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Judgment
P.P.S. Janarthana Raja, J.—The appeal is preferred by the Appellant-Transport Corporation against the judgment and award dated25.07.2007 made in MACOP No. 718 of 2003 on the file of the Motor Accidents Claims Tribunal, III Additional District and Sessions Judge (PCR), Madurai.
Background facts in a nutshell are as follows:
The deceased-Karim Yusuf met with motor traffic accident that took place on 04.12.2002 at about 2.15 p.m. The said deceased was driving his Maruti Omni van bearing Registration No. TN-58-E-6109 from North to South direction in the extreme eastern side of the Madurai-Thirumangalam Main Road. When the deceased reached near Thapoovanam Rubber Company, a bus bearing Registration No. TN-58-N-0328 belonging to the Appellant-Transport Corporation came in a rash and negligent manner from the opposite direction and hit the Maruti Omni van, which the deceased was driving. Due to the said impact, the deceased sustained severe head injuries with multiple fractures and he died on the spot. The claimants are the wife, three sons and three daughters of the deceased. They claimed a sum of Rs. 20,00,000/-as compensation. The Appellant /Transport Corporation resisted the claim. On pleadings, the Tribunal framed the following issues:
Whether the accident took place due to the rash and negligent driving of the driver of the bus belonging to the Appellant-Transport Corporation?
What is the compensation the claimants are entitled to?
To what other reliefs?
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 belonging to the Appellant-Transport Corporation and awarded a sum of Rs. 5,36,214/-ascompensation with interest at 7.5% p.a. from the date of petition. The details of the compensation are as follows:
HEADS AMOUNT (Rupees) Pecuniary loss 4,78,214/- Loss of love and affection 35,000/- Loss of consortium 20,000/- Funeral expenses 2,000/- Transport expenses 500/- Damages to clothes 500/- ---------------- Total... 5,36,214/- ================
Aggrieved by that award, the Appellant / Transport Corporation has filed the present appeal.
Learned Counsel for the Appellant/ Transport Corporation questioned only the quantum of compensation awarded by the Tribunal and vehemently contended that the award passed by the Tribunal is excessive, exorbitant and without any basis and justification. Therefore, the award passed by the Tribunal is not in accordance with law and the same has to be set aside.
Heard the counsel for the Appellant and perused the materials available on record. On the side of the claimants, P.W.1 to P.W.3 were examined and Exs.P1 toP14 were marked. On the side of the Transport Corporation, R.W.1-Patumani, the conductor of the bus was examined and no document was marked. P.W.1 is the wife of the deceased. P.W.2-Assarier is the passenger in the bus and also eye-witness to the accident. P.W.3is the Auditor of the deceased. Ex.P1 is the certified copy of the First Information Report. Ex.P2 is the certified copy of Charge Sheet. Ex.P3 is the certified copy of Post Mortem Certificate. Ex.P4 is the certified copy of M.V.I. Report for the van. Ex.P5 is the certified copy of M.V.I. Report for the bus. Ex.P6 is the copy of Driving License. Ex.P7 is the Income Tax PAN Card. Exs.P8 to P12 are the Saral Forms of the deceased relating to the years 1997-98, 1998-99, 1999-2000, 2000-2001 and 2001-2002, respectively. Ex.P13 is the Income Tax Officer''s letter. Ex.P14 is the Income Tax Saral Form for the year 2001-2002, filed for M/s. Kalidass Brush Company. 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 belonging to the Appellant-Transport Corporation. It is a question of fact and it is based on valid materials and evidence. Hence the same disconfirmed.
In the case of Sarla Verma and Ors. Vs. 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 tore call 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 incomes 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 byte 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 sumas 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 is70 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 30and 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 lifespan 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 tousle 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 bellowed to be used as a source of profit, norms 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 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 Thomas, 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 hisneighbours 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 generousscales''.
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), tithe 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 toa dependant came up for consideration before a three-Judge Bench of this Court in GobaldMotor 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)"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 tithe 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 byte 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 capitalizing 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 tithe 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 accident, the deceased was 51years old. P.W.1 is the wife of the deceased. In her evidence, she stated that the deceased was a Working Partner in M/s. Kalidass Brush Company and M/s. Kay Kay Traders, Thirumangalam and he was earning a sum ofRs.1,34,000/-per annum. It is also stated that the deceased was an Income Tax Assessee. Ex.P6 is the Driving License of the deceased, in which the age of the deceased is shown as 20.01.1951. Ex.P3-Post Mortem Certificate also shows that the age of the deceased was51 years. Therefore, the Tribunal fixed the age of the deceased as 51 years at the time of accident. Exs.P8 toP12 are the Saral Forms of the deceased relating to the years 1997-98, 1998-99, 1999-2000, 2000-2001 and 2001-2002, respectively. P.W.3 is the Auditor of the deceased. After considering the Income Tax Returns swell as the oral evidence of P.W.3, the Tribunal fixed the average income of the deceased at Rs. 65,211/-permonth. Out of the said sum, the Tribunal deducted 1/3rd of the amount, i.e. Rs. 21,737/-towards personal expenses of the deceased and arrived at a sum ofRs.43,474/-towards monthly contribution of the deceased to the family. After taking into consideration the age of the deceased as 51 years, the Tribunal adopted the multiplier of 11 as per the Schedule and arrived at Rs. 4,78,214/-towards pecuniary loss sustained by the claimants. The Tribunal has correctly fixed the age, monthly income and correctly deducted 1/3rd of the amount towards personal expenses of the deceased and also adopted the correct multiplier of 11and arrived at Rs. 4,78,214/-as the pecuniary loss sustained by the claimants. The amount awarded towards pecuniary loss at Rs. 4,78,214/-is also very reasonable and hence the same is confirmed. The Tribunal has awarded a sum of Rs. 35,000/-towards loss of love and affection. The three sons and three daughters of the deceased have lost the love and affection of their father. Therefore, this Court is of the view that the Tribunal has correctly awarded Rs. 35,000/-towards loss of love and affection and hence the same is confirmed. The Tribunal has also awarded Rs. 20,000/-towards loss of consortium to the wife of the deceased. After taking into consideration the age of the wife of the deceased, i.e. 35 years old at the time of accident, this Courtis of the view that the amount awarded towards this head is very reasonable and hence the same disconfirmed. The Tribunal has also awarded Rs. 2,000/-towards funeral expenses, Rs. 500/-towards transport expenses and another Rs. 500/-towards damages to clothes. The amounts awarded towards these heads are very reasonable and hence the same are confirmed. The Tribunal has awarded the interest rate at 7.5% p.a.,from the date of petition. Taking into consideration the date of accident, date of award and also the prevailing rate of interest during the relevant time, the rate of interest fixed by the Tribunal at 7.5% p.a.is very reasonable and hence the same is confirmed. Idol not find any error or illegality in the order of the Tribunal so as to warrant interference. The order passed by the Tribunal is based on valid materials and evidence. It is a question of fact and it is not perverse order. Learned Counsel for the Appellant has also not placed any material evidence or compelling reason to take a contrary view of the Tribunal. Therefore, the award passed by the Tribunal is in accordance with law and hence the same is confirmed. Under the circumstances, this is not a fit case for admission.
In the result, the Civil Miscellaneous Appealis devoid of merits and accordingly it is dismissed. Consequently, M.P.(MD) No. 1 of 2010 is closed. No costs.