Judgment:
S.M. Daud, J.
1. This appeal is by the driver, owner and insurer of a private motor-bus bearing registration No. M.T.T. 4383, the driving of which motor-bus led to the death of Vithal Gopal Patil whose widow and children are arrayed as respondent 1 before us.
2. Respondent No. 2 had hired the bus mentioned above and it was in the course of a task being executed for the second respondent that the bus on 16-11-1981 at about 6.00 a.m. dashed against Vithal leaving him dead instantaneously. At the time of his death Vithal was in the employ of Siemens (I) Ltd., his designation being that of a Draughtsman. Vithal was 45 years of age and was to retire on the attainment of age of 60 years. His sons Vinay, Prashant and Sandesh were 12, 9 and 4 years old at the time of passing away of their father, while his widow Kusum must have been just out of her twenties for she gave out her age to be 31 years when she came to testify before the Tribunal on 14-10-1983. The claim lodged by the widow and the sons was for compensation totalling Rs. 4,12,500/- plus interest at 12 per cent per annum from the date of the application till the same was paid. This sum was made up of loss of salary for 15 years, loss of future benefits by of way increments and gratuity, loss of provident fund contribution by the employer, loss suffered on account of pain and mental agony and loss on account of loss of consortium, love and affection- the total of these five items necessitating a deduction on account of lump sum payment and amount received from the Life Insurance Corporation. The sum deductible was placed at Rs. 1,37,500/-. Appellants and respondent No. 2 raised various defences all of which need not detain us. So far as the position in the appeal is concerned, it was the case of the appellants that the quantum at which the compensation was being claimed was unduly high. Amongst the witnesses examined in the proceeding before the Tribunal was the widow Kusum. She testified that Vithal was hale and hearty at the time of his death. Her husband was a qualified Draughtsman having undergone the requisite course from a Polytechnic at Dhulia. As a Draughtsman in Siemens (I) Ltd., Vithal was getting the normal increments and promotions to which the staff members in that company were entitled. The total of emoluments payable to him at the time of his death came to Rs. 2,454/-. Kusum produced the pay advice slip relating to the month of October 1981 i.e. the month preceding that in which Vithal was run over by the bus. The company in which Vithal was serving had provided him residential quarters, which quarters were at distance of half a furlong from the office in which Vithal had to work. The quarters were located near Diva Naka and Diva Naka is a fairly prominent place in Thane city. A deduction was being made by the company for the occupation charges, but the same must have been nominal for the deduction was a mere Rs. 214.50 ps. per month. Kusum went on to testify that Vithal's entitlements at the time of his retirement would have been Rs. 3,410/- per month. She spoke of the deceased earning a certain amount every month by way of overtime wages. The entire sum earned by the husband went towards the upkeep of the family. Vithal was a person of sober habits not addicted to any vices and the total expenditure upon Vithal which covered food and raiment, did not exceed Rs. 300/- per month. In cross-examination Kusum said that she would be examining some responsible member of the staff of Siemens (I) Ltd., who would give particulars in respect of her husband's earnings at the time of his death and future. Such a witness was not examined and something turns upon that, to which aspect of the matter we shall come later. The learned Member of the Tribunal took into consideration various factors and awarded respondent No. 1 compensation amounting to Rs. 3, 24,000/-. This sum was to be paid by the appellants jointly and severally together with interest at rate 10 per cent per annum from the date of application till realisation. Appellants were also to pay costs in proportion to the sum awarded to respondent No. 1. The only point taken in appeal is an attack upon the quantum of compensation awarded to respondent No. 1.
4. Appellants contend that an unduly high figure has been taken into consideration for ascertaining the dependency benefit to which respondent No. 1 were entitled. The personal expenses upon Vithal could never be as low as Rs. 300/- per month. In their application respondent No. 1 had themselves conceded to a deduction for receipt of lump sum payment and amount received from the Life Insurance Corporation of India. Such a deduction should have been provided in the compensation awarded to the respondent No. 1 . Interest was not payable on future pecuniary loss. The compensation had to be just and fair, however regrettable the mishap and however much one sympathised with the loss sustained by the widow and the minor sons of Vithal. Learned Counsel representing respondent No. 1 defends the award assailed by the appellants contending that his clients in fact should have got much more. In particular, he draws our attention to the Tribunal not awarding any compensation for loss of consortium and benefit to the estate of the deceased. He also wants us to raise the interest on the compensation awarded by the Tribunal, saying that this is what the interests of justice require us to do, though conceding that his clients have not preferred a cross objection.
5. Before we go into the points canvassed on behalf of the rivals let us say a few words in relation to the appeal Court's functions. The law provides the remedy of an appeal because of the recognition that those manning the judicial tier are liable to commit errors. A Court of appeal has the right and is indeed under an obligation to appraise the reasoning and conclusions reached by the Court of the first instance so as to set right what are errors of fact as also of law. The errors of law are easy to detect. The difficulty is in relation to errors of fact. Here, a well-established restraint which courts of appeal place upon themselves is the inadvisability of rushing into to substitute a finding in conformity with the material on record, merely because the Court of appeal left to itself or functioning as the Court of the first instance, would have come to a different conclusion. In other words, the Court of appeal will not interfere with a conclusion on facts reached by the trial Court simply because it occupies a higher place in the judicial hierarchy. He who comes in appeal has to establish that the error on facts is of such a character as to necessitate intervention by the Court of appeal, because the error left uncorrected would constitute a blot on the fair name of justice. So far as impugned verdict is concerned, a case for intervention at the instance of the appellants, is totally uncalled for.
6. It is contended that the first respondent had themselves conceded to a deduction from the total compensation payable to them for the lump sum payment and amount received by them from the Life Insurance Corporation. That there has to be a deduction for the acceleration process is not disputed. But the question is not one merely of giving a deduction for accelerated payments. Here, the dependency loss has been placed at 12 years. With respect to the learned Member of the Tribunal, we do not see why he should have assumed that Vithal after he retired from service would have been unemployed or unemployable. Vithal was a skilled hand, being a Draughtsman. It was argued that there is no evidence to show that Vithal could have got employment after he retired from Siemens (I) Ltd. Evidence coming from the mouths of witnesses or documents is not the only basis on which judicial verdicts are given. Judicial notice has to be taken of the fact that skilled workmen are always in demand. A Draughtsman does not go into the dung-heap of unemployables after he reaches the age of retirement. Being an experienced person he may possibly be more in demand once he completes his tenure with a reputed company like Siemens (I) Ltd. Next, criticism is levelled against the Tribunal taking the monthly dependency of the respondent No. 1 at as much as Rs. 2,250/-. The Tribunal has taken into consideration only the money value of what Vithal gave out to be his emoluments. But there were concealed benefits like subsidised housing and absence of conveyance cost in commuting to and fro between the residence and office. Kusum has spoken of overtime as an earning of the deceased. It is said that she was not cross-examined on the subject of Vithal's emoluments because of the understanding of the appellants that she would be examining some responsible staff member of the Siemens (I) Ltd. on the subject. It is true that Kusum did give some sort of a commitment about the respondent No. 1 being desirous of examining a more knowledgeable person. On account of this Counsel representing appellants refrained from cross-examining Kusum on the past and future emoluments of Vithal. But once the case was closed or about to close, and the expected witness had not come into the witness-box, appellants should have applied for being permitted to further cross-examine Kusum on the subject of Vithal's emoluments, on their pointing out that the earlier restraint was on account of a commitment given, which commitment had not been honoured, thus necessitating the application being made. Counsel representing appellants has quoted from personal experience that such applications are not entertained by the Tribunal. It is best not to go by such personal experiences. The law provides a remedy and if that remedy has not been availed of, appellants cannot complain. Even if we accept the statements made by Kusum at their face value, there is nothing unreasonable in what she has to say. Judicial notice can be taken of the fact that overtime earnings are almost a necessary component in the earnings of every person working with an industrial concern. In fact, the legislature has taken cognizance of this and provided for wages for overtime work in section 63 of the Bombay Shops and Establishments Act, 1948. Section 63 to the extent relevant says :
'Where an employee in any establishment to which this Act applies is required to work in excess of the limit of hours of work, he shall be entitled, in respect of the overtime work, wages at the rate of twice his ordinary rate of wages.'
Again, Kusum has not specified the number of days or number of hours worked as overtime by her husband. But once again we can take recourse to judicial notice and assume that in every month Vithal must have been required to put in a day or two's overtime. How much that comes to in terms of money has not been estimated. But on an average it would work out to 12 to 24 days per year. For a period of 12 years this would work out to 144 to 288 days and the wages for this period would be double. The subsidised housing to which Vithal was entitled represents a tremendous advantage, the loss of which has subjected respondent No. 1 to incalculable damage. Getting subsidised housing in a place like Thane city is again of incalculable value. Losing such an advantage is something that cannot be really compensated in terms of money. It was argued that there was no reason to assume that Vithal would have gone on getting increments and promotions of which note has been taken by the Tribunal. This argument is bereft of merit. Vithal was hale and hearty and of sober habits. Coming from the rural area Vithal with the smattering of a technical degree, had made good in life by securing a job with one of the well-known concerns which is rated as a prominent transactional company. Upto the age of 45 years of his life Vithal had not suffered any reverses. This being the position, it follows that he would have prospered in his career with Siemens (I) Ltd. and after retirement would have gone on to an employment fetching, possibly the same, if not higher emoluments. In this background we see nothing amiss in the award of Rs. 3,24,000/- as compensation to the widow and sons of Vithal.
7. The Tribunal has taken the monthly dependency at Rs. 2,250/-. Of course , some provisions higher than Rs. 200/- to Rs. 300/- per month must be made for the expenses to be incurred on Vithal even if that person was not addicted to vices and did not need much of pocket money. Some adjustment will have to be made towards the food and raiment required by Vithal. That could not have been at as little as Rs. 200/- to Rs. 300/- per month. But then the other side of the picture is that respondent No. 1 would have been entitled to higher benefits as Vithal's emoluments went on increasing. His sons after attaining majority may have branched of into lives of their own. But Kusum was always there and the benefits she would have got cannot be wished away as non-assessable, when it comes to computing dependency benefits. So far as the deduction on account of lump sum payment and amount received from the Life Insurance Corporation is concerned, the Tribunal was of course in error in overlooking this factor. But then it has also erred in taking the dependency benefit as being stationary at Rs. 2,250/- per month. Also an erroneous omission of the Tribunal, is, in not awarding compensation for loss of consortium and loss to the estate. A more serious error committed by the Tribunal is in assuming that Vithal would not be able to make any contribution after attaining the age of 60 years. Regard being had to these omissions, the advantage sought to be taken by the appellants is more or less well balanced. That being the position we will not be justified in making a deduction of the nature solicited by the appellant.
8. There last remains the argument that interest should not have been awarded on future pecuniary loss. In the matter of interest, a strong address has been delivered by Counsel representing respondent No. 1. He points out that the real loss sustained by this clients is much more than what has been awarded by the Tribunal. Had the widow and sons not been compelled to litigate and had the appellants paid the compensation which they now admit to be payable, the amount received would have fetched much more by way of interest, than what has been awarded by the Tribunal. There is substance in what the Counsel has to say. We must take note of the havoc wrought by inflation. Inflation erodes the real value of any sum seen in purely nominal terms. A stage has been reached where inflation has so eroded the real value of an entitlement in terms of money, that a person who does not repay his monetary obligation secures a net capital gain on the sum withheld. Compensation for mishaps is a small attempt at redressing an incalculable loss inflicted upon the dependants. To deprive these dependants of reasonable interest on compensation awardable to them, is unjustifiable whatever be the yardstick applied. After all, if appellants had offered to respondent No. 1 even a sum of Rs. 1,00,000/- in the year in which the mishap took place, that sum would have multiplied to nearly five times by now. That not having been done and the application having been so vigorously contested as to be followed up by an appeal, should surely warrant the liability to pay interest upon those who have had the use of money which legitimately belonged to the widow and the tender-aged sons. It is not possible for us to enhance the rate of interest as has been pleaded by Counsel for the first respondent, and this, for the simple reason that they have not preferred a cross-objection. The appeal fails and is hereby dismissed with costs.