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Judgment
G. Chockalingam, J.�Aggrieved by the award of compensation of Rs. 59,00,000 in M.C.O.P. No. 110 of 2008 on the file of the Motor Accidents Claims Tribunal (Subordinate Judge), Sankari, T.N. dated 23.4.2012, Tamil Nadu State Transport Corporation has filed this appeal. The brief facts are as follows:
"On 15.10.2007 at about 1.15 p.m., when deceased Palaniappa Gounder was riding his TVS XL Super bearing registration No. TN 30-C 1780 on Sankari-Salem Main Road, opposite to Union Office Magudanchavadi over bridge on the extreme left side of the said road from west to east, the bus belonging to the appellant transport Corporation bearing registration No. TN 30-N 0187 driven by its driver in a rash and negligent manner, came from opposite side and dashed against the two-wheeler. In the accident, the deceased Palaniappa Gounder sustained severe injuries all over the body and died on the spot. Alleging that the accident was due to rash and negligent driving of the bus driver, the claimants, who are the wife and sons of the deceased respectively, have filed the claim petition claiming compensation of Rs. 80,00,000."
Resisting the claim application, the appellant transport Corporation filed the counter stating that the accident was not due to negligence of the bus driver and that the quantum of compensation claimed by the claimants was on the higher side.
To substantiate their claim, before the Tribunal, on the side of the claimants, PWs 1 to 5 were examined and Exhs. A1 to A21 were marked. On the side of the appellant transport Corporation, bus driver was examined as RW1 and no document was marked on their side.
Upon consideration of the oral and documentary evidence, the Tribunal has held that the accident occurred due to rash and negligent driving of the bus by its driver and held that the respondent Nos. 1 and 2 before the Tribunal are jointly and severally liable to pay the compensation to the claimants. Insofar as the quantum of compensation, the Tribunal has awarded a total compensation of Rs. 59,00,000 under various heads as under:
The learned counsel for the appellant transport Corporation contended that the Tribunal, without applying the principles of law, erroneously fixed the annual income of the deceased and failed to note that no valid document was filed by the claimants to prove the income and age of the deceased. The learned counsel for the appellant further contended that the Tribunal failed to note that most of the income of the deceased came from companies run by him and from the agricultural lands and also rent from buildings leased out by him. The Tribunal failed to consider the above heads of income in calculating the dependency to the claimants and also failed to deduct reasonable amount towards income tax. It is also submitted that the Tribunal failed to consider that claimants continue to enjoy the property as well as the income from the said property. Hence the income arrived at by the Tribunal is on the higher side. Under the said circumstances, the learned counsel prayed that the judgment and decree passed by the Tribunal has to be modified in accordance with law.
Per contra, the learned counsel for the respondent Nos. 1 to 3-claimants contended that the Tribunal, after considering all the evidence and material documents produced on the side of the claimants, fixed the annual income of the deceased and calculated the compensation according to law. Learned counsel for the respondent Nos. 1 to 3-claimants further contended that the Tribunal, in fixing the multiplier, has not considered the principles of law laid down in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . Further, Claims Tribunal failed to adopt appropriate multiplier. Learned counsel for the respondent Nos. 1 to 3-claimants also contended that in this case, multiplier should be raised from 7 to 9 and the compensation has to be calculated according to law.
After hearing the elaborate arguments on either side, the following points arise for consideration in this appeal:
"(1) Whether the Tribunal has correctly awarded the compensation or not?; and
(2) What other reliefs the claimants are entitled to?"
It is not necessary for us to refer to the manner of accident, who was responsible for the death and fastening of liability since those findings are not under challenge. Only the quantum of compensation awarded is under challenge.
Learned counsel for the respondent Nos. 1 to 3-claimants argued that according to the principles of law laid down in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , multiplier should be raised from 7 to 9. In the decision reported in Reshma Kumari and Others Vs. Madan Mohan and Another, , the Hon''ble Apex Court has held as follows:
"(26) In Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , this court undertook the exercise of comparing the multiplier indicated in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, ; U.P. State Road Trans. Corpn. v. Trilok Chandra, 1996 ACJ 831 (SC) and New India Assurance Co. Ltd. Vs. Charlie and Another, , from claims under section 166 of the 1988 Act with the multiplier mentioned in the Second Schedule for claims under section 163-A (with appropriate deceleration after 50 years) as follows:
(33) We have already noticed the Table prepared in Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298 (SC), for the selection of multiplier. The Table has been prepared in Sarla Verma having regard to the three decisions of this court, namely, General Manager, Kerala State Road Trans. Corpn. v. Susamma Thomas, 1994 ACJ 1 (SC) ; U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and Others, and New India Assurance Co. Ltd. Vs. Charlie and Another, , for the claims made under section 166 of 1988 Act. The court said that multiplier shown in column (4) of the Table must be used having regard to the age of the deceased. Perhaps the biggest advantage by employing the Table prepared in Sarla Verma, is that the uniformity and consistency in selection of the multiplier can be achieved.... We do not think it is necessary for us to revisit the law on the point as we are in full agreement with the view in Sarla Verma (supra)."
According to the above principles laid down by the Hon''ble Apex Court, for the age group 56 to 60, the correct multiplier to be adopted is 9. In Exh. A2, postmortem certificate, age of the deceased was mentioned as 59 years. Hence, relying upon the post-mortem certificate, Exh. A2, the learned counsel for the respondent Nos. 1 to 3-claimants contended that for the age of 59 years, according to the above principles of law laid down by the Hon''ble Apex Court, correct multiplier to be adopted is 9. But, the Tribunal, contrary to the postmortem certificate, came to the conclusion that the age of the deceased would be between 60-65, which is not at all correct. Therefore, we are of the considered view that correct multiplier to be adopted is 9.
The learned counsel for the appellant argued that while fixing the annual income of the deceased, the Tribunal failed to adopt correct procedure by giving more importance to the land and house property. In this case, to prove the income of the deceased, the claimants have produced the following documents, viz., (1) Income tax return for the assessment year 2005-2006, (2) Income tax return for the assessment year 2006-2007 and (3) Income tax return for the assessment year 2007-2008 and the said documents were marked as Exhs. A17 to A19 respectively. Hence, Exhs. A17 and Exh. A18 have to be taken as basis for calculating the annual income of the deceased. Further, in this case, in Exh. A18, the income of the deceased is mentioned as follows:
In the above circumstances, after the death of the deceased, the dependants will continue to get the same income from house property, rent from land, and the income from immovable properties. Hence, there cannot be any loss on the above heads and even after the death of the deceased, the dependants are continuously receiving above income. The cash credit offered as income is also mentioned in column 19.
From the above, in column 19, income from other sources, i.e., rent (land) and cash credits offered as income are shown as Rs. 11,70,000. On the side of the respondent Nos. 1 to 3-claimants, they are not able to explain what is meant by cash credit offered as income. Whether it is for one particular year or every year? In the above circumstances, even if the income from cash credit is taken as income for particular year, it cannot be treated that the same income will be received every year. Hence, the income from business or profession which is mentioned in Exh. A18 at column 17, viz., Rs. 6,76,431 alone is taken as income of the deceased and after the death of the deceased, the dependants of the deceased are deprived of the same income. Hence, that alone should be taken into consideration.
In the circumstances, we are of the considered view that the annual income arrived at by the Tribunal is wrong, as rightly contended by the learned counsel for the appellant transport Corporation. The annual income of the deceased is, therefore, fixed as Rs. 6,76,431 and the compensation should be calculated on the basis of the above annual income.
The learned counsel for the respondent Nos. 1 to 3-claimants relied on a decision of the Hon''ble Supreme Court reported in Rajesh and Others Vs. Rajbir Singh and Others, , wherein it has been held as follows:
"(12) In Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self-employed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15 per cent in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter.
(20) The ratio of a decision of this court on a legal issue is a precedent. But an observation made by this court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be, periodically revisited, as observed in Santosh Devi Vs. National Insurance Company Ltd. and Others, . We may, therefore, revisit the practice of awarding compensation under conventional heads:
(i) Loss of consortium to the spouse;
(ii) Loss of love, care and guidance to children; and
(iii) Funeral expenses.
It may be noted that the sum of Rs. 2,500 to Rs. 10,000 in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , it was held that the compensation towards loss of consortium should be in the range of Rs. 5,000 to Rs. 10,000. In legal parlance, ''consortium'' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world, more particularly in the United States of America, Australia, etc. English courts have also recognised the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse''s affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least Rs. 1,00,000 for loss of consortium.
(21) We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head ''funeral expenses''. The ''price index'', it is a fact, has gone up in that regard also. The head ''funeral expenses'' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is a follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of ''funeral expenses'', in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000."
In Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , it has been held as follows:
"(14) Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and Others, , the general practice is to apply standardised deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased should be one-third (73rd) where the number of the dependent family members is 2 to 3; one-fourth (74th) where the number of dependent family members is 4 to 6 and one-fifth (75th) where the number of the dependent family members exceeds six."
Applying the above principles of law laid down by the Hon''ble Apex Court, in this case, the age of the deceased is fixed as 59 years. Hence, there will be 15 per cent increase towards future prospects of the deceased.
In this case, claimants are wife and two children of the deceased and totally there are three family members. Therefore, this court is of the considered view that the correct deduction of quantum for the personal expenses of the deceased would be 74th as per the ruling of the Hon''ble Supreme Court cited supra.
The learned counsel appearing for the appellant transport Corporation vehemently contended that the Claims Tribunal has not deducted reasonable amount towards income tax from the income of the deceased. Hence, proper income tax has to be deducted in calculating the dependency income.
Claims Tribunal awarded a sum of Rs. 25,000 for loss of consortium to the wife and a sum of Rs. 20,000 for loss of love and affection to the sons. The Tribunal has awarded a sum of Rs. 5,000 for funeral expenses. Learned counsel for the respondent Nos. 1 to 3-claimants vehemently contended that following the principles of law laid down in Rajesh (supra), sufficient amount has to be granted on the above heads. Hence, after considering the ruling of the Hon''ble Supreme Court cited supra and also the facts and circumstances of this case, we are of the considered view that Rs. 50,000 can be awarded under the head of loss of consortium and loss of love and affection to the wife, claimant No. 1. Further, the award of Rs. 10,000 each granted by the Claims Tribunal under the head of loss of love and affection to the sons, claimant Nos. 2 and 3, is enhanced to Rs. 25,000 each (total Rs. 50,000). The award of Rs. 5,000 granted by the Tribunal under the head of funeral expenses is enhanced to Rs. 10,000. The award of Rs. 5,000 granted by the Tribunal under the head of transport charges for taking the body of the deceased from hospital to his house is reasonable and, therefore, there is no necessity to modify the same.
Thus, in the above stated circumstances, the compensation has to be reassessed as follows:
The point Nos. 1 and 2 are answered accordingly.
In the result, the civil miscellaneous appeal is allowed in part and the award passed by the Tribunal in M.C.O.P. No. 110 of 2008 is modified and compensation of Rs. 59,00,000 awarded by the Tribunal is reduced to Rs. 45,11,000. The reduced compensation is payable with interest at 7.5 per cent per annum. The reduced compensation shall be apportioned amongst the claimants as per the ratio ordered by the Tribunal. No costs. Consequently, connected miscellaneous petition is closed. The appellant transport Corporation is directed to deposit the modified compensation amount along with accrued interest within a period of 4 weeks from the date of receipt of a copy of this judgment, after deducting the amount already deposited, if any. On such deposit, the claimants are permitted to withdraw their respective shares along with the accrued interest.