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The President v. A.Babudeen - CMA No.1683 of 1998  RD-TN 112 (9 February 2005)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT (JUDICATURE)
THE HON'BLE MR. MARKANDEY KATJU, CHIEF JUSTICE and
THE HON'BLE MRS. JUSTICE PRABHA SRIDEVAN CMA No.1683 of 1998
CMP No.4880 of 1999
Malikdhinar English Medium School,
Arippu Theru, Kottar, Vadiveeswaram Village,
2.M/s. United India Insurance Co. Ltd.,
Nagercoil, Nagercoil Village,
Kanyakumari District. ..Appellants. -Vs-
3.Thangappan (Given up) ..Respondents. Prayer: This Civil Miscellaneous Appeal is directed against the judgment and decree dated 29.05.1998 made in MCOP No.84/1997, on the file of the Motor Accident Claims Tribunal (Additional District Judge) at Nagercoil.
For Appellants :: Mr.Prabhu Rajadurai
:J U D G M E N T
(The Judgment of the Court was delivered by The Hon'ble The Chief Justice)
This Civil Miscellaneous Appeal is filed against the judgment and decree dated 29.5.1998 made in MCOP No.84 of 1997 on the file of the Motor Accident Claims Tribunal (Additional District Judge) at Nagercoil.
2. Heard the learned counsel for the appellants.
3. The respondents are the parents of the deceased, a small girl by the name of Haseena Banu, aged about 31/2 years at the time of the accident. The deceased girl was studying in the 1st Appellant's English Medium School. On 28.08.1996, the Van, bel ng to the 1st appellant School, brought the children back to their homes and the deceased girl alighted from the van to reach her home and the driver of the vehicle in question started the bus suddenly without caring for the safety of the child, and in t hat process the vehicle ran over the child and the girl died on the spot itself. The parents claimed a compensation of Rs.2,00,000/- before the Tribunal and the driver and the owner of the vehicle and the Insurance Company were impleaded as the responden ts in the claim petition filed before the Tribunal.
4. Learned counsel for the appellant contended that there was contributory negligence. In our opinion, when the deceased child was only aged about 31/2 years, i.e. of such a tender age, there is no question of considering whether the deceased is to lamed or not. A child of aged 31/2 years age can hardly be blamed for such an accident even partly. It was the duty of the driver to take care of the children and ensure that such an accident would not happen. Hence, in such cases the principle of strict liability will apply.
5. The learned counsel for the appellants then contended that the compensation of Rs.1,12,500 with interest awarded by the Tribunal towards the damages was exorbitant, and the multiplier method adopted by the Tribunal was not proper and correct, bec in the case of such a young child it would be wholly speculative to infer what would be the loss of pecuniary benefits reasonably to be expected after the child attains majority. He has relied on the Supreme Court decision in C.K.Subramania Iyer Vs. T.K unhikuttan Nair, (1969) 3 SCC 64 and in M.S.Grewal Vs. Deepchand Sod, AIR 2001 SC 3660. He also relied on the decision of the Division Bench of this Court rendered in United India Insurance Co. Ltd. Vs. Bankarappa Nicken and Others, 1994 ACJ 91.
6. We agree with the learned counsel for the appellant that it is purely speculative to consider the future earning capacity of a child of 31/2 years old. We can have no idea at all what the child would have earned when she would have grown up, a ence we cannot fix the compensation on this basis.
7. On the other hand, in our opinion it is the mental agony of the parents of the child which is the real determining factor for awarding damages in such cases. It must be remembered that in such cases there is bound to be a permanent mental scar in mind, particularly of the mother of the child, which is likely to last throughout her life. The mother will be thinking of that child the rest of her life, and would be imagining what the child would have done on growing up, she would imagine about the marriage of the child, the future of the child, and so on. That is the natural and normal mentality of every mother. Hence, the agony of such a mother, whose child has been killed, for the rest of her life is indescribable and unimaginable. The compensat ion, therefore, must be awarded taking this factor into account. Wounds of the mind can be as damaging and bitter (if not more) than the wounds of the body, and the law cannot ignore this.
8. Mental agony is certainly a determining factor which has to be taken into account when awarding damages.
9. No doubt, the traditional view on this subject in the Law of Torts was that the parents have to establish that they have a reasonable expectation of pecuniary benefits if the child would have lived, vide., Taff Vale Rail Co. Vs. Jenkins, 1913 AC herein Lord Atkinson of the House of Lords observed "All that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues".
10. However, the Law of Torts is growing. As stated by the American Restatement of Torts, Art 1; D.L.Loyd, JURISPRUDENCE, "The entire history of the development of the tort law shows a continuous tendency, which is naturally not uniform in all commo w countries, to recognise as worthy of legal protection, interests which were previously not protected at all or were infrequently protected and it is unlikely that this tendency has ceased or is going to cease in future".
11. There are dicta both ancient and modern that the known categories of tort are not closed, and that novelty of a claim is no absolute defence. 12. In Ashby Vs. White, (1703) 2 Ld Raym 938 it was observed (vide Pratt C.J.)
"Torts are infinitely various, not limited or confined".
13.. In Donoghue Vs. Stevenson, (1932) AC 562 (619) (HL) it was observed by the House of Lords (per Macmillan, L.J.): "The conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life".
14. The above view was followed in Rookes Vs. Barnard, (1964) AC 1129 (1169) (HL) and Home Officer Vs. Dorset Yacht Co. Ltd. (1970) 2 All ER 294 (HL).
15. A modern example of final recognition of a new tort of intimidation is furnished by Rookes Vs. Barnard (1964) AC 1129 (1169) (HL). Recent advances in the field of negligence have recognised new duty situations Donoghue Vs. Stevenson, (1932) AC (619) (HL). It has been held in Home Officer Vs. Dorset Yacht Co. Ltd. (1970) 2 All ER 294 (HL) that there are not a number of separate torts involving negligence each with its own rules as was thought at the beginning of this century and that the gener al principle behind the tort of negligence is that "you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor, vide Donoghue Vs. Stevenson, (1932) AC 562 (619) (HL), and a new duty s ituation may be recognised on this principle provided it is just and reasonable to do so, vide Governors of the Peabody Donation Fund Vs. Sir Lindsay Parkinson & Co. Ltd., (1984) 3 All ER 529 (534) (HL).
16. The Courts in India have been more generous than foreign Courts in awarding damages for mental sufferings. Thus, damages for mental agony in a case of harassment of the plaintiff by the officers of a public authority were allowed by the Supreme t, vide Lucknow Development Authority Vs. M.K.Gupta, AIR 1994 SC 787.
17. Similarly, damages for mental agony were allowed to the parents when their child because of negligence of the hospital, where he was taken for treatment suffered severe damage due to negligence of the hospital staff and was left in a vegetative e. The child was separately allowed damages for the injury suffered in the same case, vide Spring Meadows Hospital Vs. Harjot Ahluwalia, JT 1998 (2) SC 620.
18. In Smt. Kumari Vs. State of Tamil Nadu & Others, AIR 1992 SC 2069 the Supreme Court directed the State Government to pay a compensation of Rs.50,000/- for the death of a child of 6 years old, caused due to his falling in an uncovered sewerage ta
19. In Lata Wadhwa Vs. State of Bihar, AIR 2001 SC 3218 where a number of persons, including children, died in a fire accident in a function organised by the Tata Iron and Streel Company (TISCO) at Jamshedpur, parents of children in the age group of nd 10 years were allowed Rs.1,50,000/- and parents of children in the age group of 10 and 15 years Rs.2,60,000/- as compensation. In addition, in each case Rs.50,000/- were awarded as conventional amount presumably towards benefit of the estate.
20. In view of the above, we are of the opinion that the amount awarded by the Tribunal is justified and certainly not excessive, considering the terrible mental agony of the parents of the deceased girl, which they must still be undergoing.
21. In view of the above said discussions and reasons, this Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected CMP is also dismissed.
Copy to: -
1.The Motor Accident Claims Tribunal (Additional District Judge) at Nagercoil. 2.The Record Keeper, VR Section, Madurai Bench of Madras High Court.
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