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Judgment
P. Devadass
The State Transport Corporation questioning the determination of the Tribunal on the question of negligence and the quantum of compensation,
directed this appeal. On 28.8.1998, first respondent travelled in the third respondent''s bus, which has been insured with the fourth respondent. A
road accident took place. First respondent sustained multiple injuries. He claimed compensation. In view of the effect of the disability, the Tribunal
adopted the multiplier method and determined the disability compensation after deducting 1/3 towards his personal expenses and awarded
amounts under other heads and totally determined at Rs. 4,10,880/-.
According to the learned counsel for the appellant, the third respondent''s bus driver was also at fault. He is guilty of contributory negligence. In
the circumstances, the Tribunal wrongly fastened the entire negligence on the appellant''s bus driver. The Tribunal ought not to have followed the
multiplier method. The amount awarded is also on the higher side.
On the other hand, the learned counsel for the first respondent would contend that the evidence adduced clearly shows that the appellant''s bus
driver alone was responsible for the accident. The learned counsel for the first respondent would further contend that it is a case of compensation
for personal injuries. The Tribunal while calculating disability compensation, deducted 1/3 from the income of the injured towards his personal
expenses. This is not in accordance with law. What was awarded by the Tribunal itself is very less.
In reply, the learned counsel for the appellant would submit that there is no Cross Appeal or Cross Objection by the first respondent, in such
circumstances, he cannot object to the deduction of 1/3 from the income of the injured.
In reply, the learned counsel for the first respondent would submit that mistake has been committed by the Tribunal while determining disability
compensation and what the first respondent is asking is to set right this illegality. No Tribunal or Court can pass any award as against law. In such
circumstances, without any cross appeal, the request to set right the illegality can be considered.
I have anxiously considered the rival submissions, perused the materials on record and the impugned award of the Tribunal.
On 28.8.1998, first respondent travelled in the third respondent''s bus. At about, 4.30 p.m., on the Madurai - Rameswaram Main Road, near
Periapattinam, the accident took place. In this accident, first respondent sustained multiple injuries. Amitha Banu, a co-passenger of first
respondent lodged Ex.P.1 complaint with Police that at the time of accident, the appellant''s bus came driven in a rash and negligent manner from
the opposite side and dashed against the bus. First respondent testified before the Tribunal that the appellant''s bus came driven in a rash and
negligent manner and dashed against their bus. The F.I.R. has been registered as against R.W.1-Arumugam, the driver of the appellant''s bus. After
investigation, police filed Ex.P.2 chargesheet against R.W.1. Though, R.W.1 tried to put the blame on the third respondent''s bus driver, he did not
lodge a complaint with police or a report to his Corporation that the third respondent''s bus driver came driven the bus in a rash and negligent
manner and caused the accident. In M.C.O.P. No. 320 of 1998, a co-passenger when claimed compensation the Tribunal held that the State
Transport Corporation''s bus driver was responsible for the accident. As against that, the State Transport Corporation filed C.M.A.No. 795 of
2004 in this Court. This Court upheld the decision of the Tribunal. As against that, there was no further appeal to the next higher forum. Thus, that
decision has become final. So, in this appeal, on the question of negligence, the appellant cannot say that its driver was not at fault. In the light of
the above, we hold that the Tribunal has rightly held that the accident was due to the negligence of the appellant''s bus driver.
At the time of accident, the first respondent was 47 years old. He had sustained multiple injuries. P.W.2- Dr. Syed Ibrahim examined him,
determined his disability at 60% and issued him Ex.P.14 disability certificate. The Tribunal took the multiplier ''13'', taken Rs. 2,500/- as his
monthly income, calculated Rs. 3,90,000/- (Rs. 2,500/- x 12 x 13) towards grievous injuries and permanent disability. From this amount, it had
deducted 1/3 towards his personal expenses and took the balance Rs. 2,60,000/- and from that it took 60%, namely, Rs. 1,56,000/-. The
Tribunal awarded the said Rs. 1,56,000/- as disability compensation.
First respondent sustained multiple injuries. They are grievous in nature (see Ex.P.3 wound certificate). He sustained fracture. Iron rod was also
fitted. There was fracture of humerus bone. P.W.2 examined him and determined his disability at 60% (see Ex. P.14 certificate). In the facts and
circumstances of the case, to award him just compensation, the Tribunal adopted the multiplier method. There is no flaw in it.
In motor accident cases, 3 types of compensations are asked for. Compensation for injuries, they may be simple or grievous. In death cases,
dependents of deceased claims compensation. Apart from this, damages for damage caused to property also has been asked for. Deduction of a
portion of the amount arrived at towards loss of dependency arises only in death cases. In death cases, to determine loss of dependency, the
income of the deceased is ascertained. But, to earn and live, he has to spend for himself. In such circumstances, a portion of his income has been
deducted towards his such personal and other expenses and the balance alone is taken since that would be his contribution to the family. By his
loss of his life that has been lost to the family.
This deduction is also depend upon marital status of the deceased. Still it also depends on the size of the family depended upon the deceased.
Bachelors were supposed to spend more and contribute less to the family. Thus, in case of death of bachelor 50% deduction from his income has
been advocated. Suppose he headed a huge family, he has to spend more on the family and less on himself. So, the Courts held that in such cases
rate of deduction for personal expenses should be less. As regards married persons, it depends on number of persons dependent on them. In such
cases, the rate of deduction towards personal expenses would be 1/3 if there is 3 dependents, 1/4 if it is 6 dependents and 1/5 if the dependents
are above 6.
So far as injury cases are concerned, that too in disability cases, in fit cases multiplier method has to be adopted. But, in such cases, the said
1/3 deduction towards personal expenses will not be made, because only a portion of the amount, corresponding to the percentage of disability
has to be taken for determining the disability compensation and the injured or disabled also survives. In injury cases, deduction towards pleasure
and other expenses cannot be made. Theses are certain factors to be kept in mind while working out just compensation to accident victims.
Now, the case before us is an injury case. Disability compensation was determined. However, the Tribunal deducted 1/3 of income towards
his personal expenses. Thus, reduced the compensation amount. But, the injured has not filed any cross appeal or cross objection. The question is
whether a Superior Court can allow such illegality to continue since the first respondent/claimant has not preferred any cross appeal.
No Tribunal or Court can pass award as against established position of law. Dehors principles of law, they cannot pass awards, Judgments,
Orders and Decrees. Now, in this case, the Tribunal passed award as against law. In such circumstances, merely on the ground that the first
respondent has not filed cross appeal, if such an award with such legal infirmity is confirmed, it will amount to Court giving its seal of approval to an
illegality committed by the Tribunal. The appellate Court can correct mistakes when the Tribunal misdirected itself. Now, in this case, as per law, in
an injury case, 1/3 deduction ought not to have been effected from the income of the injured. But, the Tribunal effected it. So, the Tribunal
committed mistake. Necessarily, the appellate Court has to set right the mistake notwithstanding the fact that no cross objection or cross appeal
has been filed. Now, calculating on the above lines, the permanent disability comes to Rs. 2,34,000/- (Rs. 2,500/- x 12 x 13 x 60/100).
Under other items of compensation, the Tribunal granted him reasonable amounts. On the whole, except the said mistake, which we have
noticed and corrected, in all other respects, we are not interfering with the award of the Tribunal. In the result, the award of the Tribunal is
modified. The first respondent is awarded a total compensation of Rs. 4,88,880/- with 7.5% interest p.a. from the date of original petition till
deposit with costs. Within 4 weeks from the date of receipt of a copy of this Judgment, the appellant shall deposit the entire amount, less amount
already deposited. On such deposit, the first respondent shall be paid the entire amount, less amount already withdrawn. The appeal is disposed of
accordingly. No costs. Consequently, the connected Miscellaneous Petition is closed.