K. Rengasamy and Another vs Revathi and Others

K.K. Sasidharan, J.—This civil miscellaneous appeal is directed against the award dated 13.7.2006 in M.C.O.P. No. 1772 of 2003 on the file of Motor Accidents Claims Tribunal (Third Additional Subordinate Judge), Tiruchirappalli in and by which a sum of Rs. 15,99,000 was awarded as compensation to the respondents, being the dependants of the deceased P. Krishnamoorthy, who died in a motor accident on 7.4.2003.

The owner of the vehicle involved in accident as well as the insurance company are the appellants in the present appeal.

The respondents herein preferred a claim petition in M.C.O.P. No. 1772 of 2003 before the Motor Accidents Claims Tribunal (Third Additional Subordinate Judge), Tiruchirappalli claiming a compensation of Rs. 20,00,000 on account of the untimely death of their sole breadwinner in an accident on 7.4.2003 involving the vehicle owned by the appellant No. 1 and insured by the appellant No. 2.

It is the case of the respondents as petitioners in M.C.O.P. No. 1772 of 2003 that on 7.4.2003 at about 2.05 p.m., the deceased Krishnamoorthy along with one Muthukumar was travelling on a TVS Suzuki motor cycle and they were proceeding towards Salai Road, Kohinoor Theatre Petrol Bunk on Madurai Road and while they were nearing Maris Theatre over-bridge the bus bearing registration No. TN 45-M 8788 driven by the employee of the appellant No. 1 rashly and negligently and hectic speed came to the right side of the road and dashed against the motor cycle driven by the deceased Krishnamoorthy and the impact was so heavy that the motor cycle along with the deceased Krishnamoorthy was thrown out and as a result, he sustained multiple grievous injuries including head injury. In the said accident, the pillion rider Muthukumar also sustained grievous injuries and both the injured were admitted as inpatient in Maruti Hospital, Tennur, Trichy. Deceased Krishnamoorthy sustained head injury and the neurosurgeon performed surgery to remove the blood clot in the brain. Deceased was in the Intensive Care Unit and he was unconscious throughout the treatment period and finally, he succumbed to the injuries on 13.4.2003 at Maruti Hospital, Tennur, Trichy and his body was taken to the Government Hospital, Trichy, where his post-mortem was performed by the Medical Officer attached to the Government Hospital.

It is the further case of the respondents in their claim petition that deceased was aged 51 years at the time of his death and he was working as Senior Manager, Canara Bank, Cantonment Branch, Trichy and he was getting a salary of Rs. 21,575 per month. It was also stated that the deceased Krishnamoorthy was working as a Senior Manager at the time of his death and he had the prospect of becoming the Assistant General Manager of Canara Bank and he is also entitled to higher salary and because of his untimely death, the respondents were denied the pleasure and company of the deceased. The respondent No. 1 is the wife of the deceased and respondent Nos. 2 and 3 are the daughter and son of the deceased and the respondent No. 4 is the mother of the deceased. It is the case of the respondents that all of them are depending on the income of the deceased for their maintenance. The respondent No. 1 lost her conjugal happiness in her early age of 44 years and the respondent Nos. 2 and 3 lost their affectionate father in their young age and the respondent No. 4 who is the mother of the deceased, in her old age lost her affectionate son.

The respondents further contended in the claim petition that the accident was solely due to rash and negligent driving by the driver of the bus owned by appellant No. 1 and a case in Crime No. 91 of 2003 was registered by the Traffic North Police, Trichy against the driver under Sections 279, 337 and 304-A of the Indian Penal Code and the investigation is in progress. The respondents claimed a total sum of Rs. 20,00,000 as compensation on various heads taken together by way of a consolidated sum and prayed for an award against the appellant No. 1 being the owner of the vehicle and the appellant No. 2 being the insurer of the vehicle payable jointly and severally.

The appellants filed written statement separately and contested the claim. In the counter filed by the appellant No. 1, he admitted the accident but denied the rashness and negligence on the part of the driver and according to the appellant No. 1, the accident was solely due to negligence of the deceased. The appellant No. 1 further contended that in case there is an award, the same may be directed to be paid by the appellant No. 2, as the vehicle was duly insured with the said insurance company as on the date of the accident.

The appellant No. 2, United India Insurance Co. Ltd. filed a counter, wherein they admitted the policy, but disputed the quantum as claimed in the original petition.

Before the Tribunal, the respondent No. 1 was examined as PW 1, the pillion rider, by name Muthukumar, was examined as PW 2 and the Regional Manager of Canara Bank was examined as PW 3 and Exhs. P1 to P11 were marked on the side of the respondents. On the side of the appellants, nobody was examined and no exhibits were also marked.

The Tribunal considered the case of the respondents on the basis of their pleadings, evidence as well as exhibits marked on their side and ultimately granted a sum of Rs. 15,99,000 as compensation. The Tribunal found that the deceased was getting a salary of Rs. 24,400 and after necessary deduction from the salary, he was paid a sum of Rs. 18,000 as monthly salary and at the rate of Rs. 18,000 p.m., the deceased was getting a salary of Rs. 2,16,000 per year and out of the said salary, 1/3rd was deducted towards the expenses incurred by the deceased for himself and accordingly, a sum of Rs. 1,44,000 was taken as the net income of the deceased. The Tribunal adopted a multiplier of ''11'' and granted a sum of Rs. 15,84,000 by way of loss of income. The Tribunal also granted a sum of Rs. 5,000 as loss of consortium, Rs. 5,000 as love and affection and another sum of Rs. 5,000 for funeral expenses and accordingly granted an award of Rs. 15,99,000 as total compensation.

The award dated 13.7.2006 in the M.C.O.P. No. 1772 of 2003 on the file of Motor Accidents Claims Tribunal (Third Additional Subordinate Judge), Tiruchira-ppalli is the subject-matter of the present appeal.

In the above factual matrix, we have heard Mr. V.R. Subramaniam, the learned Counsel appearing on behalf of the appellants and Mr. B. Prasanna Vinoth, learned Counsel appearing on behalf of the respondents.

The learned Counsel for the appellants contended that Tribunal grievously erred in taking the multiplier as ''11'' for calculating the loss of income and to arrive at the compensation payable to the respondents. According to learned counsel, the proper multiplier would be ''5'', as the deceased would not have had anything after his retirement and as such, prayed for refixing the multiplier and to modify the award suitably.

Per contra, the learned Counsel for the respondents contended that the award of the Tribunal is perfectly valid and does not call for interference inasmuch as the deceased was having nearly 6 years of further service and given the promotion policy of the bank, he was having a further chance of promotion to higher category which involves higher pay scale and as such, the basic salary as well as the multiplier adopted by the Tribunal is perfectly correct and prayed for dismissal of the appeal.

We have considered the rival submissions and we have also gone through the materials available on record.

The accident in this case is not disputed and the fact that the deceased was an employee of Canara Bank, working as the Senior Manager is also not in dispute. PW 3, Chellappa working as the Regional Manager of Canara Bank was examined on the side of the respondents and in his evidence, he has clearly stated that there are every chance of further promotion to the deceased and he is also entitled to higher salary as a consequence of such further promotion. Exh. P11 was marked on the side of the respondents to show that the deceased was getting a salary of Rs. 24,400. It was also brought out in evidence that for the month of March 2003, the deceased was given a salary of Rs. 21,872.07. The date of birth of the deceased is also proved as 23.9.1948 and as such, the age of deceased is also not in dispute. The Tribunal adopted the multiplier of ''11'' and after taking the net income and deducting 1/3rd for the personal expenses of the deceased, granted a sum of Rs. 15,84,000 as compensation on account of loss of income and after granting Rs. 5,000 each for loss of consortium, love and affection and funeral expenses, granted a sum of Rs. 15,99,000 as total compensation with interest at the rate of 7.5 per cent from the date of claim petition till realization.

It is trite law that the sum awarded by the Tribunal in accident cases must be fair and reasonable by accepted legal standards. In a claim for compensation on account of death, the accepted measure of damage to be awarded to the dependants is the pecuniary loss suffered by them as a result of the death and in the said process, the loss suffered and likely to be suffered by each dependant has also to be taken into consideration.

Hon''ble Supreme Court considered the large number of imponderables in the assessment of damages to compensate the dependants in motor accident cases in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, and held thus:

(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 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.

(10) 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 therefrom 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.

(11) Much of the calculation necessarily remains in the realm of hypothesis ''and in that region arithmetic is a good servant but a bad master'' since there are so often many imponderables. In every case ''it is the overall picture that matters'', and the court must try to assess as best as it can the loss suffered.

The Supreme Court in Smt. Sarla Dixit and another Vs. Balwant Yadav and others, , examined the concept of multiplier in the light of the judgment in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, , as well as the decided cases by English courts and held that future prospects of advancement in life and career should also be taken into account in terms of money to augment the multiplicand. In the said judgment, the Supreme Court indicated the method of calculation. According to the said calculation, the last drawn income of the deceased at the time of his death has to be taken into consideration as well as the income which he would have received in case he was able to complete his entire service. The average gross future monthly income could be arrived at by adding the actual gross income at the time of death to the maximum which he would have otherwise got had he not died a premature death and dividing the said figure by two. The average gross monthly income spread over the future career and from the said amount, 1/3rd has to be deducted by way of his personal expenses and other liabilities and amount so arrived at has to be taken as the datum figure per month and the same has to be multiplied by adopting the proper multiplier in the light of the decision in General Manager, Kerala State Road Trans. Corporation cited supra.

In General Manager, Kerala State Road Trans. Corporation cited supra, the Apex Court observed that the future prospects of advancement of life and career should also be sounded in terms of money to augment the multiplicand and the chance of the multiplier is determined by two factors, namely, the rate of interest appropriate to a stable economy and the age of the deceased or of the claimants, whichever is higher and many factors have to be put into the scales to evaluate the contingencies of the future.

We have examined the question of computation of proper compensation to be awarded to the respondents on the basis of the judgment delivered by the Apex Court in General Manager, Kerala State Road Trans. Corporation and Sarla Dixit cited supra. The salary of the deceased as per Exh. P11 is found to be a sum of Rs. 24,400 per month and it is the evidence of PW 3 that the deceased is entitled for further promotion and revision of pay structure accordingly and as such, considering the fact that his gross monthly income would have shot up at least by 30 per cent than what he was earning at the time of his death, we fix an amount of Rs. 32,000 as his monthly salary and as such, if the said amount of Rs. 32,000 is added to Rs. 24,400 and divided by 2, it would come to Rs. 28,200 and after deducting V3rd for the personal expenses of the deceased, the monthly income would be a sum of Rs. 18,800. The deceased has got about 5 years and 6 months'' more service as on the date of his death and as such, we are of the view that a service multiplier of ''6'' could be taken in the matter and as such, the sum of Rs. 18,800, when multiplied by 6, it would come to Rs. 13,53,600 and the same could be rounded off as Rs. 13,53,000. The Tribunal had granted only a sum of Rs. 5,000 by way of loss of consortium. Considering the age of the deceased at the time of the accident and the age of the widow, we are inclined to enhance the loss of consortium to Rs. 13,000. Similarly, we are inclined to enhance the amount awarded by way of love and affection from Rs. 5,000 to Rs. 60,000, inasmuch as the respondent No. 2 is the unmarried daughter of the deceased and the respondent No. 3 is also in his young age. We are also inclined to enhance the amount for funeral expenses from Rs. 5,000 to Rs. 10,000. Therefore, the compensation altogether would come to a sum of Rs. 14,36,000 and we are of the view that the respondents would be entitled to get the said sum as compensation and the said amount appears to be the proper amount of compensation in the facts and circumstance of the case.

In the result, the appeal is partly allowed by modifying the award of the Motor Accidents Claims Tribunal (Third Additional Subordinate Judge), Tiruchira-ppalli in M.C.O.P. No. 1772 of 2003 by refixing the quantum of compensation at Rs. 14,36,000. Out of the said amount, the respondent No. 1 is entitled to a sum of Rs. 5,50,000 and the respondent Nos. 2 and 3 are entitled to a sum of Rs. 4,00,000 each and the respondent No. 4 is entitled to a sum of Rs. 86,000. The award amount shall be deposited in any of the nationalised bank and the respondents would be permitted to withdraw the interest in every quarter. Respondents are entitled to claim interest at 7.5 per cent as awarded by the Tribunal and except the modification in respect of quantum and apportionment as indicated above, in all other respects, the award of the Tribunal is confirmed. No costs. Consequently, the connected miscellaneous petition is closed.