Motor Accident Claims : Compensation for Mental or Nervous Shock & Agony [Case Law]

Motor Vehicles Act, 1988 - S. 166 - Mental Shock and Agony - Compensation for - If nervous shock, that is to say a recognisable psychiatric illness which is developed inside on account of having witnessed the accident is pleaded and proved, damages are recoverable.

The fundamental principles underlying the award of damages in respect of the tort of negligence must govern an action for compensation for mental or nervous shock, as well. The first of such principles is that such damage must be attributable to the breach by the defendant of some duty owing to the plaintiff. The second principle is that no damages are awardable for the grief or sorrow caused by the death of a close relative because in any event such death would cause much sorrow and mourning to the kith and kin. Therefore, a line must be drawn between mental anguish and suffering for which damages are recoverable. If nervous shock, that is to say a recognisable psychiatric illness which is developed inside on account of having witnessed the accident is pleaded and proved, damages are recoverable. In other words, there must be positive evidence showing that there is something more than the mere sorrow or grief or mourning and that an additional or extra element had taken the form of a recognisable psychiatric illness attributable really and wholly to the misfortune of having witnessed the accident in question. We do not find any such pleadings in the claim petition. This position is not at all disputed by the respondents. When there is no such dispute, there is no question of adducing any evidence in that regard. In short, there is absolute absence of any evidence in that regard, in this case. When there is no such evidence, the Tribunal ought not to have granted compensation under the head mental shock and agony.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.

M.A.C.A.No.883 OF 2011 & Cross Objection No.57 OF 2017

DATED THIS THE 23rd DAY OF JUNE, 2017

AGAINST THE AWARD IN OPMV 1021/2008 of M.A.C.T.,ERNAKULAM DATED 16-11-2010 

APPELLANT/4th RESPONDENT IN THE OP

THE ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, KANJIRAPPALLY, REPRESENTED BY THE AUTHORIZED SIGNATORY, THE ORIENTAL INSURANCE CO.LTD., REGIONAL OFFICE, METRO PALACE, ERNAKULAM NORTH, KOCHI - 18.

BY ADV. SRI.A.R.GEORGE 

RESPONDENT(S)/CLAIMANTS IN THE OP

MINI KUNJUMANI K.D. AND 4 OTHERs

R1-R5 BY ADV. SRI.MATHEWS K.PHILIP 

J U D G M E N T 

C.T. RAVIKUMAR, J.

This appeal is directed against the judgment and award in O.P. (MV)No.1021/2008 dated 16.11.2010 passed by the Motor Accident Claims Tribunal, Ernakulam. The 4th respondent in the claim petition, who is the insurer of the offending vehicle involved in the accident which led to the filing of the claim petition, is the appellant herein. The respondents herein were the claimants therein. The respondents had filed the claim petition under Section 166 of the Motor Vehicles Act claiming compensation for the death of Sri.Kunjumani, who is the husband of the 1st respondent, the father of respondents 2 and 3 and the son of respondents 4 and 5, on 26.4.2008 pursuant to an accident occurred on that day. The claim was for ₹17,00,000/-.

2. No oral evidence was adduced by both sides before the Tribunal and on the side of the respondents, there was no documentary evidence, as well. The respondents, who are the claimants therein got marked Exts.A1 to A10, on their side. The Tribunal had evaluated the evidence on record and appreciated the rival contentions and passed the impugned award for a total compensation of 5,85,000/- with interest ₹ at the rate of 8% per annum from the date of petition till realisation. The insurer, the 4th respondent filed the captioned appeal mainly raising, inter alia, the following grounds.

(i) The Tribunal adopted the multiplier in deviation of the dictum laid down by the Apex Court in Sarla Verma v. Delhi Transport Corporation reported in (2009 (6) SCC 121); 

(ii) Though in terms of Sarla Verma's case (supra), the Tribunal had deducted only 1/5th of the income taking into account the number of dependents, 1/4th of the income ought to have been deducted towards personal and living expenses of the deceased; 

(iii) The Tribunal ought not to have granted ₹25,000/- towards mental shock and agony.

3. The above appeal was admitted by this Court on 15.7.2011. Though the respondents entered appearance on receiving notice, they had not filed any independent appeal against the judgment and award in question. It is to be noted that long later, viz; with an inordinate delay of 1736 days, they filed a cross objection under Order XLI Rule 22 of the Code of Civil Procedure. The application filed to condone the delay as C.M.Application No.1374/2017 in C.O.No.57/2017 in the captioned appeal, is yet to be condoned.

4. While the learned counsel appearing for the appellant contends that the impugned award invites interference on the grounds specifically mentioned hereinbefore, the learned counsel appearing for the respondents contends that in the interest of justice, cross objection filed by the respondents is liable to be allowed and the quantum of compensation is also liable to be enhanced in the interest of justice, after condoning the delay of 1736 days.

5. We have heard the learned counsel for the appellant and also the learned counsel appearing for the respondents.

6. In view of the fact that the respondents have already filed Cross Objection No.57/2017 along with an application to condone the delay in the captioned appeal, we are of the view that the question whether the delay in filing the cross objection could be condoned, is to be considered, before taking up the appeal for consideration. This is because, if we are inclined to condone the delay and admit the cross objection, the outcome of the appeal would have an impact on the question involved therein. Therefore, we will firstly consider the application for condoning the delay in filing the cross objection.

7. A bare perusal of the affidavit accompanying C.M.Application No.1374/2017 would reveal that after receiving the notice in this proceedings, the respondents entered appearance through counsel, in the appeal as early as on 12.3.2012. It is to be noted that in the affidavit, the date on which they received the notice is conspicuously absent. This cannot be taken as a mere omission because it is evident from the affidavit accompanying the above application itself that they are fully aware of the position of law that the cross objection has to be taken, in the light of the provisions under Order XLI Rule 22 of the Code, within a period of 30 days from the date of receipt of notice. The only reason assigned in the affidavit accompanying the petition for not filing the appeal in time, is that on 15.7.2011, this Court, while admitting the appeal, stayed the operation and implementation of the award on condition of deposit of 75% of the award by the appellant and that thereafter there was no posting in the above case. Even if it is true to facts, that cannot be a satisfactory explanation for the long delay of more than four and a half years in filing the cross objection. According to the cross objectors, viz; the respondents in the appeal, after 15.7.2011, the appeal was posted only on 11.1.2017 before the Adalat. This is also not the correct position. In fact, the case was ordered to be posted before the Lok Adalat on 11.1.2017 only by an order of a Division Bench of this Court on 20.12.2016. Evidently, no reason whatsoever has been stated in the affidavit to explain the inordinate delay of 1736 days in filing the cross objection, years after entering appearance in the appeal that too, when they are aware of the position even after specifically stating in the affidavit itself that a cross objection ought to be taken up within 30 days from the receipt of notice in the appeal. We may hasten to add even if they were ignorant about the said position it could not have assigned as as a reason for the delay not merely because of the legal maxim 'ignorantia juris non excusat (ignorance of the law does not excuse) but also in view of the principle in the decision in Hari Prasad Chhapolia (Dead) v. Union of India reported in [(2008) 7 SCC 690]. In Hari Prasad's case, the Hon'ble Apex Court was dealing with a Criminal Appeal. Application for substitution for bringing the legal representatives of the appellant on record along with the application for condonation of delay was considered by the court. Going by the decision, unsatisfactory explanation given for delay, e.g., ignorance of legal representatives cannot be accepted and the appeal is bound to be dismissed. As noticed hereinbefore, there is conspicuous absence of any statement in the affidavit regarding the date on which the respondents received notice in the appeal. In view of the provisions under Order XLI Rule 22, the period of 30 days has to be calculated from the date on which respondents received notice in the appeal. The learned counsel for the petitioners in the C.M. Application submitted that the question of condonation of delay calls for a liberal consideration taking note of the fact that the cross objection is filed by the claimants who are the legal heirs of the victim of the accident involved in the case. The learned counsel appearing for the appellant vehemently opposed the said contention and submitted that in view of the settled position of law, the approach of this Court in considering the application for condoning the delay is bound to be different when the delay is inordinate and unexplained. True that the discretion to extend time for filing cross objection is wide and not hedged in by such considerations as find place in Order IX, Rule 9 or Order IX, Rule 13 or in Section 5 of the Limitation Act. In appropriate cases, it may also be granted even after the filing of the cross objection. But, at the same time, where no cause whatsoever is shown or if the explanation tendered is false on the face of it, the court will not be justified either in condoning the same or in granting extended time for filing it. Though the learned counsel appearing for the respondents made an attempt to canvas the position that the delay involved in this matter cannot be treated as inordinate, we find it difficult to accept the same. Even according to the appellant, the period of delay is 1736 days, i.e., 4 years and 276 days. The award passed by the Tribunal in O.P. (MV)No.1021/2008 is far back on 16.11.2010. After curing the defects, the appeal was re-presented on 21.6.2011. Though the respondents did not state in the affidavit the date on which they received notice in this appeal, it is specifically admitted by them in the affidavit itself that they entered appearance through counsel on receipt of notice in the appeal on 12.3.2012. In fact, they explained the delay only with effect from 12.3.2012 without stating the date on which they received notice in the appeal. If in the light of the provisions, the delay is computed, certainly, it would be more than 1736 days. A delay of more than 1736 days is to be described as inordinate in the absence of satisfactory reasons for the delay. Cross Objection is like an appeal and has all the trappings of an appeal. In such circumstances, when once it is found that there occurred inordinate delay in filing a cross objection, we are bound legally to consider the application for condonation of delay in view of the principles laid down by the Hon'ble Apex Court in the matter of consideration of an application for condonation of delay, in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and others [(2013) 12 SCC 649]. Evidently, several principles have been laid down by the Apex Court in regard to the approach to be adopted while considering an application for condonation of delay. We need to refer to only one among such principles for the purpose of considering this application, which reads thus: 

“There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.” 

8. In the light of the principles laid down by the Hon'ble Apex Court as above and in view of the indisputable fact that the delay in this case is inordinate, the next question is whether the explanation given for the delay is sufficient to condone the inordinate delay. The question of sufficiency or otherwise could be considered only if a reason is given. A scanning of the affidavit accompanying the C.M.Application would reveal that virtually, no reason whatsoever, has been assigned by the respondents/petitioners in the C.M.Application for the inordinate delay of 1736 days. What they have stated in the affidavit is that this Court passed an order staying the operation of the award on 15.7.2011 and thereafter the case was posted only on 11.1.2017. The statement regarding the posting is not correct. Even going by the affidavit, the respondent entered appearance through counsel on 12.3.2012. When there is total absence of any reason for condoning the delay and that too a delay of 1736 days after entering appearance in the appeal, the application cannot be allowed and the delay cannot be condoned. In the light of the aforesaid circumstances, this application for condoning the delay of 1736 days (in fact, it is more than 1736 days) is liable to be dismissed. Consequently, cross objection No.57/2007 is also liable to be dismissed.

9. Now, we will proceed to consider the contentions raised by the appellant, viz; the 4th respondent in the claim petition challenging the award passed by the Tribunal. We have already adverted to the core contentions raised by the appellant. The award in question was passed on 16.11.2010 and evidently, for mounting a challenge against the award, the appellant/insurer relied on the decision of the Apex Court in Sarla Verma v. Delhi Transport Corporation (2010(2) KLT 802). The said decision was rendered by the Hon'ble Apex Court on 15.4.2009. Going by the said decision, the multiplier has to be adopted while considering the compensation for loss of dependency in an application for compensation for death filed under Section 166 of the Motor Vehicles Act with reference to the age of the deceased. Going by the averments in the claim petition, the victim of the accident died at the age of 42 years. If the age of the deceased is between 41 to 45 years, going by the decision in Sarla Verma's case, the multiplier applicable is '14'. In this case, the Tribunal adopted '15' as the multiplier. Therefore, there is substance in the contention raised by the appellant that the Tribunal wrongly had adopted a multiplier of '15 in place of '14'. Relying on the same decision, it is contended by the learned counsel for the appellant that the Tribunal had gone wrong in effecting deduction towards personal and living expenses of the deceased which he would have incurred had he been alive. Going by the dictum laid down by the Apex Court in Sarla Verma's case supra, where the deceased was married and where the number of dependent family members is 4 to 6, the deduction towards personal and living expenses should be 1/4th of the income. Going by the said decision, deduction has to be 1/5, only in a case where the number of dependent family members exceeds '6'. Evidently, in this case, the number of dependents is only 5. In such circumstances, in the light of the dictum laid down by the Apex Court, it can only be said that the Tribunal had gone wrong in effecting the deduction as instead of deducting 1/4th of the income of the deceased only 1/5th of the same, was deducted. It is to be noted that for calculating compensation for dependency, the monthly income of the appellant was fixed notionally as Rs.3,500/-.

10. The next question to be considered is whether there is substance in the contention of the appellant that the Tribunal ought not to have granted compensation under the head mental shock and agony. As against the claim of ₹1,50,000/-, the Tribunal had granted an amount of ₹25,000/-, thereunder. The fundamental principles underlying the award of damages in respect of the tort of negligence must govern an action for compensation for mental or nervous shock, as well. The first of such principles is that such damage must be attributable to the breach by the defendant of some duty owing to the plaintiff. The second principle is that no damages are awardable for the grief or sorrow caused by the death of a close relative because in any event such death would cause much sorrow and mourning to the kith and kin. Therefore, a line must be drawn between mental anguish and suffering for which damages are recoverable. If nervous shock, that is to say a recognisable psychiatric illness which is developed inside on account of having witnessed the accident is pleaded and proved, damages are recoverable. In other words, there must be positive evidence showing that there is something more than the mere sorrow or grief or mourning and that an additional or extra element had taken the form of a recognisable psychiatric illness attributable really and wholly to the misfortune of having witnessed the accident in question. We do not find any such pleadings in the claim petition. This position is not at all disputed by the respondents. When there is no such dispute, there is no question of adducing any evidence in that regard. In short, there is absolute absence of any evidence in that regard, in this case. When there is no such evidence, the Tribunal ought not to have granted compensation under the head mental shock and agony.

11. The discussion, as above, at the first blush suggest that the impugned judgment invites an interference and scaling down of the quantum of compensation. But, we are of the considered view that considering the spirit of Section 168 of the Motor Vehicles Act, for deciding whether the judgment and award invites interference at the instance of respondents in a claim petition on the ground of exorbitancy, the Court is bound to consider the question whether what was granted by the Tribunal is just compensation, even if under certain heads excessive sums of compensation were granted. True that we have already found that error had occurred in the matter of identification of the multiplier, in fixing the rate of deduction to be made from the income of the deceased towards his personal and living expenses, which he would have incurred, had he been alive as also in the matter of granting compensation under the head mental shock and agony. The deceased Kunjumani was aged 41 years at the time of accidental death that occurred in the year 2008 and he was survived by his wife, two minor children and parents. The Tribunal had granted an amount of Rs.5,85,000/- with interest at the rate of 8% per annum from the date of the petition till realisation. While considering the question of exorbitancy in the grant of compensation, as contended by the appellant on the aforesaid grounds, we cannot lost sight of one crucial aspect. While quantifying the compensation for loss of dependency, the Tribunal had taken the monthly income of the appellant only as Rs.3,500/-. Paragraph 11 of the impugned award would reveal that the Tribunal had virtually accepted the contention of the claimants that the deceased was a headload worker based on Ext.A10 identity card issued from the Head Headload Workers Welfare Fund Board. The deceased was aged only 41 years at the time of the death occurred as a result of the motor vehicle accident occurred on 26.4.2008. In the contextual situation, it is relevant to note that in respect of a coolie who met with an accident in the year 2004, the Apex Court fixed the monthly income as Rs.4,500/-. (See the decision in Ramachandrappa v. Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]). Taking the monthly income as Rs.4,500/- or slightly above, considering the fact that the accident in question had occurred after about 4 years since the accident involved in Ramachandrappa's case, would be sufficient to cover the amount given in excess owing to the aforesaid reasons. In such circumstances, we find absolutely no reason to hold that the amount awarded by the Tribunal as per the impugned award is exorbitant warranting an appellate interference at the instance of the insured owner of the offending vehicle. In that view of the matter, this appeal is liable to fail.

In the result: The captioned appeal and the cross objection are dismissed.

There will be no order as to costs both in the appeal and in the cross objection.