BASHEER BIVI Vs. Z. KUCHELAR AND ANR.
LAWS(MAD)-1970-1-23
HIGH COURT OF MADRAS
Decided on January 20,1970

Basheer Bivi Appellant
VERSUS
Z. Kuchelar Respondents

JUDGEMENT

S.MAHARAJAN, J. - (1.) BABJAN , the son of the appellant, had appeared for the S.S.L.C. examination at Tiruchirapalli and was enjoying the summer holidays when he died on 30th May, 1955, as a result of injuries sustained in a motor accident. The boy was cycling in a westerly direction along the Tiruchy Thanjavur road, at about 2 -30 p.m., on that day, when the car of the first respondent, who is the Chief Technical Officer in the Tiruverumbur Heavy Boiler Unit, struck him and knocked him down. The injured boy was taken by the first respondent to the hospital, where he died the same night. The appellant filed an application as legal representative of the deceased before the Motor Accidents Claims Tribunal, Tiruchirapalli, under Section 110 -A of the Motor Vehicles Act and prayed for compensation of Rs. 10,000 for the loss sustained by her as a result of her son's death. The New India Insurance Company, which had insured the first respondent's vehicle, was impleaded as the second respondent.
(2.) THE learned Judge, after considering the evidence, gave the finding that the accident was the result of negligence on the part of the first respondent, and awarded a sum of Rs. 3,000 by way of compensation. The respondents have filed no appeal challenging the finding that the accident was due to the negligence of the first respondent. But the appellant complains that the amount of compensation fixed by the Tribunal is too low. The only point that arises for consideration is, what is the reasonable amount of compensation to which the appellant is entitled ?
(3.) IT is found from the evidence on record that Babjan, the deceased, was about 18 years old at the time of his death. According to P.W. 3, the appellant, the posthumous publication of the results showed that Babjan had passed the S.S.L.C. examination and was declared eligible for admission to the college course. That he must have been a healthy and sprightly boy is shown by Exhibit A -1, a certificate issued in connection with Babjan's training in the N.C.C. The mother's evidence shows that the boy's ambition was to become a pilot. It is also her evidence that she wanted to admit her son in the Sheshasayee Institute, which is near her house. It is on record that the appellant has 5 surviving children, of whom three are daughters who have been married off, and provided, for, and two are sons, one of whom is an optician and the other, as doctor in the Srirangam Hospital. It is proved by the appellant that she owns no property except a house at Kamarajnagar and an inam land in Madurai district fetching an annual income of Rs. 100. After mentioning these particulars the learned Judge, without any discussion of the legal position, expressed his conclusion in the following words. "Taking all the circumstances into consideration I assess the proper compensation payable to the petitioner at Rs. 3,000. In the remit an award is passed for a sum of Rs. 3,000 in favour of the petitioner". In Gobald Motor Service v. Veluswamy and Ors. : [1962] 1 SCR 929 , their Lordships of the Supreme Court have authoritatively laid down the principles that ought to govern the award of compensation in cases of this kind. It has been pointed out in that ruling that the cause of action under Section 1 of the Fatal Accidents Act and that under Section 2 are different, and the while under Section 1 damages are recoverable for the benefit of the persons mentioned therein, under Section 2 compensation goes to the benefit of the estate ; whereas under section 1 damages are payable in respect of loss sustained by the persons mentioned therein, under Section 2 damages can be claimed inter alia for loss of expectation of life. Though, in some cases, parties, that are entitled to compensation under both the sections, may happen to be the same persons, they need not necessarily be so ; persons entitled to benefit under Section 1 may be different from those claiming under Section 2. Prima facie as the two claims are to be based upon different causes of action, the claimants, whether the same or different, would be entitled to recover compensation separately under both the heads. Their Lordships also quoted with approval the following observations of Sir Shadilal, C.J., in Secretary of State v. Gokulchand I.L.R.(1925) Lah. 451: The law contemplates two sorts of damages; the one is the pecuniary loss of the estate of the deceased resulting from the accident; the other is the pecuniary lose sustained by the members of his family through his death.... An illustration may clarify the position. X is the income of the estate of the deceased. Y is the yearly expenditure incurred by him on his dependants. We will ignore the other expenditure incurred by him. X -Y, i.e., Z is the amount he saves every year. The capitalised value of the income spent on the dependents subject to relevant deductions, is the pecuniary loss sustained by the members of his family through his death. The capitalised value of his income, subject to relevant deductions, would be the loss caused to the estate by his death. If the claimants under both the heads are the same, and if they get compensation for the entire loss caused to the estate, they cannot claim again under the head of personal loss the capitalised income that might have been spent on them if the deceased were alive. Conversely, if they got compensation under Section 1 representing the amount that the deceased would have spent on them, if alive, to that extent there should be deduction in their claim under Section 2 of the Act in respect of compensation for the loss caused to the estate. To put it differently, if under Section 1 they got capitalised value of Y, under Section 2 they could get only the capitalised value of Z, for the capitalised value of Y+Z, i.e., X, would be the capitalised value of his entire income.;


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