Madras High Court
Tamil Nadu Electricity Board ... vs K. Vijayalakshmi And Ors. on 18 October, 1994
Equivalent citations: (1995)1MLJ257
JUDGMENT Srinivasan, J.
1. The appeal is filed by the Tamil Nadu Electricity Board which is the owner of the vehicle involved in the accident against the award of Rs. 5,00,000 as compensation to the claimants who are the wife and minor sons of the deceased. The memorandum of cross-objection is filed by the claimants claiming a further sum of Rs. 3,00,000. Subsequently a petition has been filed by the claimants in C.M.P. No. 5797 of 1993 for amendment of the original petition by increasing the total claim to Rs. 15,50,000.
2. The husband of the first claimant by name Kannaiah was Assistant Divisional Engineer in the Tamil Nadu Electricity Board. On 4.4.1984, when he was proceeding on official duty from Madurai to Srivilliputhur. the jeep by which he was travelling rolled down into a ditch by the side of the road on account of rash and negligent driving of the same. The jeep was lying on its side in the ditch which caused death of the deceased. The driver of the jeep escaped with minor injuries and Assistant Engineer travelling in the same jeep was thrown out and became unconscious and he recovered later. According to the claimants, but for the rash and negligent driving of the jeep by the driver, the accident would not have occurred. In the original petition, the claimants made a claim for a total compensation of Rs. 8,00,000. They have mentioned the salary which was drawn by the deceased on the date of death viz. 4.4.1984 as Rs. 2,520 p.m. The deceased was aged about 40 according to the petition and he would have been in service till 30.6.2002. The original petition gives the break-up figures of the salary which the deceased could have earned from 4.4.1984 to 30.6.2002 with periodical increases. The total comes to Rs. 6,85,080. Besides the said amount, a claim was made that the deceased would have lived upto the age of 90 and he would have carried on business after his retirement for atleast a period of 20 years and earned more than Rs. 2,00,000. Thus the total loss of income was worked out to be Rs. 8,85,080. A sum of Rs. 50,000 was claimed as compensation for mental agony of the claimants. The total a Rs. 9,35,080 was restricted to Rs. 8,00,000 in the prayer.
3. In the counter-statement filed by the appellants, it was contended that the accident was an act of God and there was no negligence on the part of the driver of the jeep. According to the counter statement, it was heavily raining on that day and there was a big boulder on the road which was not visible to the driver till the jeep came very near to it. On seeing the boulder the driver turned the jeep towards left and the wheels of the jeep were caught in the mud portion of the road resulting in sudden skidding and capsizing of the jeep. The counter statement further states that the compensation claimed by the claimants was very much exaggerated and the claimants would not be entitled to such a huge amount. It was further stated that a sum of Rs. 50,000 was sanctioned as compensation to the dependants of the deceased and the same will be deposited in court. A sum of Rs. 17,712 was said to have been paid towards 90% D.C.R.G. (death-cum-retirement gratuity), Rs. 10,000 towards Family Benefit Fund and Rs. 13,742 towards encashment of the earned leave at credit. Family Pension is being paid to the wife of the deceased till her death or remarriage. There was no denial of the correctness of the figures set out in the original petition as regards the increased earning of the deceased from 4.4.1984 to 30.6.2002.
4. On behalf of the claimants, the first claimant examined herself. She had not seen the accident she could not speak about the same. The second witness was her father. He had also not seen the accident. He spoke only about the salary earned by the deceased as would have been increased till his retirement. The third witness is a person who is said to have seen the accident. He claims to have been standing near the cycle shop for the purpose of repairing his cycle at that time. According to him, he saw the jeep proceeding from north to south at a very high speed. On seeing it, he was exclaiming that the jeep was proceeding at such a high speed but at the same time, the jeep when it was about 20 yards away from him capsized on the road and rolled over two or three times. But a doubt has been raised by the appellants as to whether he was actually present in the cycle shop as claimed by him. He had not been examined by the police. Nor did he give information to anybody about seeing the accident. Further he has stated in his evidence that the cycle shop belonged to one uthukalai. But in the First Information Report, it was stated to be the cycle shop of one Kamal, Inspite of the discrepancies, the Tribunal has taken the view that his evidence that he had seen the accident could be accepted. We do not agree with the tribunal that the evidence of P. W.3 can be accepted. The discrepancies cause grave doubt as to whether P.W.3 was present in the cycle shop at the time of accident. His evidence has to be eschewed.
5. However, the evidence on record is sufficient to prove that the accident occurred only due to rash and negligent driving of jeep by the driver. The driver has given evidence as R.W.1. The Assistant Engineer who was also in the jeep at the time of accident has given evidence as R.W.2. In the driver's evidence, he has admitted that the visibility of the road and the objects thereon was in no way affected at that time. According to him, he could see the objects lying upto a distance of 11/2 furlong very clearly. It is admitted by R.W.2 that the road at the place of the accident was of the width of 60 ft. It is admitted by R.W. 1 that there was no traffic at that time on the road. The boulder which was said to be on the road was according to the witnesses at about 3 ft. east of the middle of the road. The tribunal has rightly pointed out that when there is no traffic on the road, the driver could have well driven the jeep to the right side and avoided the boulder. The driver need not at all have turned the jeep to the left side of the boulder. The fact that the driver did not avoid the boulder by going to the right side of the road when there was no traffic itself shows that the driver was negligent in driving the jeep. As per the evidence, the extent of 37 ft. of road was available for the jeep to proceed on the right side of the boulder. There is no evidence to prove the version that it was heavily raining at the time of accident and the visibility was affected. When it is admitted that there was clear visibility for a distance of 1112 furlong, the driver could have well seen the boulder in advance and proceeded to the right side of the road. Then the fact that the driver has turned the jeep to the left side and got caught in the mud portion of the road shows that the jeep was proceeding at a very High Speed and was being driven in rash and negligent mariner nor thus the tribunal in applying the doctrine of res ipse loquitor the way in which the accident occurred proves beyond doubt that the jeep was driven in a rash and negligent manner. Hence we confirm the finding of the tribunal that the driver of the appellants was responsible for the accident.
6. On the question of compensation, the tribunal has found on evidence that the deceased was getting Rs. 2,520 p.m. at the time of his death. A sum of Rs. 500 is being paid to the first claimant as Family Pension after the death of her husband. That amount is deducted from the salary of the deceased and the tribunal has taken the figure of Rs. 2,020 p.m. The tribunal has taken the view that for 10 years after the death the deceased could have earned the same amount of Rs. 2,520 and the loss of income for the said period of 10 years is worked out as Rs. 2,42,400. Thereafter, according to the tribunal, the deceased could have got promotion to a higher post and his salary would have been fixed at Rs. 3,000 p.m. Deducting a sum of Rs. 500 being the family pension the tribunal has taken a figure of 2,900 p.m. for a period of 7 years during which the deceased would have been in service. A total of Rs. 2,10,000 was arrived at and adding the said amount with the total of Rs. 2,42,400, the tribunal has arrived at a figure of Rs. 4,50,000 and odd as loss of income for the entire period of 17 years. The claimants are awarded a sum of Rs. 50,000 for loss of consortium. Thus the total of Rs. 5,00,000 was arrived at by the tribunal. The tribunal has awarded 6% interests on the said amount to be paid by the appellants.
7. Learned Counsel for the appellants contends that there is no evidence whatever on record to say that the deceased would have got increase in salary or that he would have been promoted to a higher post. It is submitted that promotion to the higher post is not automatic. The higher post is a selection post. Learned Counsel contends that the tribunal has only speculated in taking the view that the deceased would have obtained the promotion and would have earned Rs. 3,000 p.m. as salary. It is further argued that the tribunal ought to have deducted l/3rd of the income derived by the deceased towards his personal expenses. It is further pointed out that the deceased has a scooter for his duties and he would have certainly incurred some amount for his personal expenses. It is argued that no amount is deducted from the total loss of income for payment in one lump sum. According to the learned Counsel those deductions are made while arriving at the compensation which is payable to the claimants. The compensation which is awarded by the tribunal is very much low and the award of the tribunal is unsustainable.
8. Per contra, learned Counsel for the claimants contends that the appellants have not chosen to dispute the figures mentioned in the original petition and the fact that the deceased would have got increase in salary periodically. Learned Counsel submits that even if the deceased was not promoted to a higher post, he would have atleast got Rs. 3,500 p.m. by way of his salary if he had continued in the same post. It is submitted that the total loss of income would come to Rs. 6,85,080 and the amount claimed in the original petition is just and reasonable. It is further argued that the salary for the post of Assistant Divisional Engineer had been increased subsequently on account of wage revisions. Reliance is placed upon the averments in paragraph 7 of the affidavit filed in C.M.P. No. 5797 of 1993. It is stated categorically that there was a wage revision on 1.12.1984 and another revision on 1.12.1988. It is stated that a further revision was due on 1.12.1992. On that basis, the salary of the deceased is worked out from April, 1984 to July, 2002. A total of Rs. 15,73,245 is arrived at. It is only on this basis, the amendment of the original petition is prayed for and the claim is sought to be increased to Rs. 15,50,000. It is pertinently pointed out by learned Counsel for the claimants that no counter has been filed by the appellants in C.M.P. No. 5797 of 1993 inspite of the fact that the affidavit and the petition were served on the appellants' counsel on 6.4.1993.
9. Learned Counsel for the claimants invited our attention to the judgments in Manjushri Raha v. B.L. Gupta, 1977A.C.J. 134, Srisailam Devasthanam v. Bhavani Pramilamma, 1983 A.C.J. 580, Bharat Petroleum Corporation Limited v. Sushama Ghosh, 1986A.C.J. 1025, Hardeo Kaur v. Rajasthan State Road Transport Corporation . It is further argued that the interest awarded by the tribunal at 6% p.a. on the amount of compensation is very low and the tribunal ought to have awarded atleast 15% interest.
10. Before adverting to the judgments cited by learned Counsel, we will consider the relevant facts. We have already pointed out that there is no averment in the counter affidavit denying the claim made in the original petition with regard to periodical increase in the salary of the deceased according to scale of pay fixed for his post. Even in the absence of any promotion to a higher post, it is needless to point out that the appellants are having all the relevant records and they could have very easily produced the records before the tribunal to show that the amount claimed in the original petition is erroneous and the deceased would have got only a much lesser amount than what is set out in the petition. The appellants did neither choose to refer to the said aspect of the matter in the counter-affidavit filed before the tribunal nor adduce evidence on that aspect. On the other hand, P. W.2 the father-in-law of the deceased who was a retired Superintendent of Customs has spoken to the fact that the deceased was earning at the time of his death, a sum of Rs. 2,520 as total salary and the increase which he would have got on the basis of scale of pay in future years. He has also deposed that the deceased was expecting promotion as Divisional Engineer within a period of three years and further promotion as Superintending Engineer at the age of 50 or 52. The said witness has also chosen to give break-up figures of the salary earned by the deceased. Among the documents exhibited before the tribunal, we find the register containing salary particulars for the period from March, 1978 to March, 1984, the pay-slips for November, 1983 and January, 1984 as well as the service register which is from the date of entering into his service. They are marked respectively as Exs.P-7, P-8, P-9 and R.1. We find from those registers that the last salary drawn by the deceased was Rs. 2,370. In the month of November 1983 deceased was drawing Rs. 2,520 as he was residential quarters, a sum of Rs. 150 was deducted from his total salary. He got Rs. 2,370 p.m. at the time of his death. There can be no dispute that the salary of the deceased would have increased year by year on the basis of the scale of pay of the post which he was holding. One can reasonably accept that he would have been promoted to a higher post in view of the evidence that he was efficient and honest officer. It is not necessary for us to speculate on that basis. Even assuming that he would have continued only as Assistant Divisional Engineer, his salary might have certainly been increased periodically. There is no dispute that there was a wage revision in 1984 and 1988. The fact that no counter-affidavit has been filed in C.M.P. No. 5797 of 1993 will lead to the inference that there would have been a wage revision even in 1992.
11. Recently, a Bench of this court to which one of us was party had occasion to refer to this aspect of the matter in the case of an employee in the Tele-Communication Department. The Bench took note of the fact that salary of such Government servants is being increased periodically by appointment of Pay commissions and wage revisions. The Bench has also referred to the judgment of the Supreme Court in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas .
12. The Supreme Court has laid the Rule in the following words:
In the present case, the deceased was 39 years of age. His income was Rs. 1,032 per month. Of course, the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand. While the choice of the multiplier is determined by two factors, namely, the rate of interest appropriate to a stable economy and the age of the deceased or of the claimant whichever is higher, the ascertainment of the multiplicand is a more difficult exercise. Indeed, many factors have to be put into the scales to evaluate the contingencies of the future. All contingencies of the future need not necessarily be beneful. The deceased person in this case had a more or less stable job. It will not be inappropriate to take a reasonably liberal view of the prospects of the future and in estimating the gross income it will be unreasonable to estimate the loss of dependency on the present actual income of Rs. 1,032 per month. We think, having regard to the prospects of advancement in the future career, respecting which there is evidence on record, we will not be in error in making a higher estimate of monthly income at Rs. 2,000 as the gross income. From this has to be deducted his personal living expenses, the quantum of which again depends on various factors such as whether the style of living was spartan or Bohemian. In the absence of evidence it is not unusual to deduct one-third of the gross income towards the personal living expenses and treat the balance as the amount likely to have been spent on the members of the family and the dependants. This loss of dependency should capitalize with the appropriate multiplier. In the present case we can take about Rs. 1,400 per month or Rs. 17,000 per year as the loss of dependency and if capitalized on a multiplier of 12, which is appropriate to the age of the deceased, the compensation would work out to Rs. 17,000 x 12 = Rs. 2,04,000) to which is added the usual award for loss of consortium and loss of the estate each in the conventional sum of Rs. 15,000.
13. Thus, we find that the loss of income has to be estimated taking into account the future contingencies also. In the present case, the deceased was holding the post of an officer viz., Assistant Divisional Engineer and his salary would have been increased periodically. At the time of his death it was Rs. 2,370. It would have certainly been much more by the time he would have retired. Hence we accept the unchallenged statement of the claimants that the deceased would have earned Rs. 6,85,080 during the remaining years of service. It can be safely held that he would have spent for personal expenses around Rs. 2,00,000.
14. There is no merit in the contention of the claimants that the deceased would have carried on some business after retirement and earned Rs. 2,00,000. Nor can we accept the contention of the appellants that the sum of Rs. 13,742 paid towards encashment of earned leave at credit should be deducted. That amount was already earned by the deceased and it develoved on the claimants by succession. Deducting the personal expenses we arrive at a figure of Rs. 4,85,080 which the family would have got from him had he been alive. We do not find any error in the view taken by the tribunal that the claimants are entitled to a sum of Rs. 50,000 by way of loss of consortium. That amount is quite reasonable. Adding the total comes to Rs. 5,35,080. From this, the sum of Rs. 17,712 paid as DCRG and the sum of Rs. 10,000 towards Family Benefit Fund have to be deducted. The balance comes to Rs. 5,08,278. It can be rounded off to Rs. 5,00,000 as the tribunal has granted that amount and the difference is not much.
15. Thus we are of the opinion that the total compensation of Rs. 5,00,000 awarded by the tribunal is quite just and reasonable. In the view we have taken above, the decisions cited by learned Counsel for the claimants referred to above need not be dealt with in detail. In all those cases, it is held that while awarding compensation, the court must take into account the future contingencies of increase in income as well as rise in price index. It has also been held that the fact that the money value is going down should be taken note of by the court at the time of awarding compensation. We have in fact taken note of these factors above.
16. However, the award of 6% interest on the compensation by the tribunal is erroneous. Even the Nationalised Banks are giving 10% interest on deposits. If the amount is invested in Financial Corporations or other private companies, the interest will be much more. In view of the prevailing rate of interest, we are of the opinion that it would be proper to award 12% interest on the compensation amount awarded to the claimants.
17. Consequently, the award of the tribunal is modified by enhancing the interest to 12% p.a. payable on the amount of compensation fixed therein. In other words the appellants shall pay to the claimants a sum of Rs. 5,00,000 by way of compensation plus interest at the rate of 12 p.a. from 22.8.1984 the date on which the original petition was filed till the date of payment. The appellants shall also pay the costs of the respondents in this appeal.
18. The appeal is dismissed with costs and the memorandum of cross-objections is allowed partly to the extent indicated above but there will be no order as to costs in the memorandum of cross-objections.