Madras High Court
R.J. Padmakumari And Ors. vs Pallavan Transport Corporation ... on 10 December, 1987
Equivalent citations: (1988)1MLJ116
JUDGMENT Sathiadev, J.
1. Pallavan Transport Corporation is the Appellant in C.M.A. N0. 139 of 1982. Respondents who are the Appellants in C.M.A. No. 135 of 1982 and who are the wife and children of Bhargavan Nair, have claimed a total compensation of Rs. 2,80,000 on the ground that he died in a motor vehicle accident on 14.5.1979 at about 7.28 a.m. at King Circle on the Heavy Vehicles Factory Road at Avadi on account of the negligent driving of the bus TMN. 1291 belonging to the Appellant-Respondent before the Tribunal. Ranking of parties will be referred to as before the Tribunal.
2. Bhargavan Nair was proceeding to his work spot in a scooter, and when he was nearing the eastern side of King Circle, the respondent's bus without en-circling the said circle came on its wrong side and dashed against the scooter, and hence, respondent is liable to compensate the legal heirs of the deceased.
3. Respondent claimed that there was no rashness or negligence on the part of the driver of the bus, and he was proceeding on the proper side, but only due to the negligence of the victim, the accident had occasioned.
4. P.W. 3 is the eye witness, who was going on a cycle, just behind the deceased, and he had vividly spoken to the manner in which the collision took place. He had stated that the vehicle involved in the accident overtook a stationary bus, and without going round the King Circle, it proceeded straight to the southern side of it and hit the deceased. There is no need to further analyse the evidence of other witnesses on this aspect in view of the admission made by the driver. (R.W.1), who had in unequivocal terms admitted about the bus being driven by him on the wrong side of the circle. In cross-examination, he had stated as follows:
Therefore, the rashness and negligence had been rightly foisted on his shoulders by the Tribunal, and hence this finding cannot be interfered with.
5. The next point taken pertains to the computation of damages. Learned Advocate-General appearing for respondent, refers to Ex. A4, the Pay Certificate, and rightly points out that the said certificate contains not only the total salary drawn by the deceased, but also includes over-time wages, arrears of over-time allowances, etc., and therefore, the average salary drawn by him alone could be taken into account; it being Rs. 700 per month. The deceased was aged 41 years at the time of accident. Therefore, taking into account that the expectation of life in India is at 55, the multiplier could be fixed at 14. But Mr. Subramaniam, learned Counsel appearing for petitioners, would state that, when the deceased had the right to continue in service till 31.5.1995, the age of retirement, and the pension to be drawn later on, should be taken into account. He also claims that in the next grade of pay, he was to be promoted within a couple of months from the date of accident, and the future prospects also must be considered. Though no evidence had been let in on this aspect, he wants the Court to presume about future prospects,, and more particularly, when the deceased had 5 or 6 promotions already, and being a meritorious servant, he would have drawn much higher salary, and that too when the pay scales have been revised, the Court is obliged to take into account all these factors. In support at this place, he relies upon the following decisions.
6. In Mahipal Co-Op. Society Ltd. v. Prababati 1986 A.C.J. 46, a learned single Judge of the Delhi High Court held that the reduction of one-third income as his personal income without any evidence on recorded is not proper. Learned Judge also held that a further deduction of 15% on account of lump sum payment is not justified in these days of inflection.
7. He then relies upon the decision in Manjushri Raha v. B.L. Gupta 1977 A.C.J. 135, wherein it was held that in respect of a Government servant, a deduction of one-half of the amount could be made towards personal expenses of the deceased. This one half would cover day to day domestic expenses, payment of income-tax and other charges. It was also held that the maximum of the grade that would be reached before his superannuation had to be taken into account. As for the expectation of life, it was held that it would be reasonable to expect a person to live at least upto the age of 65 years, if not more.
8. In evolving a multiplier, instead of varying the multiplier from case to case, regarding expectancy of life, and there being several decisions holding that expectancy of life could be fixed at anything between 55 and 75, this Court had relied upon the authoritative statistics report called "World Development Report, 1985" prepared by World Bank, in which average expectancy of life in this country had been found to be 55 years. In none of the decisions placed before this Court so far, for fixing the expectancy of life as 60 or 65 or 70, any reliance had been placed on any statistical analysis made on this aspect. It is because of this reason, whether the deceased is a Government servant or otherwise, in so far as expectancy of life is concerned, the assessment made in the said report is being relied upon.
9. On the point put forth by Mr. Subramaniam that the deceased had a tenure of service upto 58 years. It is relevant only for finding out his service conditions, but it is not a factor that could be taken into account in evolving the average expectancy of life in this country. Expectancy of life and expectancy of tenure of service are different factors. If in respect of a Government servant, tenure of service is to be taken into account so as to conclude on the expectancy of life, then different standards would get applied in respect of others relating to expectancy of life. Service conditions have no nexus to the longevity of a human being. Therefore, to avoid a differential treatment being extended and arbitrary multipliers being fixed, the age limit found in the World Development Report, 1985 is being relied upon. Only in such of these cases where the victim is aged beyond 50 years; then taking into account his health conditions, another 5 or 10 more years beyond 55 is taken into account, depending upon special circumstances of such case. Hence, there is no warrant for fixing the expectancy of life any different in this case.
10. On the assessment of average monthly pay, Ex. A4 contains amounts drawn by the deceased as overtime wages, which would vary from time to time. Therefore, as pointed out by the Supreme Court, maximum of the scale of pay is taken into account. In view of the statement made by Mr. Subramaniam that, being aged 41, he would have one more promotion, and in the higher grade, his maximum would be only Rs. 100 more; it will be just and fair to fix the likely salary which he would have derived at Rs. 800 per mensem, on an average. This would come to Rs. 1,34,400.
11. It is contended by Mr. Subramaniam that on the basis of decision rendered in Mahipal Co-Op. Society Ltd. v. Prabhati 1986 A.C.J. 46, there could be no deduction for lump sum payment, because of inflation. But, as the Supreme Court itself in Manjushri Raha v. B.L. Gupta 1977 A.C.J. 134, which is a case of a Government servant, having deducted one-half from the lump sum amount, it will not be proper to award the entirety" of the amount presumed to be lost, without taking into account the imponderables and uncertainities of life. If the said basis is adopted, the compensation payable would be Rs. 67,200 and further a sum of Rs. 5,000 towards loss of expectation of life is to be added.
12. He strongly relies upon a judgment of a learned single Judge of Delhi High Court in Amarjit Kaur v. Vanguard Ins. CO. Ltd. 1969 A.C.J. 286, wherein it was held that it is the duty of the claimant to produce cogent evidence to establish the prospects of the deceased person. On expectancy of life, it took note of the fact that in India, the average expectancy of life is about 50 years, but, then stated that the average was low due to infant mortality. The deceased having survived the infancy period, he might have lived at any rate upto the age of 60 years or 65 years. In assessing future earnings, instead of deducting on the basis of average life, it took into account the 'working life' that it to say, for the period for which he would have been active enough to work. The deceased in the said case was aged 40 years, when he was killed. A multiplier of 15 was applied. It took note of the decision of the Supreme Court, wherein for a deceased aged 34 years, only a multiplier of 8 was fixed. Hence this decision had ultimately taken into account the expectancy of life at 55 and no more. Then, it also made a deduction of one-third of the lump sum so arrived at, because it results in a lump sum payment to claimants. Hence, even the decision relied upon by him, had ultimately led to the expectancy of life being fixed at 55 and no more. He would rather lay considerable emphasis on the point that the average expectancy is based on taking into account infant mortality in this country which was of a high rate, and hence, the average expectancy now taken into account based on World Development Report, 1985 cannot be applied when a deceased had crossed the infancy stage of his life. This approach overlooks the sample fact that in arriving at the average expectancy of life, not only the infant mortality but deaths occasioned due to all factors like due to accidents or due to opidemics or due to failing health or due to diseases, etc., are taken into account. Learned single judge had thought of only infant mortality which was once high and not about deaths occasioning due to different factors. When the average expectancy of the Nation is worked out, the deaths occasioning due to several causes are taken into account and not confined only to infant mortality. This error in the said judgment was pointed out to Mr. Subramaniam, but still he was not able to get out of it,
13. He then relied upon a division bench decision of this Court in Hema Ramaswami v, K.M. Valarence Panjani, 1981 A.C.J. 288, wherein the average expectancy of life was assumed by the Tribunal at 70 years, but the Division Bench applied only a multiplier of 15, taking note of the age of the deceased at 42. It had not relied upon any statistical or scientific report or any authoritative studies conducted by scientific expert bodies In assessing the expectancy of life in this country., It has assessed the expectancy of life at 57, for which no reasons are given therein. Instead of fixing the expectancy of life in this country differently from case to case, and even now when Mr. Subramaniam is unable to place any single decision in which an authoritative report having been relied upon so that a consistent outer limit could be taken into account, this Court considers that the reasonable which has been higher to applied by relying upon World Development Report, would be more beneficial to claimants. After Independence, expectancy of life in this Country had doubled. Hence in the' absence of any decision being placed, wherein authoritative materials have been relied upon for taking into account the expectancy of life; in a case of this nature, where the deceased was aged 41, the multiplier of 14 is a just and fair determination for computing the compensation payable to his heirs.
14. This Court had been consistently adopting the procedure of first deducting one-third of the amount towards personal expenses of the deceased, which would include domestic expenses, payment of Income-tax, other charges, incidental expenses etc., and presuming that two-thirds of income was being saved for the family even though in reality it may not happen. In this case, after deducting one-third from the monthly salary of Rs. 800 towards the personal expenses of the deceased; the monthly contribution to the family would be Rs. 530. Applying the multiplier of 14, the lump sum amount is arrived at Rs. 89,040. From this amount, one third is deducted towards imponderables and uncertainities of life. The balance is Rs. 59,360 and on Rs. 5,000 towards loss of expectation of life being added, the total compensation payable comes to Rs, 64,360. Hence, this is the basis which is being adopted in all the matters hitherto heard by this Division Bench, and to strike consistency in matters of this nature, which would go a long way in creating confidence in claimants, the total compensation is therefore fixed at Rs. 64,360.
15. To test it with capitalisation method, on this sum by invested in Unit Trust 15% interest per annum will be earned, thus yielding a monthly income of Rs. 812. Lump sums are granted not to be fritted away at once, but to be invested to yield regular income. Other investments bring still larger income. Hence, this compensation is just and reasonable and even satisfies the capitalisation test.
16. Hence, C.M.A. No. 139 of 1982 is allowed limiting the compensation to Rs. 64,360 bearing interest at 12% per annum from the date of petition till date of payment. If any excess amount had been already remitted, the balance amount shall be returned to the respondent-Corporation by the Bank. C.M.A. No.-135 of 1982 is dismissed. As the petitioners have lost the bread-winner no cost is awarded as against them in both the Appeals.