunal, Balasore, in Misc. Case No. 223/35 (C) of 1988/87 whereby the Tribunal has held that the present appellants are entitled to get compensation of Rs. 36,000/ - from the respondent No. 2, United India Insurance Co. Ltd.

(2.) THE brief facts of the case are that on 25.11.1986 at about 9 p.m. the deceased, son of the present appellants, was coming from Deua Hat to his village by his cycle. While he was moving by the left side of the road near Jaleswar a truck bearing registration No. WGB 6018 came in a high speed from his front and dashed against him. Resultantly, he fell down and died at the spot. Police was informed about the accident and criminal action being set in motion, G.R. Case No. 1562 of 1986 was initiated. The deceased, as claimed by the claimants -appellants, was 16 years old and had passed matriculation. As expected by the parents, the victim, if would have lived his normal length of life, would have been in a position to contribute substantially to the family. The probable contribution was computed at Rs. 1,00,000/ - by the claimants, the said sum being just and reasonable. Thus, the claimants claimed Rs. 1,00,000/ - as compensation from the respondent -opposite parties. The opposite party No. 1, respondent No. 1 to the present appeal, filed his objection refuting the allegations in entirety and disputing that the accident did not take place due to the rash and negligent driving of the driver. In addition to this, the owner advanced the plea that the offending vehicle was insured with opposite party No. 2 and, therefore, the liability was absolutely of the insurer in the event of passing of award granting compensation. The stand of the insurer is that onus is on the claimants to prove that the death took place due to the rash and negligent driving of the truck and that the driver concerned was entitled to drive the vehicle having a valid licence. It was also canvassed that the petitioner had to satisfy that the offending vehicle had valid insurance at the material point of time.

(3.) MR . R.P. Kar, learned Counsel for the appellants, while assailing the award, submits that fixation of income of the deceased at the rate of Rs. 500/ - per month is grossly low and no basis has been indicated by the Tribunal to arrive at this figure. The claimants having brought the matriculation certificate on record, the Tribunal should have considered that the deceased could have obtained a job for himself in any class IV post or would have been in a position to get an appointment in any private firm or company, may be in the lowest category. Submission of Mr. Kar is that the income of Rs. 500/ - as arrived at by the Tribunal is not only low, but also against all canons of calculation. It is also his submission that the Tribunal has deducted Rs. 300/ - from the gross income towards personal expenses of the deceased and has determined Rs. 200/ -towards the contribution to the family, but these conclusions are not in accordance with law. As per the present trend 1/3rd of the income is to be deducted towards personal expenses and 2/3rd is to be taken into consideration while determining the contribution for the family. He also submits that the non -granting of interest from the date of application is unreasonable and amounts to illegal exercise of jurisdiction.