Madras High Court
State Express Transport Corporation vs E.Usha on 2 December, 2010
Author: P.P.S.Janarthana Raja
Bench: P.P.S.Janarthana Raja
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/12/2010 CORAM THE HONOURABLE MR. JUSTICE. P.P.S.JANARTHANA RAJA C.M.A.(MD)NO.1413 OF 2010 AND M.P.(MD)NO. 4 OF 2010 AND C.M.A.(MD)NO.208 OF 2010 C.M.A.(MD)NO.209 OF 2010 C.M.A.(MD)NO.210 OF 2010 C.M.A.(MD)NO.211 OF 2010 C.M.A.(MD)NO.212 OF 2010 AND M.P.(MD)NOs.1,1,1,1 and 1 OF 2010 C.M.A.(MD)NO.1413 OF 2010 State Express Transport Corporation Tamil Nadu Limited, Rep. by its Managing Director, Chennai. .. Appellant Vs 1.E.Usha 2.Minor Swathi 3.Narayanasamy 4.Pushpam (2nd respondent Minor Swathi is represented by her mother and next friend, 1st respondent) 5.Muthulakshmi 6.The Divisional Manager, The New India Assurance Co., Ltd., No.30, Swamiannan Pillayar Kovil Street, Virudhunagar District. .. Respondents Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and Decree dated 30.04.2009 made in M.C.O.P No.60 of 2006 on the file of the Motor Accidents Claims Tribunal, Sub Court, Virudhunagar. !For appellant ... Mr.Royce Emmanuel ^For respondents ... Mr.D.Sakkaravarthi for R1 to R4 :COMMON JUDGMENT
C.M.A.No.1413 of 2010 is filed by the appellant-Transport Corporation against the judgment and decree dated 30.04.2009 made in M.C.O.P.No.60 of 2006 and C.M.A.Nos.208 to 212 of 2010 are filed by the appellant-Insurance Company against the judgment and decree dated 30.04.2009 made in M.C.O.P.Nos.56, 57, 58, 59 and 60 of 2006 respectively, on the file of the Motor Accidents Claims Tribunal, Sub Court, Virudhunagar.
2. All the CMAs arise out of the same accident and hence the Tribunal has passed a common order in M.C.O.P.Nos.56, 57 58, 59 and 60 of 2006. Therefore, all the CMAs are taken up together and being disposed of by a common judgment.
3. C.M.A.Nos.1413 and 212 of 2010 are fatal cases. C.M.A.Nos.208 to 211 of 2010 relates to injury cases. All these appeals have been filed questioning the liability as well as the quantum of compensation awarded by the Tribunal.
4. Background facts in a nutshell are as follows:
All the injured persons along with the deceased-Elangovan were travelling in a Tata Sumo, bearing Registration No.TN-67-D-8952, from Trichy Airport to Palayampatti Village. When the said Tata Sumo was nearing Yanaikkal Village, a bus, bearing Registration No.TN-01-N-64, belonging to the appellant-Transport Corporation in CMA 1413 of 2010, came from the opposite direction. Both the drivers of the vehicles drove the vehicles in a rash and negligent manner and also at high speed and due to the same, both the drivers have lost their control and there was a head-on-collision in the middle of the road. Due to the impact, the deceased died on the spot and others injured. The said Tata Sumo was insured with the appellant-Insurance Company in CMA Nos.208 to 212 of 2010. The Insurance Company, as well as the Transport Corporation, resisted the claim. On pleadings, the Tribunal framed the following issues:
1. Whether the accident had occurred due to the rash and negligent driving of the driver of the Tata Sumo or the driver of the bus?
2.Whether the claimants are entitled to claim any compensation, if so, how much?
After considering the oral and documentary evidence, the Tribunal held that the accident had occurred due to the rash and negligent driving of the drivers of the bus as well as the Tata Sumo and fixed the negligence at 50% each on both the drivers of the vehicles and they are directed to pay the compensation equally, and awarded the compensation as follows:
C.M.A.(MD)Nos.1413 and 212/2010 against M.C.O.P.No.60/2006 These are fatal cases. The claimants are the wife, minor daughter and parents of the deceased. They claimed a sum of Rs.52,00,000/- as compensation. The Tribunal has awarded a sum of Rs.21,47,000/- with interest at 7.5% p.a. from the date of petition. The details of the compensation are as under:
Heads Amount Loss of dependency Rs.21,17,700/- Loss of consortium Rs. 10,000/- Loss of love and affection for minor daughter Rs. 10,000/- Transport expenses Rs. 5,000/- Funeral expenses Rs. 5,000/- ------------ Total... Rs.21,47,000/- ------------
C.M.A.(MD)No.208/2010 against M.C.O.P.No.56/2006 This is a case of injury. The injured-claimant claimed a sum of Rs.4,00,000/- as compensation. The Tribunal has awarded a sum of Rs.2,00,000/- with interest at 7.5% p.a. from the date of petition. The details of the compensation are as under:
Heads Amount Loss due to 81% Disability Rs. 81,000.00 Medical expenses Rs. 1,13,630.90 Pain and suffering and extra nourishment Rs. 6,000.00 ------------ Total... Rs.2,00,630.90 ------------ (Rounded off to Rs.2,00,000/-)
C.M.A.(MD)No.209/2010 against M.C.O.P.No.57/2006 This is a case of injury. The injured-claimant claimed a sum of Rs.3,00,000/- as compensation. The Tribunal has awarded a sum of Rs.1,40,000/- with interest at 7.5% p.a. from the date of petition. The details of the compensation are as under:
Heads Amount Loss due to 95% disability Rs. 95,000/- Medical expenses Rs. 33,034/- Pain and suffering Rs. 6,000/- Extra nourishment Rs. 6,000/- ------------ Total... Rs.1,40,034/- ------------ (Rounded off to Rs.1,40,000/-)
C.M.A.(MD)No.210/2010 against M.C.O.P.No.58/2006 This is a case of injury. The injured-claimant claimed a sum of Rs.4,00,000/- as compensation. The Tribunal has awarded a sum of Rs.85,000/- with interest at 7.5% p.a. from the date of petition. The details of the compensation are as under:
Heads Amount Loss due to 61% disability Rs.61,000/- Medical expenses Rs.16,303/- Pain and suffering Rs. 5,000/- Extra nourishment Rs. 3,000/- ---------- Total... Rs.85,303/- ---------- (Rounded off to Rs.85,000/-)
C.M.A.(MD)No.211/2010 against M.C.O.P.No.59/2006 This is a case of injury. The injured-claimant claimed a sum of Rs.1,00,000/- as compensation. The Tribunal has awarded a sum of Rs.42,000/- with interest at 7.5% p.a. from the date of petition. The details of the compensation are as under:
Heads Amount Medical expenses Rs.32,000/- Simple injuries Rs.10,000/- ---------- Total... Rs.42,000/- ----------
Aggrieved by the award amounts the Insurance Company as well as the Transport Corporation have filed the present appeals. It is also pertinent to note that only the Insurance Company has filed C.M.A.Nos.208 to 212 of 2010 against the common award passed in M.C.O.P.Nos.56 to 60 of 2006 and the Transport Corporation has filed C.M.A.No.1413 of 2010 against M.C.O.P.No.60 of 2006.
5. Learned counsel appearing for the Insurance Company vehemently contended that the Tribunal is wrong in holding that the accident had occurred due to the rash and negligent driving of the drivers of the Tata Sumo as well as the bus belonging the Transport Corporation and both the drivers are liable to pay the compensation equally. Further he submitted that, the FIR, Charge Sheet and also sketch indicates that the accident had occurred only due to the rash and negligent driving of the driver of the bus belonging to the Transport Corporation. Therefore, the Tribunal ought to have fixed the entire liability on the part of the driver of the bus belonging to the Transport Corporation. Therefore, the Insurance Company, is not liable to pay any compensation. Alternatively, he contended that the compensation awarded by the Tribunal is excessive, exorbitant and also without any basis and justification. In respect of the fatal cases i.e., C.M.A.No.212 of 2010, the learned counsel appearing for the appellant-Insurance Company vehemently contended that the Tribunal is wrong in fixing the monthly income of the deceased at Rs.17,648/-, which is excessive and also without any basis and justification. Further he relied on Supreme Court Judgments in the case of Oriental Insurance Company Limited Vs. Deo Patodi and others reported in 2009 (1) TN MAC 629 (SC) and in the case of United India Insurance Company Limited and others Vs. Patricia Jean Mahajan and others reported in (2002) 6 Supreme Court Cases 281, to support his claim. Learned counsel appearing for the Transport Corporation has submitted that the Tribunal is wrong in fixing the 50% liability on the part of the driver of the bus. Therefore, the order passed by the Tribunal is not in accordance with law and hence the same should be set aside.
6.Learned counsel appearing for the claimants submitted that the Tribunal has considered all the facts and circumstances of the case and awarded the compensation, which is just fair and reasonable. It is a question of fact. Hence the order of the Tribunal is in accordance with law and hence the same should be confirmed.
7. Heard the counsel on either side and perused the materials available on record. On behalf of the claimants P.Ws.1 to 10 were examined and documents Exs.P1to P49 were marked. P.W.1-Usha is the claimant in C.M.A.No.210/2010 and also the wife of the deceased-Elangovan in C.M.A.Nos.212 and 1413/2010. P.W.2- Pandiyaraj is the claimant in C.M.A.No.209/2010. P.W.3-Minor Jayanth Kumar is the claimant in C.M.A.No.211/2010. P.W.4 is one Suthamathi. P.W.5- Dr.Jeganathan, is Ortho Specialist in the Government Hospital, Virudhunagar. P.W.6-Dr.M.Rajendran is the Government Doctor. P.W.7-Natarajan is the Manager in the Maruthi Hospital, Trichy. P.W.8, Narayanaswamy is the claimant in C.M.A.No.208/2010. P.W.9-Sankarlal is the Doctor in the Oso Hospital, Madurai. P.W.10-Manivannan, is the Deputy Manager in State Bank of India, Virudhunagar. On behalf of the Insurance Company and Transport Corporation, R.Ws.1 and 2 were examined and documents Exs.R1 and R2 were marked. R.W.1-Thangavel is the driver of the bus. R.W.2-Subramani is the Deputy Manager in the Insurance Company. Ex.R1 is the Rough Sketch. Ex.R2 is the xerox copy of the Charge-Sheet. Ex.P1 is the xerox copy of the First Information Report. Ex.P2 is the Charge Sheet. Learned counsel appearing for the Insurance Company contended that only the driver of the bus belonging to the Transport Corporation alone caused the accident. Therefore, the whole liability has to be fixed on the Transport Corporation. The Tribunal relied on the evidence of P.W.1-Usha, who is the wife of the deceased. She travelled in the Tata Sumo. In her evidence she stated that both the drivers of the vehicles are responsible for the accident. Further P.W.2, Pandiyaraj, who is the claimant in C.M.A.No.209/2010 and also he was sitting behind the driver, in his evidence, has stated that the drivers of the Tata Sumo as well as the bus drove the vehicle in a rash and negligent manner and collided with each other in the middle of the road. After considering the evidence of P.Ws.1 and 2 and documentary evidence the Tribunal had given a categorical finding that the accident had occurred due to the rash and negligent driving of the drivers of the Tata Sumo as well as the bus and they are liable to pay the compensation equally. The finding of the Tribunal is based on valid materials and evidence and it is a question of fact. Hence the same is confirmed. With regard to the aspect of quantum, let me take up the appeals one by one.
C.M.A.No.208 of 2010 against M.C.O.P.No.56 of 2006
8. The injured-Narayanasamy met with motor vehicle accident that took place on 05.09.2005 at about 10.45 a.m. He was travelling in the Tata Sumo. The said injured was examined as P.W.8. In his evidence, he has stated that both the drivers of the vehicle caused the accident. At the time of the accident, the injured was aged about 69 years. He is an agriculturist and earning a sum of Rs.6,000/- per month. Further in his evidence, he stated that he sustained severe head injury as well as grievous injuries all over the body. Due to the injuries he is unable to do his work as before. Immediately, after the accident he was admitted in the Maruthi Hospital, Trichy. He was in the hospital from 05.09.2005 to 07.10.2005 as in-patient. Later he took treatment in a private hospital at Kovilpatti. Ex.P.39 is the Wound Certificate, which also corroborates the same. P.W.9-Dr.Sankaralal, Neurologist, examined the claimant on 19.12.2008 and determined the disability at 81%. Further, in his evidence he has stated that because of the head injury, the injured lost his memory power. Therefore, he determined the disability at 81% and issued Ex.P.46-Disability Certificate. Ex.47 is the X-ray and Ex.48 is the Scan. After considering the above oral and documentary evidence, the Tribunal has awarded a sum of Rs.1,000/- per percentage of disability and determined the loss due to 81% disability at Rs.81,000/-. Considering the oral and documentary evidence, this Court is of the view that the Tribunal has correctly awarded a sum of Rs.1,000/- per percentage of disability. The amount awarded by the Tribunal, towards loss due to 81% disability at Rs.81,000/-, is also very reasonable and hence the same is confirmed. The Tribunal has awarded a sum of Rs.1,13,630.90 towards medical expenses. Ex.P40 are the medical bills. There is no dispute that he has taken treatment in the hospital as in-patient from 05.09.2005 to 07.10.2005. It is an actual expenditure. The amount awarded under this head is also very reasonable and hence the same is confirmed. The Tribunal has awarded a sum of Rs.6,000/- towards pain and suffering and extra nourishment. After considering the nature of the injuries and also he was in the hospital, the amount awarded under this head is very reasonable and hence the same is confirmed. The Tribunal has awarded interest at 7.5% p.a from the date of petition. After taking into consideration of the date of accident, date of award and also prevailing rate of interest during that period, I feel that the interest rate awarded by the Tribunal is reasonable and hence the same is confirmed. The findings of the Tribunal are based on valid materials and evidence. I do not find any error or illegality in the order of the Tribunal warranting interference. It is a question of fact. It is not a perverse order. Therefore, the award passed by the Tribunal is in accordance with law and hence the same is confirmed.
9. Learned counsel for the appellant-Insurance Company has submitted that in respect of their liability i.e., 50% of the award amount has already been deposited and the claimant is also permitted to withdraw 25% of the award amount. Under the circumstances, the claimant is permitted to withdraw the compensation of Rs.2,00,000/- with interest at 7.5% p.a from the date of petition, less the amount already withdrawn, on making proper application.
10. Accordingly, the Civil Miscellaneous Appeal is dismissed. Consequently, connected miscellaneous petition is closed. No costs.
C.M.A.No.209 of 2010 against M.C.O.P.No.57 of 2006
11. At the time of the accident, the injured-Pandiaraj was aged about 46 years. The said injured was examined as P.W.2. In his evidence, he has stated that both the drivers of the vehicle caused the accident. He is an agriculturist and earning a sum of Rs.8,500/- per month. Further in his evidence, he stated that he sustained grievous injuries on his right thigh and also his right eye. He was admitted in the Maruthi Hospital, Trichy. He was in the hospital from 05.09.2005 to 12.09.2005 as in-patient. Later he took treatment in the Aravind Hospital, Madurai, and an artificial retina was fixed. Further in his evidence, he has stated that due to the above said injuries he is unable to walk and stand substantially and also getting head-ache very often. Ex.P14 is the wound certificate given by the Maruthi Hospital, Trichy, in which also it is stated that there are grievous injuries as well as simple injuries. P.W.5. Dr.Jeganathan, working in the Government Hospital, Virudhunagar examined the claimant on.09.08.2009. Ex.38 is the X-ray. The Doctor, in his evidence has stated that the injured sustained grievous injuries in nose and due to the same the movement of the jaw was very much restricted. He determined the disability at 45% and issued Ex.P27-disability certificate. Then P.W.6-Dr.Rajedran working in the Government Hospital, Vatrayirupu also examined the claimant and in his evidence, he stated that the injured has lost his right eye sight. He determined the disability at 50% and issued Ex.P31-disability certificate. After considering the above evidence of the doctors, the Tribunal has taken the disability at 95% and awarded a sum of Rs.95,000/- towards loss due to 95% disability. Normally, the Courts awarded a sum of Rs.1,000/- to Rs.2,000/- per percentage of disability. In the present case, the injured was lost his eye sight and other multiple injuries all over the body. After considering the same, this Court is of the view that the Tribunal has correctly awarded a sum of Rs.1,000/- per percentage of disability. The amount awarded by the Tribunal, towards loss due to 95% disability at Rs.95,000/-, is also very reasonable and hence the same is confirmed. The Tribunal has awarded a sum of Rs.33,034/- towards medical expenses. Ex.P17 are the series of medical bills. There is no dispute that he has taken treatment in various hospitals. It is an actual expenditure. The amount awarded under this head is also very reasonable and hence the same is confirmed. The Tribunal has awarded a sum of Rs.6,000/- towards pain and suffering and another sum of Rs.6,000/- towards extra nourishment. After considering the nature of the injuries and also he was in the hospital, the amounts awarded under these heads are very reasonable and hence the same are confirmed. The Tribunal has awarded interest at 7.5% p.a from the date of petition. After taking into consideration of the date of accident, date of award and also prevailing rate of interest during that period, I feel that the interest rate awarded by the Tribunal is reasonable and hence the same is confirmed. The findings of the Tribunal are based on valid materials and evidence. I do not find any error or illegality in the order of the Tribunal warranting interference. It is a question of fact. It is not a perverse order. Therefore, the award passed by the Tribunal is in accordance with law and hence the same is confirmed.
12. Learned counsel for the appellant-Insurance Company has submitted that in respect of their liability i.e., 50% of the award amount has already been deposited and the claimant is also permitted to withdraw 25% of the award amount. Under the circumstances, the claimant is permitted to withdraw the compensation of Rs.1,40,000/- with interest at 7.5% p.a from the date of petition, less the amount already withdrawn, on making proper application.
13. Accordingly, the Civil Miscellaneous Appeal is dismissed. Consequently, connected miscellaneous petition is closed. No costs.
C.M.A.No.210 of 2010 against M.C.O.P.No.58 of 2006
14. At the time of the accident, the injured-Usha was aged about 37 years. He is working as a Teacher in B.P.V.Sala Middle School, Palayamkottai and earning a sum of Rs.9,088/- per month. The said injured was examined as P.W.1. In her evidence, she stated that both the drivers of the vehicles caused the accident. Further, in her evidence, she stated that she sustained right pelvic fracture and grievous injuries on the right wrist and forehead. Immediately, after the accident, she was admitted in the Maruthi Hospital and also she took treatment in a private hospital at Virudhunagar. Further, it is stated that she is unable to stand, sit and also unable to lift any heavy articles and also unable to do her work as before. Ex.P5 is the wound certificate given by the Maruthi Hospital, in which it is stated that she sustained following injuries:
1.(L) Side forehead laceration shaped injury at 4X1X1 cm in size.
2.(R) Wrist Crepitees (P) Swelling (P) X-ray (R) hand Dislocation lowed end radius ulna.
3.(R) side of face perturbed wound in size 1X025X025 c.m.
4.X-ray pelvis = Pelvis Bone Ex.P10 is the discharge summary, which also corroborates the same. After considering the same, the Tribunal has awarded a sum of Rs.16,303/- towards medical expenses. Ex.P6 are the series of medical bills. There is no dispute that she has taken treatment in various hospitals. It is an actual expenditure.
The amount awarded under this head is also very reasonable and hence the same is confirmed. P.W.5. Dr.Jeganathan, working in the Government Hospital, Virudhunagar, examined the claimant on.09.08.2008 and determined the disability at 61% and issued Ex.P29-disability certificate. Further in the evidence of the doctor, he stated that due to the above said injuries, the claimant is unable to do her work as before. After considering the same, the Tribunal has awarded a sum of Rs.61,000/- towards loss due to 61% disability. The amount awarded under this head is very reasonable and hence the same is confirmed. The Tribunal has awarded a sum of Rs.5,000/- towards pain and suffering and another sum of Rs.3,000/- towards extra nourishment. After considering the nature of the injuries and also she was in the hospital, the amounts awarded under these heads are very reasonable and hence the same are confirmed. The Tribunal has awarded interest at 7.5% p.a from the date of petition. After taking into consideration of the date of accident, date of award and also prevailing rate of interest during that period, I feel that the interest rate awarded by the Tribunal is reasonable and hence the same is confirmed. The findings of the Tribunal are based on valid materials and evidence. I do not find any error or illegality in the order of the Tribunal warranting interference. It is a question of fact. It is not a perverse order. Therefore, the award passed by the Tribunal is in accordance with law and hence the same is confirmed.
15. Learned counsel for the appellant-Insurance Company has submitted that in respect of their liability i.e., 50% of the award amount has already been deposited and the claimant is also permitted to withdraw 25% of the award amount. Under the circumstances, the claimant is permitted to withdraw the compensation of Rs.85,303/- with interest at 7.5% p.a from the date of petition, less the amount already withdrawn, on making proper application.
16. Accordingly, the Civil Miscellaneous Appeal is dismissed. Consequently, connected miscellaneous petition is closed. No costs.
C.M.A.No.211 of 2010 against M.C.O.P.No.59 of 2006
17. At the time of the accident, the injured-minor Jeyanthkumar was aged about 7 years. The said injured was examined as P.W.3, who in his evidence has stated that due to the accident he sustained grievous injuries on his left eye lid and cut injury on his face. Immediately after the accident he was admitted in the Maruthi Hospital, Trichy as in-patient for a period of one week. Later he took treatment in the Lotus Hospital, Coimbatore. Due to the injuries, he is unable to concentrate his studies and also getting headache very often. Ex.P19 are the series of medical bills. After considering the same, The Tribunal has awarded a sum of Rs.32,000/- towards medical expenses. Ex.P20 is the CT scan report. Ex.P21 is the discharge summary. Ex.P22 are the medical prescriptions. Ex.P24 is the xerox copy of the wound certificate. Ex.P25 is the X-ray. Ex.P26 is the scan report. There is no dispute that he has taken treatment in various hospitals. It is an actual expenditure. The amount awarded under this head is also very reasonable and hence the same is confirmed. The Tribunal has awarded a sum of Rs.10,000/- towards simple injuries. After taking into consideration of the nature of the injuries, the amount awarded under this head is very reasonable and hence the same is confirmed. The Tribunal has awarded interest at 7.5% p.a from the date of petition. After taking into consideration of the date of accident, date of award and also prevailing rate of interest during that period, I feel that the interest rate awarded by the Tribunal is reasonable and hence the same is confirmed. The findings of the Tribunal are based on valid materials and evidence. I do not find any error or illegality in the order of the Tribunal warranting interference. It is a question of fact. It is not a perverse order. Therefore, the award passed by the Tribunal is in accordance with law and hence the same is confirmed. The claimant is a minor. Therefore, the award amount shall continue to be in the Nationalised Bank deposit till he attains the age of majority. The mother of the minor is permitted to withdraw the accrued interest, on the said deposit, once in three months, on making proper application. In case of any educational or medical expenses incurred for the minor, the mother of the minor is permitted to withdraw the same, from the deposit on making proper application.
18. Accordingly, the Civil Miscellaneous Appeal is dismissed. Consequently, connected miscellaneous petition is closed. No costs.
C.M.A.(MD)Nos.1413 and 212/2010 against M.C.O.P.No.60/2006
19. The Insurance Company as well as the Transport Corporation have filed these appeals against the negligence as well as the quantum. In respect of the negligence, I had already discussed the same as above and confirmed the finding of the Tribunal that both the drivers of the vehicle had caused the accident. Therefore, the Tribunal has rightly fixed the liability at 50% each on both the drivers of the vehicles.
20. In the case of SARLA VERMA AND OTHERS VS. DELHI TRANSPORT CORPORATION AND ANOTHER 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 General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas AIR 1994 SC 1631: (1994) 2 SCC 176. 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 UP State Road Transport Corporation V. Trilok Chandra (1996) 4 SCC 362, 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)
21. In the case of SYED BASHEER AHAMED AND OTHERS VS. MOHAMMED JAMEEL AND ANOTHER reported in (2009) 2 Supreme Court Cases 225, the Apex Court has held as follows:
"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 Thomas2, 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. Veluswami4, 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.
22. At the time of the accident, the deceased-Elangovan was aged 43 years. P.W.1, the wife of the deceased, in her evidence stated that the deceased was working as a Manager in Adel Al-Haddad Estate, Kingdom of Saudi Arabia and earning a sum of Rs.40,000/- per month. Further, in her evidence she stated that the deceased was a diploma holder in Mechanical Engineering. Ex.P9 is the Diploma Certificate given by Tamil Nadu Training Institute of Technical Education. Ex.P8 is the Higher Secondary Certificate, in which the date of the birth of the deceased is stated as 14.03.1962. Ex.P7 is the Post Mortem Report, in which the age of the deceased is stated as 45 years. Therefore, the Tribunal has fixed the age of the deceased as 43 years at the time of accident. Ex.P37 is the certificate given by the employer of the deceased, in which it is stated that the deceased was working as a Manger in Adel Al-Haddad Estate from 10.06.2002 to 01.09.2005 and the salary of the deceased was 1,300 Riyals and also 200 Riyals were given as allowance. Therefore, the total salary of the deceased was 1,500 Riyals. Therefore, the Tribunal has accepted the monthly income of the deceased at 1,500 Riyals on the basis of the Ex.P37. P.W.10, the Deputy Manager, State Bank of India, Virudhunagar in his evidence has stated that one Riyal is equivalent to Rs.11.7653 and Ex.P49 is the certificate issued to that effect. Therefore, the Tribunal has fixed the total salary in Indian money at Rs.17647.95, rounded off to Rs.17,648/-. Out of the said sum, the Tribunal has deducted 1/3rd of the amount i.e., Rs.5,883/- towards personal expenses of the deceased and arrived at the monthly contribution of the deceased to the family at Rs.11,765/-. and calculated the annual contribution at Rs.1,41,180/-(Rs.11,765X12). After considering the age of the deceased, the Tribunal has adopted the multiplier of '15' and determined the loss of dependency at Rs.21,17,700/-(Rs.1,41,180/- x 15). Learned counsel appearing for the appellants vehemently contended that the Tribunal is wrong in fixing the monthly income of the deceased at Rs.17,648/- and that the Tribunal ought not to have converted the currency into Indian money and further relied on Supreme Court Judgments in the case of Oriental Insurance Company Limited Vs. Deo Patodi and others reported in 2009 (1) TN MAC 629 (SC) and also in the case of United India Insurance Company Limited and others Vs. Patricia Jean Mahajan and others reported in (2002) 6 Supreme Court Cases 281 (cited supra). The learned counsel have further submitted that only 30% of the salary should be taken into consideration for the purpose of determining the loss of dependency. The counsel appearing for the respondents/claimants vehemently contended that the facts involved in the above judgment is entirely different from the facts of the present case, because in that case, the deceased's income was in US Dollars and therefore, the same yardstick cannot be applied to a person earning in Gulf Countries. After taking into consideration of the principles enunciated in both judgments, I am of the view that 75% of the income earned by the deceased can be fixed as the monthly income. Therefore, Rs.13,000/- is fixed as the monthly income as against the sum of Rs.17,648/- fixed by the Tribunal. Out of the said sum, if 1/3rd of the amount i.e., Rs.4,333/- is deducted towards personal expenses of the deceased the monthly contribution of the deceased to the family works out to Rs.8,666/-. Accordingly, the annual contribution works out to Rs.1,03,992/-(Rs.8,666X12). The Tribunal has correctly adopted the multiplier of '15' as per the Schedule. If 15 multiplier is adopted, the loss of dependency works out to Rs.15,59,880/-(Rs.1,03,992X15) as against Rs.21,17,700/- awarded by the Tribunal. The Tribunal has awarded a sum of Rs.10,000/- towards loss of consortium, which is very low and meagre. The wife of the deceased was 37 years at the time of accident. After taking into consideration of the same, it would be reasonable to award a sum of Rs.25,000/- towards loss of consortium as against Rs.10,000/- awarded by the Tribunal. The Tribunal has awarded a sum of Rs.10,000/- towards loss of love and affection for the minor daughter, which is very low and meagre. The minor daughter has lost the love and affection of her father. After considering the same, it would be reasonable to award a sum of Rs.25,000/- towards loss of love and affection for the minor child. The parents have also lost the love and affection of their only son. After considering the same, it would be reasonable to award a sum of Rs.25,000/- each towards loss of love and affection for the parents. The Tribunal has awarded a sum of Rs.5,000/- towards transport expenses and another sum of Rs.5,000/- towards funeral expenses. After considering the facts and circumstances of the case, the amounts awarded under these heads are very reasonable and hence the same are confirmed. The Tribunal has fixed the interest rate at 7.5% per annum. After taking into consideration of the date of accident, date of award and the prevailing rate of interest during that time, the interest fixed by the Tribunal is confirmed. The details of the modified compensation as per the above discussion are as under:-
Heads Amount Loss of dependency Rs.15,59,880/- Loss of consortium Rs. 25,000/- Loss of love and affection for minor daughter Rs. 25,000/- Loss of love and affection for parents Rs. 50,000/- Transport expenses Rs. 5,000/- Funeral expenses Rs. 5,000/- ------------ Total... Rs.16,69,880/- ------------
Therefore, the claimants are entitled to the modified compensation of Rs.16,69,880/- with interest at 7.5% p.a. from the date of petition.
23. Learned counsel appearing for the Insurance Company as well as the Transport Corporation have submitted they have deposited the entire compensation in respect of their liability. Under the circumstances, since now the claimants are entitled to the modified compensation of Rs.16,69,880/- with interest at 7.5% p.a from the date of petition, in respect of the respondents 1,3 and 4, they are permitted to withdraw their respective shares, less the amount, if any, already withdrawn, on making proper application. In respect of the minor claimant i.e., 3rd respondent, her share shall continue to be in the Nationalised Bank deposit till she attains the age of majority. The mother of the minor, the 1st respondent is permitted to withdraw the accrued interest on the said deposit once in three months, on making proper application. The learned counsel for the Insurance Company as well as the Transport Corporation are also permitted to withdraw the balance amount, on making proper application.
24. With the above modifications, the C.M.A.Nos.1413 and 212of 2010 are disposed of. Consequently, the connected miscellaneous petitions are closed. No costs.
vsm To The Motor Accidents Claims Tribunal, Sub Court, Virudhunagar.