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Judgment
P.P.S. Janarthana Raja, J.—The appeal is preferred by the claimants against the judgment and Decree dated 24.10.2007 made in
M.C.O.P. No. 275 of 2006 on the file of the Motor Accident Claims Tribunal (Principal District Judge), Erode.
The background facts in a nutshell are as follows:
On 29.01.2006 at about 06.30 p.m. the deceased Ramasamy was proceeding in his TVS XL Super moped bearing Registration No. TN-33-AE-
6490, on the left side in Salem-Coimbatore NH 47 from north to south. When he was nearing opposite to Kandasamy Spinning Mills,
Kalingayanpalayam, a bus bearing Registration No. TN-33-N-1022, belonging to the Respondent herein, driven by its driver, in a rash and
negligent manner, from north to south and suddenly hit the moped. Due to the said impact, the deceased sustained multiple grievous injuries.
Immediately, he was taken to the Government Hospital, Erode, where he died on the same day. The claimants are the wife, son and daughter of
the deceased. They claimed a sum of Rs. 15,00,000/- as compensation before the Tribunal. The Respondent-Transport Corporation resisted the
claim. On pleadings, the Tribunal framed the following issues:
Whether the accident had occurred due to the rash and negligent driving of the driver of the bus?
Whether the claimants are entitled to any compensation as claimed in the petition?
To what relief ?
After considering the oral and documentary evidence, the Tribunal held that the accident had occurred only due to the rash and negligent driving of
the driver of the bus and awarded a compensation of Rs. 5,03,400/- with interest at the rate of 7.5% per annum from the date of petition till the
date of realisation and the details of the same are as under:
Loss of income to the family Rs.4,88,400/-
Loss of consortium Rs. 5,000/-
Loss of love and affection Rs. 5,000/-
Funeral expenses Rs. 5,000/-
Total... Rs.5,03,400/-
Aggrieved by that award, the claimants have filed the present appeal for enhancement.
Learned Counsel appearing for the Appellants/claimants submitted that the award passed by the Tribunal is very low and meagre sum of
compensation. He further submitted that the Tribunal ought to have awarded compensation as claimed by the claimants and the amount awarded
by the Tribunal under various heads is very low and the Tribunal has not followed the principles of assessment before passing the award and hence
it is a fit case for enhancement of compensation.
Learned Counsel appearing for the Respondent-Transport Corporation submitted that the Tribunal had considered all the relevant materials and
evidence on record and came to the right conclusion and awarded a just, fair and reasonable compensation. Hence the order of the Tribunal is in
accordance with law and the same has to be confirmed.
Heard the learned Counsel on either side. On the side of the claimants, P. Ws.1 to 3 were examined and documents Exs.P.1 to P.20 were
marked. On the side of the Respondent-Transport Corporation, R.W.1 Murugesan is the driver of the bus was examined and no document was
marked to substantiate their claim. P.W.1 is the wife of the deceased. P.W.2-K.V. Murugaiyan is the Executive Officer from the Milk Producers
Association. P.W.3-D. Sri Karthikeyan, is an eye witness to the occurrence. Ex.P.1 is the certified copy of First Information Report. Ex.P.2 is the
certified copy of rough sketch. Ex.P.3 is the certified copy of observation Mahazar. Ex.P.4 is the certified copy of Motor Vehicle Inspector''s
report. Ex.P.5 is the certified copy of post mortem report. Ex.P.6 is the certified copy of Charge sheet. Ex.P.7 is the certified copy of judgment
passed by the Judicial Magistrate No. III, Erode, in C.C. No. 286 of 2006. Ex.P.8 is the certified copy of judgment passed by the Fast Track
Court No. I, Erode in Criminal Appeal No. 16 of 2007. Ex.P.9 is the Kist receipt issued by the Village Administrative Officer. Ex.P.10 and
Ex.P.11 are the Photo copies of patta. Ex.P.12 is the certified photo copy of partition agreement. Ex.P.13 is the salary certificate for the month of
January, 2006 issued by the Erode District Milk Producers Co-operative Association. Ex.P.14 is the certified copy of Post Graduate certificate of
the second Appellant/second claimant. Ex.P.15 is the certified photo copy of M. Phil Registration certificate issued by the Bharathiyar University.
Ex.P.16 is the certified photo copy of Provisional certificate of the third Appellant/third claimant. Ex.P.17 is the certified photo copy of salary
certificate. Ex.P.18 is the certified photo copy of service register of the deceased. Ex.P.19 is the certified photo copy of two wheeler registration
certificate of the deceased. Ex.P.20 is the original legal heir certificate issued by the Erode Tahsildar. After considering the above oral and
documentary evidence, the Tribunal had given a categorical finding that the accident had occurred only due to the rash and negligent driving of the
driver of the bus. The finding is based on valid materials and evidence and the same is confirmed.
In the case of sarla verma and Ors. v. Delhi Transport Corporation and Anr. reported in (2009) 4 MLJ 997, the Apex Court has considered
the relevant factors to be taken into consideration before awarding compensation and held as follows:
Before considering the questions arising for decision, it would be appropriate to recall the relevant principles relating to assessment of
compensation in cases of death. Earlier, there used to be considerable variation and inconsistency in the decisions of Courts Tribunals on account
of some adopting the Nance method enunciated in Nance v. British Columbia Electric Rly. Co. Ltd. (1951) AC 601 and some adopting the
Davies method enunciated in Davies v. Powell Duffryn Associated Collieries Ltd. (1942) AC 601. The difference between the two methods was
considered and explained by this Court in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas
and others, . After exhaustive consideration, this Court preferred the Davies method to Nance method. We extract below the principles laid down
in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas (supra).
In fatal accident action, the measure of damage is the pecuniary loss suffered and is likely to be suffered by each dependent as a result of the death.
The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account
many imponderables, e.g., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the
remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have
live or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got
better employment or income or might have lost his employment or income altogether.
The manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and
to deduct there from such part of his income as the deceased was accustomed to spend upon himself, as regards both self maintenance and
pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should
be capitalised by multiplying it by a figure representing the proper number of year''s purchase.
The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and
capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the
claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would
yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also
be consumed-up over the period for which the dependency is expected to last.
It is necessary to reiterate that the multiplier method is logically sound and legally well-established. There are some cases which have proceeded
to determine the compensation on the basis of aggregating the entire future earnings for over the period the life expectancy was lost, deducted a
percentage there from towards uncertainties of future life and award the resulting sum as compensation. This is clearly unscientific. For instance, if
the deceased was, say 25 years of age at the time of death and the life expectancy is 70 years, this method would multiply the loss of dependency
for 45 years - virtually adopting a multiplier of 45 and even if one-third or one-fourth is deducted there from towards the uncertainties of future life
and for immediate lump sum payment, the effective multiplier would be between 30 and 34. This is wholly impermissible.
In U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and Others, , this Court, while reiterating the preference to Davies
method followed in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas (supra), stated thus:
In the method adopted by Viscount Simon in the case of Nance also, first the annual dependency is worked out and then multiplied by the
estimated useful life of the deceased. This is generally determined on the basis of longevity. But then, proper discounting on various factors having a
bearing on the uncertainties of life, such as, premature death of the deceased or the dependent, remarriage, accelerated payment and increased
earning by wise and prudent investments, etc., would become necessary. It was generally felt that discounting on various imponderables made
assessment of compensation rather complicated and cumbersome and very often as a rough and ready measure, one-third to one-half of the
dependency was reduced, depending on the life span taken. That is the reason why courts in India as well as England preferred the Davies formula
as being simple and more realistic. However, as observed earlier and as pointed out in Susamma Thomas case, usually English courts rarely
exceed 16 as the multiplier. Courts in India too followed the same pattern till recently when tribunals/courts began to use a hybrid method of using
Nance method without making deduction for imponderables.... Under the formula Advocated by Lord Wright in Davies, the loss has to be
ascertained by first determining the monthly income of the deceased, then deducting there from the amount spent on the deceased, and thus
assessing the loss to the dependants of the deceased. The annual dependency assessed in this manner is then to be multiplied by the use of an
appropriate multiplier.
(emphasis supplied)
In the case of Syed Basheer Ahamed and Others Vs. Mohd. Jameel and Another, , the Apex Court has held as follows:
Section 168 of the Act enjoins the Tribunal to make an award determining ""the amount of compensation which appears to be just"". However,
the objective factors, which may constitute the basis of compensation appearing as just, have not been indicated in the Act. Thus, the expression
which appears to be just"" vests a wide discretion in the Tribunal in the matter of determination of compensation. Nevertheless, the wide amplitude
of such power does not empower the Tribunal to determine the compensation arbitrarily, or to ignore settled principles relating to determination of
compensation.
Similarly, although the Act is a beneficial legislation, it can neither be allowed to be used as a source of profit, nor as a windfall to the persons
affected nor should it be punitive to the person(s) liable to pay compensation. The determination of compensation must be based on certain data,
establishing reasonable nexus between the loss incurred by the dependants of the deceased and the compensation to be awarded to them. In a
nutshell, the amount of compensation determined to be payable to the claimant(s) has to be fair and reasonable by accepted legal standards.
In Kerala SRTC v. Susamma Thomas2, M.N. Venkatachaliah, J. (as His Lordship then was) had observed that: (SCC p.181, para 5)
... The determination of the quantum must answer what contemporary society ''would deem to be a fair sum such as would allow the wrongdoer
to hold up his head among his neighbours and say with their approval that he has done the fair thing''. The amount awarded must not be niggardly
since the ''law values life and limb in a free society in generous scales''.
At the same time, a misplaced sympathy, generosity and benevolence cannot be the guiding factor for determining the compensation. The object of
providing compensation is to place the claimant(s), to the extent possible, in almost the same financial position, as they were in before the accident
and not to make a fortune out of misfortune that has befallen them.
The question as to what factors should be kept in view for calculating pecuniary loss to a dependant came up for consideration before a three-
Judge Bench of this Court in Gobald Motor Service Ltd. v. R.M.K. Veluswami, with reference to a case under the Fatal Accidents Act, 1855,
wherein, K. Subba Rao, J. (as His Lordship then was) speaking for the Bench observed thus: (AIR p.1)
In calculating the pecuniary loss to the dependants many imponderables enter into the calculation. Therefore, the actual extent of the pecuniary loss
to the dependants may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate, or even 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, the
balance of loss and gain to a dependant by the death must be ascertained.
Taking note of the afore extracted observations in Gobald Motor Service Ltd. in Susamma Thomas it was observed that: (Susamma Thomas
case, SCC p.182, para 9)
The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account
many imponderables e.g.the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the
remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have
lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got
better employment or income or might have lost his employment or income altogether.
Thus, for arriving at a just compensation, it is necessary to ascertain the net income of the deceased available for the support of himself and his
dependants at the time of his death and the amount, which he was accustomed to spend upon himself. This exercise has to be on the basis of the
data, brought on record by the claimant, which again cannot be accurately ascertained and necessarily involves an element of estimate or it may
partly be even a conjecture. The figure arrived at by deducting from the net income of the deceased such part of income as he was spending upon
himself, provides a datum, to convert it into a lump sum, by capitalising it by an appropriate multiplier (when multiplier method is adopted). An
appropriate multiplier is again determined by taking into consideration several imponderable factors. Since in the present case there is no dispute in
regard to the multiplier, we deem it unnecessary to dilate on the issue.
After considering the principles enunciated in the judgments cited supra, let me consider the facts of the present case.
At the time of the accident, the deceased was aged about 47 years. In Ex.P.2, certified copy of Post mortem Certificate, it is mentioned that at
the time of accident, the deceased was 47 years old. Therefore, the Tribunal had fixed the age of the deceased as 47 years at the time of accident.
In the evidence of P.W.1, the wife of the deceased deposed that her husband was working as Senior Factory Assistant, Agriculturist and also
doing other part time work i.e. milk vending to door to door and was earning totally a sum of Rs. 10,994/-per month. Ex.P.13 is the salary
certificate for the month of January, 2006 issued by the Erode District Milk Producers Co-operative Society. Ex.P.17 is the certified photo copy
of the salary certificate of the deceased. Ex.P.18 is the certified photo copy of the Service Register of the deceased. Ex.P.13-Salary certificate, in
which it is stated that the deceased was earning a sum of Rs. 5,994/- and after deduction he gets net salary of Rs. 3,687/-. Further in the evidence
of P.W.2, it is stated that if he would have alive, he would get increment and other benefits in future. Considering the same, the Tribunal fixed the
average monthly income of the deceased at Rs. 4,600/- and further the Tribunal fixed the agriculture income of the deceased at Rs. 1,500/- per
month and the total income of the deceased was fixed at Rs. 6,100/-(Rs. 4,600/- + Rs. 1,500/-) per month. Out of the said sum, the Tribunal
deducted 1/3rd towards personal expenses and taken the balance sum of Rs. 4,070/- (Rs. 6,100/- - Rs. 2,030/-) as the monthly contribution to
his family. The Tribunal, after taking into consideration the age of the deceased was 47 years at the time of the accident, as per Schedule II of the
Motor Vehicles Act, 1988, adopted the multiplier of ''10'' and arrived at a loss of income at Rs. 4,88,400/- (Rs. 4,070/- x 12 x 10 = Rs.
4,88,400/-). There is no serious dispute regarding the monthly income as well as annual income determined by the Tribunal. The learned Counsel
for the Appellants vehemently contended that the Tribunal has wrongly adopted the multiplier of ''10'' and the correct multiplier to be adopted in
the present Civil Miscellaneous Appeal is ''13'' and relied on the decision of the Honourable Apex Court in Sarla Verma''s case cited supra,
wherein it has been held in paragraph 21 as follows:
We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying GENERAL
MANAGER, KERALA STATE ROAD TRANSPORT CORPORATION v. SUSAMMAL THOMAS (SUPRA), U.P. STATE ROAD
TRANSPORT CORPORATION v. TRILOK CHANDRA (SUPRA) AND NEW INDIA ASSURANCE COMPANY LIMITED v.
CHARLIE (SUPRA), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for
every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46
to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and
M-5 for 66 to 70 years.
In the present case, the age of the deceased was 47 years at the time of the accident. Following the above said decision, for the age group of 46 to
50, the multiplier to be adopted in this case is ''13'' instead of ''10''. There is no dispute regarding the same. If multiplier ''13'' is adopted, the loss of
income works out to Rs. 6,34,920/- (Rs. 4,070/- x 12 x 13) as against Rs. 4,88,400/- awarded by the Tribunal. The Tribunal has awarded a sum
of Rs. 5,000/- towards loss of consortium. At the time of the accident, the age of the widow is 43 years. Considering the same, it would be
reasonable to award a sum of Rs. 10,000/- towards loss of consortium as against Rs. 5,000/- awarded by the Tribunal. The Tribunal has awarded
a sum of Rs. 5,000/-towards loss of love and affection. The second and third Appellants are the son and daughter of the deceased respectively.
Considering the same, it would be reasonable to award a sum of Rs. 25,000/- towards loss of love and affection as against Rs. 5,000/- awarded
by the Tribunal. The Tribunal has awarded a sum of Rs. 5,000/- towards funeral expenses, which is very reasonable and the same is confirmed.
The Tribunal has not awarded any amount under the head of transport expenses. Considering the facts and circumstance of the case, it would be
reasonable to award a sum of Rs. 5,000/- towards transport expenses. The Tribunal has awarded interest at the rate of 7.5% per annum from the
date of Claim Petition till the date of realisation. The accident occurred on 29.01.2006. Keeping in view the prevailing rate of interest at the time of
the accident and the date of award, I feel that the rate of interest awarded by the Tribunal is very reasonable and the same is confirmed. The details
of the modified compensation as per the above discussion are as under:
Loss of income to the family Rs. 6,34,920/-
Loss of consortium Rs. 10,000/-
Loss of love and affection Rs. 25,000/-
Funeral expenses Rs. 5,000/-
Transport expenses Rs. 5,000/-
Total... Rs. 6,79,920/-
Already awarded (-) Rs. 5,03,400/-
Enhanced amount Rs. 1,76,520/-
In these circumstances, the Respondent-Transport Corporation is directed to deposit the enhanced compensation of Rs. 1,76,520/-with interest
at the rate of 7.5% per annum, within a period of six weeks from the date of receipt of a copy of this order. On such deposit, the claimants are
permitted to withdraw their shares as apportioned by the Tribunal, on making proper application.
With the above modification, the Civil Miscellaneous Appeal is disposed of. No costs.