RAIMAND AUGUSTINE v. LUDVIC — 1986 DIGILAW 176 (KER)

Judgment :- 1. The claimants in M. V. OP. No. 84 of 1979, before the Motor Accidents Claims Tribunal, Ernakulam, are the appellants. The first and second appellants are the parents of deceased Ryan alias Vava, whereas the third and fourth appellants are his brothers. The deceased was involved in an accident on 13-1-1976 at about 5.00 p. m. He was thrown out of a stage carriage owned by the first respondent in which he was employed. The accident took place near the Aerodrome Junction, W. Island. 2. The claim petition was filed on 10-4-1976. The appellants claimed an amount of Rs. 75,000/- as compensation for the death of the deceased By its award dated 7-7-1980, the Tribunal awarded an amount of Rs. 9,800/-with interest at the rate of 6 per cent from the date of award. An amount of Rs. 10,012/- was paid by the insurer in January, 1981 pursuant to the award In this appeal, the appellants claim a further amount of Rs. 65,200/- as compensation. 3. On the evidence adduced before it, the Tribunal held that the average monthly earnings of the deceased from bis employment under the first respondent would have been Rs. 150/- and the average monthly dependency would have been Rs. 60/-. The first and second appellants were aged 64 and 54 at the time of the accident. The Tribunal adopted the multiplier of 15 and awarded an amount of Rs. 9,800/-after deducting 1/10th of the aggregate amount for uncertainties and for lump sum payment. 4. The appellants urged before us that the average monthly dependency must have been determined as Rs. 250/- and the multiplier ought to have been at least 20 since the second appellant was only 54 years old and the third and fourth appellants were only 24 and 22 years old respectively at the time of the accident. It was submitted that the Tribunal should Dot have acted on the oral evidence of dw.1 alone, since he had refused to produce any documentary evidence relating to the number of days on which the deceased bad actually worked and his average earnings, even in spite of a petition filed by the appellants in that regard. Some attempt was also made by the appellants to indicate that the average earnings of a checking inspector at present is more than Rs. 700/-, and therefore the dependency should be determined at least as Rs. Some attempt was also made by the appellants to indicate that the average earnings of a checking inspector at present is more than Rs. 700/-, and therefore the dependency should be determined at least as Rs. 250/-per month. 5. The claimants had submitted that the average wage of the deceased at the time of the accident was Rs. 250/-. The first appellant in his evidence as pw. I had stated that the deceased was contributing Rs 250/-per month to his parents and brothers. Apart from the assertions, the claimants had not sought to sustain that claim on any acceptable material. Equally scrappy is the evidence of dw. I, who stated that the deceased was employed only temporarily, that his daily wage was only Rs. 11/- and that he was employed only for a period of 13 days before he met with the accident. The wife of the first respondent had stated in an affidavit that these assertions could not be supported by any documentary evidence. The Tribunal accepted the evidence of dw.1 and held that the average earnings of the deceased would have been only Rs. 150/-, out of which Rs. 60/-alone would have been paid by him to the claimants after meeting the personal expenses of the deceased. 6. Counsel for the appellants submitted that the Tribunal erred in determining the average earnings of the deceased as Rs. 150/- and the contribution of the deceased to the family at Rs. 60/- per month. Evidently the Tribunal accepted the probable monthly income of the deceased at the time of the accident as the common denominator and 2/5 thereof as the contribution which would have been made by him to his parents and brothers. Naturally, the Tribunal could only make a reasonable guess, on the basis of such materials as were made available to it. Even then, the Tribunal had to weigh the chances with sympathy and fairness and with reference to the "many factors which might push up the value of the dependency in the future". (AIR 1971 Kerala 241). 7. One important aspect which seems to have been missed by the Tribunal in assessing the monthly average earnings of the deceased is the future prospect of the deceased over the period of years, had he lived. (AIR 1971 Kerala 241). 7. One important aspect which seems to have been missed by the Tribunal in assessing the monthly average earnings of the deceased is the future prospect of the deceased over the period of years, had he lived. It is true that the Tribunal has to depend, in some measure, on estimates, conjectures and reasonable prophesy of what would have been the value of dependency had the deceased lived. The estimate cannot be tied down to the actuals as on the date of the accident. As Lord Morris of Borth Y Gest stated in Mallet v. Mc Monagle,1970 AC. 166: "All the chances and changes of the future must be assessed". Lord Pearce observed in the same decision: "In assessing the proper figure, the jury have to take into account both the possibilities for good and bad striking a fair balance as they see it, on such evidence of the future probabilities as is given to them." Lord Diplock added: "In assessing damages which depend upon its view as to what will happen in the future or what would have happened in future if something bad not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more less than even, in the amount of damages which it awards." 8. These principles were applied by this Court in the decision reported in P.B. Kadar and others v. Thatchamma and others, AIR. 1970 Kerala 241 as also by the Supreme Court in MPSRTC Corpn. v. Sudhakar and others, 1977 ACJ 290. In State Insurance Officer v. Thankamma,1980 KLT. 562, this Court held that "incremental scale of pay, likelihood of promotions in the usual course and even the likelihood of revisions of pay scales" could be considered by the Tribunal is assessing the value of the dependency and in determining damages. In this case, the Tribunal has assessed the damages on the basis of a static amount as on the date of the accident without adverting to the "chances and changes of the future" and the "future probabilities". In this case, the Tribunal has assessed the damages on the basis of a static amount as on the date of the accident without adverting to the "chances and changes of the future" and the "future probabilities". We are inclined to hold that increase in wage-rates is an irreversible phenomenon; and there should therefore have been a more realistic assessment of the earnings of the deceased over a period of 15 years which has been determined as the multiplier. Balancing all considerations, we are of the opinion that Rs. 200/- per month will be the average earnings of the deceased instead of Rs. 150/- as determined by the Tribunal. 9. As far as the contribution by the deceased to the claimants is concerned, we can only say that the inference of the Tribunal seems to be far from charitable. A person earning an amount of Rs. 150/- would definitely have contributed more than 2/5 of his earnings to the family consisting of his parents and two brothers. We are of the opinion that a reasonable amount of such contribution can be taken to be 50 percent of his earnings, namely Rs. 100/- per month. 10. Counsel for the appellants submitted that the multiplier should have been 20, since the second appellant was only 54 years old at the time of the accident, and a reasonable period of longevity should be taken to be 75 years. He also referred to the decisions reported in 1977 Accidents Claims Journal 290 and 1985 KLT 683 to sustain the submission that the normal life expectancy in our country must be taken to be 75 years He, therefore, pleaded for enhancement of the multiplier from 15 to 20 or 25. He did so also on the basis of the submission that appellants 3 and 4 were entirely dependent upon the income of the deceased and they would, naturally, have obtained such assistance on the basis of dependency for a longer period of time than the parents, appellants 1 and 2. 11. This assertion of counsel for the appellants that appellants 3 and 4 were entirely dependent upon the earnings of the deceased is not sought to be made out by adducing any evidence. In the absence of any such evidence, we are not persuaded to bold that the Tribunal erred in adopting a multiplier of 15. 11. This assertion of counsel for the appellants that appellants 3 and 4 were entirely dependent upon the earnings of the deceased is not sought to be made out by adducing any evidence. In the absence of any such evidence, we are not persuaded to bold that the Tribunal erred in adopting a multiplier of 15. We affirm the finding of the Tribunal that the multiplier should be 15. 12. The Tribunal has awarded interest at the rate of 6 percent from the date of award. The very basis of award of interest is that the claimants were deprived of an advantage, and that unmerited deprivation should be compensated. If this be the basis of the award of interest, it shall run at least from the date of institution of the proceedings claiming compensation as a consequence of deprivation of the benefit. We are, therefore, inclined to hold that the interest should run on the amount of compensation, not from the date of award, but from the date of institution of the proceedings. 13. Counsel for the appellants submitted that the award of interest at 6 percent is far too negligible and a more realistic rate of interest will be 12 percent. Counsel for the respondents submitted that the award of interest at 6 percent alone is statutorily permissible and the appellants are not entitled to any higher rate of interest. 14. We are of the opinion that the rate of interest shall be more realistic. At the same time, we have to remember that interest is being awarded on the amount quantified with reference to the loss of future earnings as well. The principles applicable to award of interest in fatal accident claims have been dealt within the judgment of Lord Denning in Jefford v. Gee, (1970) 2 QB.120. Though the Master of Rolls refused to grant interest in another personal injury claim in Cookson v. Knowles, 1978 ACJ 201, the House of Lords considered the matter in great length in Pickett v. British Rail Engineering Ltd., 1978 ACJ 261 and awarded 9 per cent interest per annum on general damages from the date of service of the writ to the date of trial in the case of the surviving claimant. Those principles more or less apply to the situation on hand. Those principles more or less apply to the situation on hand. It may, perhaps, be that the rate of interest shall be at a higher percentage upto the date of the award and at a reduced rate after the award, Taking all the factors into consideration, we are inclined to hold that the rate of interest shall be 9 per cent instead of 6 per cent and that too from the date of filing of the petition rather than from the date of award. 15. Counsel for the appellants seems to us to be right in claiming that the Tribunal should have awarded costs of the appellants. 16. On the basis of the above discussions, we allow this appeal, and modify the award as follows: (a) The amount of compensation shall be determined as Rs. 16.200/- (Rs. 100 x 12 x 15: 18,000 minus 10 per cent i.e., Rs. 1,800/-). (b) Interest at 9 per cent shall be paid on this amount from the date of institution of the petition viz., 10-4-1976 till the date of payment, excluding the amount of Rs. 10,012/- which was paid by the insurer in January, 1981 pursuant to the award of the Tribunal. (c) The appellants will be entitled to costs throughout, including Advocate's fee of Rs. 200/- each before this Court and the Tribunal. Allowed.