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Judgment
A.S. Venkatachala Moorthy, J.—Being aggrieved by the order, dated 15.10.1990 made in O.P. No. 428 of 1998 passed by the Motor
Accidents Claims Tribunal, Madras, the appellant viz., the Union of India, rep. by its Commanding Officer, Military Police, H. East Quarters, 1st
George Gate, Fort St. George, Madras-9 has preferred the present Appeal. The respondents in this Appeal who are the claimants in M.C.O.P.
No. 428 of 1998 have filed cross-objection, praying enhanced compensation in this Appeal and that has been taken on file as Cross Objection
No. 156 of 1992.
28-11-1987 was the fateful and unfortunate day for one Thangakumar, who was a Doctor by profession on that day. On that day, he was
driving his Scooter, TNW 2605 on the Kamaraj Road from south to north at 8.55 a.m. and in fact, at the relevant point of time he was crossing
the Napier Bridge from south to north. According to the claimants, the doctor was driving the Scooter keeping to the left and a jeep belonging to
the appellant bearing Registration No. 82B 233395E which was driven in a rash and negligent manner crossed the central line, came to the wrong
lane and dashed against the Scooter resulting in his death due to the injuries sustained to his neck. It is the further case of the respondents/claimants
that at the time of the accident, the deceased was aged about 29 Years, and he left behind his wife aged about 27 years two minor daughters aged
1-1/2 Years, 3 months respectively and his mother, Rajalakshmi, aged about 60 Years. The claimants would further submit that the deceased
Thangakumar was a Doctor and he had a brilliant academic career and after completing his Post Graduate Course, he was studying M.Ch.
Course. It is the specific case of the claimants that he was serving as a Medical Officer in the Tamil Nadu Government Hospital and drawing a
monthly salary of Rs. 2174/-. Besides that, he was working in the evenings in private nursing home at Adyar, Chennai and was getting a
remuneration of Rs. 3000/- per month. Thus, in all he was earning a total sum of Rs. 5174/-. On this basis, the respondents claimed a total
compensation at Rs. 15 lakhs.
The appellant resisted the claim inter alia contending that the accident took place only due to the negligence on the part of the deceased
Thangakumar, who was at the relevant time driving his Scooter in a rash ad negligent manner, violating the traffic rules and regulations. According
to the appellant, the driver of the jeep was proceeding near the Napier bridge from north to south direction at a very low speed behind a PTC bus,
which was going in front of the said jeep at a distance of 20ft. and from the opposite side another Pallavan Transport bus was coming at a
moderate speed and at that time, a Car bearing Registration No. TMP 9666 was also coming from south to north but at a very high speed behind
the Pallavan Transport Bus and driver of the car tried to overtake the PTC bus, which was proceeding before it. Similarly, the Scooter which was
driven by the victim came behind the said car attempted to overtake the car, and while doing so, in order to avoid dashing against the PTC bus, the
Scooterist lost control and turned the scooter towards the left hand side and dashed against the right front wheel of the car. And as result of which,
he was thrown out of the scooter and died. A specific plea is taken in the counter statement saying that in as much as the owner of the car in
question, viz., TMP. No. 9666 has not been impleaded as a party to the proceedings, this petition is liable to be dismissed for nonjoinder of
necessary parties. On the question of quantum it is stated in the petition that the compensation claimed is on the higher side.
The Tribunal framed the following two issues for consideration on the basis of the pleadings:
1) Whether the plea of the petitioners that only because of the negligence of the driver of the military jeep belonging to the appellant, the accident
occurred, is proved beyond doubt?
2) Whether compensation should be awarded for the claimants and if so what is the quantum?
On the first question, the Tribunal came to the conclusion that the accident took place only because of the rash and negligent driving of the jeep in
question. On the second question, viz., compensation, the Tribunal came to the conclusion that the respondents/claimants would be entitled for a
compensation at Rs. 9,75,480/-. Both the appellant and the respondent not being satisfied with the said Award by the Tribunal are now before this
Court.
The first question that arises for consideration is who was responsible for the accident that took place on 28-11-1987 in the Napier bridge.
While it is the contention of the respondents/claimants that the accident took place only due to the negligence of the driver of the jeep, the appellant
would put forth the contention that the accident took place solely because of the rash and negligent driving by the victim, viz., Dr. Thangakumar,
who drove the scooter on the fateful day.
To substantiate the case that the accident took place only because of the rash and negligent driving of the military jeep belonging to the Central
Government the respondents/claimants have examined one Pushparajan (PW2). On the side of the appellant, the driver of the jeep has been
examined as R.W.1.
P.W.2. in his evidence has categorically stated that on 28-11-1987 at about 8.55 a.m. he was proceeding in Kamarajar Salai from south to
north in his Fiat car and when he covered almost half of the distance in Napier Bridge he happened to see a bus belonging to the Pallavan
Transport Corporation coming in the opposite direction at a good speed near the centre of the road and at that time, a military jeep, which was
coming behind the said PTC bus tried to overtake the bus and in that process hit his car on the right side and front tyre of his car got burst as result
of which the car was pushed to the south eastern side of the road. The said witness has further deposed that the military jeep while hitting the
scooter which was driven by the deceased took a turn facing north and came to a halt. This version of P.W.2. was disputed by putting various
suggestions by the appellant herein. In fact, he denied the suggestions made to him that only because he (i.e.,) PW.2. drove his Fiat car in a rash
and negligent manner the accident took place and only to escape from this, he has taken active interest to support the case of the
respondents/claimants. Of course, there is also a suggestion that he has been deposing falsely before the Court. We have carefully examined the
testimony of P.W.2. and we do not find anything in the cross examination which would persuade this Court to reject the testimony of P.W.2, who
was admittedly an eye witness to the occurrence.
Now let us proceed to consider the evidence of R.W.1 on this aspect. The driver of the military jeep reiterated what has been stated in the
counter affidavit filed to the original petition, which we have already referred to. In view of that, it is not necessary for us to repeat what has been
stated in the chief examination. In the chief examination he has deposed that the driver of the scooter in his attempt to overtake the bus proceeded
in front of him dashed against the front side of the car. From the reading of the counter affidavit filed in the original petition as well as the evidence
of R.W.1, the following can be noted:
(a) According to the driver of the military jeep, he was coming behind the PTC bus from north to south at a speed of 20 to 25 km. per hour. While
in the counter he would say that he was keeping a distance of 20 feet. In his evidence he would say that he was keeping a distance of 33 feet;
(b) If really he was coming only at a moderate speed and was driving the vehicle as per the traffic rules, he could have very well brought the vehicle
to halt and avoided the accident.
(c) If really he was coming behind the PTC bus, following the traffic rules etc., then he could not have witnessed the accident completely.
Ex.P31 is the plan prepared by P.W.7 Inspector of Police at the scene immediately after the occurrence. A perusal of the same would only
probablise the jeep would have hit the Fiat car first and proceeded further and hit the scooter and finally it took a complete turn and came to the
eastern end of the road. It can also be noted that actually, the jeep crossed the centre line of the road, came to the wrong side and then hit the
scooter.
The above reasoning aspect of the matter persuades us to come to the conclusion that the case of the appellant that the accident took place
only due to the rash and negligent driving of the scooter does not deserve acceptance Another interesting and clinching circumstance is that the
Inspector of Police who visited the spot immediately noted the three vehicles in question viz., the military jeep, which was green in colour, the Fiat
car which was blue in colour and the scooter which was ash in colour and apart from some severe damages, there are also marks of different
paints in the respective vehicles. The Inspector of Police took some scraps by removing the paints from these vehicles. He noticed some ash colour
paints in the jeep and green colour paints in the scooter. Apart from that, the Investigating Officer took some samples of the blood and flesh found
in and around the jeep as well as the scooter. These materials were sent to the Forensic Department. The report was obtained by P.W.7 who was
the Inspector of Police and it was he who forwarded the samples to the chemical laboratory for analysis. P.W.9. is the Assistant in the Forensic
Department who speaks about the result of the various examinations. The reports of experts from the Forensic Department and the report of the
Biologist were marked as Exs. P35 to P37. According to the reports, the painting (ash colour) which was scrapped from the scooter, and the ash
coloured painting which got stuck up on the front bumper of the military jeep were identical. Similarly, the painting, which was taken from the body
of the jeep and the sample collected from the front side of the scooter were found to be identical.
These factors would go to prove that it was only the military jeep which dashed against the scooter and the collision was between the jeep and
scooter and not between the Fiat car and the scooter. In this view of the matter, we are of the considered opinion that the accident tool place only
due to the rash and negligent driving of the military jeep R.W.1 who drove it without following the traffic rules and regulations.
The next aspect to be considered is as to what is the compensation to be fixed and paid to the respondents/Claimants. There is no dispute
between the parties that the deceased Thangakumar was a practising Doctor. He completed his M.S. Degree Course. He v as a rank holder and a
gold medalist. At the relevant point of time, he was undergoing Super Speciality course in M.Ch. and he was employed as a Medical Officer in the
Tamil Nadu Government Hospital and he was drawing a salary of Rs. 2174/- per mensem. The above facts are admitted by both parties.
Apart from this, the respondents/claimants would claim that the deceased was also working in a private nursing home known as Doctor
Vasudev Nursing and Maternity Home, Thiruvanmiyur, Chennai between 6.00 p.m. and 9.00 p.m. and was drawing Rs. 3,000/- per month. On
the side of the respondents, the copy of the appointment order issued by the owner of the Nursing Home marked as Es.P.19 in this case has been
produced. The said order reads thus:
Mr. Thangakumar is appointed as a Part time Consultant in Dr. Vasudev Nursing and Maternity Home on a monthly emolument of Rs. 3000/-.
He should be available in the Nursing Home between 6.00 a.m. and 9.00 a.m.
The said appointment is signed by Dr. Vasudev, who has been examined as P.W.3 in this case. He has deposed before Court that the
deceased T. Thangakumar was working as a Part time Doctor in the clinic run by him at a monthly Salary of Rs. 3,000/- and that it was he who
issued the certificate in that regard. We have perused the evidence of the said witness and we are completely, satisfied that he has spoken the truth.
We do not find any ground/reason to disbelieve the testimony of P.W.7, Dr. Vasudevan. Further, both Dr. Vasudevan as well as the
Claimants/Respondents have filed before this Court copies of the various documents filed before the Income Tax Department which would go to
show that in fact in the Nursing Home, the deceased Dr. Thangakumar was employed as a Part time Doctor and he was earning a sum of Rs.
3000/- per month from 1st August, 1987. In this view of the matter, we come to the conclusion that the claim of the claimants/respondents that the
deceased Dr. Thangakumar was working as a Part time Doctor in the said Nursing Home and was getting a sum of Rs. 3000/- per month is
acceptable.
The next question is who are the claimants entitled to receive the compensation. The first claimant is the wife of the deceased Dr.
Thangakumar, who was aged about 27 years, the second claimant is the minor daughter who was a three months old baby at the relevant time.
The mother of the deceased Dr. Thangakumar was aged about 60 Years.
Before we take up the exercise of fixing the various figures and also the correct multiplier to be adopted, we would like to refer to the
decisions and find out as to what the Apex Court has ruled with regard to the determination of compensation.
(a) The first ruling that can be referred to is one reported in Concord of India Insurance Co. Ltd. Vs. Smt. Nirmala Devi and Others, , wherein the
Apex Court ruled thus:
The jurisprudence of compensation for motor accidents must develop in the direction of no fault liability and the determination of the quantum must
be liberal, not niggardly since the law values life and limb in a free country in generous scales.
(b) In R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, the Apex Court observed thus:
(12) In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accidents, it involves some guess
work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements
have to be viewed with objective standards.
(13). . .
(14). . .
The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of damages at certain key points
in the pattern where the disability is readily identifiable and not subject to large variations in individual cases.
(emphasis supplied)
(c) For the proposition that the Court should also take into consideration the future increments and promotional chances, we refer to the rulings in I
(1993) ACC 345 (SC) , wherein the Apex Court in the concluding paragraph observed thus:
The Tribunal did not give any allowance for the future increments and promotional chances of padmakar.
(d) The next ruling that can be usefully referred to is one reported in New India Assurance Co., Ltd., v. Kala Devi (1996 ACJ 16), wherein the
Apex Court in the concluding paragraph ruled thus:
The Tribunal awarded a sum of Rs. 9780/- as compensation for the death. The claimants preferred an Appeal before the High Court of Delhi. An
application was made in the High Court that the compensation be enhanced in view of the revision of the pay scales of the post held by the
deceased, by the Third Pay Commission. The High Court, taking into account the revision of pay scales by the Third Pay Scales by the Third Pay
commission, awarded a sum of Rs. 1,25,000/- as compensation. The contention of the learned counsel for the appellant is that the High Court had
allowed the application of the claimants for enhancement of compensation on the basis of Third Pay Commission Report without affording an
opportunity of being heard to the appellant. But, it may be noted that the appellant had filed an appeal against the order allowing the application of
the claimants for enhancement of the claim on the basis of the report of the Third Pay Commission and the said appeal was dismissed by the High
Court. Having regard to the revised pay scale of the post held by the deceased, his age and longevity of life as well as all other facts and
circumstances of the case, we do not find any justification to interfere with the quantum of compensation awarded by the High Court. The appeal
is, therefore, dismissed.
(emphasis supplied)
(e) In the ruling reported in Rattan Lal Mehta Vs. Rajinder Kapoor, , the Apex Court while affirming the law laid down in Bai Nanda v. Shivabhai
Shankerbhai Patel (1966 ACJ 290 (Guj)); held as under:
It is also now settled that though claimants might have estimated in the pleadings different sums under different subheads, it is still open to the
Court to award higher under one subhead or lower under another, than claimed so long as the award does not exceed the total amount claimed.
(f) In State of Haryana and others Vs. The Karnal Co-op. Farmers'' Society Limited, etc. etc. and others, the Apex Court has held that
...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.
The matter 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.
In the same Judgment, the Apex Court determined the multiplier and arrived at the amount that has to be paid to the deceased who was employed
in a newspaper establishment, who at that time was aged about 39 Years and whose income was Rs. 1,032/- per month. Taking into consideration
the future prospects of advancement in life and career the Apex Court felt that it would not be in error in making a higher estimate of monthly
income at Rs. 2000/- per month as the gross income. While arriving at such a conclusion, the Apex Court observed that
Of course the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand. While the
choice of the multiplier is determined by two factors, namely, the rate of interest appropriate to a stable economy and the age of the deceased or of
the claimant, whichever is higher, the ascertainment of the multiplicand is a more difficult exercise. Indeed many factors have to be put into the
scales to evaluate the contingencies of the future. All contingencies of the future need not necessarily be baneful. The deceased person in this case
had a more or less stable job. It will not be inappropriate to take a reasonably liberal view of the prospects of the future and in estimating the gross
income. It will be unreasonable to estimate the loss of dependency on the present actual income of Rs. 1032/- per month.....
To summarise the following norms are to be borne in mind as per the rulings of the Supreme Court:
a. While fixing compensation in accident cases the Court should take a practical and reasonably liberal view.
b. Not only the age of the deceased but the age of the dependants should be taken into consideration.
c. Not only the salary/income of the deceased at the time of accident but his future prospects must also be borne in mind while arriving at the
monthly income of the deceased as well as his contribution to the dependants.
d. The Court should also take into consideration the decreasing money value.
e. The Court has to do some guess work with some hypothetical consideration with some amount of sympathy.
Coming to the present case, the deceased was a Doctor at the relevant point of time with brilliant academic career and aged about 29 Years.
He was getting in all a sum of Rs. 5,174/- per month. He had a long innings to serve. As he was doing Super Specialty course there was every
chance of his getting higher income in his future career. The accident took place in 1987. Apart from that during 1989 Vth Pay Commission
submitted its report recommending higher income and allowances to various categories. Being aged only 29 Years at the relevant time he would
certainly have enjoyed the benefits of pay revision by at least three Pay Commissions before his retirement. Therefore, there would have been a
hike in his salary from Rs. 1000/- to Rs. 2000/- had he survived and continued in his profession in the Government Hospital. Invariably in all these
matters the Court has to do some guess work to arrive at an average figure/income which he would have earned during his life time.
In fact in State of Haryana and others Vs. The Karnal Co-op. Farmers'' Society Limited, etc. etc. and others, , the Apex Court doubled the
income of the deceased, who was a salaried person and proceeded that as the amount which he would have earned, had he survived.
In this case, the deceased Dr. Thangakumar was getting a sum of Rs. 5,100/- in all. We are inclined to fix his monthly average income at Rs.
10000/- out of which we deem it proper to deduct Rs. 3000/- and fix his contribution to the family at Rs. 7000/- per month. On that basis the
Yearly contribution would be about Rs. 84000/-. Considering the age of the decease as well as the age of the respondents/dependants, and
keeping in mind the ratio laid down by the Supreme Court in Up State Road Transport Corporation and others v. Trilok Chandra and others
(1996-2-L.W. 266), we adopt the multiplier of 16 and arrive at a sum of Rs. 13,40,000/- as total compensation (84000 X 16). Apart from this
the respondents claimants are also entitled to get other benefits viz., loss of consortium, loss of estate and loss of love and affection and we add a
sum of Rs. 20,000/- under each head. In all the respondents/claimants are entitled to get a sum of Rs. 14 Lakhs. The respondents/claimants are
also entitled to get a sum of Rs. 5,000 towards the funeral expenses. But we arrive at a sum of Rs. 14 lakhs (Rupees fourteen Lakhs only) in all
towards the total compensation. The respondents/claimants are also entitled to get interest at 12 per cent per annum from the date of the petition.
Consequently, this appeal fails and is dismissed. The cross objection is allowed to the extent indicated above. The apportionment of the
compensation as among the claimants shall be in the same ratio as laid down by the Tribunal. No costs.