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Judgment
P.P.S. Janarthana Raja, J.—This appeal is preferred by the Appellant-Transport Corporation against the judgment and Decree dated 27.04.2009 made in M.C.O.P. No. 322 of 2005 on the file of the Motor Accidents Claims Tribunal, III Additional Sub Court, Trichirappalli.
Background facts in a nutshell are as follows:
The deceased-Bakrudeen met with motor traffic accident on 22.03.2004 at about 16.00Hrs. The said deceased was a pillion rider in the motorcycle bearing Registration No. TN-45-Q-8191. The said motorcycle was driven by one Jamaludeen from East to West direction in the Trichy-Tanjore Main Road. When they were proceeding near Saroja Theatre, Ariyamangalam, a bus belonging to the Appellant-Transport Corporation, bearing Registration No. TN-45-N-0850 came in a rash and negligent manner and also at high speed and hit the motorcycle. Due to the said impact, the deceased was thrown out from the motorcycle and sustained grievous injuries all over the body. Immediately, he was taken to the Maruthi Hospital, Trichy and later he was referred to the Government Hospital, Trichy and he died in the hospital. The claimants are the wife and the minor daughter of the deceased. They claimed a sum of Rs. 10,00,000/-as compensation before the Tribunal. The Appellant-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 belonging to the Appellant-Transport Corporation?
Whether the claimants are entitled to any compensation, if so how much and from whom?
After considering the oral and documentary evidence, the Tribunal has 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 compensation of Rs. 4,63,000/-with interest at 7.5% per annum from the date of petition. The details of the compensation are as follows:
For loss of dependency Rs. 4,08,000/ For medical expenses Rs. 5,000/- For loss of consortium Rs. 25,000/- For love and affection Rs. 20,000/- For funeral expenses Rs. 5,000/- Total Rs. 4,63,000/- Aggrieved by that award, the Appellant-Transport Corporation has filed the present appeal.
Learned Counsel appearing for the Appellant-Transport Corporation questioned only the quantum of compensation awarded by the Tribunal and vehemently contended that the compensation awarded by the Tribunal is excessive, exorbitant and also without any basis and justification. He further submitted that in stead of adopting the correct multiplier of "16" in the case of Sarla Verma and Ors. v. Delhi Transport Corporation and Anr. (2009) 4 MLJ 997, the Tribunal has wrongly adopted the multiplier of "17". Therefore, the award passed by the Tribunal is not in accordance with law and the same has to be set aside.
Learned Counsel appearing for the Respondents /claimants has submitted that the Tribunal had considered all the relevant materials and evidence on record and came to the right conclusion 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 and awarded a just, fair and reasonable compensation. It is a question of fact and also it is based on valid materials and evidence. Hence the order of the Tribunal is in accordance with law and the same has to be confirmed.
Heard the 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.P.1 and P.2 were marked. P.W.1 is the wife of the deceased. P.W.2 is one Jamalutheen, who is the eye-witness of the accident. Ex.P.1 is the copy of the First Information Report. Ex.P.2 is the Post Mortem Report. On behalf of the Appellant-Transport Corporation, R.W.1-
Rengasamy, the driver of the bus was examined and no document was marked to substantiate their claim. 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 and awarded the compensation. It is a question of fact and therefore the same is confirmed.
In the case of Sarla Verma and Ors. v. Delhi Transport Corporation and Anr. (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 Thomas2 M.N. Venkatachaliah, J. SCC .181 Para 5 (as His Lordship then was) had observed that
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 4, 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.
It is stated in the claim petition that the deceased was 35 years old at the time of accident. In the evidence of P.W.1, it is stated that only the deceased was working as an Electrician and was earning a sum of Rs. 200/-per day. Further it is stated that the driver of the bus belonging to the Appellant-Transport Corporation caused the accident and the driver was charge-sheeted by Traffic South Police Station, Trichy in Cr. No. 87 of 2004 under Sections 279, 337 and 304A IPC. Ex.P.2 is the Post Mortem Report, in which it is stated that the age of the deceased was 34 years at the time of the accident. In respect of the income of the deceased, there is no concrete evidence available on record. Therefore, the Tribunal has fixed the monthly income of the deceased at Rs. 3,000/-. After deducting 1/3rd of the said amount towards personal expenses of the deceased, the balance sum of Rs. 2,000/-was taken as the monthly contribution to the family and accordingly arrived at the annual contribution at Rs. 24,000/-(Rs. 2,000/-x12). After taking into consideration the age of the deceased as 34 years as per Post Mortem Report, the Tribunal has adopted the multiplier of 17 and worked out the loss of dependency at Rs. 4,08,000/-(Rs. 24,000/-x17). Learned Counsel appearing for the Appellant-Transport Corporation vehemently contended that the Tribunal has wrongly adopted the multiplier of "17" and it ought to have adopted the multiplier of "16" as Sarla Verma''s case cited supra. After considering the principles enunciated in the judgment cited supra, the correct multiplier should be adopted between the age group of 30 and 35 years is "16". Therefore, by adopting the multiplier of "16", the loss of dependency works out to Rs. 3,84,000/-(Rs. 24,000/-x16). Therefore, the loss of dependency is modified to Rs. 3,84,000/-as against the sum of Rs. 4,08,000/-awarded by the Tribunal. The Tribunal has also awarded a sum of Rs. 5,000/-towards medical expenses. There is no dispute that immediately after the accident, the deceased was admitted in the hospital and has taken treatment. This Court is of the view that the amount awarded by the Tribunal under this head is very reasonable and hence the same is confirmed. The Tribunal has also awarded a sum of Rs. 5,000/-towards funeral expenses, which is very reasonable and hence the same is confirmed. Further, the Tribunal has also awarded a sum of Rs. 25,000/-towards loss of consortium. After taking into consideration the age of the wife of the deceased, i.e. 29 years at the time of the accident, the Tribunal has correctly awarded a sum of Rs. 25,000/-towards this head and hence, it is confirmed. The Tribunal has also awarded a sum of Rs. 20,000/-towards loss of love and affection. The second Respondent, the minor daughter of the deceased, was 12 years old at the time of the accident and she lost the love and affection of her father. Therefore, the amount awarded by the Tribunal under this head is very reasonable and hence, the same is confirmed. Further, the Tribunal has also awarded 7.5% interest p.a. from the date of petition. After taking note of the date of accident, the date of award and also the prevailing rate of interest during the relevant period, the interest rate awarded 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 as per the above discussion are as under:
For loss of consortium Rs. 3,84,000/- For medical expenses Rs. 5,000/- For loss of consortium Rs. 25,000/- For love and affection Rs. 20,000/- For funeral expenses Rs.5,000/-18 Total Rs. 4,39,000/-
Therefore, the claimants are entitled to the modified compensation of Rs. 4,39,000/-with interest at 7.5% per annum from the date of claim petition as against the sum of Rs. 4,63,000/-with 7.5% interest per annum granted by the Tribunal.
It is stated by the learned Counsel for the Appellant that the Transport Corporation has already deposited the entire award amount with accrued interest by order of this Court dated 30.07.2010. Under these circumstances, since the claimants are entitled to the modified compensation of Rs. 4,39,000/-with interest at 7.5% from the date of petition, the first Respondent/wife of the deceased is permitted to withdraw her respective entire share amount, less the amount if any already withdrawn, on making proper application. In respect of the share of the minor claimant, the Tribunal is directed to keep the entire share amount of the minor claimant in a fixed deposit under Reinvestment Scheme in any Nationalized Bank initially for a period of three years and the same shall be renewed till the minor attains the age of majority. The mother of the minor claimant/the first Respondent is permitted to withdraw the accrued interest from the bank once in three months on making proper application. If is further directed that if any situation arise with regard to medical treatment of the minor or her studies, the mother of the minor claimant shall withdraw the award amount on making proper application. The Appellant-Transport Corporation is also permitted to withdraw the balance amount on making proper application.
With the above modification, the Civil Miscellaneous Appeal is disposed of. Consequently, the connected Miscellaneous Petitions are closed. No costs.