Kunchidapatham and Others vs Dhanalakshmy Bus Service and Another

Sathiadev, J.—Petitioners in M.A.CT.O.P. No. 9 of 1982 on the file of Additional District Judge, Pondicherry are the appellants and the

two respondents are the respondents herein. Petitioners are the father and mother, wife and minor children of late Sivashanmugham, who died in a

motor accident, which took place at 6.10 a.m. on 6-9-1979 at the Junction of Perumalkoil Street and Bharathiar Street at Karaikkal. The bus

bearing registration No. PYK 3049 belonging to the first respondent and insured with the second respondent was driven in a rash and negligent

manner, and consequently Sivashanmugham sustained multiple head injury and succumbed to death. He was treated in General Hospital, Karaikkal

from 6-9-1979 to 7-9-1979. He was working as U.D.C. in the General Hospital and drawing a salary of Rs. 650/- per month, and therefore, the

compensation was claimed at Rs. 1,25,000/-.

First respondent opposed this claim by stating that the accident was due to the sudden mechanical failure of break in the bus, and that in spite of

alarm raised by the driver and the conductor, it was the deceased who had negligently crossed the road on coming out of the tea shop and became

a victim. Therefore, there being no rash and negligent driving by the driver of the vehicle, no compensation is payable.

Second respondent stated that the driver of the bus had no valid licence and the monthly earning of the deceased as claimed has to be proved

by petitioners and that it''s liability cannot exceed Rs. 50,000/-.

Tribunal awarded a compensation of Rs 35,000/- payable by second respondent, and it is against the said award, this appeal is preferred.

Regarding the rash and negligent driving, that finding is not assailed and it has become final. This appeal is confined only to the quantum of

compensation awarded.

Mr. Gandhi, learned Counsel for petitioners, would submit that PW 1, the widow of the deceased had stated that her husband was employed as

U.D.C.-Cum-Cashier in General Hospital, Karaikkal and was aged 42 at the time of his death and that he had 16 more years of service to his

credit. To prove his pay and allowances, she filed Exhibit P-2, the Pay Certificate. Exhibit P-3 is his Service Certificate. Exhibit P-5 is the Birth

Certificate. They go to show that he was drawing a salary of Rs. 602 90. Hence, as repeatedly held, he would have contributed two-thirds of his

income to the family. Life expectancy in India after considerable research and comparative study of what are obtaining in several Countries ; in the

World Development Report, 1957, the average expectation of life in India in 1985 is fixed at 57. Though the accident took place in 1979, it is just

and proper to apply the expectancy of life on the basis of the latest report, and the multiplier to be applied would be of 15. It then works out to Rs.

72,000/- at the rate of Rs. 400/-monthly. By adding Rs. 5,000/-towards loss of expectation of life, the total compensation payable is fixed at Rs.

77,000/- with interest at 12% p.a from date of petition till date of payment, after deducting the amount already deposited and interest accrued.

Mr. T.K. Seshadri, learned Counsel for second respondent, strongly relies on the decision of this Court in Managing Director, Tirural-lurvar

Transport Corporation, Madras v. T. Janardhanam 1986 T.L N.J. 194 and claims that apart from the deduction of one-third of income from and

out of the monthly earning of the deceased representing his share of earning ; a further sum of one-third must be deducted because a lump sum is

awarded. It was a case in which the income the claimant had lost by the partial disablement had been computed, and there was no question of

deducting any share of his income by one-third and awarding of compensation representing only two third of his income for his family. It was by

taking into account the imponderable factors which will also have to be borne in mind while awarding compensation, as held by the Supreme

Court, a deduction of one-third of the lump sum was effected. The monthly interest derivable by a reasonable investment made, was also taken

into account. It is contended by Mr. Seshadri that, in every case wherein lump sum is awarded, a deduction of one-third must be effected based

on this decision. This contention overlooks the fact that, every claim under Motor Vehicles Act results only in award of lump sum and no other. It

is only in such of those cases wherein respondents are able to show that, by reasonable investment of the lump sum as pointed out therein, the

interest derivable is three or four times more than what was expected to be contributed by the deceased to the family ; then to that extent the

speculative or greedy claimants, who attempt to derive unjust enrichment, out of an unfortunate accident, are prevented from getting unjust

enrichment and a reasonable and just compensation as required under the Act is fixed, It is only in such of those cases where it appears to the

Court that, in computing the compensation by adopting more than one of the accepted methods or formulae, and if it leads to an unfair and unjust

amount emanating therefrom, then a further deduction is effected. An artificial or the astronomical amount arrived at necessarily requires to be

reduced to make it a just and reasonable compensation which is contemplated Under Motor Vehicle''s Act. Every formula or method has it''s own

weakness and drawbacks and the statute itself having failed to incorporate within itself only certain yardsticks to be taken into account as done in

Fatal Accidents Act and the like ; it would be unreasonable, if, in every case, one-third of the compensation amount computed has to be deducted,

because it results in a lump sum being paid-Such a deduction would certainly become necessary, only in such of those cases where it results in an

unjust or unrealistic compensation amount is derived by adopting anyone or more of the formulae and it turns out to be disproportionate,

astronomical, speculative and unrelated to realities and results in unjust enrichment, etc. It is only in such of those cases where the Court opines to

this effect, then alone, a further deduction could be made to the extent required, and it need not necessarily be one-third.

It is then contended that, the amount arrived at in the decision referred to above is more or less identical to the facts and circumstances of this

case. Already, it has been pointed out as to what was the basis adopted in fixing the compensation in that case. By investment of the amount

arrived at, the monthly income could be Rs. 900/- which is double than the amount the surviving members were expected to get. Here again, the

deceased was a Government Servant and factually, when their salary had been almost doubled within the period of multiplier applicable, and which

has become a reality and not a fond expectation ; and when a Court has to take into account the subsequent developments as well, this is not a

case wherein the compensation now arrived at could be held as unreasonable, but it is a just compensation, and therefore , no further deduction

could be made.

In para 8 of the judgment, the Tribunal has taken into account several aspects for deductions to be made and it is needless to state that each one

of them could never be taken into account for effecting deductions.

Among the petitioners, it is only the wife, minor children and the mother of the deceased who would be entitled to get compensation in equal

share. Petitioners 4 to 7 being minors, their share of compensation if desired by the mother in writing addressed to the second respondent could be

deposited in Unit Trust of India under anyone of the Schemes evolved by it, and the investment so made shall not be encashed during their

minority, except to draw interest therefrom by their guardian. If she does not send a registered letter to this effect within four weeks from today,

then the share of the minors, in the compensation amount shall be invested in Fixed Deposits in any nationalised Bank, and the interest alone could

be drawn out during their minority. The share amount payable to the mother and widow to be paid by cross-cheques drawn by second respondent

within four weeks of the receipt of the steno copy of this order.

As the liability of the second respondent regarding the compensation awarded is Only Rs. 50,000/-, the direction given above would be

applicable to it only to the extent of Rs. 50,000/- and it is liable to pay interest thereon at 12% As for the balance of the amount recoverable from

the first respondent, it is left to be recovered by taking out execution and the executing Court will have to invest the share of the minors in Fixed

Deposit, and interest alone could be drawn out by the guardian mother.

Hence, this appeal is allowed to the extent indicated above with.