AI Structured Summary
Not yet generated for this judgment
Judgment
P.P.S. Janarthana Raja, J.—The appeal is preferred by the appellant-Transport Corporation against the award and decree passed on 07.10.2004 made in M.C.O.P. No. 519 of 2003 on the file of the Motor Accident Claims Tribunal, (Principal Sub Court) Cuddalore.
Background facts in a nutshell are as follows:
The deceased Kasilingam met with motor vehicle accident on 21.09.2002 at about 10.45 p.m. When he was about to get into the bus bearing registration No. TN.32 N 1073 belonging to the appellant-Transport Corporation the driver of the bus suddenly moved the bus. Due to the same, he slipped and fell down and sustained head injury. He was immediately taken to the Government Head Quarters hospital, Cuddalore but he died on the way to the hospital. The claimants are wife, two daughters and two sons of the deceased. They claimed a sum of Rs. 30,00,000/- as compensation, before the Tribunal. The appellant-Transport Corporation resisted the claim. On pleadings the Tribunal framed the following issues:
Whether the accident took place due to the rash and negligent driving of the driver of the bus belonging to the appellant Transport Corporation?
2.Whether the claimants are is entitled to the compensation? If so, how much?
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 appellant-Transport Corporation bus and awarded a compensation of Rs. 10,92,500/- with interest at 9% per annum from the date of the claim petition. The details of the compensation are as under:
for loss of income : Rs. 10,23,000/- for consortium : Rs. 25,000/- for love and affection : Rs. 40,000/- for loss of estate : Rs. 2,500/- for funeral expenses : Rs. 2,000/- Totally : Rs. 10,92,500/-
Aggrieved by that award, the appellant-Transport Corporation has filed the present appeal.
The learned Counsel appearing for the appellant/Transport Corporation questioned only the quantum of compensation and vehemently contended that the Tribunal has awarded an excess and exorbitant compensation without basis and justification. He further contended that the Tribunal should have taken into consideration that the deceased was 52 years old and his retirement age is 58 years. Therefore, the Tribunal ought not to have adopted the multiplier of 11 and erred in awarding a sum of Rs. 10,23,000/- for loss of income, which is without basis and justification and the award passed by the Tribunal is not in accordance with law and the same has to be set aside.
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.
Heard the counsel and perused the documents available on record. On the side of the claimants P.W''s.1 and 2, were examined and documents Exhibits P1 to P8 were marked. P.W.1 is the wife of the deceased. P.W.2, Rajendran is the eye witness to the accident. Ex.P.1 is the Xerox copy of the First Information Report, Ex.P.2 is the Motor Vehicle Inspection Report, Ex.P.3 is the Post-Mortem Report of the deceased Kasilingam, Ex.P.4 is the Xerox copy of the R.C.Book, Ex.P.5 is the Xerox copy of the Driving Licence, Ex.P.6 is the Xerox copy of the Salary Certificate of the deceased, Ex.P.7 is the Xerox copy of the Legal Heir Certificate, Ex.P.8 is the Xerox copy of the Charge Sheet. On the side of the appellant-Transport Corporation, R.W.1, Elumalai, the driver of the appellant-Transport Corporation, was examined. No documents were marked on their side to support their claim. 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 belonging to the appellant-Transport Corporation and the finding is based on valid materials and evidence.
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:
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 General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, . After exhaustive consideration, this Court preferred the Davies method to Nance method. We extract below the principles laid down in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas (supra).
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 U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and Others, , this Court, while reiterating the preference to Davies method followed in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas (supra), stated thus:
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)
In the case of Syed Basheer Ahamed and Others Vs. Mohd. Jameel and Another, , the Apex Court has held as follows:
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.
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 Thomas 2, M.N. Venkatachaliah, J. (as His Lordship then was) had observed that: (SCC p.181, para 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.
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 4, 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.
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)
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.
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.
At the time of the accident, the deceased Kasilingam was aged about 52 years. He was working as a teacher in a Government Higher Secondary School, Naduvarampatti. Ex.P.3, copy of the post-mortem report states that the age of the deceased was 52 years at the time of the accident. Ex.P6 is the salary certificate of the deceased, in which also the Date of Birth of the deceased was mentioned as 21.02.1951 and hence, the Tribunal fixed the age of the deceased at 52 years. Ex.P6 is the salary certificate of the deceased, in which, it is stated that the deceased was earning Rs. 11,175/- per month. Therefore, the Tribunal, after taking into consideration that the deceased would have got promotion before his retirement and he would have earned at about Rs. 23,250 per month and then taken the average and fixed the monthly income of the deceased at Rs. 11,625/- (23,250/2) per month and Rs. 1,39,500/- as his annual income. After deducting 1/3 of the amount towards personal expenses, the Tribunal fixed at Rs. 93,000/- as the contribution to the family of the deceased. Further, by applying the multiplier of ''11'', the Tribunal has determined the loss of income at Rs. 10,23,000/-. Learned Counsel appearing for the appellant-Transport Corporation vehemently contended that the Tribunal ought not to have adopted the multiplier of 11 as the retirement age of the deceased is 58 years and the deceased was 52 years old at the time of the accident. Considering the same, if multiplier ''6'' is adopted, the loss of income is as follows: 11,625 X 12 X 6 - 1/3 which works out to Rs. 5,58,000/-. After retirement he would have employed. In such circumstance, the Courts held that 40% of the gross salary shall be taken into consideration for computing loss of income. Therefore, 40% of the salary is taken in the present case, which works out to Rs. 4,660/- and the loss of income after retirement works out as follows: 4660 X 12 X6 - 1/3 = Rs. 2,23,680/- Therefore, the total loss of income comes to Rs. 7,81,680/- (Rs.5,58,000/- + Rs. 2,23,680/-).
Hence the claimant is entitled to a sum of Rs. 7,81,680/- as loss of income as against the sum of Rs. 10,23,000/- awarded by the Tribunal. The Tribunal has awarded a sum of Rs. 25,000/- for loss of consortium, which is a very reasonable amount, since the age of the widow was 40 years at the time of the accident and the same is confirmed. The Tribunal has awarded a sum of Rs. 40,000/- for loss of love and affection to the other claimants, the two daughters and two sons of the deceased, which is also very reasonable and the same is also confirmed. The Tribunal has awarded a sum of Rs. 2,000/- for funeral expenses and no amount was awarded towards transportation charges and hence a sum of Rs. 5,000/- is awarded for funeral expenses as well as the transportation charges as against the sum of Rs. 2,000/- awarded by the Tribunal. A sum of Rs. 2,500/- was awarded towards loss of estate by the Tribunal, which is very reasonable and the same is confirmed. Hence, the compensation works out to Rs. 8,54,180/-. The Tribunal awarded interest at 9% p.a. The date of accident is 21.09.2002. Taking into consideration the prevailing rate of interest at the time of the accident, the interest awarded by the Tribunal is confirmed. The details of the compensation are as under:
for loss of income : Rs. 7,81,680/- for loss of consortium : Rs. 25,000/- or loss of love and affection : Rs. 40,000/- for funeral expenses and transportation charges : Rs. 5,000/- for loss of estate : Rs. 2,500/- Total amount : Rs. 8,54,180/-
Therefore the claimant is entitled to the modified compensation of Rs. 8,54,180/-. (Rupees Eight Lakhs Fifty Four Thousand One Hundred and Eighty Only) with interest at 9% p.a. as against the sum of Rs. 10,92,500/- awarded by the Tribunal.
The appellant-Transport Corporation submitted that they have already deposited the entire award amount as against the order of this Court dated 28.04.2005 and the Court has also permitted the claimants to withdraw 50% of the amount with accrued interest. Under these circumstances, the claimants are permitted to withdraw their shares from the modified sum of Rs. 8,54,180/-, as apportioned by the Tribunal less the amount already withdrawn, by making proper application. The appellant-Transport Corporation is also permitted to withdraw the balance amount on making proper application.
With the above modification, the Civil Miscellaneous Appeal is disposed of. No costs. Consequently, the connected miscellaneous petition is also closed.