Madras High Court
The Managing Director vs Alagupillai @ Alagammal on 2 December, 2010
Author: P.P.S.Janarthana Raja
Bench: P.P.S.Janarthana Raja
1
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.1733 of 2010
and
M.P.(MD)No.1 of 2010
The Managing Director,
Tamil Nadu State Transport Corporation,
Bye-Pass Road,
Dindigul. .. Appellant/ Respondent
Vs
1. Alagupillai @ Alagammal
2. Saratha
3. Minor Mathivanan
4. Minor Muthubala
Minors represented by their mother
2nd respondent .. Respondents/Petitioners
Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, 1988
against the Judgment and Decree dated 29.12.2009 made in M.C.O.P.No.97
of 2006 on the file of the Motor Accidents Claims Tribunal, Additional
Principal District Court cum Fast Track Court, Periyakulam.
https://www.mhc.tn.gov.in/judis
2
For appellant : Mr.M.Prakash
***
JUDGMENT
This appeal is preferred by the appellant-Transport Corporation against the judgment and Decree dated 29.12.2009 made in M.C.O.P.No.97 of 2006 on the file of the Motor Accidents Claims Tribunal, Additional Principal District Court cum Fast Track Court, Periyakulam.
2. Background facts in a nutshell are as follows:
The deceased-Kakkappan @ Ayyavu @ Angannan met with motor traffic accident that took place on 14.05.2002 at about 10.50a.m. in the Batlagundu to Periyakulam Main Road, near Chellaiah Chettiyar garden in between Devadhanapatti and Batlagundu. The said deceased was a pillion rider in a two wheeler bearing registration No.TN-60-A-1068. The same was proceeding to Devadhanapatti from Batlagundu. At that time, a bus belonging to the appellant-Transport Corporation bearing Registration No.TN-57-N-1152 came from the opposite direction i.e. from West to East direction in a rash and negligent manner and also at high speed and hit the https://www.mhc.tn.gov.in/judis 3 two wheeler. Due to the said impact, the deceased sustained grievous injuries all over the body. He was taken to the Government Rajaji Hospital, Madurai and he died on the same day. The claimants are the mother, wife and the two minor children of the deceased. They claimed a sum of Rs.
3,00,000/- as compensation before the Tribunal. The appellant-Transport Corporation resisted the claim. On pleadings, the Tribunal framed the following issues:-
"1. On whose negligence, the accident had occurred?
2.Whether the claimants are entitled to any compensation, if so how much and from whom?"
After considering the oral and documentary evidence, the Tribunal has held 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 awarded a compensation of Rs.3,46,000/- with interest at 7.5% per annum from the date of petition. The details of the compensation are as follows:
https://www.mhc.tn.gov.in/judis 4 For loss of dependency Rs.3,20,000/-
For loss of consortium Rs. 10,000/-
For loss of love and
affection to the
children and mother Rs. 6,000/-
For funeral expenses Rs. 5,000/-
For loss of estate Rs. 5,000/-
-------------
Total Rs.3,46,000/-
-------------
Aggrieved by that award, the appellant- Transport Corporation has filed the present appeal.
3. Learned counsel appearing for the appellant-Transport Corporation has submitted that the Tribunal is wrong in holding 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. He also questioned the quantum of compensation awarded by the Tribunal and vehemently contended that the compensation awarded by the Tribunal is excessive, exorbitant and also without any basis and justification. Therefore, the award passed by the Tribunal is not in accordance with law and the same https://www.mhc.tn.gov.in/judis 5 has to be set aside.
4. Learned Counsel appearing for the respondents / claimants has submitted that the Tribunal had considered all the relevant materials and evidence on record and came to the right conclusion in holding 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 awarded a just, fair and reasonable compensation. It is a question of fact and also it is based on valid materials and evidence. Hence the order of the Tribunal is in accordance with law and the same has to be confirmed.
5. Heard the counsel on either side and perused the materials available on record. On the side of the claimants, P.W.1 and P.W.2 were examined and documents Exs.P.1 to P.4 were marked. P.W.1 is the wife of the deceased. P.W.2 - one Ravikumar, is an eye-witness of the accident and also the rider of the two wheeler. Ex.P.1 is the certified copy of the First Information Report. Ex.P.2 is the certified copy of the charge sheet. Ex.P.3 is the certified copy of the Post Mortem Report. Ex.P.4 is the certified copy of the Motor Vehicle Inspector's Report. On behalf of the appellant-Transport https://www.mhc.tn.gov.in/judis 6 Corporation, R.W.1-Senraya Perumal, driver of the bus belonging to the appellant-Transport Corporation was examined and no document was marked to substantiate their claim. After 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 awarded the compensation. It is a question of fact and therefore the same is confirmed.
6. 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 https://www.mhc.tn.gov.in/judis 7 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 https://www.mhc.tn.gov.in/judis 8 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 https://www.mhc.tn.gov.in/judis 9 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 https://www.mhc.tn.gov.in/judis 10 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 https://www.mhc.tn.gov.in/judis 11 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)
7. 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 https://www.mhc.tn.gov.in/judis 12 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 https://www.mhc.tn.gov.in/judis 13 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 https://www.mhc.tn.gov.in/judis 14 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 https://www.mhc.tn.gov.in/judis 15 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.
8. It is stated in the claim petition that the deceased was 30 years old at the time of accident. In the evidence of P.W.1, it is stated that the deceased was working as an agricultural coolie and was earning a sum of Rs. 4,500/- per month. It is further submitted that it was only the driver of the https://www.mhc.tn.gov.in/judis 16 bus belonging to the appellant-Transport Corporation caused the accident and the driver was charge sheeted by Devadhanapatti Police Station in Cr.No.105 of 2002. In the evidence of P.W.1, it is stated that the age of the deceased was 30 years at the time of the accident. But in Ex.P.3-Post Mortem Report, it is stated that the age of the deceased was 35 years at the time of accident. In respect of the income of the deceased, even though in the evidence of P.W.1, it is stated that the deceased was earning a sum of Rs. 4,500/-p.m., there is no concrete evidence available on record to substantiate the same. Therefore, the Tribunal has fixed the notional income of Rs.2,500/- per month and fixed the annual income of the deceased at Rs. 30,000/-. Out of the said amount, 1/3rd was deducted towards personal expenses of the deceased and the balance sum of Rs.20,000/-was taken as the annual contribution of the deceased to the family. After considering the age of the deceased (i.e)35 years, on the basis of Ex.P.3, the Tribunal adopted the multiplier of 16 and arrived at the loss of dependency at Rs.3,20,000/- (Rs.20,000/- x16). The Tribunal has correctly fixed the notional income at Rs. 2,500/-p.m., correctly deducted 1/3rd of the amount towards personal expenses of the deceased and adopted the correct multiplier of 16 and arrived at Rs.3,20,000/- towards loss of dependency. Considering the facts https://www.mhc.tn.gov.in/judis 17 and circumstances of the present case, the amount awarded by the Tribunal towards this head is also very reasonable and hence the same is confirmed. The Tribunal has awarded a sum of Rs.10,000/- towards loss of consortium. After taking into consideration of the age of the widow, (i.e.) 28 years, at the time of the accident, the amount awarded by the Tribunal towards this head is very reasonable and hence, the same is confirmed. Further, the Tribunal has awarded a sum of Rs.6,000/- towards loss of love and affection to the two minor children and the mother of the deceased. Taking into consideration of the fact that the minor children have lost the love and affection of their father and the mother lost the love and affection of her son, the amount awarded by the Tribunal under this head is very reasonable and hence, the same is confirmed. Further, the Tribunal has awarded a sum of Rs.5,000/- towards loss of estate and another sum of Rs.5,000/-towards funeral expenses, which are very reasonable and hence, the same are confirmed. Further, the Tribunal has also awarded 7.5% interest p.a. from the date of petition. After taking note of the date of accident, the date of award and also the prevailing rate of interest during the relevant period, the interest rate awarded by the Tribunal at 7.5%p.a. from the date of petition is very reasonable and hence, the same is confirmed. https://www.mhc.tn.gov.in/judis 18
9. One of the argument raised by the learned Counsel for the appellant-Transport Corporation is that only a sum of Rs.3,00,000/- was claimed as compensation in the claim petition by the claimants before the Tribunal, but the Tribunal has awarded a sum of Rs.3,46,000/- as compensation. After considering the facts and circumstances of the present case, the award amount is very reasonable and it is also just and fair. Further, it is pertinent to note that the Tribunal ought not to have deducted 1/3rd of the income towards personal expenses of the deceased, where the family of the deceased consists of 4 members. The Honourable Supreme Court in the case of Sarla Varma as cited supra, has categorically stated that when the family of the deceased consists of four members and above, 1/4th of the income of the deceased should be deducted towards personal expenses of the deceased. After considering the same, this Court is of the view that the compensation awarded by the Tribunal at Rs. 3,46,000/-, even though higher than the claimed amount, it is very reasonable and hence, the same is confirmed. The findings given by the Tribunal are based on valid materials and evidence and I do not find any error or illegality in the order of the Tribunal so as to warrant interference. It is a question of fact. It is not a perverse order. Therefore, the award https://www.mhc.tn.gov.in/judis 19 passed by the Tribunal is in accordance with law and hence the same is confirmed.
10. In the result, this Civil Miscellaneous Appeal is devoid of merits and it is a not case for admission and hence, it is dismissed. Consequently, the connected Miscellaneous Petition is closed. No costs.
02.12.2010 Index: Yes/No Internet: Yes/No To The Motor Accidents Claim Tribunal, The Additional Principal District Court cum Fast Track Court, Periyakulam.
P.P.S.JANARTHANA RAJA, J.
ssl https://www.mhc.tn.gov.in/judis 20 C.M.A.(MD)No.1733 of 2010 and M.P.(MD)No.1 of 2010 02.12.2010 https://www.mhc.tn.gov.in/judis