Madras High Court
A.C.G. Venancious And Anr. vs Jagajothi And Ors. on 7 March, 2007
Equivalent citations: 2008ACJ1434
Author: P.P.S. Janarthan Raja
Bench: Elipe Dharma Rao, P.P.S. Janarthana Raja
JUDGMENT P.P.S. Janarthan Raja, J.
1. The civil miscellaneous appeal is filed by the insurance company and cross-objection is filed by the claimants. Both the appeal as well as the cross-objection filed against the decree and judgment dated 8.5.2000 made in M.A.C.T.O.P. No. 23 of 1999 on the file of the Motor Accidents Claims Tribunal, Additional District Judge-cum-Chief Judicial Magistrate, Tuticorin. We have taken up both the matters and disposed of by a common order.
2. The relevant facts arising out of the above are as under:
The insurance company is the appellant in the civil miscellaneous appeal. The claimants are the father, mother, wife and sister of the deceased. Claimants filed the claim petition before the Motor Accidents Claims Tribunal on account of the death of Sureshkumar who was killed in a road accident on 21.12.1995 at about 12 noon at Beach Road, Tuticorin. On that day, he was riding Hero Honda motor cycle No. TN 76-6976 belonging to the respondent No. 3 in the appeal. On that day, two motor cycles got collided and deceased Sureshkumar was thrown off and sustained injury and killed on the spot. It was pleaded that the driver of the other motor cycle M80 bearing No. TN 69-9320 was rash and negligent and due to said rash and negligent act Sureshkumar was killed.
3. The Motor Accidents Claims Tribunal framed various issues. Deceased Sureshkumar was riding the motor cycle which belonged to the respondent No. 3 got collided with the other motor cycle belonging to the respondent No. 1 in the appeal. The said motor cycle was also insured with the insurance company, the above-mentioned appellant in the appeal. The owner of the vehicle, respondent No. 1, neither contested nor filed any counter. Only the insurance company, the above-mentioned appellant, contested the claim petition and raised number of objections and pleaded that the deceased drove the vehicle in a rash and negligent manner. After considering the material evidence on record, the Tribunal came to the conclusion that the rider of the motor cycle M80 bearing No. TN 69-9320 was rash and negligent and awarded the compensation sum of Rs. 7,40,000 with interest at the rate of 12 per cent from the date of filing. Aggrieved by the award, both the insurance company as well as the claimants filed an appeal against the award.
4. The contentions raised by the learned Counsel for the insurance company are as under:
(a) The deceased was driving the vehicle in a rash and negligent manner.
(b) The vehicle M80 bearing No. TN 69-0320 involved in the accident was stolen.
(c) The Tribunal awarded an excessive compensation without any valid material and evidence.
(d) The Tribunal is wrong in awarding a sum of Rs. 1,500 towards future earnings.
(e) Granting of 12 per cent interest per annum which is excessive.
5. The contentions raised by claimants in both the appeals as well as the cross-objection are as under:
(a) The Tribunal ought to have granted more compensation and there is enough evidence available on record.
(b) The Tribunal is wrong in awarding less compensation towards mental agony and suffering.
(c) The Tribunal ought to have awarded more towards future earnings because the deceased was a degree holder and also got diploma in Air Cargo Management.
(d) The deceased was 29 years old at the time of accident.
(e)The compensation awarded by the Tribunal is 'less' and meagre.
(f) The Tribunal ought to have awarded Rs. 25,00,000 as claimed in the claim petition.
Hence, the Tribunal ought to have awarded compensation as claimed in the claim petition.
6. Heard the counsel. We have perused the Exhs. A1 to A18 as well as the evidence of PWs 1 to 4 and also Exhs. Rl to R5 and evidence of RWs 1 to 3. Accident has taken place on 21.12.1995 at about 12 noon at Beach Road, Tuticorin. Deceased was riding Hero Honda motor cycle bearing No. TN 76-6976. He was travelling from north to south riding on the left side of the road very carefully and cautiously. The rider of the other motor cycle M80 bearing No. TN 69-9320 was driving rashly and negligently without following the traffic rules from south to north and dashed against Hero Honda motor cycle bearing No. TN 76-6976 and the said Sureshkumar was thrown off and sustained head injury and killed on the spot.
The complaint was given and a case was registered with South Police Station in Cr. No. 846 of 1995. PW 2 Prasad had witnessed the accident. He was going by his motor cycle No. TN 69-8343 with Selvakumar who was pillion rider, coming from Tuticorin Harbour via Beach Road on 21.12.1995 at 12 noon and saw the rider of the motor cycle M80 bearing No. TN 69-9320 was driving rashly and negligently. He saw that the deceased was coming on left side of the road and other motor cycle M80 bearing No. TN 69-9320 came without control due to rash and negligent driving and dashed against motor cycle of the deceased. The deceased Sureshkumar sustained injury and was killed on the spot. The criminal court on the file of the Judicial Magistrate No. 1, Tuticorin in C.C. No. 136 of 1996 acquitted the driver for want of proof and evidence.
8. Hence, the proceeding was dropped. Only, the owner of the vehicle, RW 3, gave evidence but he did not contest or file counter before the Claims Tribunal. The Tribunal relied on eyewitness, the above-mentioned PW 2. The insurance company did not file any material evidence or brought any evidence to show that deceased was driving rashly and negligently. On the other hand, there was enough material evidence and witnesses on record and hence the Tribunal has rightly come to the conclusion that the motor cycle M80 bearing No. TN 69-9320 was rash and negligent and dashed against the vehicle of the deceased. So, Tribunal is right in coming to the conclusion that the deceased was not rash and negligent. It is only that the other motor cycle M80 bearing No. TN 69-9320 was rash and negligent, the owner of the motor cycle M80 bearing No. TN 69-9320 is the respondent No. 1. On 21.12.95, he parked the vehicle in front of the Chartered Accountant's office and came to Madurai by bus. He returned to Tuticorin from Madurai at 11 p.m. on the same day and found that his vehicle was missing and he made a complaint to the police. He was informed that his motor cycle was involved in the accident and F.I.R. was filed which is Exh. P1. Exh. P2 is the charge-sheet. Exh. P3 is the certificate issued by the Motor Vehicle Inspector. Exh. P4 is the observation mahazar. Exh. P5 is the post-mortem report. The owner of the motor cycle M80 bearing No. TN 69-9320 did not appear before the Tribunal nor filed any counter. He was RW 2 and has given only evidence. The said vehicle was insured with the insurance company. There is no violation of policy which is Exh. R4 and merely because the said vehicle was stolen the insurance company cannot deny its liability. The other relevant factor in this case is that there is no leave obtained by insurance company under Section 170 of the Motor Vehicles Act. The Claims Tribunal after considering the materials on record and the evidence, awarded compensation of Rs. 7,40,000 and the said sum was fixed on the following terms:
Monthly salary of the deceased from Choice Trading Co. Rs. 2,500 Monthly salary of the deceased from Raja Agencies Rs. 2,000 _________ Total Rs. 4,500 Future earnings Rs. 1,500 _________ Total earnings per month Rs. 6,000 Deduction of 1/3rd towards personal expenses Rs. 2,000 _________ Rs. 4,000 _________ Annual income (Rs. 4,000 × 12) Rs. 48,000 ____________ (1) Tribunal adopted multiplier of 15 (Rs. 48,000 × 15) Rs. 7,20,000 (2) Transport and funeral expenses Rs. 10,000 (3) Pain and suffering Rs. 10,000 _________________ Total Rs. 7,40,000 _________________ Out of the said sum of Rs. 7,40,000, the Tribunal allocated a sum of Rs. 3,70,000 to the wife, Rs. 1,50,000 to the mother and Rs. 1,20,000 to the father and the balance sum of Rs. 1,00,000 to the sister and also awarded interest of 12 per cent from the date of application.
9. Learned Tribunal fixed the monthly salary of Rs. 6,000. Out of this Rs. 6,000, Rs. 4,500 was fixed after considering the salary certificate given by the two employers which are Exh. P14 and Exh. P15 and also considering the evidence of the employers, PW 3 and PW 4. Further sum of Rs. 1,500 was awarded by the Tribunal towards future earnings after considering the following factors:
(1) Exh. P8--B.A. certificate.
(2) Exh. P6--Diploma in Air Cargo Management.
(3) Exhs. P9 and PI 8--Passport and visa.
Out of Rs. 6,000, the Tribunal deducted, 1/3rd towards personal expenses and fixed Rs. 4,000 p.m. and calculated the annual income at Rs. 48,000. The Tribunal adopted the multiplier of 15 and fixed the compensation of Rs. 7,20,000 as the pecuniary loss to the family. We do not find any error or infirmity in the above computation and hence, the award given by the Tribunal is just and reasonable. There is also no valid material and evidence available on record to enhance the compensation as claimed by the claimants. The learned Counsel for the insurance company contended that the Tribunal is wrong in awarding 12 per cent interest and the Tribunal ought to have awarded only 9 per cent interest. We do not want to reduce the interest from 12 per cent to 9 per cent due to the following factors:
(a) No leave obtained by the insurance company under Section 170 of Motor Vehicles Act.
(b) No compensation awarded by the Tribunal towards loss of consortium.
(c) The Tribunal ought to have adopted multiplier of 17 as per Second Schedule as against the multiplier of 15 opted by the Tribunal.
If we fix the reasonable amount to loss of consortium and adopt multiplier of 17 the quantum amount will come more or less equal to the amount if the interest rate is fixed at 9 per cent. Reducing the compensation under one head and increasing the compensation under another head would be a futile exercise. After taking into consideration of all these factors, we are not inclined to interfere with the rate of interest and hence, we feel the total compensation awarded by the learned Tribunal is just and reasonable and hence, the contentions raised by the insurance company as well as the claimants are rejected.
10. The compensation granted by the court must be just, fair and reasonable. It is very difficult to compensate the legal heirs for tragedy which befell on them. Of course, no money could do that. Recently, Supreme Court in the case of New India Assurance Co. Ltd. v. Satender , considered the scope of awarding just and fair compensation in motor accident case and held as follows:
(7) In Mallett v. McMonagle 1969 ACJ 312 (HL, England), Lord Diplock had analysed in detail the uncertainties which arise at various stages in making a rational estimate and practical ways of dealing with them. In Davies v. Taylor 1973 ACJ 66 (CA, England), it was held that the court, in looking at future uncertain events, does not decide whether on balance one thing is more likely to happen than another, but merely puts a value on the chances. A possibility may be ignored if it is slight and remote. Any method of calculation is subordinate to the necessity for compensating the real loss. But a practical approach to the calculation of the damages has been stated by Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd. (1942) 1 All ER 657, in the following words:
The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required to be spent for his own personal and living expenses. The balance will give a datum or a basic figure which will generally be turned into a lump sum by taking a certain number of years' purchase.
11. In State of Haryana v. Jasbir Kaur , it was held as under:
(7) It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is to be in the real sense 'damages' which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that compensation must be 'just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. The courts and the Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be 'just' compensation is the vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. 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 the 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. The expression 'just' denotes fairness, equitability and reasonableness and non-arbitrariness. If it is not so it cannot be just. [See Helen C. Rebello v. Maharashtra State Road Trans. Corporation ].
12. There are some aspects of human life which are capable of monetary measurement, but the totality of human life is like the beauty of sunrise or the splendour of the stars, beyond the reach of monetary tape-measure. The determination of damages for loss of human life is an extremely difficult task and it becomes all the more baffling when the deceased is a child and/or a non-earning person. The future of a child is uncertain. Where the deceased was a child, he was earning nothing but had a prospect to earn. The question of assessment of compensation, therefore, becomes stiffer. The figure of compensation in such cases involves a good deal of guesswork. In cases, where parents are claimants, relevant factor would be age of parents."
13. So, considering the above, we are of the view that the compensation awarded by the Tribunal is just, fair, adequate and reasonable. There is no error or legal infirmity in the impugned order. The conclusion arrived at by the Tribunal was based on valid material and evidence. Hence, the compensation awarded by the Tribunal is in accordance with law. No case has been made out for interference. Under these circumstances, we have confirmed the order of the Tribunal and dismissed the appeal filed by the insurance company as well as the cross-objection filed by the claimants. No costs. Consequently, connected miscellaneous petition is closed.