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Judgment
Pushpa Sathyanarayana, J.—Aggrieved by the Award dated 29.06.2012 in M.C.O.P. No. 5882 of 2003 on the file of the (VI Court of Small Causes), Chennai, awarding compensation of Rs. 12,02,000/- for the death of deceased Mukul Kumar Daga in a road traffic accident on 15.10.2002, this appeal has been filed by the appellant Transport Corporation. Being dissatisfied with the quantum of compensation made by the Tribunal, the Claimants 1 to 5 wife, minor children and parents of the deceased have preferred Cross Objection in Cross Objection No. 60 of 2013.
For the sake of convenience, the parties are referred to as per their status in the Claim Petition.
Brief facts are that on 15.10.2002, at about 2.00 am, the deceased Mukul Kumar Daga and his family were travelling in a Car bearing registration No. TN-01 S 9732 from Chennai towards Kovalam. When it was proceeding on Kuduniyandi Garden, Rajiv Gandhi Nagar, East Coast Road, a bus belong to the Tamil Nadu State Transport Corporation, bearing Registration No. TN-21 N 0489 was driven by its driver in a rash and negligent manner and dashed against the Car. Due to the impact, Mukul Kumar Daga succumbed to injuries in the spot itself. Alleging that the accident occurred due to the rash and negligent driving of the driver of the Transport Corporation, Claimants who are the wife, minor children and parents of the deceased, filed Claim Petition claiming compensation of Rs. 50,00,000/-.
Resisting the Claim Petition, the Managing Director of the State Transport Corporation, has filed counter stating that the accident occurred only due to reckless act and negligence of the driver of the Car in which the family of the deceased travelled. The Transport Corporation also denied the occupation, income, monthly contribution to the family and the age of the deceased and stated that the compensation claimed is excessive.
Before the Tribunal, First Claimant-Mrs. Sakunthala Daga, wife of the deceased examined herself as P.W. 1 besides examining one Mr. Vimalakumari Jain as P.W. 2 and one Mr. Vijendra Kumar - Eye-witness as P.W. 3. One Mr. P.C. Petala was also examined as P.W. 4. Exs. P.1 to P.16 were marked and the details of which are as follows:-
Ex. P. 1 - Copy of FIR
Ex. P. 2 - Postmortem Certificate (O.P. No. 5882/03)
Ex. P. 3 - Legal heirs Certificate (O.P. No. 5882/03)
Ex. P. 4 - Death Certificate (O.P. No. 5882/03)
Ex. P. 5 - Copy of charge sheet (O.P. No. 5882/03)
Ex. P. 6 - Inquest Report (O.P. No. 5882/03)
Ex. P. 7 - Income tax returns (O.P. No. 5882/03)
Ex. P. 8 - Passport of the deceased (O.P. No. 5882/03)
Ex. P. 9 - Driving Licence of the deceased (O.P. No. 5882/03)
Ex. P. 10 - TNGTC Certificate (O.P. No. 5883/03)
Ex. P. 11 - Statement of account (O.P. No. 5883/03)
Ex. P. 12 - Statement of account (O.P. No. 5883/03)
Ex. P. 13 - Postmortem Certificate (O.P. No. 5883/03)
Ex. P. 14 - Death Certificate (O.P. No. 5883/03)
Ex. P. 15 - Legal heir Certificate (O.P. No. 5883/03)
Ex. P. 16 - Identity Card (O.P. No. 5883/03)
On the side of Respondent Transport Corporation, driver of the bus viz., Pargunam was examined as R.W.1 but no document was marked.
Considering the evidence of P.W. 3-Eye witness and Ex. P. 5-copy of charge sheet, Tribunal held that the accident was due to rash and negligent driving of the bus driver and that the Transport Corporation is liable to pay compensation to the Claimants.
Insofar as quantum of compensation, considering the age of the deceased and the future prospects, the Tribunal has fixed the monthly income of the deceased at Rs. 7,000/- and after deducting one-fourth (Rs. 7,000 x < x 12 = Rs. 1,750/-) for personal and living expenses, it calculated the contribution to the family as Rs. 5,250/- per month and accordingly, arrived at a sum of Rs. 63,000/- as annual income. Considering the age of the deceased, the Tribunal, applying multiplier "18", calculated the loss of income at Rs. 11,34,000/-. In addition, the Tribunal has also granted compensation under conventional heads with interest at 7.% per annum as follows:-
Sl. No.
Particulars
Amount granted by the Tribunal
1
Loss of dependency
Rs. 11,34,000/-
2
Loss of consortium to first Claimant
Rs. 25,000/-
3
Loss of love and affection to the minor children and parents/claimants 2 5 (Rs. 10,000/- each)
Rs. 40,000/-
4
Funeral expenses
Rs. 3,000/-
Total
Rs. 12,02,000/-
Feeling aggrieved, the appellant Transport Corporation has preferred this appeal.
In this appeal, the question of negligence and quantum of compensation are challenged before this Court.
The claimants have also filed Cross Objection questioning the quantum of compensation.
The points that arise for consideration before this Court are:-
(i) Whether the accident occurred due to the rash and negligent driving of the driver of the bus?
(ii) Whether the quantum of compensation arrived at by the Tribunal is correct?
(iii) To what relief the claimants are entitled to?
Heard the rival contentions made by the learned counsel appearing for the appellant Transport Corporation as well as the Claimants/Cross Objectors and perused the documents.
Point No. (i):
Learned counsel appearing for the appellant Transport Corporation contended that the accident occurred only due to the reckless attitude and negligence of the driver of the Car in which the family of the deceased travelled. Though the Transport Corporation has taken a stand that the driver of the Car in which the family of the deceased travelled along with their friends, was responsible for the accident, the evidence of P.W. 3, eye-witness, is clear that the accident occurred due to negligent act of the deceased. The evidence of P.W. 3, being eye-witness to the incident, cannot be brushed aside. Therefore, we are of the view that the Tribunal is right in rejecting the appellant''s contention. Point No. (i) is answered accordingly.
Point No. (ii):-
From the finding in Point No. (i) that it is clear that due to the rash and negligent driving on the part of the bus driver, the accident had happened in which P.W. 1 had lost her husband, who died on the spot. The claim is made by the widow, who is aged 28 years with two minor girl children and the parents of the deceased. The claim made is to a sum of Rs. 50,00,000/-.
It is not in dispute that the age of the deceased was 29 years on the date of accident. It is contended by the claimants that the deceased was carrying on Finance business and earning approximately Rs. 10,000/- per month and that he was an Income Tax assessee. To substantiate the same, Ex. P. 7 Income Tax Returns has been filed. However, the said Return relates to 2002, 2003 whereas the date of accident is on 15.10.2002. Though the Income Tax Returns Ex. P. 7 is filed on 14.3.2003, the same cannot be put against the claimants because the Returns can be filed for the Assessment Year 2002, 2003 only in the month of March. Therefore, the argument of the appellant cannot stand and this Court feels that reliance can be placed on the Income Tax Return Ex. P. 7. Though P.W. 1 has deposed that her husband was earning Rs. 30,000/- per month by doing finance business, excepting the Income Tax Returns filed for the year 2002, 2003, there is no other evidence to substantiate the claim. Therefore, the Tribunal has fixed the monthly income of the deceased at Rs. 7,000/-. It can easily be inferred that a person aged 29 years, who is in the finance business with two children, could atleast earn approximately Rs. 10,000/- per month. In the circumstances, this Court feels that the monthly income of the deceased can be fixed at Rs. 8,000/-. The family of the deceased comprises of 5 persons, viz., his wife/first claimant, two minor children, and the parents. The Tribunal had taken the income as Rs. 7,000/- per month, applying the multiplier of 18, arrived at the loss of dependency at Rs. 11,34,000/-. In addition, Rs. 25,000/- was granted to the wife for loss of consortium and Rs. 10,000/- each to the claimants 2 to 5, viz., minor children and parents and Rs. 3000/- towards funeral expenses. In all, a sum of Rs. 12,02,000/- was awarded.
As already stated, we feel that the monthly income of the deceased can be taken as Rs. 8,000/-. Applying the principles of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , the multiplier that can be adopted for a 29 year old is, 17 whereas the Tribunal had adopted, the multiplier 18, which is wrong. If the income is fixed at Rs. 8,000/- per month and applying 17 multiplier, the actual loss of income of the deceased would be Rs. 16,32,000/-. Though the appellant Transport Corporation has not raised any ground regarding the multiplier adopted by the Tribunal, this Court applying the principles of Sarla Verma case (cited supra), is reducing the multiplier from 18 to 17.
Insofar as quantum of compensation, the Claimants have filed Cross Objection. Learned counsel appearing for the Claimants contended that while computing the loss of dependency, the Tribunal failed to add 50% towards future prospects, basing reliance on Sarla Verma case (cited supra). In support of his contention, he relied on paragraph 11 of the said judgment. In para 11 of the judgment in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , the Apex Court held as follows:-
(11) In General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, , this court increased the income by nearly 100 per cent in Smt. Sarla Dixit and another Vs. Balwant Yadav and others, , the income was increased only by 50 per cent and in Abati Bezbaruah Vs. Dy. Director General Geological Survey of India and Another, , the income was increased by a mere 7 per cent. In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50 per cent of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. [Where the annual income is in the taxable range, the words ''actual salary'' should be read as ''actual salary less tax''.] The addition should be only 30 per cent if the age of the deceased was 40 to 50 years. There should be no addition, where the age of deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances.
The learned counsel for the claimants has relied upon the judgment in the case of Rajesh and Others Vs. Rajbir Singh and Others, to state that future prospects adopted for persons with permanent job may also be applied to persons who were self employed or were engaged on fixed wages.
In the light of the decision of the Hon''ble Apex Court as cited supra, while fixing the monthly income as Rs. 8,000/- per month, to which 50% has to be added for the future prospects as the deceased is below the age of 40 years. Then the loss of dependency would be Rs. 8000 + Rs. 4,000 (50%) x 12 x 17 = Rs. 24,48,000/-.
Considering the number of dependants i.e., 5 in this case, 1/4th has to be deducted for the personal and living expenses of the deceased. So the total loss of dependency for the death of the husband of the first claimant would be Rs. 18,36,000/-. The Tribunal has awarded Rs. 25,000/- for loss of consortium to the first claimant. Applying the principles laid down in Rajesh and Others Vs. Rajbir Singh and Others, , loss of consortium given to the wife is increased to Rs. 1,00,000/-. The Cross Objectors had also made a claim on the other non-pecuniary heads and the Tribunal has not awarded as per the guidelines enunciated in the decision of the Hon''ble Supreme Court. Therefore, we are inclined to increase the amount awarded for loss of love and affection for the minor claimants 2 and 3, who are deprived of their father''s affection and comfort for the rest of their life, to Rs. 50,000/- each. The mother is 50 years old. One can imagine the mental condition of the parents, who had lost their son at the threshold of his life. Though no amount of money can compensate the loss, we are inclined to grant at least Rs. 25,000/- each which would come to Rs. 50,000/- to the parents. Based on the decision of Rajesh''s case (cited supra), the amount of Rs. 3000/- is enhanced to Rs. 25,000/- towards funeral expenses.
Accordingly, the award of the Tribunal is modified as follows:-
Sl. No.
Particulars
Amount granted by the Tribunal
Amount granted by this Court
1
Loss of dependency
Rs. 11,34,000/-
Rs. 18,36,000/-
2
Loss of consortium to first Claimant
Rs. 25,000/-
Rs. 1,00,000/-
3
Loss of love and affection to the minor children/claimants 2 and 3
Rs. 20,000/- (Rs. 10,000/- each
Rs. 1,00,000/- (Rs. 50,000/- each)
4
Loss of love and affection to the parents/claimants 4 and 5
Rs. 20,000/- (Rs. 10,000/- each)
Rs. 50,000/- (Rs. 25,000/- each)
5
Funeral expenses
Rs. 3,000/-
Rs. 25,000/-
Total
Rs. 2,02,000/-
Rs. 21,11,000/-
It is seen from the Award passed by the Tribunal that the Original Petition filed by the Claimants stood dismissed for non-prosecution for which period, as rightly observed by the Tribunal, no interest can be awarded. Therefore, the said period has to be excluded while calculating interest.
There is no dispute in respect of the interest granted by the Tribunal at 7.5% p.a. Point No. (ii) is answered accordingly.
Point No. (iii):-
In view of the foregoing reasons, the Civil Miscellaneous Appeal No. 2171 of 2013 filed by the Transport Corporation is dismissed.
The Cross Objection preferred by the Claimants is allowed in part as follows:-
(i) The Award of the Tribunal is enhanced from Rs. 12,02,000/- to Rs. 21,11,000.
(ii) The interest granted by the tribunal at 7.5% per annum is confirmed.
(iii) Four weeks time is granted to the Transport Corporation to deposit the entire award amount, if not already deposited as ordered by this Court on 1.7.2013 in M.P. No. 1 of 2013 less the amount already deposited.
(iv) The amount of compensation is apportioned as follows:
The wife, the first claimant Rs. 12,61,000/-
The minor children, claimants 2 and 3 (Rs. 3,00,000/- each) Rs. 6,00,000/-
The mother, the fourth claimant Rs. 1,50,000/-
The father, the fifth claimant Rs. 1,00,000/-
(v) The major claimants 1, 4 and 5 are permitted to withdraw their share amount.
(vi) The minor claimants 2 and 3 share amount shall be invested in the Indian Bank, High Court, Madras till they attain majority.
(vii) There will be no order as to cost in this appeal.
(viii) Consequently, connected Miscellaneous Petition is closed.