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Judgment
P.P.S. Janarthana Raja, J.—The appeal is preferred by the Transport Corporation against the judgment and decree made in MCOP No. 148 of 2001 dated 10.04.2004 on the file of the Motor Accidents Claims Tribunal (Sub Court), Kovilpatti.
Background facts in a nutshell are as follows:
The deceased-Venkatesh @ Sathurappa met with motor traffic accident that took place on 08.08.2000 at 6.15 p.m. The deceased was travelling in a tempo van bearing Registration No. TN-01-L-0997 belonging his employer, M/s. Jaya Automotives (P) Ltd., Coimbatore. The deceased was travelling in Karnataka State. When the tempo van was proceeding near Jayagondanhalli in NH-4 Highway, which is 20 Kms from Hiriyur Police Station, a bus bearing Registration No. KA-17-F-328, belonging to the Appellant / Transport Corporation came in a rash and negligent manner and hit the tempo van. Due to the said impact, the deceased sustained grievous injuries. Immediately he was admitted in the Kiliyur Hospital. Thereafter he took treatment in Bavuji Medical College Hospital in Thavankarai and he died in the hospital. The claimants are the parents and sister of the deceased. They claimed a compensation of Rs. 20,00,000/before the Tribunal. 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 or not?
Whether the claimants are entitled to compensation? If so to what extent?
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. 9,99,000/-as compensation with interest at 9% p.a. from the date of petition. The details of the compensation are as follows:
Rupees
Loss of dependancy 9,72,000/- Transport expenses 10,000/- Funeral expenses 2,000/- Loss of love and affection 15,000/- Total.... 9,99,000/-
Aggrieved by that award, the Appellant / Transport Corporation has filed the present appeal.
Learned Counsel for the Appellants / Transport Corporation has vehemently contended that the Tribunal is wrong in holding 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. He further submitted that the compensation awarded 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.
Learned Counsel for the Respondents 1 to 3 / claimants has submitted that the Tribunal had considered all the facts and circumstances of the case and awarded the compensation which is just, fair and reasonable and also it is based on valid materials and evidence. Hence the order passed by the Tribunal is in accordance with law and the same should be confirmed.
Heard the counsel on either side and perused the materials available on record. On the side of the claimants, the father of the deceased was examined as P.W.1 and documents Ex.P1 to P13 were marked. On the side of the Transport Corporation, the driver of the bus was examined as R.W.1 and Ex.R1-copy of the judgment, was marked. Ex.P1 is the copy of First Information Report. Ex.P2 is the Charge Sheet. Ex.P3 is the Post Mortem Report. Ex.P4 is the Sketch. Ex.P5 is the Motor Vehicle Inspection Report. Ex.P6 is the Observation Mahazar. Ex.P7 is the Salary Certificate. Ex.P8 is the Conduct Certificate. Ex.P9 is the CT Scan Report. Exs.P10 and P11 are the Rent Receipts. Ex.P12 is the Diploma Certificate. Ex.P13 is the Medical Certificate. 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, and hence 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 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.
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 therefrom 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 therefrom 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, thendeducting therefrom the amount spent on the deceased, andthus assessing the loss to the dependants of the deceased. The annual dependency assessed in this manner is then to bemultiplied 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. Veluswami4, 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.
The deceased was 28 years old at the time of accident. The father of the deceased has been examined as P.W.1. In the evidence of P.W.1, it is stated that the deceased was working as Supervisor in M/s. Jaya Automotives (P) Ltd., Singanallur, Coimbatore. Further it is stated that he was earning a sum of Rs. 7,000/-per month. Further, in his evidence, it is stated that only the driver of the bus caused the accident and the driver was also charge-sheeted by Hiriyur Police Station in Crime No. 296 of 2000. The deceased was a Diploma in Mechanical Engineering. Ex.P12 is the Diploma Certificate. Ex.P7 is the Salary Certificate, in which it is stated that the deceased was earning a sum of Rs. 7000/-per month and after deductions, he was receiving a sum of Rs. 6000/-per month. Therefore, the Tribunal fixed the monthly income of the deceased as Rs. 6000/-. Ex.P3 is the Post Mortem Report, in which the age of the deceased is stated as 26 years old. Hence the Tribunal has taken the age of the deceased as 26 years old at the time of accident. Out of the said sum of Rs. 6000/-, the Tribunal deducted a sum of Rs. 1500/-towards personal expenses and calculated the monthly contribution of the deceased to the family at Rs. 4500/-and the annual contribution at Rs. 54000/-. After taking into consideration the age of the deceased as 26 years, the Tribunal adopted the multiplier of 18 as per the Schedule and determined the loss of dependancy at Rs. 9,72,000/-(Rs. 54000/-x 18). Learned Counsel for the Appellants / Transport Corporation has vehemently contended that the deceased was a bachelor and therefore, the Tribunal ought to have deducted 50% from the monthly income of the deceased. He relied on the decision of the Supreme Court in the case of Sarla Verma and Ors. v. Delhi Transport Corporation and Anr. (cited supra) in support of his contention. After taking into consideration the principles enunciated in Sarla Verma''s case, the correct deduction that should be made in the present case is 50%. The Tribunal fixed the monthly income of the deceased as Rs. 6000/-after making the deductions, which is not in dispute. If 50% of the amount is deducted, the monthly contribution of the deceased to the family works out to Rs. 3000/-and the annual contribution works out to Rs. 36000/-(Rs. 3000/-x 12). In this case, the age of the deceased was 26 years at the time of accident as per Ex.P3-Post Mortem Report. Therefore, the Tribunal has correctly adopted the multiplier of 18. If 18 multiplier is adopted, the loss of dependancy works out to Rs. 6,48,000/-(Rs. 36000/-x 18). Therefore, the loss of dependancy is modified to Rs. 6,48,000/-as against the sum of Rs. 9,72,000/-awarded by the Tribunal. The Tribunal has awarded a sum of Rs. 10,000/-towards transport expenses, which is very reasonable and hence it is confirmed. The Tribunal has awarded a sum of Rs. 2,000/-towards funeral expenses, which is very low. It would be reasonable to award a sum of Rs. 5,000/-towards funeral expenses. The Tribunal has awarded a sum of Rs. 15,000/-towards loss of love and affection. In the present case, the deceased was the only son for his parents. The parents have lost the love and affection of their son. The sister of the deceased lost the love and affection of her brother. Taking into consideration of the same, it would be reasonable to award a sum of Rs. 65,000/-towards loss of love and affection. The Tribunal has not awarded any amount towards loss of future prospects. In the present case, the deceased was working as a Supervisor in M/s. Jaya Automotives (P) Ltd., Singanallur, Coimbatore. After taking into consideration the facts and circumstances of the case, it would be reasonable to award Rs. 50,000/-towards loss of future prospects. The Tribunal has awarded interest rate at 9% 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 9% p.a. is very reasonable and hence the same is confirmed. The details of the modified compensation are as under:
Rupees
Loss of dependancy 6,48,000/- Transport expenses 10,000/- Funeral expenses 5,000/- Loss of love and affection 65,000/- Loss of future prospects 50,000/- Total ... 7,78,000/-
Therefore, the claimants are entitled to the modified compensation of Rs. 7,78,000/-with interest at 9% p.a. from the date of petition.
It is stated by the counsel for the Appellants / Transport Corporation that they have already deposited the entire compensation awarded by the Tribunal as per the order of this Court dated 04.08.2005 and the claimants have also withdrawn 50% of the award amount with accrued interest from the deposit. Under the circumstances, the claimants are permitted to withdraw the modified compensation of Rs. 7,78,000/-with interest at 9% p.a. from the date of petition, less the amount already withdrawn, on making proper application. The Appellants / Transport Corporation is also permitted to withdraw the balance amount on making proper application.
With the above modifications, the Civil Miscellaneous Appeal is disposed of. Consequently, CMP No. 4722 of 2005 is closed. No costs.