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Judgment
S. Manikumar, J.—1. Civil Miscellaneous Appeal is directed against the award made in MCOP.No. 893 of 2010, dated 20.06.2013, on the file of Motor Accident Claims Tribunal, (VI Additional District Court), Madurai.
Considering the limited challenge, with regard to quantum of compensation alone, there is no need to advert to the findings of the Claims Tribunal, regarding negligence and liability fastened on the appellant insurance company, to pay compensation.
Material on record discloses that on 15.10.2009, about 12.30 hours, on Sikkal-Aaliyur road, near Nagore Branch Road in Nagapattinam District, when Sikkandar was proceeding in a motor cycle bearing Registration No. TN-51- D-7038, at a moderate speed, observing traffic rules, a Lorry bearing registration No. TN-04-H-6210, insured with the appellant company, driven in a rash and negligent manner by its driver, dashed against the motor cycle. Due to the accident, both Sikandar and the pillion, sustained grievous injuries. Sikandar was initially treated in Government Hospital, Nagapattinam, and thereafter, shifted to Government Medical College Hospital, Thanjavur. Despite treatment, he succumbed to the injuries on the same day.
Wife of the deceased Tmt.Noorjahan, aged 37 years, Minor daughter, Jarina Begam aged 17 years, two Minor sons, Ameer aged 14 years and Minor Mohamed Yaseen aged 6 years and parents aged 61 and 56 years, respectively, have filed MCOP.No. 893 of 2010 before the Motor Accident Claims Tribunal, (VI Additional District Court), Madurai, claiming compensation of Rs. 40,00,000/-. According to them, prior to death, deceased Sikkandar had worked as a Air Conditioner Mechanic, in Brunei Darussalam and earned not less than Rs. 40,000/-. They have also submitted that the untimely death had deprived them of income, loss of love and affection and loss of estate. They claimed compensation of Rs. 40,00,000/- under various heads, including medical expenditure.
The appellant insurance company opposed the claim on negligence, liability to pay compensation and also the quantum claimed under various heads.
Before the Tribunal, wife of the deceased examined herself as PW1 and adduced evidence. PW2 is the pillion rider. On behalf of the claimants, Ex.P1- FIR, Ex.P2-Motor Vehicle Inspector''s report of the offending vehicle, namely, Lorry bearing registration No. TN-04-H-6210, Ex.P3- Motor Vehicle Inspector''s report of the motor cycle driven by the deceased, Ex.P4-Postmortem Report of the deceased, Ex.P5-Legalheir ship certificate, Ex.P6-Certificate, regarding the employment of the deceased, Ex.P7-Personal Data of the deceased, Ex.P8- Passport of the deceased, Ex.P9- Driving Licence of the deceased, Ex.P10-Air Ticket of the deceased for going to Brunei Darussalam, obtained a day prior to the accident, Ex.P11-Documents to prove that the deceased had sent money to the respondents/claimants through Western Union, Ex.P12-series of salary receipt of the deceased, Ex.P13-School Transfer Certificate of the deceased, Ex.P14-Documents to prove that the deceased had sent money to the respondents/claimants, Ex.P15-Judgment rendered by the Tribunal at Nagapattinam, have been marked. On behalf of the appellant insurance company, three witnesses have been examined and they have marked Ex.R1- Letter dated 12.07.2010 of the appellant, Ex.R2-Investigation Report, Ex.R3-Cases papers in Crime No. 645/2009 and Ex.R4-Investigation Report in Crime No. 645/2009.
On evaluation of pleadings and evidence, the Claims Tribunal came to the conclusion that the accident occurred due to the rash and negligent driving of the driver of the Lorry bearing registration No. TN-04-H-6210, insured with the appellant company, and therefore, held that the appellant company is liable to pay compensation.
The accident has occurred on 15.10.2009. As regards the age of the deceased, after perusing Ex.P7-Personal Data of the deceased, Ex.P8-Passport of the deceased, Ex.P9- Driving Licence of the deceased, Ex.P13-School Transfer Certificate of the deceased, the Tribunal has determined the age of the deceased as 38 years. Determination of the age, on the basis of the above documents cannot be found fault with.
As regards the avocation of the deceased, it was the contention of the respondents/claimants that prior to the accident, the deceased had worked in Brunei Darussalam, as an Air Conditioner Mechanic and upon perusal of the entries in the Passport of the deceased, the Claims Tribunal has found that he had worked abroad. To support the same, the Claims Tribunal has also considered Ex.P6-Personal Data and thus concluded that the deceased had worked between 1999 and 2005, in a private company, in Brunei Darussalam. Analysing the abovesaid documents, the Claims Tribunal has also come to the conclusion that the deceased was a Air Conditioner Mechanic.
On the determination of monthly income, it was the oral submission of the claimants that the deceased earned Rs. 40,000/- per month. Though the Claims Tribunal has observed that there was no proof for Rs. 40,000/-, claimed to have been earned by the deceased, perusal of the impugned judgment in MCOP.No. 893 of 2010 dated 21.03.2011, on the file of Motor Accident Claims Tribunal, (VI Additional District Court), Madurai, shows that the respondents have filed Ex.P11-Series evidencing that money had been sent to the respondents/claimants, through Western Union. They have also marked Ex.P12- series of salary receipts of the deceased and Ex.P14-document to show that the deceased was sending money to the respondents/claimants. The fact that the deceased had taken Ex.P10-Air ticket one day prior to the accident makes it clear that he had intended to go back to Brunei Darussalam, to pursue his avocation.
Thus, it could be deduced that by adducing oral and documentary evidence, the respondents/claimants have proved the avocation of the deceased. Despite the same, by observing that there was no document, the Claims Tribunal determined the monthly income of the deceased as Rs. 20,000/-. Judicial notice can be taken that Brunei Darussalam is one of the richest countries in the world.
As stated supra, there are entries in Ex.P8-Passport of the deceased, indicating visit to the said country from 1999 to 2005 and to prove the avocation, Ex.P7-Personal Data of the deceased, has also been produced. Exs.P11, P12 and P14-documents have been marked to support the claim of income and payment through Western Union.
Considering the fact that there is sufficient material to indicate that the deceased had gone to Brunei Darussalam, one of the wealthy countries in the world, between 1999 and 2005, the presumption of the Claims Tribunal that had the deceased worked as a Air Conditioner Mechanic in India, he would have earned Rs. 20,000/- per month, cannot be said to be manifestly erroneous. For the foregoing reasons, determination of monthly income is sustained.
The deceased is survived by parents, wife, two minor sons and a daughter. Going through the material on record, the Tribunal has also noticed that respondents 3 and 4 in the claim petition were also dependents on the deceased. At this juncture, it is also to be taken on record that Mr.B.Vijay Karthikeyan, learned counsel for the appellant submitted that the deceased had two wives. Thus, by observing that number of dependants as 8, after deducting 1/5th of the income towards personal and living expenses of the deceased, the Tribunal has arrived at the annual income as Rs. 1,92,000/- (Rs.20,000X4/5X12). Thereafter, the Tribunal deducted Rs. 9,200/- towards income tax and determined the annual income for the purpose of computing the loss of contribution at Rs. 1,82,800/-. Following the judgment of the Hon''ble Supreme Court in Smt. Sarla Verma & Ors. v. Delhi Transport Corporation and another reported in , 2009 (2) TNMAC 1 (SC), the Tribunal applied ''15'' multiplier and accordingly, computed the loss of contribution to the family as Rs. 27,42,000/-. Towards loss of love and affection, the Tribunal has awarded Rs. 30,000/- to the respondents 3 and 4 in the claim petition. That apart, the Tribunal has awarded Rs. 5,000/- for funeral expenses. Altogether, the Tribunal has awarded Rs. 27,77,000/- as compensation, with interest, @ 7.5% per annum, and apportioned the same as hereunder:-
Though Mr.B.Vijay Karthikeyan, learned counsel for the appellant contended that the Claims Tribunal has failed to consider that the deceased was not having any permanent job and worked abroad, and only for the period between 1999 and 2005, documents were produced, and therefore, the Claims Tribunal ought not to have determined the monthly income of the deceased as Rs. 20,000/-, for the reasons stated supra, this Court is not inclined to accept the said contention.
Perusal of the award makes it clear that the deceased had worked in Brunei Darussalam between 1999 and 2005. The accident has occurred on 15.10.2009. Avocation of the deceased as Air Conditioner Mechanic, is amply proved through Ex.P7-Personal data and other documents. Judicial notice can be taken that though at one point of time, installation of Air Conditioner Units in the residence, office or in other place, was considered to be an expensive affair in towns and cities, of late, it is no more a luxury and it has become part and parcel of life. As a Air Conditioner Mechanic, the Tribunal ought to have considered the future prospects also.
Compensation of Rs. 30,000/- awarded under the head loss of love and affection to the respondents 3 and 4, in the claim petition is a pittance. Respondent No. 4 in the claim petition Umar Mukthar was a minor. The Tribunal has grossly erred in not awarding any compensation under the head loss of consortium to the wives. So also, the Tribunal has erred in not awarding even a pie to the claimants, who were minors, at the time of filing of the claim petition and parents. The Tribunal has awarded a meagre sum of Rs. 5,000/- under the head funeral expenses. The Tribunal has not awarded any compensation for transportation, damages to clothes and loss of estate.
Legal representatives should be awarded with just compensation. Few decisions on this aspect are as under:-
(i) In R.D. Hattangadi v. M/s. Pest Control (India) Pvt. Ltd., reported in , AIR 1995 SC 755, wherein, the Apex Court held as follows:
"In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of disability caused. But all the aforesaid elements have to be viewed with objective standards."
(ii) In Common Cause, A Registered Society v. Union of India reported in , 1999 (6) SCC 667, at Paragraph 128, held as follows:-
"The object of an award of damages is to give the plaintiff compensation for damage, loss or injury he has suffered. The elements of damage recognised by law are divisible into two main groups : pecuniary and non- pecuniary. While the pecuniary loss is capable of being arithmetically worked out, the non-pecuniary loss is not so calculable. Non-pecuniary loss is compensated in terms of money, not as a substitute or replacement for other money, but as a substitute, what Mcgregor says, is generally more important than money: it is the best that a court can do. In Re: The Medianna (1900) A.C. 1300, Lord Halsbury L.C. observed as under:
"How is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by arithmetical calculation establish what is the exact sum of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident...But nevertheless the law recognises that as a topic upon which damages may be given."
(iii) In yet another decision in Divisional Controller, KSRTC v. Mahadeva Shetty and another reported in , (2003) 7 SCC 197, at Paragraph 12, the Supreme Court has held that,
"Broadly speaking, in the case of death the basis of compensation is loss of pecuniary benefits to the dependents of the deceased which includes pecuniary benefits to the dependents of the deceased which includes pecuniary loss, expenses etc. and loss to the estate. The object is to mitigate hardship that has been caused to the legal representatives due to the sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be unreasonable, excessive, nor deficient. There can be no exact uniform rule for measuring the value of human life and the measure of damage cannot be arrived at by precise mathematical calculation; but amount recoverable depends on broad facts and circumstances of each case. It should neither be punitive against whom claim is decreed nor should it be a source of profit for the person in whose favour it is awarded."
At Paragraph 15 of the said judgment, the Supreme Court has held that,
"Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just", a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness, and non-arbitrariness. If it is not so, it cannot be just."
(iv) In Nizam Institute of Medical Sciences v. Prasanth S.Dhananka reported in , (2009) 6 SCC 1 : 2010 ACJ 38 (SC), the Hon''ble Supreme Court, comprising of three Hon''ble Judges Bench was dealing with a case arising out of a complaint filed under the Consumer Protection Act, 1986. While enhancing the compensation awarded by the National Consumer Disputes Redressal Commission from Rs. 15 lakhs to Rs. 1 crore, the Hon''ble Bench made the following observations which can appropriately be applied for deciding the petitions filed under Section 166 of the Act:
"We must emphasise that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The "adequate compensation"? that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned. ...At the same time we often find that a person injured in an accident leaves his family in greater distress vis-a-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity."
(emphasis supplied)
(v) In Reshma Kumari and others v. Madan Mohan reported in , (2009) 13 SCC 422, the Hon''ble Apex Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the judgment are extracted below:
"The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms.
The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another (sic situation) the nature of employment was such that he might not have continued in service; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses or guess work may be inevitable. That may be so.
In the Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Co. Ltd. v. Jashuben, , 2008 ACJ 1097 (SC), held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration.
One of the incidental issues which has also to be taken into consideration is inflation. Is the practice of taking inflation into consideration wholly incorrect? Unfortunately, unlike other developed countries in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality. No hard-and-fast rule, however, can be laid down therefor."
(emphasis supplied)
Facts and circumstances disclose that the Claims Tribunal has failed to award a just and reasonable compensation under various heads. The Tribunal has considered only the loss of contribution to the family. Quantum of compensation determined by the Claims Tribunal at any stretch of imagination cannot be said to be grossly excessive, bonanza or manna from Heaven, warranting interference. There are no merits in the appeal.
In view of the dismissal of the appeal, the appellant is directed to deposit the entire award amount with proportionate accrued interest and costs, to the credit of MCOP.No. 893 of 2010 on the file of Motor Accident Claims Tribunal, (VI Additional District Court), Madurai, less the statutory deposit, within a period of eight weeks from the date of receipt of a copy of this order. On the request of the learned counsel for the respondents/claimants, seeking permission to withdraw the shares apportioned to the legal representatives, We only permit them to approach the Tribunal.
In the result, the Civil Miscellaneous Appeal is dismissed. No costs. Consequently, C.M.P(MD)No. 2484 of 2016 is closed.