P.P.S. Janarthana Raja, J.@mdashThis appeal is preferred by the Appellant-Transport Corporation against the judgment and Decree dated
27.04.2009 made in M.C.O.P No. 41 of 2008 on the file of the Motor Accidents Claims Tribunal/Sub Court, Devakkottai.
2. Background facts in a nutshell are as follows:
The deceased- Thangaraj met with motor vehicle accident that took place on 25.02.2008 at about 10.20 p.m. The said deceased was travelling as
a passenger in a bus, bearing Registration No. TN - 55 - N - 0313, belonging to the Appellant-Transport Corporation. The said bus was
proceeding from Pattukottai to Karaikudi and the same was driven by its driver in a rash and negligent manner and also at high speed due to
which, it hit against a lorry stationed at the extreme left side of the road, bearing Registration No. TCI-7877. Due to the same, the deceased
sustained grievous injuries all over the body and other passengers also sustained injuries. Immediately, the deceased was taken to the hospital and
on the way to the hospital, he died. The claimants are the wife and three daughters of the deceased. They claimed a sum of Rs. 6, 00,000/-as
compensation. The Appellant-Transport Corporation resisted the claim. On pleadings the Tribunal framed the following issues:
1. Whether the accident had occurred only due to the rash and negligent driving of the driver of the bus?
2. Whether the Appellant-Transport Corporation is liable to pay the compensation?
3. Whether the claimants are entitled to claim any compensation?
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 Appellant-Transport Corporation and awarded a compensation of Rs. 4,86,000/-with interest at 7.5% p.a.
from the date of the claim petition. The details of the compensation are as under :
Heads Amount
Loss of income Rs. 4,16,000/-
Loss of love and affection Rs. 40,000/-
Loss of consortium and
Mental agony Rs. 20,000/-
Funeral expenses and
Transport charges Rs. 10,000/-
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Total ... Rs.4,86,000/-
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4. Learned Counsel appearing for the Appellant/Transport Corporation has 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. Therefore, the award passed by the Tribunal is not in accordance with law and hence the same should be set aside.
5. 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 and awarded a just, fair and reasonable compensation. Hence the order of the Tribunal is in
accordance with law and the same has to be confirmed.
6. Heard the counsel on either side and perused the materials available on record. On the side of the claimants, P. Ws.1 and 2 were examined and
documents Exs.P1 to P11 were marked. On behalf of the Appellant-Transport Corporation, one Masilamani was examined as RW1, who is the
driver of the bus and no document was marked to substantiate their claim. P.W.1, is the wife of the deceased. P.W.2 is the co-passenger of the
deceased. Ex.P.1 is the xerox copy of the First Information Report. Ex.P.2 is the xerox copy of the Post Mortem Report. Ex.P.3 is the xerox
copy of the Family Card. Ex.P.4 is the Legal-heirship Certificate. Ex.P5 is the document to show that the deceased was residing in Dubai. Ex.P6 is
the Salary Certificate. Ex.P8 is the Identity Card of the wife of the deceased. Ex.P9 is the xerox copy of the Motor Vehicle Inspector''s Report
relating to the bus. Ex.P10 is the xerox copy of the Motor Vehicle Inspector''s Report relating to the lorry. Ex.P11 is the xerox copy of the
Charge-Sheet. 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. The finding of the
Tribunal is based on valid materials and evidence and 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 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 capitalized 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)
8. In the case of Syed Basheer Ahamed and Others Vs. Mohd. Jameel and Another, , the Apex Court has held as follows:
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 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.
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 capitalizing 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.
9. At the time of the accident, the deceased Thangaraj was aged about 44 years. P.W.1, the wife of the deceased, in her evidence has stated that
the deceased was working as a Head cook in Monport Technical Institute, Chennai-16 from 01.10.2007 to 23.02.2008 and also he was
employed in Dubai. Ex.P5 is the document to show that the deceased was residing in Dubai. Further in her evidence, she stated that the deceased
was earning a sum of Rs. 5,000/-per month. Ex.P6 is the Salary Certificate. After considering the above oral and documentary evidence, the
Tribunal has fixed the monthly income of the deceased at Rs. 4,000/-. Out of the said sum, 1/3rd of the amount was deducted towards personal
expenses of the deceased and the balance sum was taken as the monthly contribution of the deceased to the family. After considering the age of
the deceased, the Tribunal adopted the multiplier of ''13'' in accordance with the schedule and determined the loss of income at Rs. 4, 16,000/-
(Rs. 4,000X12X2/3X13). Considering the oral and documentary evidence, this Court is of the view that the Tribunal has correctly fixed the
monthly income, and also correctly arrived at Rs. 4,16,000/-towards loss of income, by applying the correct multiplier of ''13''. The amount
awarded towards loss of income is also very reasonable and hence the same is confirmed. The Tribunal has awarded a sum of Rs. 40,000/-
towards loss of love and affection. Three daughters have lost the love and affection of their father. After considering the same, the amount awarded
under this head is very reasonable and hence the same is confirmed. The Tribunal has awarded a sum of Rs. 20,000/-towards loss of consortium
and mental agony. After considering the age of the wife of the deceased, the amount awarded under this head is very reasonable and hence the
same is confirmed. The Tribunal has awarded a consolidated sum of Rs. 10,000/-towards funeral expenses and transport charges, which is very
reasonable and hence the same is confirmed. The Tribunal has fixed the interest rate at 7.5% p.a. After taking into consideration of the date of
accident, date of award and the prevailing rate of interest during that time, the interest fixed by the Tribunal at 7.5% per annum from the date of
petition is reasonable and hence the same is confirmed. The findings of the Tribunal are based on valid materials and evidence. I do not find any
error or illegality in the order of the Tribunal warranting interference. It is a question of fact. It is not a perverse order. Learned Counsel appearing
for the Appellant-Transport Corporation is also unable to give any material evidence of compelling reason to take a contrary view of the Tribunal.
Under the circumstances, this is not a fit case for admission and the award passed by the Tribunal is in accordance with law and hence the same is
confirmed.
10. Accordingly, the Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.