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1994 DIGILAW 148 (BOM)

Samindrabai Manika Gajabhare and another v. Divisional Controller, M. S. R. T. Corp. , Nanded

1994-04-06

A.D.MANE

body1994
JUDGMENT - A.D. MANE, J.:-This First Appeal is directed on behalf of legal heirs of deceased Manika against the award of damages for death of Manika in the accident. 2. Deceased Manika was the husband of appellant No. 1 and father of appellant No. 2. He was dealing in a leather business. On August 5, 1981 at about 9 A.M. he was coming from his village to go to Nanded on foot, carrying a bundle of leather on head. Near the Seed Farm at Latur cross-road he met with an accident with the S.T. bus bearing No. MTB 5207. The bus was coming from Mukhed to Umarkhed via Nanded. It was stated that the accident took place on account of rash and negligent driving of S.T. bus diriver-Pandurang. Deceased sustained crush injuries to both of his legs and several injuries on his chest and other parts of his body. He was shifted, in an injured condition, in a city bus, to Civil Hospital, Nanded but in the afternoon he succumbed to the injuries. 3. The appellants filed their claim for damages for death of Manika before the Claims Tribunal claiming a sum of Rs. 50,000/-. The claims tribunal, by its award dated April 30, 1983, granted only Rs. 19,4000/-. It is against that award, this appeal is filed. 4. The only question involved in this appeal relates to the quantum of damages. Shri Nagode, learned Counsel for the appellants urged that the Claims Tribunal has granted inadequate damages by proceeding on a wrong premise or principle. It has been aruged that income of deceased Manika was Rs. 500/- per month. The claims tribunal has wrongly assessed the dependency at Rs. 100/- per month. Secondly, it has been contended that in view of the increase in average longevity now upto age of 60 years the multiplier of 12 as adopted by the Claims Tribunal was wrong. According to him, the multiplier would have been 20. Therefore, the Claims Tribunal ought to have granted total sum of compensation as claimed by the appellants. 5. On the other hand Shri Choudhary, learned Counsel for the respondent submits that the damages ascertained by the Claims Tribunal were just and fair and requires no interference in appeal. 6. Having gone through the judgment of the Claims Tribunal, I think, there is substance in the submissions of Shri Nagode, learned Counsel for the appellant. 5. On the other hand Shri Choudhary, learned Counsel for the respondent submits that the damages ascertained by the Claims Tribunal were just and fair and requires no interference in appeal. 6. Having gone through the judgment of the Claims Tribunal, I think, there is substance in the submissions of Shri Nagode, learned Counsel for the appellant. The principles governing award of damages for death are well settled and may be briefly stated as under : (i) When the Court awards damage to the dependants for death due to negligence, it awards one lump sum calculated by taking the yearly pecuniary loss and multiplying it by the number of years purchase; (ii) It does not divide it into two parts, such as special damage up to the date of trial and future loss after the date of trial. The Court treats it as damage inflicted once and for all at the time of accident; (iii) It has to follow the rule of basic figure, a certain number of years purchase and allowance for lump sum down; (iv) If the period is a long one, the multiplier will be much smaller than the number of years even where the contingencies, which are allowed for, are of small account. The reason is that while in so far as the lump sum of damages is still unspent, it will be earning interest and the damages and interest together will be adequate to last out for the period. The reason is that a prudent person, receiving a lump sum, to make good his loss over a period, is expected to invest it and to use it up gradually; (v) The sum to be awarded as damages should be equal to the cost of purchasing an annuity of the relevant amount for the relevant period. Moreover, there cannot be any dispute that the claims tribunal requires to consider certain factors for determining the compensation for death. The Claims Tribunal, in ascertaining compensation to be awarded to the legal representatives of a deceased, dying in an automobile accident, is required to make an award determining the amount of compensation which appears to it, to be just. Moreover, there cannot be any dispute that the claims tribunal requires to consider certain factors for determining the compensation for death. The Claims Tribunal, in ascertaining compensation to be awarded to the legal representatives of a deceased, dying in an automobile accident, is required to make an award determining the amount of compensation which appears to it, to be just. The pecuniary loss to the claimants, in such a case, would depend upon various factors and data, which cannot be accurately ascertained, and the Claims Tribunal has to make a fair and reasonable assessment of the same even, to some extent, on a conjectural basis. The determination of the question of compensation depends on several imponderables and so one cannot insist or expect meticuolous accuracy in such an assessment. The general principle of assessment of compensation, as has been observed by the Supreme Court in (Sheikhpura Transport Company v. N.I.T. Insurance Company)1, A.I.R. 1971 S.C. 1624 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. To work this out, one has to find out, amongst other things, (i) the net annual income of the deceased earned by dint of his labour-manual or of head and heart; (ii) as to how much, out of it, was spent by him for himself and how much for his dependants, which may otherwise be referred as their "dependency"; (iii) as to how long each dependant would have been required to depend on the same, widow being assumed to be so required during whole of her lifetime in the absence of any evidence to the contrary; and (iv) how long the deceased could have supported each one of them, depending on the estimate of expectancy of his future span of life. The age of the deceased on the date of the accident, his health and estimate of the years, during which he would have continued to earn also are equally important and relevant factors. 7. Shri Nagode, learned Counsel for the appellants accepts the net income as ascertained by the Claims Tribunal of deceased Manika. The age of the deceased on the date of the accident, his health and estimate of the years, during which he would have continued to earn also are equally important and relevant factors. 7. Shri Nagode, learned Counsel for the appellants accepts the net income as ascertained by the Claims Tribunal of deceased Manika. The Claims Tribunal has held that net income which Manika used to earn was Rs. 10/- per day i.e. Rs. 300/- per month. The Claims Tribunal, however, has held that out of that income, the deceased must have spent Rs. 200/- per month for himself, as he used to go to Nanded for work, for which he was required some extra money. Therefore, the Claims Tribunal fixed the dependency to the extent of Rs. 100/- per month. Shri Nagode, learned Counsel for the appellants challenges the very approach of the Claims Tribunal in fixing the dependency at Rs. 100 per month instead of Rs. 200 per month. In my opinion, there is force in the submission of Shri Nagode, learned Counsel for the appellants, that normally, even in case of a workman, atleast 1/3rd amount of his income can be considered for his personal expenditure. In absence of any other factors in the present case, I think, the deceased must be held to have spent 1/3rd of his monthly income for his personal needs, which may include transportation etc. Therefore, on the question of dependency there is no much difficulty to hold that out of Rs. 300 per month, the deceased must have spent Rs. 200 per month for his family. 8. On the question as to what should be the proper multiplier in determining the compensation for death, it cannot be denied that in view of the estimated increase in the average longevity upto the age of 65 years, the figure is increased depending upon facts of each case. The deceased was only bread earner to maintain his wife and a son. Even if we consider that the deceased would have survived till he attains age of 58 years, the multiplier as applied by the Claims Tribunal was not correct. The Claims Tribunal has applied multiplier of 12, but in my opinion, in the view that I take, the multiplier ought to be 13, inasmuch as the deceased at the time of his death was 45 years of age. 9. The Claims Tribunal has applied multiplier of 12, but in my opinion, in the view that I take, the multiplier ought to be 13, inasmuch as the deceased at the time of his death was 45 years of age. 9. The matter, however, does not rest here. The Claims Tribunal awarded Rs. 5,000/- for pains and sufferings and for loss of consortium but generally Rs. 10,000/- are considered proper on these heads. 10. The result, therefore, is that, the award passed by the Claims Tribunal requires modification. The appellants would be entitled to pay compensation of Rs. 200 x 12 x 13 = Rs. 31200 plus Rs. 10,0000/- = Rs. 41,200/-. It may be stated that the tribunal has allowed deduction of Rs. 1000/- which was paid by ST. Corporation as ex-gracia payment. I do not think that this amount needs to be deducted from the amount of compensation. Thus, the appellants would be entitled to receive from the respondent a total compensation of Rs. 41,200 with interest at the rate of 12% P.A. with proportionate costs. Hence, the following order : 11. Appeal is partly allowed. The award passed by the Claims Tribunal is modified and the respondent is directed to pay to the claimants-appellants Rs. 41,200 - Rs. 19,400 = Rs. 21,800 with proportionate costs of the appeal. Appeal partly allowed.