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Judgment
P.P.S. Janarthana Raja, J.—The appeal is preferred by the Transport Corporation against the judgment and award made in MCOP No. 542 of 2000 dated 30.11.2004 on the file of the Motor Accidents Claims Tribunal, Additional District & Sessions Court, Fast Track Court, Dindigul.
Background facts in a nutshell are as follows:
The deceased-Ramasamy Konar met with motor traffic accident that took place on 07.04.2000 at about 02.00 hours. The said deceased was travelling in a bus bearing Registration No. TN-72-N-0507 belonging to the Appellant-Transport Corporation from Chennai to Madurai. When the bus was proceeding near Perambalur National Highway Road, Siruvachur to Vijayagopalapuram, the driver of the bus drove it in a rash and negligent manner at high speed and dashed against a stationed lorry bearing Registration No. TN-23-A-5695. Due to the said impact, the deceased and some other passengers sustained injuries. Immediately the deceased was taken to the hospital, but he died in the hospital on the next day. The claimants are the wife, sons and daughters of the deceased. They claimed a compensation of Rs. 4,00,000/- 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. 3,27,000/- as compensation with interest at 9% p.a. from the date of petition. The details of the compensation are as follows:
Rupees Loss of income 3,12,000/- Funeral expenses 5,000/- Loss of love and affection 10,000/ ---------- Total.... 3,27,000/- ==========
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 submitted that the compensation awarded by the Tribunal is excessive, exorbitant and without any basis and justification. Further it is contended that the Tribunal is wrong in fixing the age of the deceased as 49 years, whereas in Ex.P5-Post Mortem Report, the age of the deceased is stated as 60 years and hence, the Tribunal is wrong in adopting the multiplier of 13 instead of 8. 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 5/claimants has submitted that the Tribunal had considered all the materials and evidence available on record and awarded the compensation which is just, fair and reasonable. Hence the order passed by the Tribunal is in accordance with law and the same has to be confirmed.
Heard the counsel and perused the materials available on record. On the side of the claimants, P.W.1 and P.W.2 were examined and documents Ex.P1 to P8 were marked. On the side of the Transport Corporation, one Karuppan, the driver of the bus was examined as R.W.1 and no document was marked to support their case. P.W.1 is the wife of the deceased. P.W.2 is the eye-witness of the accident. Ex.P1 is the copy of First Information Report. Ex.P2 is the copy of rough sketch. Ex.P3 is the copy of Observation Mahazar. Ex.P4 is the copy of Motor Vehicle Inspection Report. Ex.P5 is the copy of Post Mortem Report. Ex.P6 are the bills relating to the business carried on by the deceased as Commission Agent in vegetables. Ex.P7 is the Horoscope of the deceased. Ex.P8 is the Legal Heirship 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, then deducting therefrom 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 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 Thomas, M.N. Venkatachaliah J. (as His Lordship then was) had observed that: (SCC p. 181, para 5)
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. 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)
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 an agriculturist and also a Commission Agent in vegetables. In the claim petition, it is stated that he was earning a sum of Rs. 7,500/- per month and that the age of the deceased was 47 years old at the time of accident. Ex.P7 is the horoscope of the deceased in which the date of birth of the deceased is stated as 30.06.1951. Ex.P5 is the Post Mortem Report in which the age of the deceased is stated as 60 years. The Tribunal ignored the Post Mortem Report and relied on Ex.P7-Horoscope of the deceased, and fixed the age of the deceased as 49 years old. Learned Counsel for the Appellant/Transport Corporation vehemently contended that, only the age of the deceased as stated in Ex.P5-Post Mortem Report, i.e. 60 years, has to be taken into consideration. After considering the facts and circumstances of the case, this Court is of the considered view that only the age as stated in Ex.P5-Post Mortem Report, has to be taken into consideration in the present case. For the age of 60 years, the correct multiplier that should be adopted is 8. In respect of income, there is no concrete evidence available on record to show that the deceased was earning Rs. 7,500/- per month. Therefore, the Tribunal fixed the monthly income at Rs. 3,000/- and determined the annual income at Rs. 36,000/-. After deducting 1/3rd of the amount towards personal expenses of the deceased, the Tribunal arrived at Rs. 24,000/- as the annual contribution of the deceased to the family. After taking into consideration the age of the deceased as 49 years by relying on the horoscope of the deceased, the Tribunal adopted the multiplier of 13 and arrived at the loss of income at Rs. 3,12,000/- (Rs. 24,000/- � 13). Learned Counsel for the claimants has submitted that the claimants are five in numbers and therefore it would be appropriate to deduct 1/4th of the amount towards personal expenses, instead of 1/3rd as deducted by the Tribunal, as per the principles enunciated in Sarla Verma''s case (cited supra). As rightly pointed out by the learned Counsel for the claimants, in the present case, only 1/4th of the amount has to be deducted towards personal expenses, as per the principles enunciated in Sarla Verma''s case (cited supra). The Tribunal has correctly determined the monthly income of the deceased as Rs. 3,000/-. If 1/4th of the amount is deducted, the monthly contribution of the deceased to the family works out to Rs. 2,250/- and the annual contribution works out to Rs. 27,000/- (Rs. 2,250/- � 12). As already discussed, the correct multiplier that should be adopted in this case is 8. If 8 multiplier is adopted, the loss of income works out to Rs. 2,16,000/- (Rs. 27,000/- � 8). Therefore the loss of income stands modified to Rs. 2,16,000/- as against the sum of Rs. 3,12,000/- awarded by the Tribunal. The Tribunal has awarded a sum of Rs. 5,000/- towards funeral expenses. The amount awarded towards this head is very reasonable and hence the same is confirmed. The Tribunal has also awarded a sum of Rs. 10,000/- towards loss of love and affection. The claimants are the wife, sons and daughters of the deceased. The two daughters and two sons of the deceased have lost the love and affection of their father. Also, the wife of the deceased lost the love and affection of her husband. After taking into consideration of the same, it would be reasonable to award Rs. 5,000/- to each claimant, which amounts to Rs. 25,000/-. Therefore, the loss of love and affection awarded by the Tribunal at Rs. 10,000/- stands modified to Rs. 25,000/-. The Tribunal has not awarded any amount towards transport. It would be reasonable to award a sum of Rs. 4,000/- towards transport expenses. 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 income 2,16,000/- Funeral expenses 5,000/- Loss of love and affection 25,000/- Transport expenses 4,000/ ------------ Total.... 2,50,000/- ============
Therefore, the claimants are entitled to the modified compensation of Rs. 2,50,000/- with interest at 9% p.a. from the date of petition, as against the compensation of Rs. 3,27,000/- with interest at 9% p.a. from the date of petition, awarded by the Tribunal.
It is stated by the counsel for the Appellant/Transport Corporation that this Court by order dated 07.02.2006 directed the Appellant/Transport Corporation to deposit the entire award amount with accrued interest, but the learned Counsel is unable to say whether the amount has been deposited or not. Under the circumstances, if the entire award amount is not deposited, the Appellant/ Transport Corporation is directed to deposit the modified compensation of Rs. 2,50,000/- with interest at 9% p.a. from the date of petition, less the amount if any already deposited, within a period of four weeks from the date of receipt of a copy of this order, and on such deposit, the claimants are permitted to withdraw the same, on making proper application. If already the entire compensation is deposited, the claimants are permitted to withdraw the modified compensation of Rs. 2,50,000/- with interest at 9% p.a. from the date of petition, less the amount if any already withdrawn, on making proper application, and the Appellant/Transport Corporation is also permitted to withdraw the balance amount on making proper application.
The Civil Miscellaneous Appeal is disposed of with the above modifications. Consequently, C.M.P. No. 821 of 2006 is closed. No costs.