M.L. Jain, J.
(1) This first appeal is directed against the order of the Motor Accidents Claims Tribunal, dated September 26, 1980. One Ashok Kumar died in an accident on February 4 1971 at 3.00 P.M. in Green Park. He was going on his cycle and was dashed by a tractor, Dll 3068, driven by Satbir Singh. The father of the deceased lodged a claim. The learned Tribunal has awarded a sum of Rs. 25,920.00 with interest at 9/o per annum from the date of the award. The learned Tribunal held that the age of the deceased at the time of the accident was 22 years and that of the father of the petitioner was 41 years. The deceased would have provided financial assistance to his father for 20 years. The earning capacity of the boy could not be less than Rs. 300.00 per month, out of which he would have spared about Rs. 200.00 per month for his father at least for four years until he was married. After marriage, he could have spared Rs. 100.00 per month for his father. Thus, the dependency was valued for the first four years at Rs. 9600.00 and for the remaining 16 years at Rs. 19,200.00 . Out of the total of Rs. 28,800.00 , 10% deduction was made on account of contingencies of life and lumpsum payment. Hence, the award of Rs. 25,920.00 .
(2) In the memo of appeal, this award is challenged on the grounds both in regard to finding of negligence on the part of the driver and in regard to the quantum of demages, but only the second ground -was pressed before me.
(3) It was submitted that the claimant was unable to prove his initial case that the deceased was a medical practitioner and was earning Rs. 1000.00 or so per month. Yet, the Tribunal awarded the claim merely on the basis of supposition and conjectures. No evidence was led about the educational and other qualifications of the deceased and there was no material for holding that the boy could earn Rs. 300.00 per month. As a matter of fact, if any evidence was led, then, the appellants would have led evidence to prove that the deceased was not in a position to earn anything. Moreover, if the boy was expected to earn Rs 300.00 per month, then he could have hardly given anything to his father because this much amount would not even be sufficient to meet his own expenses. He could at the most afford to give not more than Rs. 50.00 to his perents.
(4) Assessment of damages is more like an exercise of discretion than an ordinary act of decisions Wright in Davies v. Powall Duffryn Associated Collieries Ltd. (1942) A.C. 601. In United India Fire & General Insurance. Co. and another v. Mat. Sayar Ka.nwar and others Air 1976 Raj 173, Division Bench of the Rajasthan High Court of which I was a member, has laid down that the High Court should not interfere in the quantification of damages awarded by the Tribunal unless it feels that they are too high or t03 low i.e, that they are not in proportion to the loss or injury caused or unless there is some error in principle or in approach adopted by the Tribunal below. Unless the verdict is so perverse and against the weight of evidence that it cannot stand, it is not for the court to interfere : Taff Vale Rly. Co. v. Jenkin (1913) A.C.J. 1. It is contended that the award is on the high side. The learned counsel cited some decisions in support. In Oriental Fire and General Insurance Co. Ltd. v. Kasturi Lal and another 1968 A.C.J. 227, Rs. 3600.00 were awarded for a boy of 18 years. In Government of India & another v. Jeevaraja Alva, 1970 A.C J. 221 Rs. 5000.00 were allowed for the death of a child of 10 years. The award was no more than a guess. In Himachal Govt. Transport Simla and another v. Joginder Singh and another, 1970 A.C.J. 37, Rs. 9600.00 were allowed for a child of 16 years. The award was based upon the presumed minimum daily wages of a labourer. In Basheer Bivi v. Z. Kuchelar and another 1970 A.C.J. 212, a sum of Rs. 6000.00 were awarded for the death of a boy of 18 years The award was based upon the guess that the boy could at least become a lower division clerk. In the Vanguard Insurance Company Ltd. v. Padma and another, 1973 A.C.J. 454, Rs. 10;000.00 were awarded for the death of a boy of 14 years, because the boy's father was a clerk in a Bank and the court guessed that the deceased could get at least a clerk's post in the bank. In Madhya Pradesh State Road Transport Corporation v. Yasin and others, 1974 A.C. 358, Rs. 5000.00 were awarded for a boy of 12 years. He was a son of a Kabadi and on attaining the age of 18 years, he was expected to earn about Rs. 125.00 per month out of which he could contribute Rs. 50.00 per rnonth to his parents. All this was a conjecture. In M/s. Construction India and others v. Mahindra Pal Singh Ahluwalia and others, 1975 A.C.J. 177, Rs. 20,400.00 were awarded for a boy of 13 years. It was considered low because if the boy had lived, he could become at least a Glass Ii Officer and there would have been progressive increase in salary and because being a Punjabi boy, he would have rather entered into some more lucrative profession. Rs. 9690.00 were awarded for a girl of 11 years, all on a guess work. On the footing of these cases, it is urged that the award in question is too high and deserved to be curtailed.
(5) Rulings are agalore on the quantum of damages. But they fail to deduce any universal formula and indeed, they could not though they purport to lay down or follow one. I wish to repeat what I said in M/s. Automobile Transport (Raj) Pvt. Ltd. and another v. Dewalal and others, , that there is nothing like a doctrine of 'precedent' in fixing the quantum of damages. However, if, as was done in M/s. Construction India and others (supra) nearly Rs. 21,000.00 could be allowed for the death of a child of 13 yeirs, there is no reason why Rs. 26,000.00 or so, be not awarded for the death of a boy of 22 years and that too in the year 1980 when the price indices have gone up. One of the relevant factors to be taken into account is the decline in the value of moneys '.Yorkshire Electricity Board v, Naytor, (1968) A.C. 529, and M/s. Construction India & others, (supra) at page 185 col. 2. Even Scarman in Lim Poh Choo v. Camden and Islington Area Health Authority (1979) 3 WLR 44 had to yield that in exceptional cases the risk of future inflation would be brought into account in assessment of damages for future loss. Another factor to be taken into account is the increase in the standard of living ; Wise v. Kaya and another (1962) 1 QB 638. I thereforee, do not feel inclined to hold that the award in question is on the high side.
(6) Since no action was maintainable against a person who) by his wrongful act, neglect or default caused the death of another person ; preamble to the Fatal Accidents Act, 1855, it was enacted by this Act that where the aforesaid act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, an action may be biought by the executor, administrator or representative of the deceased to recover :
(1)for the benefit of the wife, husband, father, mother, grandfather, grand-mother, son, daughter, grandson, grand-daughter, stepson and step-daughter, damages in proportionto the loss resulting from death to them (see also English Fatal Accidents Act 1846 to 1908 and 1976); and
(2)any pecuniary loss to the estate of the deceased which if recovered shall form part of the estate (also see the English Law Reforms (Misc. Provisions) Act, 1934).
There is one limitation that there cannot be more than one action for and in respect of the same subject matter. If a person taking benefit under both the heads is the same, he cannot be permitted to recover twice over for the same loss. Loss to Dependants
(7) The law was widely worded and it contained nothing which limited the remedy to purely financial loss, Yet it has been held that under this head no damages can be recovered for non-pecuniary losses or as solarium for injured feelings or on the ground of sentiments: Taff Vale Rly. (supra). There was no question here of what may be called sentimental damage, bereavement or pain and suffering. It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities Wright in Davies (supra). Thus while recognising the claim for loss of support to the claimants) the courts in the middle of the last century denied the claim for solarium. There is no difficulty in quantifying solarium and a sum may be awarded that would reflect what a grief-stricken member of the family may reasonably require to provide himself with some form of alternative happiness. But it appears that there was a reluctance to add to the burden of emerging industries. The one regrettable result of this rule was that it was cheaper to kill than to cripple. If your dog or donkey is done to death, you can collect a thousand but if your child is crushed, you can not claim a coin in compensation because there is no financial loss rather you are spared the same which you would have had to spend on his rearing and education. 'The claim is pressed to extinction by the weight of multiplied contingencies.' 'The claimant must show loss of reasonable probability and not a mere speculative possibility of pecuniary advantage.' ''Damages which would be proper for a disabling injury may well be much greater than for deprivation of life.' See Barnett v. Cohen and otheri. 1921 2 K. B 461; 0. K. Subramania Ayar and others T. K. Nair and others, : [1970]2SCR688 and Benham v. Gambling (1941) A.C. 7, It was a slur on the law. To relieve against the severity of the rule, the courts have had to invent the fiction of possible loss of subsidies and services which the child or the youngman could have possibly rendered in future; vide Buckland v. Guilford Gas Light and Coke Co , 1949) 1 K.B. 410. The position was somewhat improved in Toff Vale (supra) where it was held that it is not a condition precedent to the maintenance of an action under the Fatal Accidents Act that the deceased should have been actually earning money or money's worth or contributing to the support of the plaintiff at or before the date of the death provided that the plaintiff had a reasonable expectation of pecuniary benefit from the continuance oF the life: also see C. K. Subramania Ayer and, others, (supra). But the courts have ignored the travails of nativity, investments in upbringing and education and the value physical, emotional, spiritual and religious which a child has to its parents and other entitled claimants, even if he were earning nothing at the time of his death or even if he was not likely to earn anything in the future. Gradually, need to afford compensation for grief, and for loss of society, care and comfort is being fell: Mc Gragor on Damages, edition 14, 1980, para 1276 and Preston and another v. Hunting Air Transport Ltd., (1956) 1 Q.B. 454.
(8) In calculating pecuniary loss to the dependants, many imponderables enter into the consideration. thereforee, the actual extent of the pecuniary loss to the dependants may depend upon the data which cannot be ascertained accurately, but must necessarily be an estimate, or oven partly a conjecture. Shortly stated the general principle is that the pecuniary loss can be ascertained only by balancing, on the one hand the loss to the claimants of the future pecuniary benefit, and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, that is, balance of the loss and gain to the dependants by the death must be ascertained; Davies (supra); Gobald Motor Service Ltd. and another v. R. M.K. Veluswami and others : [1962]1SCR929 , C.K. Subramoonia Ayer and others (supra) and, M/s. Sheikhupura Transport Company Ltd. v. Northern India Transporters Insurance, Co. Ltd. and another, : AIR1971SC1624 . In order to determine the financial loss, they evolved a formula of loss of earnings. First fix the basic figure which is the net contribution to the support of the claimant which would have been derived from the future income of the deceased. When the basic figure is fixed, and estimate is made of the probable length of time for which the earnings, or contribution wonld have continued; then the convenient multiple has to be determined-a number of years' purchase- which will reduce the total loss to its present value, taking into account the proved risks of rise or fall in the income-Munkman; Damages for Personal Injuries, Ed. 1966, page 121, and Sushila Devi and others v.lbrahim and another, : AIR1974MP181 . Loss to the estate :-
(9) Damages under this head can be claimed for loss of expectation of life: Gobald Motor Service Ltd. (supra) and Rose v. Ford (1937) A.C. 826. A man has a personal right of the nature of property 'in his life. He has a legal right that his life should not be shortened by the tortious act of another. His normal expectancy of life is a thing of temporal value so that its impairment is something for which damages should be given. Damages for paid and suffering can be awarded if the deceased dies some days after the accident: Roughead v. Rly. Executive, (1949) 65 T. L. R. 435. Damages for loss of amenities can be allowed in such acase: Andrews v. Freeborough, (1967) 1 Q.B. 1. Loss of enjoyment, that is loss of amenities as it is sometimes called, is different fromloss of expectation of life: H. West & Son Ltd. and another v. Shephard, (1964) A. C. 326. Only a 'conventional' sum is awarded for loss oF prospective happiness: Benham (supra). No recovery of prospective losses is allowed under this head: Pickett v.British Rail Engineering Ltd. (1978) 3 Wlr 955. The thing to be valued is not the prospect of length of days but the prospsct of predominantly happy life. The question resolves itself into that of fixing a reasonable figure to be paid by way of damages for the loss of a measure of prospective happiness of which the victim has been deprived by the defendant's negliegnce. Damages are in respect of loss of life, not of loss of future pecuniary prospects. In assessing damages under this head, whether in the case of a child or an adult, a very moderate figure should be chosen. General :-
(10) There is an air of unreality about the matter, and for this reason in the absence of any statutory scale, awards are bound to be somewhat arbitrary. The task of equating incommensurables is one that can never be satisfactorily achieved: Lord Morris of Borth-Y-Guest in Yorkshire Electricity Board (supra). It is in fact incapable of being measured in coin of the realm with any approach to real accuracy: Banham (supra). Brett J. in Rowley v. London & Ss North Westren Rly. Co., L.R.8 Ex. 231, said that one must not attempt to give damages to the full amount of a perfect compensation for the pecuniary injury but must take a reasonable view of the case, and give what under all the circumstances is a fair compensation. Perfect compensation is hardly possible and would be unjust: Field J. quoted in Phillips v. London & South Western Rly. Go. (1879) 5 Q.B. 78 The attempt to award full compensation in damages might bs attended with ruinous consequences to defendants: Gockburn C. J. in Phillips v. The South Western Railway Company, (1879) 4 Q.B.D. 406. Fair compensation is what a fair minded man with sufficiency of means is able to pay to discharge his moral obligation: Devlin in B. West & Sons Ltd. (supra). But the compensation can not be a perfect compensation-not a daunting figure-but only can be a fair compensation: Denning M.R. in Fletcher v. Autocar Transporters Ltd., (1968) 2 Q.B. 322. It was useless to award damages greater than the defendant could pay and if the datum were set so high that a substantial proportion defendants could not pay the damages awarded in respect of very serious personal injuries, but only some lesser sum dependent on his individual means, the just proportion as between the damages recovered by one plaintiff and those recovered by another would seldom be achieved: Diplock in Wine (supra) at 669-670.
(11) It appears to me that the compensation should not only be awarded for the future pecuniary banefits, loss of happiness but also for the 1031 already suffered by the claimant. Certainly, the human life cannot be valued less than the property. If a father loses his child earning one or one without prospects of earning, then apart from the emotional loss, he loses whatever he has invested in bringing up the child and deserves to be compensated. If the life of a boy of 22 years has been valued at Rs. 25,000.00 , that too without solarium then I will no consider it high from any standard. Unless one earns about Rs. 300.00 per month, one cannot even survive and certainly out of the prospective income of Rs. 300.00 the son was expected to spend at least Rs. 100.00 per month on the father. thereforee, the learned Tribunal has applied the minimum standard and has left no scope for reduction.
(12) I, thereforee, do not see any reason for interfering with the damages awarded by the learned Tribunal below. Besides the quantum of damages, no other point was pressed. The appeal is, thereforee, dismissed.