Amudhavalli and Others vs Magesh and Others

R. Banumathi, J.—Being dissatisfied with the quantum of compensation of Rs. 2,95,400 awarded by the Motor Accidents Claims Tribunal (Subordinate Judge), Kancheepuram in M.A.C.T.O.P. No. 391 of 1999 for the death of Gajalakshmi, her parents, brother and sister have filed this appeal. Brief facts are as follows:

On 1.6.1999 at about 4.30 p.m., the deceased Sunitha alias Gajalakshmi was travelling in a Tata Sumo car bearing registration No. TN 21-J 9999 along with her relatives from Kancheepuram to Chengalpattu. When the car was nearing Thimmavaram Modern Rice Mill, a lorry bearing registration No. TDV 3727 came from the opposite direction in a rash and negligent manner and dashed against the Sumo car in which the deceased was travelling. A criminal case was registered against the lorry driver in Crime No. 334 of 1999 of Chengalpattu Taluk Police Station. Gajalakshmi, aged 27 years, had passed C.A. Intermediate Examination in the month of May 1997. Alleging that the accident was due to rash and negligent driving of lorry driver and the claimants'' family had lost support and love and affection of deceased Gajalakshmi, parents, brother and sister of Gajalakshmi have filed claim petition u/s 166 of Motor Vehicles Act claiming compensation of Rs. 75,00,000.

Before the Tribunal, the claimant No. 2 got examined himself as PW 1 and Prakash, an eyewitness, was examined as PW 7. The representatives of various firms, which employed Gajalakshmi in their firms to check their accounts as auditor, PWs 5, 6 and 8, were examined.

Based upon oral and documentary evidence, the Tribunal held that accident was due to rash and negligent driving of lorry driver and the respondent No. 2, who is the insurer of the vehicle, has to indemnify the compensation on behalf of owner/respondent No. 1. Taking monthly income of the deceased at Rs. 1,600 and deducting 1/3rd for personal expenses and adopting multiplier 18, Tribunal has calculated loss of dependency at Rs. 2,30,400. Adding conventional damages, the Tribunal has awarded total compensation of Rs. 2,95,400 payable with interest at the rate of 9 per cent per annum.

The learned counsel for the claimants contended that the deceased Gajalakshmi has passed C.A. Intermediate Examination and the Tribunal did not consider the educational background and future prospects of the deceased while computing the loss of income. It was further submitted that the Tribunal erred in disbelieving evidence regarding income on the ground that the witnesses--Managing partners of the firms/companies--might be relatives or friends of the deceased. Considering the status, future prospects and age of the deceased, the learned counsel for appellants prayed for fixing monthly income at least at a sum of Rs. 15,000.

We have heard learned counsel for appellants-claimants and learned counsel for the respondent insurance company.

It is not necessary for us to narrate the facts in detail as to how the accident had happened, who was negligent and the coverage of policy. It is for the reason that these aspects were recorded in favour of the claimants and not seriously disputed by the respondent insurance company. Only the quantum of compensation awarded is disputed.

The father of deceased Gajalakshmi, Natarajan, was examined as PW 1. In his evidence, PW 1 has stated that Gajalakshmi has completed her C.A. Intermediate and that she was working in Sri Padmavathi Finance & Investments run by his brother-in-law. PW 1 has further stated that a partner of T.V. Skin Agencies is also known to his brother-in-law and Gajalakshmi was also attending to the accounts in the said concern, T.V. Skin Agencies.

PW 5 Vijayakumar, the managing partner of a concern, Vellore Shoe Fabrics, has stated that Gajalakshmi had worked in their concern as Internal Auditor from 1.4.1998 till May 1999 and that they have paid Rs. 5,000 per month to Gajalakshmi apart from bonus of Rs. 7,000. To that effect, PW 5 has also issued salary certificate, Exh. P19. PW 5 has further stated that Exh. P21, income tax return, would show the salary and bonus paid to Gajalakshmi. Likewise, PW 6 Nandagopal, who is running a firm, Ananda Agencies, dealing in maida, suji stated that Gajalakshmi was working as Internal Auditor in their concern and that they have paid Rs. 3,000 per month to Gajalakshmi. PW 6 issued Exh. P25 to show that she was paid Rs. 3,000 per month apart from bonus of Rs. 8,000. PW 9, Karthikeyan, who is running the firm Vellore Ralor Garments in No. 135, Katpadi Road, has also stated that Gajalakshmi was their Internal Auditor and that she was paid Rs. 12,000 per month and she was getting Rs. 1,40,000 per annum as consultant fees.

Pointing out that PWs 2, 5, 6, 8 and 9 are all well-known to the father of the deceased Gajalakshmi and that Exhs. P15 to P23 have been brought up to boost the income of Gajalakshmi, Tribunal disbelieved oral evidence as well as documentary evidence, Exhs. P15 to P23. Tribunal has taken into account the evidence of PW 1. In his evidence, PW 1 has admitted that Gajalakshmi had passed in only one subject and she had arrears and that she was not a qualified auditor. Pointing out that the deceased was only a student and that she had no income of her own, Tribunal had taken monthly income at Rs. 1,600. Deducting the amount towards personal expenses, Tribunal has taken the annual contribution approximately at Rs. 19,200 (sic Rs. 12,800) adopting the multiplier 18, the Tribunal has awarded Rs. 2,30,400 towards loss of income.

As pointed out by the Tribunal, Gajalakshmi was yet to be qualified as Chartered Accountant and that she was only a student. Of course, the documents produced by claimants were issued either by brother-in-law of PW 1 or the other firms who are known to PW 1, Natarajan. Even though Gajalakshmi may not be earning income, the fact remains that she was doing C.A. and after few years she would have become a qualified auditor and would have earned more income. It cannot be denied that the loss of a child/daughter is one of the most emotionally trying experience in the life of a parent.

Gajalakshmi was aged about 27 years and after a couple of years, parents would have reaped the result of their labour and expenses in bringing up Gajalakshmi. Though at the time of accident the claimants might not have received any benefit, Gajalakshmi being aged 27 years, parents would have had all expectations from her. When parents become aged and infirm they do have an expectancy of a reasonable monetary and psychological help from their children, whatever their status or avocation in their life.

As per section 166 of the Motor Vehicles Act, Tribunal has to award a fair and reasonable compensation. The compensation to be awarded is not to be a windfall but has to be just and reasonable. Though by use of the expression, ''which appears to it to be just'', a wide discretion is vested in the Tribunal. The determination has to be rational, to be done by a judicious approach and not the outcome of guesses and arbitrariness as held by the Supreme Court in the case of Mrs. Helen C. Rebello and Others Vs. Maharashtra State Road Transport Corpn. and Another, The expression ''just'' denotes fairness, equitability and reasonableness and non-arbitrariness. If it is not so, it cannot be just.

Courts have a duty to award just compensation. What is just and reasonable compensation cannot be adopted by any mathematical computation. But it has to be equitable, fair and reasonable. [See The Divisional Controller, KSRTC Vs. Mahadeva Shetty and Another,

In Syed Basheer Ahamed and Others Vs. Mohd. Jameel and Another, it was held that the courts have a duty to award just compensation. Section 168 enjoins the Tribunal to make award which appears to be just and reasonable. Wide amplitude of such power does not empower the Tribunal to determine the compensation arbitrarily. The compensation must be based on data establishing reasonable nexus between the loss incurred by dependants of deceased and compensation to be awarded.

In our considered view, the Tribunal has not taken into account the fact that Gajalakshmi would have become a qualified auditor after few years. Likewise the Tribunal also did not keep in view that the father of the deceased and her relatives were all doing business and once Gajalakshmi had become a qualified auditor her services would have been definitely utilized by the family concerns as well as in the concerns of their relatives. Having regard to the educational qualification and the evidence adduced by the claimants, in our considered view, the monthly income of Rs. 1,600 adopted by Claims Tribunal is very low and the same is enhanced to Rs. 10,000 per month. Deducting Rs. 2,500 towards personal expenses, contribution of Gajalakshmi to the family is calculated at Rs. 7,500 per month. Annual loss of dependency is calculated at Rs. 90,000 (Rs. 7,500 x 12).

From Exh. P6, it is seen that the date of birth of deceased was 31.3.1972 and that she was aged 27 years. Based upon her age, Tribunal had adopted multiplier of 18. As held by the Supreme Court in Ramesh Singh and Another Vs. Satbir Singh and Another, ), choice of multiplier would depend upon age of the deceased or that of the claimant, whichever is higher. In the instant case, parents, brother and sister of the deceased being the claimants, the choice of multiplier would depend upon the age of the parents. It cannot be said that the claimant Nos. 3 and 4--brother and sister--would have been depending upon Gajalakshmi for a number of years. Taking the age of the deceased as the basis, the Tribunal was not right in adopting the multiplier of 18.

In the claim petition, the age of the claimant No. 1-mother is stated as 45 and the age of claimant No. 2-father is stated as 50 years. Having regard to age of parents, we deem it proper to adopt multiplier of 13. Loss of dependency is calculated at Rs. 11,70,000 (Rs. 90,000 x 13). Insofar as the conventional damages are concerned, the Tribunal has awarded Rs. 4,000 for transport expenses, Rs. 1,000 for damages to clothes, Rs. 40,000 for loss of love and affection and Rs. 10,000 as funeral expense. Compensation awarded by the Tribunal under the above heads is reasonable and the same is confirmed. For ''mental agony'' Tribunal has awarded Rs. 10,000. In fatal cases, there cannot be any award of compensation under the separate head ''mental agony'' and the award of Rs. 10,000 by the Tribunal under the head ''mental agony'' is deleted. Accordingly, the compensation awarded by the Tribunal is enhanced to Rs. 12,25,000 as follows:

Loss of dependency

Rs. 11,70,000

Transport expenses

Rs. 4,000

Damage to clothes

Rs. 1,000

Loss of love and affection (each Rs. 10,000)

Rs. 40,000

Funeral expenses

Rs. 10,000

Total

Rs. 12,25,000

The parents, claimant Nos. 1 and 2, shall be entitled to Rs. 6,00,000 each along with accrued interest thereon and the claimant Nos. 3 and 4 shall be entitled to Rs. 12,500 each.

In so far as interest is concerned, the Tribunal has awarded interest at the rate of 9 per cent per annum and the rate of interest awarded by the Tribunal is on the higher side. As held by the Supreme Court in Tamil Nadu State Transport Corporation Ltd. Vs. S. Rajapriya and Others, and other decisions, interest is reduced to 7.5 per cent per annum from the date of filing of petition.

In the result, compensation amount awarded to the claimants in M.C.O.P. No. 391 of 1999 on the file of Motor Accidents Claims Tribunal (Subordinate Judge), Kan-cheepuram is enhanced to Rs. 12,25,000 payable with interest at the rate of 7.5 per cent per annum from the date of filing of claim petition and this civil miscellaneous appeal is partly allowed. The respondent No. 2 insurance company is directed to deposit the enhanced compensation together with interest at the rate of 7.5 per cent per annum from the date of filing of claim petition within a period of eight weeks from the date of receipt of copy of this judgment. On such deposit, the claimant Nos. 3 and 4 are permitted to withdraw the compensation of Rs. 12,500 each along with accrued interest thereon. The claimant Nos. 1 and 2 are permitted to withdraw the remaining enhanced compensation in equal proportion with accrued interest thereon. However, there shall be no order as to costs.