P.P.S. Janarthana Raja, J.@mdashThe appeal is preferred by the claimants against the award dated 10.02.2005 made in M.C.O.P No. 991 of 2003 by the Motor Accident Claims Tribunal, First Additional District Court, Erode.
2. Background facts in a nutshell are as follows:
One deceasd Nandagopal met with motor traffic accident on 17.05.2003 at about 03.45 P.M. The deceased was riding his motor cycle bearing registration No. TN 37 x 3772 in Uthukuli to Padiyur road. While he was nearing Sivagiri four road juntion, a Tractor bearing registration No. TN 38 TT 2070 was coming from west to east in a rash and negligent manner with high speed and hit the motor cycle. Due to the impact, the deceased sustained fatal injuries and died on the spot. The claimants are the wife, son, daughters and parents of the deceased. They claimed a sum of Rs. 20,00,000/- as compensation. The said Tractor was insured with the third respondent insurance company who resisted the claim. On pleadings, the Tribunal framed the following issues:
1. Whether the accident had occurred due to the rash and negligent driving of the driver of the Tractor or not?
2. What is the compensation, the claimants are entitled to?
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 Tractor and awarded compensation of Rs. 2,87,320/- with interest @ 9% per annum from the date of claim and the details of the same are as under:
Loss of income = Rs. 2,80,320/-
Loss of consortium = Rs. 5,000/-
Funeral expenses = Rs. 2,000/-
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Total = Rs. 2,87,320/-
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Aggrieved by that award, the claimants have filed the present appeal for enhancement.
3. The learned Counsel appearing for the claimants submitted that the Tribunal awarded a very low and meagre sum of compensation. Further, the Tribunal ought to have awarded compensation as claimed by the claimants and the Tribunal has not considered the relevant materials 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.
4. The Learned Counsel appearing for the third respondent insurance company submitted that the Tribunal has considered all the facts and circumstances of the case and awarded a just, fair and reasonable compensation is based on valid materials and evidence. It is a question of fact and it is not a perverse order. Therefore, the award passed by the Tribunal is in accordance with law and the same should be confirmed.
5. Heard the counsel. On the side of the claimant, P.Ws.1 to 3 were examined and documents Exs.P1 to P22 were marked. On the side of the third respondent insurance company, no one was examined and no document was marked to substantiate their claim. P.W.1 is the wife of the deceased. P.W.2 is one Ponnuswamy, who is the eye witness to the accident. P.W.3 is one Palaniswamy, who is the co-employee of the deceased. Ex.P1 is the policy copy of the Tractor, Ex.P2 dated 05.06.2003 is the legal heir certificate, Ex.P3 dated 23.01.2002 is the copy of the sale deed, Ex.P4 dated 14.06.1990 is the copy of the sale deed, Ex.P5 dated 02.06.1988 is the copy of the settlement deed, Ex.P6 dated
29.09.1964 is the copy of the sale deed in the name of Ramaswamy Gounder, Ex.P7 dated 03.03.1998 is the letter from Erode District Trading Centre to Chengappalli branch, Bank of India, Ex.P8 dated 03.12.1969 is the copy of the sale deed in the name of Ramaswamy gounder, Ex.P9 dated 10.12.1964 is the copy of the sale deed in the name of Ramaswamy gounder, Ex.P10 dated 27.12.1996 is the temporary certificate given by District Trading Centre, Ex.P11 dated 04.05.1998 is the certificate given by District Trading Centre, Ex.P12 is the voters identity card, EX.P13 is the driving licence, Ex.P14 dated 17.05.2003 is the copy of the FIR, Ex.P15 dated 17.05.2003 is the copy of the model diagram, Ex.P16 dated 17.05.2003 is the copy of the observation Mahazar, Ex.P17 dated 17.05.2003 is the motor vehicles inspector''s report for motor cycle, Ex.P18 dated 21.05.2003 is the motor vehicles inspector''s report for Tractor, Ex.P19 dated 28.05.2003 copy of the charge sheet, Ex.P20 dated 09.06.2003 is the judgment copy, Ex.P21 dated 17.05.2003 is the copy of the postmortem report, Ex.P22 is the policy copy of the Tractor were marked. After considering the above oral and documentary evidence, the Tribunal has given a categorical finding that the accident had occurred only due to the rash and negligent driving of the Tractor and awarded compensation. It is a question of fact. The finding is based on valid materials and evidence and therefore, the same is confirmed.
6. 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 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.
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 therefrom 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 therefrom 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
7. 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 Thomas, 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. Veluswami, 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. At the time of the accident, the deceased was aged about 40 years. P.W.1 is the wife of the deceased. In her evidence, it is stated that the deceased was running Power Loom and also deriving income from Agriculture. She claimed that the deceased was earning at Rs. 15,000/- per month. Ex.P21 is the post-mortem report, in which, it is stated that the age of the deceased was 40 years. Therefore, the Tribunal fixed the age of the deceased at 40 years. P.W.1 in her evidence, has further stated that at the time of accident, the deceased was running Power Loom. Ex.P3 to P6, P8 and P9 are indicate that the deceased owned house and also having agricultural land but no evidence is available on record to show that the deceased was earning income from agriculture. In her evidence, it is further stated that the deceased was running Power Loom as per Ex.P7, P10 and P11, but no concrete evidence available on record to show that the deceased was running Power Loom. P.W.3 is one Palaniswamy, who is the employee of the deceased. In his evidence, it is stated that the deceased was running Power Loom but no licence was produced to support the same and income in respect of the same was also not furnished. Therefore, the Tribunal fixed the monthly income at Rs. 2,000/-. Out of the said sum, Rs. 540/- was deducted towards personal expenses and the balance amount of Rs. 1,460/- taken as the monthly contribution of the deceased and the annual contribution of the deceased was determined at Rs. 17,520/- and after applying multiplier ''16'', the loss of income was arrived at Rs. 2,80,320/- (Rs. 17520 x 16). The learned Counsel for the insurance company vehemently contended that there is no evidence available on record to show that the deceased running Power Loom and also income derived from agriculture. After taking into consideration of the above, it is reasonable to fix the monthly salary of the deceased at Rs. 3,000/- under the Minimum Wages Act and the annual contribution of the deceased is works out to Rs. 36,000/-. Out of the said sum, 1/4 of Rs. 9,000/- is deducted towards personal expenses and the balance amount of Rs. 25,000/- is taken as the annual contribution of the deceased. The age of the deceased is 40 years. The correct multiplier to be adopted as per the second schedule to Section 163-A of the Motor Vehicles Act is ''16''. If multiplier ''16'' adopted, the loss of income is works out to Rs. 4,00,000/- (Rs. 25,000 x 16). Therefore, the claimants are entitled to loss of income at Rs. 4,00,000/- as against Rs. 2,80,320/- awarded by the Tribunal. Further, the Tribunal awarded a sum of Rs. 5,000/- towards loss of consortium. Taking into consideration of the wife of the deceased at 38 years, it is reasonable to award a sum of Rs. 10,000/- towards loss of consortium as against Rs. 5,000/- awarded by the Tribunal. However, the Tribunal awarded a sum of Rs. 2,000/- towards funeral expenses which is reasonable and the same is confirmed. Further, the Tribunal has not awarded any sum towards towards loss of love and affection. Son and daughters have lost the love and affection of the father and the parents also lost the son. Taking into consideration of the same, it is reasonable to award a sum of Rs. 20,000/- towards towards loss of love and affection. Moreover, the Tribunal has not awarded any sum towards transportation. After taking into consideration of the facts and circumstances of the case, it is reasonable to award a sum of Rs. 2,500/- for transportation. The Tribunal awarded interest of 9%. After taking into consideration of the date of accident, date of award and the prevailing rate of interest during that period, it is reasonable to award interest @ 7.5% per annum. The modified amount of the compensation are as under:
Loss of income = Rs. 4,00,000/-
Loss of consortium = Rs. 10,000/-
Loss of love and affection = Rs. 20,000/-
Funeral expenses = Rs. 2,000/-
Transportation = Rs. 2,500/-
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Total = Rs. 4,34,500/-
(Less) Amount awarded by the Tribunal = Rs. 2,87,320/-
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Enhanced amount = Rs. 1,47,180/-
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9. In the result, the claimants are entitled to enhanced compensation of Rs. 1,47,180/- with interest @ 7.5% per annum from the date of claim petition. The third respondent insurance company is directed to deposit the enhanced compensation of Rs. 1,47,180/- with interest @ 7.5% per annum within a period of six weeks from the date of receipt of a copy of this order. On such deposit, the claimants are permitted to withdraw the same, on making proper application.
10. With the above modifications, the appeal is partly allowed. No costs.
