Madras High Court
The State Express Transport vs Chandra Ammal on 27 August, 2010
Author: P.P.S.Janarthana Raja
Bench: P.P.S.Janarthana Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 27.08.2010
CORAM
THE HONOURABLE MR. JUSTICE. P.P.S.JANARTHANA RAJA
C.M.A.No.3800 OF 2005
The State Express Transport
Corporation, formerly Thiruvalluvar
Transport Corporation, rep.by its
Managing Director,
Chennai-2 .. Appellant
Vs
1.Chandra Ammal,
2.Suresh,
3.Minor Dhanam,
4.V.V.Vanniaperumal,
5.The New India Assurance Co., Ltd.,
Moore Street, Madras-1 .. Respondents
(R3 rep.by her mother and guardian
1st petitioner, Chandra Ammal)
Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the award dated 02.12.2003, made in MCOP No.512 of 2000, passed by the Motor Accident Claims Tribunal-cum-Sub Court, Maduranthagam.
For appellant : Mr.V.Udaya Kumar
For respondents : Mr.N.Sankaravadivel
for RR1 & 3
No Appearance for R2
Given up for RR4 & 5
J U D G M E N T
The civil miscellaneous appeal is preferred by the appellant-State Express Transport Corporation against the award dated 02.12.2003, made in MCOP No.512 of 2000, passed by the Motor Accident Claims Tribunal-cum-Sub Court, Maduranthagam.
2. Background facts in a nutshell are as follows:
One deceased Muthu met with motor vehicle accident that took place on 01.06.1995, at about 12.15 hours. The said deceased was travelling as a passenger in the bus belonging to the appellant bearing registration No.TN01 N0504. The said bus was proceeding from north to south direction and while nearing Edaiyalam bridge on the G.S.T.Road near Acharapakkam, a van bearing registration No.TCM 2097, belonging to the second respondent herein and insured with the fifth respondent Insurance Company herein, came from south to north direction in a rash and negligent manner and hit the bus. Due to the impact, the bus was capsized and in the result, the claimant Muthu died on the spot. The claimants are the mother, brother and minor sister of the deceased. They claimed compensation of Rs.2,00,000/-. The appellant-State Express 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 bus or due to the rash and negligent driving of the driver of the van?
2. Who are liable to pay compensation to the claimants?
3. What is the quantum of compensation?
4. what other reliefs the claimants are entitled to"
3.After considering the oral and documentary evidence, the Tribunal held that the accident had occurred only due to rash and negligent driving of the drivers of both vehicles and thereby fixed the contributory negligence on the drivers of the bus and van and awarded compensation of Rs.2,00,000/- with interest at the rate of 9% per annum from the date of the claim petition. Further, the Tribunal directed the appellant-Transport Corporation as well as the Insurance Company, third respondent herein to pay the compensation equally. The Tribunal computed the loss of income at Rs.2,16,000/-. But, the claimants are restricted their claim at Rs.2,00,000/-. Hence, the Tribunal awarded a sum of Rs.2,00,000/- with interest at the rate of 9% per annum from the date of claim petition till the date of realisation. Aggrieved by that award, the appellant-State Transport Corporation Ltd., has filed the present appeal and the fifth respondent Insurance Company has not chosen to file any appeal.
4.The learned counsel appearing for the appellant-State Transport Corporation questioned only the quantum of compensation passed by the Tribunal and vehemently contended that the amount awarded by the Tribunal is excessive, exorbitant and also without basis and justification. Therefore, the award passed by the Tribunal is not in accordance with law and the same has to be set aside.
5. Learned counsel appearing for the respondents 1 and 3 submitted that the Tribunal has considered all the facts and circumstances of the case and came to the right conclusion and awarded a just, fair and reasonable compensation. It is a question of fact and it is not a perverse order. Hence the order of the Tribunal is in accordance with law and the same has to be confirmed.
6. Heard the counsel and perused the documents available on record. On the side of the claimants the brother of the deceased, Suresh was examined as PW.1 and one Ganapathi, who is the eye witness, was examined as PW2 and documents Exs.P1 and 2 were marked. On the side of the fifth respondent Insurance Company no one was examined and no document was marked to substantiate their claim. Ex.P1 is the certified copy of the First Information Report and Ex.P2 is the certified copy of the post-mortem certificate were marked. After considering the above oral and documentary evidence, the Tribunal has given a categorical finding that the accident had occurred only due to the rash and negligent driving of the both drivers of the vehicle and thereby fixed the liability at 50% on the art of the drivers of the bus as well as van. It is a question of fact and the findings is based on valid materials. Therefore, the same is confirmed.
7. 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 years 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)
8. 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.
8. At the time of the accident, the deceased was aged about 27 years. PW1 is the brother of the deceased. In his evidence, it is stated that the deceased was running a Tea Shop and he claimed that the deceased was earning a sum of Rs.3,000/- per month. PW2, who is the eye-witness to the accident. In his evidence, it is stated that the accident had occurred only due to the rash and negligent driving of the drivers of the both vehicles and the drivers were also charge sheeted by Acharappakkam Police Station in Crime No.426 of 1995. Ex.P2 is the Post-mortem Report, in which, it is stated that the age of the deceased is 27 years at the time of accident. Therefore, the Tribunal fixed the age of the deceased at 27 years. No documents were available to show that the deceased was earning a sum of Rs.3,000/- per month. After taking into consideration of the facts and circumstances of the case, the Tribunal fixed the monthly income at Rs.1,500/-. Out of the said sum, 1/3rd was deducted towards personal expenses and the balance amount of Rs.1,000/- taken as the monthly contribution of the deceased to the family and determined the annual contribution of Rs.12,000/-. After taking into consideration the age of the deceased, the Tribunal adopted a multiplier '18' and arrived at the loss of income at Rs.2,16,000/- (Rs.12,000/- X 18). It is pertinent to note that the claimants have restricted their claim to Rs.2,00,000/-. Hence the Tribunal awarded a sum of Rs.2,00,000/- as compensation with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation.
9. After taking into consideration of the facts and circumstances of the case, this Court is of the view that there is no illegality or perversity in the order of the Tribunal warranting interference. It is a question of fact and it is not a perverse order. The findings is based on valid materials and evidence. Under these circumstance, the award passed by the Tribunal is in accordance with law and the same is confirmed. The appeal is devoid of merit and accordingly dismissed. No costs.
krk To
1.The Motor Accident Claims Tribunal
-cum-Sub Court, Maduranthagam,
2.The Section Officer, VR Section, High Court, Madras