P.P.S. Janarthana Raja, J.@mdashThis appeal is preferred by the Appellant-Transport Corporation against the judgment and Decree dated 06.11.2008 made in M.C.O.P No. 141 of 2007 on the file of the Motor Accidents Claims Tribunal/I Additional District Judge (PCR), Tanjavur.
2. When the matter came up for admission, the same is opposed by the learned Counsel appearing for the Respondents and by consent of the learned Counsel of both the parties, this appeal itself is taken up for final disposal.
3. Background facts in a nutshell are as follows:
The deceased-Balakumar met with motor vehicle accident that took place on 08.05.2007 at about 1.30 p.m. The said deceased was going by his motorcycle bearing Registration No. TN-49-AA-4398 from south to north direction. When he was nearing Poyyundarkottai North Adi Dravida Street Bus stop, a bus bearing Registration No. TN-49-N-1039 belonging to the Appellant-Transport Corporation came in a rash and negligent manner and also at high speed and hit the injured. Due to the same, he was thrown out and sustained grievous injuries all over the body. Immediately, he was taken to the Thanjavur Medical College Hospital, Thanjavur and he died in the hospital after three days i.e., 11.05.2007. The claimants are the wife, two sons and the mother of the deceased. They claimed a sum of Rs. 10, 00,000/-as compensation. The Appellant-Transport Corporation resisted the claim. On pleadings the Tribunal framed the following issues :
1. Whether the accident was due to the rash and negligent driving of the driver of the bus?
2. Whether the claimants are entitled to compensation as claimed? If so to what extent?
3. To what relief?
After considering the oral and documentary evidence, the Tribunal held that the accident had occurred only due to rash and negligent driving of the driver of the bus belonging to the Appellant-Transport Corporation and awarded a compensation of Rs. 6,16,000/-with interest at 7.5% per annum from the date of the claim petition. The details of the compensation are as under :
Loss of income Rs.5,76,000/-
Loss of consortium Rs. 20,000/-
Medical expenses Rs. 10,000/-
Funeral expenses Rs. 5,000/-
Transport charges Rs. 5,000/-
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Total... Rs.6,16,000/-
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4. Learned Counsel appearing for the Appellant/Transport Corporation questioned only the quantum of compensation awarded by the Tribunal and vehemently contended that the amount awarded by the Tribunal is excessive, exorbitant and also without any basis and justification. Further he contended that the Tribunal is wrong in awarding a sum of Rs. 10,000/-towards medical expenses, when there is no evidence available on record. Further he has stated that the Tribunal has awarded a sum of Rs. 20,000/-towards loss of consortium, which is very excessive. 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 1 to 4/claimants has submitted that the Tribunal had considered all the facts and circumstances of the case and rightly came to the conclusion that the accident had occurred only due to the rash and negligent driving of the driver of the bus and awarded the compensation, which is just, fair and reasonable. It is a question of fact. Hence the order of the Tribunal is in accordance with law and hence the same should be confirmed.
6. Heard the counsel on either side and perused the materials available on record. On the side of the Respondents/claimants, P. Ws.1 and 2 were examined and documents Exs.P1 to P10 were marked. On behalf of the Appellant/Transport Corporation one Venkatachalam, the conductor of the bus was examined as R.W.1, and no document was marked to substantiate their claim. P.W.1 Ezhilrani, is the wife of the deceased. P.W.2 Sekar, is the eye witness to the accident. Ex.P1 is the First Information Report. Ex.P.2 is the Post Mortem Certificate. Ex.P3 is the Driving License. Ex.P4 is the Insurance Policy. Ex.P5 is the R.C. Book. Ex.6 is the xerox copy of the Syndicate Bank Pass book. Ex.P7 is the xerox copy of the SBI Pass book. Ex.P8 is the Death Certificate. Ex.P9 is the Legal-heirship Certificate. Ex.P10 is the Patta. 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. 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
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 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
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
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.
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 inGobald 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 was aged about 35 years. Ex.P2 is the Post Mortem Certificate, in which the age of the deceased is stated as 35 years. Therefore, the Tribunal has fixed the age of the deceased as 35 years. P.W.1, who is the wife of the deceased, in her evidence has stated that the deceased was an agriculturist and also having a tractor and he was earning a sum of Rs. 2, 50,000/-per year. Further in her evidence, it is stated that the deceased was the owner of 1.27 hectares of dry land. Ex.P5 is the R.C. Book of the Tractor and Ex.P.10 is the Patta. There is no evidence available on record to show that the deceased was earning a sum of Rs. 2, 50,000/-per year. Therefore, the Tribunal fixed the monthly income of the deceased at Rs. 4,500/-. Out of the said sum, 1/3 of the amount i.e., Rs. 1,500/-was deducted towards personal expenses of the deceased and the balance sum of Rs. 3,000/-was taken as the monthly contribution of the deceased to the family and determined the annual contribution at Rs. 36,000/-(Rs. 3,000X12). After taking into consideration of the age of the deceased, the Tribunal adopted the multiplier of ''16'' and determined the loss of income at Rs. 5, 76,000/-(Rs. 36,000X16). The Tribunal has correctly fixed the age and monthly income and also adopted the correct multiplier. 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. 20,000/-towards loss of consortium. Learned Counsel appearing for the Appellant-Transport Corporation vehemently contended that the amount awarded under this head is very excessive. After considering the facts and circumstances of the case, I am of the view that it would be reasonable to award a sum of Rs. 10,000/-towards loss of consortium. The Tribunal has awarded a sum of Rs. 10,000/-towards medical expenses. There is no evidence available to show that the deceased has incurred medical expenditure. Therefore, the amount awarded under this head is unwarranted and hence the same is deleted. The Tribunal has awarded a sum of Rs. 5,000/-towards funeral expenses and another sum of Rs. 5,000/-towards transport charges. After considering the facts and circumstances of the case, the amounts awarded under these heads are very reasonable and hence the same are confirmed. The Tribunal has not awarded any sum towards loss of love and affection. Two minor sons have lost the love and affection of their father and the mother of the deceased has lost the love and affection of her son. Therefore, it would be reasonable to award a sum of Rs. 10,000/-towards loss of love and affection. The Tribunal has fixed the interest rate at 7.5% per annum. 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 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.5,76,000/-
Loss of consortium Rs. 10,000/-
Loss of love and affection Rs. 10,000/-
Funeral expenses Rs. 5,000/-
Transport charges Rs. 5,000/-
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Total... Rs.6,06,000/-
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10. Under the circumstances, the Appellant-Transport Corporation is directed to deposit the modified compensation of Rs. 6,06,000/-with interest at 7.5% p.a. from the date of petition, less the amount if any already deposited within in a period of eight weeks from the date of receipt of a copy of this order. On such deposit, the major claimants i.e. Respondents 1 and 4 are permitted to withdraw their respective shares, on making proper application. In respect of the minor claimants i.e., Respondents 2 and 3, their shares shall be deposited in a fixed deposit in any one of the Nationalized Bank till they attain the age majority. The mother of the minors, the first Respondent is permitted to withdraw the accrued interest on the said deposit once in three months, on making proper application.
11. With the above modification, the Civil Miscellaneous Appeal is disposed of. Consequently, connected miscellaneous petition is closed. No costs.
