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Judgment
P.P.S. Janarthana Raja, J.—The Civil Miscellaneous Appeal and the Cross Objection are preferred against the judgment and decree made in MCOP No. 503 of 2006 dated 28.02.2008 on the file of the Motor Accidents Claims Tribunal, Principal District Court, Pudukottai. The CMA is preferred by the Transport Corporation and the Cross Objection is preferred by the claimants.
Background facts in a nutshell are as follows:
The deceased-Murugan met with motor traffic accident that took place on 06.05.2006 at about 8.15 p.m. The deceased was going in his bicycle from North to South direction in the Keeranur-Pudukottai Road. When he reached near Lakshmi Theatre, a bus belonging to the Appellant in the CMA / Transport Corporation, bearing Registration No. TN-55-N-0360 came from the opposite direction in a rash and negligent manner and overtook another bus which was standing near Lakshmi Theatre Bus Stop and alighting the passengers. In that process, the bus hit the deceased and the ran over on both of his legs. Due to the said impact, the deceased''s legs were crushed and he also sustained grievous injuries all over the body. Immediately he was taken to the hospital and he died on the way to the hospital. The claimants are the wife, two daughters and son of the deceased. They claimed a compensation of Rs. 10,00,000/-before the Tribunal. The Transport Corporation resisted the claim. On pleadings, the Tribunal framed the following issues:
Whether the accident had occurred due to the rash and negligent driving of the driver of the bus?
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 Transport Corporation and awarded a sum of Rs. 4,32,500/-as compensation with interest at 7.5% p.a. from the date of petition. The details of the compensation are as under:
Rupees Loss of dependency 3,90,000/- Loss of consortium 20,000/- Loss of love and affection 20,000/- Funeral expenses 2,000/- Transport expenses 500/- ------------ Total.... 4,32,500/- ============
Aggrieved by that award, the Transport Corporation has filed the present appeal and the claimants have filed the Cross Objection.
Learned Counsel for the Transport Corporation has submitted that the Transport Corporation is not liable to pay any compensation to the claimants since it was only the deceased suddenly came before the bus and therefore, the accident had occurred only due to the negligence on the part of the deceased. He further submitted that the compensation awarded by the Tribunal is excessive, exorbitant and without any basis and justification. Hence the order passed by the Tribunal is not in accordance with law and the same should be set aside.
Learned Counsel appearing for the Respondents in CMA / Cross Objectors, has submitted that the Tribunal ought to have awarded the compensation as claimed by the claimants. The Tribunal has not considered the relevant materials and also not followed the principles of assessment before passing the award. He further submitted that the Tribunal has not awarded any sum towards loss of estate and the amount awarded towards loss of love and affection is very meagre. Therefore this is a fit case for enhancement.
Heard the learned Counsel on either side and perused the materials available on record. On the side of the claimants, P.W.1 and P.W.2 were examined and documents Exs.P1 to P5 were marked. On the side of the Transport Corporation, one Peter, the driver of the bus has been examined as R.W.1 and no document was marked. Ex.P1 is the certified copy of the F.I.R. Ex.P2 is the Legal Heirship Certificate. Ex.P3 is the certified copy of Post Mortem Report of the deceased. Ex.P4 is the certified copy of Motor Vehicle Inspection Report. Ex.P5 is the copy of Identity Card of the deceased issued by an Agricultural Welfare Society.
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 there from 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 there from 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 there from 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 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 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)
... 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 neighbors 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 40 years old at the time of accident. Even though it is stated in the claim petition that the deceased was 40 years old at the time of accident, the Tribunal fixed the age of the deceased as 45 years on the basis of Ex.P5-Identity Card. The Tribunal has correctly fixed the age of the deceased as 45 years at the time of accident. In the evidence of P.W.1 it is stated that the deceased was an Electrician and also Agricultural Coolie and he was earning a sum of Rs. 6000/-per month. Since there is no concrete evidence available on record to prove that the deceased was earning a sum of Rs. 6000/-per month, after considering the facts and circumstances of the case, the Tribunal was of the view that the deceased would have earned a sum of Rs. 150/-per day and out of the said sum, he would have spent Rs. 50/-towards his personal expenses and he would have contributed the balance sum of Rs. 100/-to his family. The Tribunal was also of the view that the deceased would have worked 25 days in a month and accordingly calculated the loss of monthly contribution of the deceased to the family at Rs. 2500/-and the annual contribution at Rs. 30,000/-. Thereafter, the Tribunal adopted the multiplier of 13 and arrived at Rs. 3,90,000/-towards loss of dependency (Rs. 30,000/-x 13). The Tribunal has correctly determined the daily income, monthly and annual contribution of the deceased to the family and also adopted the correct multiplier of 13 and arrived at Rs. 3,90,000/-towards loss of dependency. The amount awarded towards this head is also very reasonable and hence the same is confirmed. The Tribunal has awarded Rs. 20000/-towards loss of consortium. After taking into consideration the age of the widow, i.e. 35 years old at the time of accident, this Court is of the view that the amount awarded towards loss of consortium is very reasonable and hence the same is confirmed. The Tribunal has awarded Rs. 20000/-towards loss of love and affection. The children have lost the love and affection of their father. Out of the three children, two are minors. Taking into consideration of the same, I feel that the amount awarded towards this head is very low. It would be reasonable to award a sum of Rs. 30000/-towards this head. The Tribunal has awarded Rs. 2000/-towards funeral expenses, which is very reasonable and hence the same is confirmed. The Tribunal has awarded Rs. 500/-towards transport expenses, which I feel is very low. It would be reasonable to award a sum of Rs. 2000/-towards this head. The Tribunal has not awarded any amount towards loss of estate. It would be reasonable to award a sum of Rs. 5000/-towards this head. The Tribunal has awarded interest rate at 7.5% p.a. from the date of petition. After taking into consideration of the date of accident, date of award and the prevailing rate of interest during the relevant period, this Court is of the view that the interest rate fixed by the Tribunal at 7.5% p.a. from the date of petition is very reasonable and hence the same is confirmed. The details of the modified compensation are as under:
Rupees Loss of dependency 3,90,000/- Loss of consortium 20,000/- Loss of love and affection 30,000/- Funeral expenses 2,000/- Transport expenses 2,000/- Loss of estate 5,000/- ----------------- Total.... 4,49,000/- Less: Amount awarded by the Tribunal 4,32,500/- ------------------ 16,500/- ==================
For the enhanced compensation of Rs. 16,500/-, the interest rate shall be at 6% p.a. from the date of petition.
It is stated by the counsel appearing for the Transport Corporation that they have already deposited 50% of the compensation awarded by the Tribunal and the claimants were also permitted to withdraw 50% from the deposit by order of this Court dated 20.11.2008. Under the circumstances, the Transport Corporation is directed to deposit the balance sum of compensation along with the enhanced amount of compensation, within a period of six weeks from the date of receipt of a copy of this order. It is made clear that the enhanced amount of compensation shall carry an interest rate of 6% p.a. from the date of petition. On such deposit, the wife and the first daughter of the deceased, viz. the first and second Respondents are permitted to withdraw their respective shares, fully, on making proper application. With regard to the minors, viz. the third and fourth Respondents, their shares shall be deposited in a Fixed Deposit in any Nationalised Bank till they attain the age of majority. The mother of the minors, the first Respondent is permitted to withdraw the accrued interest once in three months from the bank, on making proper application.
The Civil Miscellaneous Appeal and the Cross Objection are disposed of accordingly. Consequently, M.P.(MD) No. 1 of 2008 in CMA is closed. No costs.