1. The appeal is preferred by the claimants against the award dated 20.03.2008 made in MCOP No. 17 of 2007 by the Motor Accidents Claims Tribunal (Sub-Court), Uthamapalayam.
2. Background facts in a nutshell are as follows:
The deceased Backyaraj met with motor vehicle accident that took place on 23.09.2006 at about 03.10 p.m. While a private bus bearing registration No. TN-60-B-4446 was plying on the route from Varusanadu to Bodi, the said deceased along with one Karuppusamy boarded the bus at Varusanadu to attend a funeral function of his relative. When the said bus was nearing Myilai Paramasivam Thottam and crossing a curve, the driver of the bus drove it in a rash and negligent manner and consequently, he lost control of the bus. Due to the said impact, the deceased fell down and thrown out of the bus and sustained multiple injuries all over the body. Immediately, he was taken to Theni Government Hospital and later, he was taken to Madurai Government Hospital and he died in the hospital on 26.09.2006. The claimants are the father, mother, brother and two sisters of the deceased. They claimed a sum of Rs. 15,00,000/- as compensation. The said bus was insured with the second Respondent/Insurance Company, who resisted the claim. On pleadings, the Tribunal framed the following issues:
i. Whether the accident has occurred due to rash and negligent driving of the driver of the bus belonging to the 1st Respondent?
ii. Whether the claimants are entitled to get compensation from the second Respondent? If so, to what amount the claimants/Petitioners are entitled?
3. 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 1st Respondent and awarded a compensation of Rs. 2,30,800/- with interest at 7.5% per annum from the date of petition. The details of the compensation are as under:
Loss of Income --- Rs.1,92,000/-
Expenses regarding
preservation of body --- Rs. 11,800/-
Funeral expenses --- Rs. 2,000/-
Love and affection --- Rs. 25,000/-
--------------
Total... Rs. 2,30,800/-
--------------
Aggrieved by that award, the claimants have filed the present appeal for enhancement.
4. Learned Counsel appearing for the claimants/Appellants submitted that the tribunal has awarded a very low and meagre sum of compensation. The tribunal ought to have awarded compensation as claimed by the claimants. The Tribunal has not considered the relevant materials on record and also not followed the principles of assessment before passing the award. Therefore, the award passed by the tribunal is not in accordance with law and it is a fit case for enhancement.
5. The learned Counsel appearing for the second Respondent/Insurance Company submitted that the tribunal had considered all the relevant materials and circumstances of the case and came to the right conclusion and awarded a just, fair and reasonable compensation. Hence the order of tribunal is in accordance with law and therefore the same has to be confirmed.
6. Heard the counsel. On the side of the claimants, P. Ws.1 and 2 were examined and documents Exs.P1 to P18 were marked. On the side of the Respondents, no one was examined and no documents were marked to substantiate their claim. P.W.1 is the mother of the deceased. P.W.2 is eye witness to the occurrence. Ex.P1 is the certified copy of the First Information Report. Ex.P2 is the certified copy of Post-mortem report of the deceased Backyaraj. Ex.P3 is the certified copy of the Motor Vehicle Inspector''s Report. Ex.P4 is the certified copy of criminal charge-sheet. Ex.P5 is the death certificate of the deceased-Backyaraj. Ex.P6 is the legal heir certificate. Ex.P7 is the provisional certificate of the deceased. Ex.P8 is the School Transfer certificate and Conduct Certificate issued in the name of the deceased Bacyaraj. Ex.P9 is the Community Certificate of the deceased Backyaraj. Exs.P10 to 13 are the sports certificates issued in the name of the deceased Bacyaraj. Ex.P.14 is the N.S.S certificate issued in the name of deceased Backyaraj. Ex.P.15 is the series of medical bills. Ex.P.16 is series of transport bills. After considering the above oral and documentary evidence, the Tribunal had given a categorical finding that the accident has occurred only due to rash and negligent driving of the driver of the bus belonging to the 1st Respondent. It is a question of fact. Hence the same is confirmed.
7. 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:
7. 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
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
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 Nancemethod 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)
8. In the case of
13. 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.
14. 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.
15. In Kerala SRTC v. Susamma Thomas2, 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.
18. 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. Veluswami4, 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.
19. 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)
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.
20. 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.
8. The deceased was 23 years old at the time of accident. Ex.P.2 is the post-mortem report, in which it is stated that the age of the deceased was 23 years. Therefore the Tribunal has fixed the age of the deceased as 23 years old at the time of accident. It is also stated that the deceased has completed B.P.ED Course. Ex.P.7 is the provisional certificate. Ex.P.8 is the School Transfer certificate. Exs.P.10 to 14-sports certificate indicate that he was a good sportsman. P.W.1 in her evidence has stated that if the deceased had not died, he would have employed and earned not less than Rs. 10,000/-per month. After considering the above facts and circumstances of the case, the Tribunal has fixed the monthly income of the deceased as Rs. 3,000/-. Out of Rs. 3,000/-, the Tribunal deducted Rs. 1,000/- towards personal expenses and the balance sum of Rs. 2,000/- has been taken as the monthly contribution of the deceased to his family. After taking into consideration the age of the mother, the tribunal has adopted a multiplier of 8 and determined the loss of income as follows:
Rs. 2,000/- x 8 x 12 = Rs. 1,92,000/-
9. The learned Counsel appearing for the Appellants/claimants has vehemently contended that the Tribunal has correctly taken into consideration the age of the mother of the deceased for the purpose of calculating the multiplier. Here the age of the mother is 55 years. If the age of the mother as 55 is taken, the correct multiplier that should be adopted in this case is 11. If 11 multiplier is adopted, the loss of income works out to Rs. 2,64,000/- (Rs. 2,000/- x 12 x 11) as against Rs. 1,92,000/- awarded by the Tribunal. Therefore, the claimants are entitled to an amount of Rs. 2,64,000/-towards loss of income as against Rs. 1,92,000/- awarded by the Tribunal. Further the Tribunal has awarded Rs. 25,000/- towards love and affection towards each member of the family i.e, parents as well as brother and sisters. The amount awarded under this head is very reasonable and hence, the same is confirmed. The Tribunal has awarded only a sum of Rs. 2,000/-towards funeral expenses. It is very low and it would be reasonable to award a sum of Rs. 5,000/- as against Rs. 2,000/- awarded by the Tribunal. Further, the Tribunal has awarded a sum of Rs. 11,800/- towards preservation of the body after post-mortem and transportation of the same from Madurai to Theni. The amount awarded under this head is very reasonable and it is also based on Ex.P.16-Transport bills. Hence, the same is confirmed. The Tribunal has not awarded any sum towards transport. Therefore, it would be reasonable to award Rs. 5,000/- towards transport charges. The Tribunal has not awarded any sum towards future prospects. Here the age of the deceased is 23 years. He was highly qualified and also a good sportsman. After considering these reasons, Rs. 10,000/- is awarded towards future prospects. The Tribunal has awarded interest of 7.5% per annum. It is very reasonable and hence the same is confirmed. The details of the modified compensation as per the above discussion are as under:
Loss of Income --- Rs.2,64,000/-
Expenses regarding
preservation of body --- Rs. 11,800/-
Transport charges --- Rs. 5,000/-
Funeral expenses --- Rs. 5,000/-
Love and affection --- Rs. 25,000/-
Future prospects --- Rs. 10,000/-
--------------
Total... Rs. 3,20,800/-
---------------
Less:Already awarded amount Rs. 2,30,800/-
--------------
Rs. 90,000/-
---------------
Therefore, the claimants are entitled to the enhanced compensation of Rs. 90,000/- with interest at 7.5% from the date of petition.
10. Under these circumstances, the 2nd Respondent/Insurance Company is directed to deposit the enhanced compensation of Rs. 90,000/(Rupees ninety thousand only) within six weeks from the date of receipt of copy of this order. On such deposit, the Appellants-claimants are permitted to withdraw the same on making proper application.
11. With the above modification, the Civil Miscellaneous Appeal is disposed of. No costs.
