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Gauhati High Court · body

2009 DIGILAW 664 (GAU)

Mallika Datta v. Rakhi Paul

2009-09-11

MAIBAM B.K.SINGH

body2009
JUDGMENT Maibam B.K. Singh, J. 1. Heard Mr. P. Roy Barman, Learned Counsel appearing on behalf of the appellants, Mr. P. Chakraborty, Learned Counsel appearing on behalf of the respondent No. 2, Mr. A. Das, Learned Counsel appearing on behalf of the respondent No. 1 and Mr. T.D. Majumder, Learned Counsel appearing on behalf of the respondents No. 3 and 4. 2. This appeal is directed against the judgment/award dated 234.2005 passed by the learned Motor Accident Claims Tribunal, West Tripura, Agartala in Title Suit (MAC) No. 436 of 2003. 3. Brief facts leading to this appeal are as follows: On 26.7.2003, a police constable, namely, Haradhan Datta, died as a result of motor accident at Beltali Police Out-Post. The appellants Nos. 1 and 2, who are the wife and the son of the deceased, and the respondent Nos. 3 and 4, who are the parents of the deceased, filed the above said case under Section166 of the Motor Vehicles Act alleging that the accident took place due to rash and negligent driving of the truck bearing registration No. TRL-3840 and claiming compensation of Rs. 22,78,000. The respondent No. 1 is the owner of the vehicle and the respondent No. 2 is the Insurer. On the basis of the materials before him, the Tribunal held to the effect that the deceased died on the said day in motor accident due to rash and negligent driving of the vehicle bearing registration No. TRL-3840 and that a sum of Rs. 4,85,080 with an interest of 6% per annum on the said amount of compensation from the date of presentation of the claim petition was a just compensation payable in connection with the death of the deceased, victim. While calculating the monthly loss of income caused to the claimants due to the death of the victim, the Tribunal subtracted the amount of monthly family pension which the claimant No. 1 was getting i.e., Rs. 1,900 from the amount of monthly salary of the deceased i.e., Rs. 5,884 and concluded that Rs. 3,984 was the monthly loss of income. After holding that the deceased/victim died at the age of 40 years, the Tribunal considered 15 as the appropriate multiplier in the case and arrived to Rs. 7,17,120 as a result of multiplying the above said monthly loss of income i.e., Rs. 3,984 by 15. 5,884 and concluded that Rs. 3,984 was the monthly loss of income. After holding that the deceased/victim died at the age of 40 years, the Tribunal considered 15 as the appropriate multiplier in the case and arrived to Rs. 7,17,120 as a result of multiplying the above said monthly loss of income i.e., Rs. 3,984 by 15. Thereafter, on consideration that the deceased could have incurred expenses towards maintaining himself 1/3rd of the said sum of Rs. 7,17,120 was deducted from Rs. 7,17,120 and the Tribunal calculated a sum Rs. 4,78,080 as the amount of compensation. Further, the Tribunal held that the claimant No. 1 was entitled to Rs. 5,000 for the loss of consortium and that the claimants were also entitled to an additional amount of Rs. 2,000, as the costs of funeral expenses of the deceased/victim. The said amount of just compensation i.e., Rs. 4,85,080 was arrived by adding Rs. 4,78,080, Rs. 5,000 and Rs. 2,000. As per the impugned judgment, apart from Rs. 5,000 to be paid to the claimant No. 1, for the loss of consortium, the remaining amount of the compensation was to be paid to the claimants in equal shares. Directions were also given for depositing the share of the minor claimant in a fixed deposit in Tripura Gramin Bank, Agartala during the period of his minority and also for depositing 50% of the share of the claimant Nos. 1 and No. 2 in a fixed deposit in the same bank for 5 years. 4. Aggrieved mainly by the inadequacy of the amount of compensation, the claimants No. 1 and No. 2 in the said Title Suit (MAC) No. 436 of 2003, have filed this appeal. It is the case of the appellants that the said amount of compensation, assessed by the Tribunal cannot be considered as a just compensation payable in connection with the death of the said Haradhan Datta in a motor accident. The Learned Counsel of the appellants submits that the Tribunal committed mistake in arriving to the conclusion that the deceased was 40 years at the time of his death and that the Tribunal ought to have taken 16 instead of 15 as the appropriate multiplier in the case. The Learned Counsel of the appellants submits that the Tribunal committed mistake in arriving to the conclusion that the deceased was 40 years at the time of his death and that the Tribunal ought to have taken 16 instead of 15 as the appropriate multiplier in the case. Further, according to the Learned Counsel of the appellants, while calculating the pecuniary loss sustained by the claimants as a result of the death of the deceased/victim, the Tribunal ought to have taken into consideration the future prospect of the deceased and the amount of monthly family pension received by the widow of the deceased should not have been deducted from the total monthly salary of the deceased. Moreover, the Learned Counsel of the appellants submits that the deceased, Haradhan Datta, being a police constable, was drawing 13 months' salary every year and the same should have been taken into account at the time of calculation of the pecuniary loss and that it was unjust, unfair and unreasonable on the part of the Tribunal to border for sharing the amount of compensation, excluding the amount of Rs. 5,000 awarded to the claimant No. 1 for the loss of consortium, by the four claimants equally without assessing the respective needs of the young widow, minor son and the aged parents. Lastly, the Learned Counsel of the appellants submits that the directions given by the Tribunal for depositing 50% of the share of the appellant No. 1, who is neither a minor nor an illiterate, to a fixed deposit for 5 years is unjust and will cause hardships to the appellant No. 1 in maintaining herself and her minor son. 5. Mr. P. Chakraborty, Learned Counsel appearing on behalf of the respondent No. 2 submits that there is no sufficient materials warranting interference with the impugned judgment. Mr. T.D., Majumder, Learned Counsel appearing on behalf of the respondents Nos. 3 and 4 supports the appellants case and prays for passing an appropriate and just order in respect of the amount of compensation and also as regards the manner of payment and apportionment of the amount of compensation. 6. Section 168 of the Motor Vehicles Act, 1988 enjoins the Tribunal to make an award determining "the amount" of compensation which appears to be just". However, nothing is indicated in the Act regarding the objective factors, which may constitute the basis of compensation appearing as just. 6. Section 168 of the Motor Vehicles Act, 1988 enjoins the Tribunal to make an award determining "the amount" of compensation which appears to be just". However, nothing is indicated in the Act regarding the objective factors, which may constitute the basis of compensation appearing as just. No doubt, the expression "which appears to be just" vests a wide discretion in the Tribunal in the matter of determination of compensation. It is, however, settled that 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. It is also well settled that 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 person affected nor should it be punitive to the person/persons liable to pay compensation. The amount of compensation determined to be payable to the claimant/claimants has to be fair and reasonable by an acceptable legal standards. The said amount of compensation must be based on certain data establishing reasonable nexus between the pecuniary loss incurred by the dependants of the deceased/victim and the amount of compensation to be awarded to them. 7. In G.M. Kerala SRTC v. Susamma Thomas and Ors. (1994) 2 SCC 176 , the hon'ble Apex Court culled out the basic principles governing the assessment of compensation emerging from many decisions and reiterated that the multiplier method is the sound method of assessing compensation. The hon'ble Apex Court held (SCC p. 183, para 13): 13. 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 of which the dependency is expected to last. 8. In U.P. State Road Transport Corporation and Ors. v. Trilok Chandra and Ors. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period of which the dependency is expected to last. 8. In U.P. State Road Transport Corporation and Ors. v. Trilok Chandra and Ors. (1996) 4 SCC 362 , after quoting the above said decision, the hon'ble Apex Court held at para 13 as follows: 13. It was rightly clarified that there should be no departure from the multiplier method on the ground that Section 110B, Motor Vehicles Act, 1939 (corresponding to the present provision of Section 168, Motor Vehicles Act, 1988) envisaged payment of 'just' compensation since the multiplier method is the accepted method for determining and ensuring payment of just compensation and is expected to bring uniformity and certainty of the awards made all over the country. 9. In T.N. State Road Transport Corporation and Ors. v. S. Raja Priya and Ors. (2005) 6 SCC 236 , the hon'ble Apex Court held that (SCC p.240, paras. 8-10): 8. 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 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 together. 9. 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 in come 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. That, that should be capitalized by multiplying it by a figure representing the proper number of years' purchase. 10. That, that should be capitalized by multiplying it by a figure representing the proper number of years' purchase. 10. Much of the calculation necessarily remains in the realm of hypothesis "and in that reason, arithmetic is a good servant but a bad master since there are so often many imponderables. In every case it is the overall picture that matters, and the court must try to assess as best as it can the loss suffered. 10. The same view was reiterated New India Assurance Co. Ltd. v. Charlie and Anr. (2005) 10 SCC 720 and New India Assurance Co. Ltd. v. Kalpana (Smt.) and Ors. (2007) 3 SCC 538 . 11. In the present case, while ascertaining the pecuniary loss caused to the dependents by reason of death of the deceased, victim, the tribunal subtracted the amount of family pension which the claimant No. 1 was receiving i.e., Rs. 1,900 from the amount of monthly salary of the deceased, i.e., Rs. 5,884. This deduction should not have been made. 12. The hon'ble Apex Court in N. Sivammal v. Managing Director, Pandian Roadways Corporation1985 ACV 75 SC held that the High Court was in error in reducing the compensation as awarded by the tribunal by the amount of monetary benefits received by the widow by way of pension @ Rs. 120 per month. 13. A Bench of five Judges of this Court in Saminder Kaur and Anr. v. Union of India and Anr. 1987 ACJ (7) held (ACJ p.11 para. 110: 11. We shall now take up question No. 1 relating to the permissibility of deduction of gratuity, family pension and other benefits attached to the service conditions of an employee. When a Government servant retires, he becomes entitled to provident fund, pension and gratuity benefits. Provident fund, or pension, or gratuity are the deferred payments of satisfactory service, savings and contributions of the deceased employee. These amounts his family would have in any case been entitled to get whether the employee died a natural death or died in an accident. Therefore, they ought not to be taken into consideration for determining the amount of just compensation, as they cannot, be termed as pecuniary benefits. As regards family pension, the widow of a Government employee would be entitled to under the service conditions. Therefore, they ought not to be taken into consideration for determining the amount of just compensation, as they cannot, be termed as pecuniary benefits. As regards family pension, the widow of a Government employee would be entitled to under the service conditions. We do not think that it is benefit received by the widow and the wrong-doer should be allowed to take advantage of the family pension and gain by it. 14. In the light of the above decisions, the said deductions in respect of the amount of family pension received by the claimant No. 1/appellant No. 1 cannot be considered as a valid deduction in law and the same should not have been made by the Tribunal. 15. It is the case of the appellants that the deceased, while serving as a police constable, was getting 13 months' salary every year and the same should have also been taken into account at the time of calculation of the pecuniary loss to the dependents/claimants as a result of the death of the deceased/victim in the motor accident. On perusal of the records of the Title Suit (MAC) No. 436 of 203, it is ascertained that this fact of getting 13 months' salary in a year was not pleaded by the claimants. The only witness examined in the said case did not also state anything about the said fact. In the absence of any pleading and evidence in respect of the said fact, I do not think that the Tribunal committed any illegality in not taking into account the said fact at the time of calculation of the pecuniary loss. The claimants should have pleaded the said fact specifically and proving by producing sufficient evidence. 16. It is also the case of the appellants that while calculating the pecuniary loss caused to the dependents/claimants, the Tribunal ought to have taken into consideration the future prospects of the deceased/victim. In the present case, the Tribunal did not consider anywhere about the future prospect of the deceased. It is well settled proposition of law that with a view to award just and reasonable amount of compensation in a case of motor accident, it is incumbent upon the Tribunal to consider the future prospects of the deceased apart from the consideration about his earnings at the time of accident. But the same should be founded on some legal principles. 17. In Oriental Insurance Co. But the same should be founded on some legal principles. 17. In Oriental Insurance Co. Ltd. v. Jashuben and Ors. (2008) 4 SCC 162 , the hon'ble Apex Court held (SCC p.167 para 14) as follows: 14. The amount of compensation indisputably should be determined having regard to the pecuniary loss caused to the dependants by reason of the death of the victim. It was necessary to consider the earnings of the deceased at the time of the accident. Of course, further (sic future) prospects is not out of bound for such consideration. But the same should be founded on some legal principles. 18. In G.M. KSRTC (supra), the claimants had satisfactorily proved on record that the deceased person in that case had a more or less stable job in the newspaper establishment of Malayala Manorama on a monthly salary of Rs. 1,032. On the basis of the evidence found on record in regard to the prospects of the advancement in the future career of the deceased, the hon'ble Apex Court has made higher estimate of monthly income at Rs. 2,000 per month as the gross income and granted relief to the claimants. 19. In Sarla Dixit (Smt.) and Anr. v. Balwant Yadav and Ors. (1996) 3 SCC 179 , the widow and minor daughter of Capt. Rama Kant Dixit, who died in an accident, filed claim petition before the Motor Accident Claims Tribunal, claiming a sum of Rs. 6,12, 524 on various heads. The hon'ble Apex Court after taking into consideration the material facts on records, found that the deceased was the only bread winner in the family of the claimants. His life was cut short in the prime age of 27 by way of an accident. He had put in 7 years of military service by that time. He was earlier a Lieutenant in the Army. Then, he was promoted to the rank of Captain and was fully qualified for promotion to the rank of a Major at the time of his death. The claimant filed a Certificate of Deputy Commandant and O.C., Tps to show that the deceased had obtained Sena Seva Service Medal, Sangram Medal, Poorvi Star and 25th Independence Anniversary Medal during active military service in various operations/areas. The deceased at the time of his death had passed his MA examination and he was in the time-scale of Rs. 10,00,50,15,50. The claimant filed a Certificate of Deputy Commandant and O.C., Tps to show that the deceased had obtained Sena Seva Service Medal, Sangram Medal, Poorvi Star and 25th Independence Anniversary Medal during active military service in various operations/areas. The deceased at the time of his death had passed his MA examination and he was in the time-scale of Rs. 10,00,50,15,50. He had a large number of years of military services ahead of him which would have certainly taken him to higher echelons in his military career. The evidence proved that the deceased was a teetotaler and he did not smoke or drink. On the basis of the entire evidence, the claimants were held entitled for the enhancement of the amount of compensation. 20. In the present case, there is no evidence brought on record by the claimants to show the future prospects of the deceased. The claimant No. 1, who was the only witness examined, did not say anything about the future prospects of the deceased. Though Rs. 7,000 is mentioned in the claim petition as the monthly income of the deceased, the only witness produced on behalf of the claimants is found to have stated that the monthly salary of the deceased was Rs. 5,884. As per the pay certificate, marked as Ext."2", the total salary of the deceased was Rs. 5,884 per month. There is no evident about the deceased having any extra income apart from his monthly salary. No evidence was also produced even regarding the nature of the deceased's service. In the facts and circumstances, in my considered opinion, there is no sufficient basis for making higher estimate of the monthly income of the deceased. 21. In Bijoy Kr. Dugar v. Bindya Dhar Dutta and Ors. (2006) 3 SCC 242 , the hon'ble Apex Court held for ascertaining the dependency on the basis of the earnings of the deceased at the time of the accident. In the absence of evidence to show the future prospects of the deceased, the hon'ble Apex Court rejected the assertion of the claimants that the deceased would have earned certain sums in the span of his life-time. 22. The last point to be considered is regarding the correct multiplier to be adopted for determination of the compensation to be awarded to the claimants in the case. The Tribunal adopted 15 as the multiplier. 22. The last point to be considered is regarding the correct multiplier to be adopted for determination of the compensation to be awarded to the claimants in the case. The Tribunal adopted 15 as the multiplier. The appellants' case is that the Tribunal should have adopted 16 as the multiplier of the case. On perusal of the records, it is ascertained that the Tribunal wrongly calculated that the deceased died at the age of 40 years. The basis of the said calculation was that the claimant No. 2, namely, Amrit Datta, is a major son aged about 20 years of the deceased. In fact, there is no dispute that the said Amrit Datta is not son but father of the deceased. As per Ext.'3', the date of birth of the deceased is 5.4.1964 and as such, the deceased was about 39 years old at the time of his death on 26.7.2003. The claimant's No. 1 age is recorded as 32 years on the day of her examination by the Tribunal as PW1 on 26.2.2005 and as such, she was about 30 years at the time of death of her husband. There is no dispute that the claimant No. 4, the son of the deceased, was minor at the relevant time. It is well settled that the Second Schedule under Section 163A to the Act which gives the amount of compensation to be determined for the purpose of claim under section can be taken as guideline while determining the compensation under Section 166 of the Act. Supe Dei (Smt.) and Ors. v. National Insurance Co. Ltd. and Anr. (2009) 4 SCC 513 . Accordingly, having regards to all the relevant considerations, 16 has to be taken as the multiplier in the case and that there is no reason as to why the multiplier of 16 should not be taken as the appropriate multiplier in the case. 23. Keeping in view all the above considerations, a just compensation is required to be assessed in respect of the death of the said Haradhar Datta in place of the compensation awarded by the tribunal vide the impugned judgment. The impugned judgment passed by the tribunal is not sustainable in the eye of law inasmuch as the same is found to have been passed after ascertaining the loss of dependency or the multiplicand wrongly and also after making the choice of the multiplier wrongly. 24. The impugned judgment passed by the tribunal is not sustainable in the eye of law inasmuch as the same is found to have been passed after ascertaining the loss of dependency or the multiplicand wrongly and also after making the choice of the multiplier wrongly. 24. There is no dispute that the gross monthly salary of the deceased at the time of his death was Rs. 5,884. The annual income of the deceased was accordingly Rs. 5,884 x 12 i.e., Rs. 70,608. The loss of dependency of the claimants in a year can be ascertained after deducting 1/3rd from the aforementioned amount. So the loss of dependency of the claimants in a year is Rs. 70,608 - 1/3rd of Rs. 70,608 i.e., Rs. 47,072. The amount of compensation is determined by adopting the multiplier of 16, which comes to Rs. 7,53,152. To the said, a sum of Rs. 5,000 for the loss of consortium and a sum of Rs. 2,000 for the funeral expenses of the deceased may be added as done by the Tribunal. Then, the amount of just compensation is Rs. 7,60,152 with interest @ 6% per annum from the date of presentation of the claim petition i.e., 18.8.2003 till payment of the compensation amount. Having regards to all the relevant considerations, 1/3rd of the said amount of just compensation and the interest shall be shared equally by the parents of the deceased and the remaining 2/3rd of the compensation and interest is to be shared by the appellants. The share of the minor appellant/claimant is to be invested in a fixed deposit scheme of Tripura Gramin Bank, Agartala Branch, in his name for the period till he attains majority. 25. This appeal is allowed to the extent mentioned above. No order as to costs. 26. Send back the LCRs.