U.L. Bhat, C.J.
1. Claimant in T.S. (MACT) 28/89 on the file of Second Motor Accident Claims Tribunal, West Tripura District, Agartala, being dissatisfied with the quantum of compensation awarded by the Tribunal has filed the appeal.
2. The claimant, mother of Prabash Saha, filed the application under Section 110-A of the Motor Vehicles Act, 1939 (for short 'the Act') claiming Rs. 9,14,000/- as compensation for the death of her son in a motor vehicle accident involving stage carriage vehicle bearing registration No. TRS 209 at 12 noon on 14.7.1986 near the bus stand in the Airport Road, Agartala on the allegation that the vehicle driven at an excessive speed and rash and negligent manner knocked him down and the front left wheel of the vehicle ran over and killed him instantaneously. The claim was opposed by the insurer of the vehicle. Tribunal awarded Rs. 1,29,600/- (less Rs. 15,000/- already paid) as compensation and directed the insurer to pay the amount with interest at 12 per cent per annum from the date of application. MA(F) No. 39/1991 filed by the insurer has been dismissed.
3. The only question arising for consideration in the appeal is whether there is any justification to enhance the quantum of compensation awarded by the Tribunal.
4. In her application claimant stated that her son Prabash Saha aged 22 years had a grocery shop which fetched an income of Rs. 1,500/- per month, that he was contributing Rs. 1300/- per month to the family of five members, that he could have in future earned and contributed much more and that he would have sc contributed for forty-eight years (seventy minus twenty two). She claimed Rs. 8,64,000/-, being the amount of loss of contribution at the rate of Rs. 1300/- per month for 48 years. She also claimed Rs. 50,000/- for mental pain and agony suffered by her. Her estimate of Rs. 1300/- per month was of contribution for the mother aged 45 years, father 55 years, two brothers aged 15 and 12 years and two sisters aged 4 and 3 years of the deceased. Tribunal estimated the income at Rs. 1000/- per month, contribution to the members of the family at Rs. 800/- per month and life expectancy of the claimant as 60 years, fixed multiplier of fifteen, deducted 10% on account of lump sum payment and fixed compensation at Rs. 1,29,600/-.
5. Learned Counsel for the appellant submitted that twenty should have been adopted as multiplier. In response to our request to learned Counsel for insurer to assist the Court, learned Counsel stated that only the mother in the heir and not the father, brothers or sisters and therefore amount of contribution fixed is excessive, that evidence does not justify the estimate of income at Rs. 1000/- per month, that the multiplier adopted and compensation awarded are excessive and hence there is no justification to enhance the quantum of compensation.
6. In Muhini Thakuria and Ors. v. Dhiraj Kalita and Ors. MA(F) No. 10/90, dated 8.6.1993 this Court has held that on the death of a person in a motor vehicle accident, claim for compensation under Section 110-A of the Act can be made only by or on behalf of legal representatives of the deceased, that such legal representatives are entitled to compensation and that compensation cannot be claimed by or on behalf of other members of the family who are not heirs of the deceased even if they were looking to him for financial support and the Tribunal would not be justified in quantifying compensation on the basis of contribution to members of the family of the deceased who were not his heirs.
7. There is only the evidence of claimant examined as P.W. 1 that the son's income was Rs. 1500/- per month. She did not disclose the source of her knowledge. Having regard to the fact that the grocery shop was situated in village, it cannot be said that income of Rs. 1000/- per month estimated by the Tribunal is too low. P.W. 1 deposed that her husband had no income. She did not explain why he had no income. She did not state that he was too stick to work or had no opportunity to work. He had brought up a family with increasing number of members. He must be having some income. Considering these circumstances as well as the possibility of the deceased marrying and raising his own family and the future prospects and risks in the trade, contribution to the mother could not be fixed at anything more than Rs. 200/- to Rs. 250/- per month, that is, less than one-third of the estimate of Rs. 800/- per month made by the Tribunal. If the sum of Rs. 1,29,600/- awarded by the Tribunal is invested in a Bank, claimant can expect to earn Rs. 1296/- as monthly interest and the capital would still be in tact at the end of her life except in unexpected contingencies. It is true that life expectancy can be taken to be 65 to 70 years. There is no evidence regarding the state of health of the deceased. There is no plea or evidence to the effect that the grocery shop was wound up after the accident. Having regard to all these circumstances, we are of opinion that multiplier adopted is high and there is no justification to increase it further.
8. Appellant contends that she has suffered mental pain and agony on the death of her son and compensation must be awarded on this Count.
9. In New India Assurance Co. Ltd. v. Sangey Tsering and Anr. (1985) 1 GLR 416, which relates to death of a seven year old daughter of the claimants, learned Single Judge of this Court held that award of compensation is mainly to take care of the mental shock sustained by the parents. This decision was disapproved by a Division Bench of this Court in Sub Usman Singh Gurung and Anr. v. Shri Seva Rant Dutta and Ors. (1990) II GLR 281. Yet, having regard to the 'terrible shock, pain, hurt, a tremendous sense of loss and almost unbearable agony and anguish' on the unexpected and violent death of the only child, the Court awarded Rs. 10,000/-. This decision may cause some confusion in regard to the correct legal position. We therefore propose to consider this aspect in depth. We also note the decision of another Division Bench of this Court in Bashbihari Prasad and Anr. v. Parbati Kedia and Ors. MA(F) No. 3 of 1986 and MA(F) No. 15/1986, dated 21.1.1993, where it has been held as follows:..the Tribunal must be generally guided by the principles of law of torts in the matter of quantification of compensation; in other words, Tribunal must follow the basic principles of law of torts, though it must be regarded as having power to make its own assessment of what would be 'just compensation' in the facts and circumstances of a particular case. One fundamental principle of law of torts that would govern claims under the Act arising in regard to fatal accidents is that what the claimant could obtain is based on pecuniary loss sustained by the claimant.
The heirs of the deceased are not entitled to any compensation for pain or mental agony suffered by them on account of the death of their near one. However, if the injured in a fatal accident had survived for some time and suffered pain and agony, claim could be made in that behalf. See N. Sivam Mal and Ors. v. Pandian Roadways and Anr. : AIR1985SC106 .
Unfortunately, the decision of the Supreme Court referred to in the passage extracted above was not brought to the notice of the Division Bench which decided Sub Usman Singh Gurung's case (1990) 2 GLR 281.
10. The Tribunal is generally guided by principles of law of torts in the matter of quantification of compensation in the light of the facts and circumstances of each case. The view prevalent at one time that there could be no claim for nervous shock is no longer being followed by Courts. It is now well-settled that damages in common law can be awarded for nervous shock caused by the Sight of an accident to a close relative like father or mother or child. See Hinz v. Berry 19701 All. ER 1074. An important principle of common law of torts is that damage must be attributable to the breach by the wrongdoer of some duty owing to the plaintiff, the duty being to take reasonable care against harm which a reasonable person would foresee as likely. There is no liability for damages which was not of a foreseeable type within the scope of duty to care. Foresee ability is the test. See Hay v. Young, 1943 AC 92 at page 106, King v. Phillips (1953) KB 429 it page 441, Overseas Tankship (UK) v. Morts Dock and Engineering Co. 1961 AC 388, at page 425. By 'nervous shock' is meant, not what is loosely called 'mental shock', but something which leads to psychiatric illness of the close relatives.
11. This principle has now been extended to claim for nervous shock suffered by plaintiff on watching foot ball match televised alive, where, in the course of the match disaster occurred on account of defendants' negligence and plaintiff s close relatives were killed. This is on the basis that the defendant was aware that the match would be televised alive and it was reasonably foreseeable to him that television would transmit live pictures of what was happening as the disaster occurred and that his negligence would cause spectators to be killed and seeing the same in television might cause psychiatric illness to close relatives like parents, spouse, etc. See Jones v. Wright (1991) 1 All. ER 353, Alcock and Ors. v. Chief Constable (1991) 4 All. ER 907, Hicks and Anr. v. Chief Constable (1992) 2 All. ER 65 and Ravenscroft v. R. Transatlantic (1992) 2 All. ER 470.
12. Another principle of law of torts is that no damages are allowable for grief or sorrow or mental pain or agony caused by the death of a close relative. That is because, in any event, death would cause such feelings and effect. A distinction must be drawn between mental agony or grief of the surviving relatives on the one hand and nervous shock, i.e. any recognizable psychiatric illness manifested on account of having witnessed the accident. See Hinz v. Berry (1970) 1 All. ER 1074. See also Union Co-operative Insurance Society Ltd. v. Bhartiben and Ors. : AIR1979Guj121 , K. Narayanan Reddiar v. P.V. Reddiar : AIR1976AP184 , Srinivasa Roadways v. Saroja and Ors. : AIR1975Mad126 .
13. Supreme Court has considered this aspect in N. Sivammal's case : AIR1985SC106 in the following manner:. The High Court held that award of Rs. 5000/- under the head mental agony suffered by the claimants as a result of the death of the deceased cannot legally be sustained. This is only the different way of looking at the same thing which is legally permissible. Muthukrishnan lived for 19 days since the accident and he was throughout under a shadow of death. He had suffered servere injuries. He must have suffered continuous pain and compensation was admissible for pain and suffering, suffered by the deceased. Therefore, the amount of Rs. 5000/-which the High Court held inadmissible, is legitimately admissible under another head.
14. In the light of the above discussion it is clear that the decision in Sub Ushman Singh Gurung's case (1990) II GLR 281, is per incurium and is therefore not binding on us. Claimant is not entitled to any compensation for mental shock, agony, pain or suffering caused by the death of her son. She has no case that she was present at the time of the accident and on seeing the same suffered psychiatric illness on account of nervous shock. It is true that claim for compensation can be made on behalf of the estate of the deceased for pain and suffering undergone by the deceased. This principle cannot apply to a case of instantaneous death of death even after an interval of time when the injured was in a state of coma. The present is a case of instantaneous death and hence no compensation is admissible on this Court.
15. We find no ground to enhance the compensation and accordingly dismiss the appeal, but without costs.
16. Before parting with the case, we fell compelled to comment on the unsatisfactory 4 pleadings, evidence and judgments in some of the claim cases we have come across. There seems to be a feeling alround that these cases do not require much effort or application on the part of the litigants, Counsel or the Tribunal. This is a wholly erroneous approach, the sooner this approach is ended, the better for the efficacy and efficiency of the judicial process. It is true that in many respects the Tribunal is free from technicalities of the Code of Civil Procedure and Evidence Act but this does not mean that pleading need not be specific, clear and need not contain requisite pleas or data. It is desirable that claimant furnishes particulars of the vehicle involved, the particulars of driver, owner and insurer of the vehicle, of the accident, of the injuries sustained, of cause of death, damages to property sustained, cause of the accident, and rashness or negligence of the driver or the owner etcetera. Claimant must also try to secure and furnish particulars of the insurance policy, there should be no difficulty to do so in cases where vehicle has been detained and records of the vehicle are seized by the police. It is advisable to indicate the exact place in the road where the accident took place, for often that may help the invocation of the principle of Res Ipsa Loquitor. It is also necessary to state amounts claimed separately under various heads with appropriate particulars. Claimant must also obtain and produce copies of relevant records, such as, First Information Report, charge-sheet, injury certificate, post mortem certificate, Motor Vehicle Inspector's Report, seizure list of the vehicle. It may be that in some cases even without one or the other of these documents Tribunal may be in a position to arrive at a correct conclusion. However, there cannot be any doubt that these documents, properly proved, will be of great assistance to the Tribunal. It is necessary that the Tribunal ensures service of notice on the driver of the vehicle, for he will be in a position to tell the Tribunal his version of the accident and cases thereof. The owner must produce the original insurance policy with all endorsements and if not, the insurer must produce copy of the policy with all endorsements and not merely copy of the insurance certificate. If the insurer desires to rely on the amount of premium paid, it is necessary that record indicating the tariff at the relevant time is proved. Tribunal must frame proper points for determination and record finding on each of them clearly and separately. All controversial aspects including cause of accident, income and contribution having regard to the state of suffering at the time of the accident and future prospects, position, status and circumstances of the victim at the time of the accident and future prospects thereof, circumstances relevant to fix the multiplier and compensation under various heads must be properly discussed. If there is any controversy regarding liability or extent of liability of the insurer, it is open to the Tribunal to direct the owner and insurer to produce relevant records and advert to the relevant portions of the documents in arriving at a decision. Specific finding must be recorded on plea of composite negligence or contributory negligence, keeping in mind the distinction between the two. The judgment must be self-contained one; it must contain the substance of the pleadings, the points for determination, discussion and finding on each matter in controversy with reference to the pleadings, evidence probabilities and principles of law governing the matter, reasons for quantification and award under each head. Judgment must contain cause title showing names of all claimants and all respondents or opposite parties. At the end of the judgment there must be an appendix containing separate lists of exhibits marked for each party showing the dates of the exhibits and brief description and separate list of witnesses examined on behalf of each party showing the rank and name of the witnesses.
17. Registrar will send a copy of this judgment to all District Judges, They shall prepare copies and send the same to all Judicial Officers working in their districts.