P.P.S. Janarthana Raja, J.@mdashThe appeal is preferred by the Transport Corporation against the award dated 21.02.2003 made in MCOP No. 664 of 2002 by the Motor Accident Claims Tribunal(Principal District Judge) Cuddalore.
2. Background facts in a nutshell are as follows:
The deceased Balamurugan met with motor vehicle accident on 28.8.2001 at about 09.25 hours, when the deceased Balamurugan was proceeding in his Hero Honda bike bearing Registration No. TN 31 0822 a bus bearing registration No. TN 32-N-0704 belonging to the appellant/Transport corporation driven by its driver in a rash and negligent manner and hit the deceased Balamurugan. Due to the same, the deceased thrown out from the bike and died on the spot. The claimants 1 and 2 are the parents and the third claimant is the brother of deceased Balamurugan. They claimed a compensation of Rs. 15,00,000/-. The appellant/Transport Corporation resisted the claim. On pleadings the Tribunal framed the following issues:
1. Whether the accident was occurred due to the rash and negligent driving of the driver of the bus?
2. Whether the claimants are entitled to claim compensation? If so, what is the compensation?
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 and awarded a compensation of Rs. 8.03,000/- with interest at 9% per annum from the date of the claim petition and the details of the same are as under:
Loss of income to the family Rs. 7,68,000/- Loss of love and affection Rs. 30,000/- Funeral expenses Rs. 5,000/- Total... Rs. 8,03,000/-
Aggrieved by that award, the appellant-Transport Corporation has filed the present appeal.
3. The learned Counsel appearing for the appellant/Transport Corporation has questioned only the quantum of compensation awarded by the Tribunal and submitted that the amount awarded by the Tribunal is excessive, exorbitant and without any basis and justification. He further submitted that the Tribunal has wrongly adopted the multiplier on the basis of the age of the deceased. The Tribunal ought to have adopted the multiplier on the basis of the age of the parents and that therefore, the award passed by the Tribunal is not in accordance with law and the same has to be set aside.
4. Learned Counsel appearing for the respondents/claimants 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.
5. Heard the counsel and perused the documents available on record. On the side of the claimants, P.Ws 1 and 2 were examined. Exs. P1 top P6 were marked. P.W1 is the father of the deceased. P.W.2 is an eye witness examined as P.W.2. Exs.P1 to P6 were marked. On the side of the respondent, one Ramesh, the driver of the transport bus was examined as R.W.1, and no document was marked to substantiate their claim. Ex.P1 is the copy of the First Information Report; Ex.P2 is the driving licence of the deceased; Ex P3 is the Copy of Post mortem certificate; Ex P4 is the School Transfer certificate; Ex P5 is the Diploma Certificate and Ex P6 is the Service certificate. 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 and the finding is based on valid materials and evidence and 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
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 therefrom 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)
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 Thomas1, 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. Veluswamr, 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 Balamurugan was aged about 22 years. P.W.1, the father of the deceased, in his evidence deposed that at the time of accident, the deceased was aged about 22 years. Ex P3 the post mortem certificate also reveals that the age of the deceased was 22 years. Ex P4 is the School Certificate, in which, it is stated that the date of birth of the deceased was 3.4.1979. On the basis of the oral and documentary evidence, the Tribunal is correct in fixing the age of the deceased at 22 years. P.W.1 further stated in his evidence that the deceased was employed at Dubai and was earning a sum of Rs. 12,000/- p.m.. There is no concrete evidence to show that the deceased was earning a sum of Rs. 12,000/- per month at the time of accident. Ex P8 is the service certificate of the deceased given by the Cristal Uttam Group, Dubai in which, it is stated that the deceased was employed in their company and he was paid a sum of Rs. 1025 Dirhams. But the same was rejected by the Tribunal and has fixed the monthly income of the deceased at Rs. 5000/- p.m. Out of the said sum, the Tribunal deducted Rs. 1000/- towards his personal expenses and taken the balance sum of Rs. 4,000/- as monthly contribution of the deceased to his family. After taking into consideration, the age of the his father and mother, the Tribunal has adopted multiplier of 16 and determined the loss of income at Rs. 7,68,000/- (4,000 x 12 x 16).There is no dispute regarding the monthly income fixed by the Tribunal and the annual income works out to Rs. 60,000/- (Rs. 5,000 x 12). The learned Counsel appearing for the appellant-Transport Corporation vehemently contended that the Tribunal is wrong in deducting Rs. 1,000/- towards personal expenses. The deceased was living in abroad. Therefore, 1/3rd should be deducted towards personal expenses. If 1/3rd of Rs. 20,000/- (Rs. 60,000/- - 20,000/-) is deducted, the balance sum of Rs. 40,000/- is taken as the monthly contribution to the family of the deceased. Further it is argued that only the age of the parents should be taken into consideration for adopting the multiplier. In this case, the age of the mother is 45 years. Therefore, the correct multiplier to be adopted in this case if ''15'' as against ''16'' adopted by the Tribunal and the loss of income works out to Rs. 6,00,000/- (Rs. 40,000 x 15) as against Rs. 7,68,000/- awarded by the Tribunal. The Tribunal has awarded a sum of Rs. 30,000/- towards loss of love and affection. The claimants are the parents and brother of the deceased. They lost their son. Hence the amount awarded under this head is very reasonable and the same is confirmed. The Tribunal has awarded a sum of Rs. 5,000/- towards funeral expenses. The said amount is very reasonable and the same is confirmed. The Tribunal has awarded interest at the rate of 9% p.a. The date of accident is 28.8.2001. Considering the prevailing rate of interest during that period, the interest awarded by the Tribunal is confirmed. The details of the modified compensation as per the above discussion are as under:
Loss of income Rs. 6,00,000/- Loss of love and affection Rs. 30,000/- Funeral Expenses Rs. 5,000/- Total Rs. 6,35,000/-
Therefore, the claimant is entitled to the modified compensation of Rs. 6,35,000/- together with interest at the rate of 9% p.a. as against the compensation of Rs. 8,03,000/- awarded by the Tribunal.
9. It is represented by the learned Counsel appearing for the appellant-Insurance Company that already entire award amount has been deposited as per the order of this Court dated 31.12.2003 and the claimants also withdrawn 50% of the deposited award amount. The claimants are permitted to withdraw the modified award amount of Rs. 6,00,000/- with interest at 9% per annum from the date of petition, after adjusting the amount already withdrawn as apportioned by the Tribunal on making proper application. The appellant-Transport Corporation is also permitted to withdraw the balance amount, if any, on making proper application.
10. With the above modification, the Civil Miscellaneous Appeal is disposed of. No costs.
