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2011 DIGILAW 245 (MAD)

R. Vanaja v. P. Ganesan

2011-01-19

P.P.S.JANARTHANA RAJA

body2011
JUDGMENT :- 1. The Civil Miscellaneous Appeal is filed by the appellant-claimants against the Decree and Judgment dated 30.07.2003 passed by the Learned Subordinate Judge, Motor Accident Claims Tribunal, Namakkal in MCOP No.393 of 2002. 2. Background facts in a nutshell are as follows:- On 28.01.2002, at about 04.30 p.m., one Ravichandran met with motor traffic accident. When he is riding his T.V.S.50 bearing Registration No.T.A.M.2795 in Namakkal-Trichy Main Road, near Veppanatham, a Tempo Van bearing Registration No.T.N.28.B.2652 came in rash and negligent manner and also with high speed and hit the two wheeler. Due to the said impact, the deceased sustained multiple grievous injuries and also head injuries. Immediately, he was taken to SKS hospital, Salem and he died on 29.01.2002. The claimants are wife and minor daughter who claimed a compensation of Rs.23,00,000/-. The said Tempo was insured with the second respondent Insurance Company, who resisted the claim. On pleadings, the following issues were framed by the Tribunal:- a) Whether the accident had happened due to the rash and negligent driving of the driver of the Tempo Van bearing Registration No.T.N.28.B.2652? b) Whether the claimants are entitled for the compensation? If so how much? After considering the oral and documentary evidence, the Tribunal held that the accident had occurred only due to the rash and negligent driving of the driver of the Tempo Van and award a compensation of Rs.2,34,260/- with interest at 9% p.a. from the date of petition and the details of compensation is hereunder: Loss of Income - Rs.2,04,000/- Medical Expenses - Rs. 6,260/- Loss of Consortium & Loss of love and affection -Rs. 20,000/- Transportation - Rs. 2,000/- Funeral Expenses - Rs. 2,000/- -------------------- Total Rs.2,34,260/- ------------------- Aggrieved by the award, the appellants/Claimants have filed the present appeal for enhancement. 4. Learned counsel appearing for the appellant vehemently contended that the award passed by the Tribunal is very meagre sum of compensation, which is without basis and justification. Further, the Tribunal has not considered the relevant materials and also not followed the principles of assessment. Therefore, the award passed by the Tribunal is not in accordance with law and it is a fit case for enhancement. 5. Learned counsel for the Insurance Company vehemently contended that the Tribunal has considered all the facts and circumstances of the case and passed the award which is fair and reasonable and based on material evidence. Therefore, the award passed by the Tribunal is not in accordance with law and it is a fit case for enhancement. 5. Learned counsel for the Insurance Company vehemently contended that the Tribunal has considered all the facts and circumstances of the case and passed the award which is fair and reasonable and based on material evidence. Therefore, the award passed by the Tribunal has to be confirmed. 6. Heard the learned counsel on either side and perused the materials available on record. On the side of the claimants, P.Ws.1 and 2 were examined and documents Exs.P1 to P8were marked. On behalf of the respondents, no one was examined and no documents were marked. P.W.1 the father of the deceased was examined. P.W.2 one Loganathan was examined. Ex.P1 is the copy of FIR, Ex.P2 is the copy of Post Mortem Certificate. Ex.P3 is the copy of M.V.Inspector. Ex.P4 is the copy of charge sheet, Ex.P5 is the original of Death Certificate, Ex.P6 is the original Legal heir certificate, Ex.P7 is the Medical Bills, Ex.P8 is the Certificate dealing spare parts. After considering the facts and circumstances of the case, the Tribunal held that the accident was caused due to the negligent driving of the driver of the Tempo Van. The finding given by the Tribunal is based on material evidence and it is a question of fact and not a perverse order and 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 . 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 year’s 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. 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. 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. 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 Thomas, 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. Veluswami, 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. 9. The age of the deceased was 33 years at the time of the accident. In Ex.P2 the Post Mortem Certificate, it was stated that the deceased was 33 years old at the time of the accident. The Tribunal has correctly fixed the age of the deceased as 33 years. 9. The age of the deceased was 33 years at the time of the accident. In Ex.P2 the Post Mortem Certificate, it was stated that the deceased was 33 years old at the time of the accident. The Tribunal has correctly fixed the age of the deceased as 33 years. Further, P.W.1 the father of the deceased has stated in his evidence that the deceased was running automobile spare parts business and earning Rs.6,500/- p.m. Ex.P8 the Certificate shows that the deceased was running spare parts business but there is no evidence to show that the deceased was earning Rs.6,500/- p.m. In view of the absence of evidence, the Tribunal fixed the notional income of Rs.1,500/- p.m. and determined the annual income at Rs.18,000/- and out of the said sum, one third was deducted and the balance 2/3rd of Rs.12,000/- was taken as annual contribution. After taking into consideration the age of the deceased, the Tribunal adopted the multiplier of 17 and determined the loss of income at Rs.2,04,000/- (Rs.12,000 X17). In the evidence of P.W.1, it was stated that the deceased was running automobile spare parts. Even though there is no evidence to show that the deceased was earning Rs.6,500/- p.m., the Tribunal would have fixed the reasonable income of the deceased after taking into consideration of Ex.P8. Even in the grounds of appeal, it is stated that the Tribunal ought to have considered that the deceased would have earned not less than Rs.2,500/- p.m. After considering the facts and circumstances of the case and also the fact that the Courts used to fix the monthly income for the unemployed person at Rs.2500/- and also the fact that the deceased was running spare parts business, it would be reasonable to fix the monthly income at Rs.2,500/- and the annual income works out to Rs.30,000/-. Out of the said sum, if 1/3rd of Rs.10,000/- is deducted towards personal expenses, the balance sum of Rs.20,000/- is taken as the annual contribution of the deceased to his family. After considering the age of the deceased as 33, adopting the multiplier as 17, a sum of Rs.3,40,000/- (Rs.20,000 X 17) is awarded towards the loss of income as against Rs.2,04,000/- awarded by the Tribunal. The Tribunal awarded Rs.6,260/- towards medical expenses. Ex.P7 the Medical Bills shows the actual expenditure and the award towards medical expenses is reasonable and the same is confirmed. The Tribunal awarded Rs.6,260/- towards medical expenses. Ex.P7 the Medical Bills shows the actual expenditure and the award towards medical expenses is reasonable and the same is confirmed. The Tribunal also awarded Rs.20,000/- towards loss of love and affection and loss of consortium which is very meagre sum. After considering the age of the minor child, a reasonable sum of Rs.30,000/- is awarded towards love and affection . The Tribunal awarded Rs.2,000/- towards transportation and Rs.2,000/-towards funeral expenses, which are low. Hence, a reasonable sum of Rs.7,500/-towards Transportation and funeral expenses. The Tribunal has awarded interest at 9 % p.a. after considering the date of award and the prevailing rate of interest at the time of the accident. Hence, the interest awarded by the Tribunal is reasonable and the same is confirmed. The modified enhanced compensation is as follows: Loss of Income - Rs.3,40,000/- Medical Expenses - Rs. 6,260/- Loss of consortium & Loss of love and affection - Rs. 30,000/- Transportation & Funeral Expenses - Rs. 7,500/- -------------------- Total Rs.3,83,760/- Amount already awarded by Tribunal Rs.2,34,260/- ----------------- Enhanced compensation Rs.1,49,500/- The claimants are entitled to the enhanced compensation of Rs.1,49,500/- (Rupees One Lakh Forty Nine Thousand Five Hundred Only) with interest at 6% p.a. from the date of petition. 10. The second respondent Insurance company is directed to deposit the enhanced sum of Rs.1,49,500/- (Rupees One Lakh Forty Nine Thousand Five Hundred Only) with 6%p.a. interest from the date of petition within eight weeks from the date of receipt of a copy of this judgment and on such deposit, the major claimant is permitted to withdraw her respective share of the award amount, less the amount already withdrawn, if any, on making proper application. In respect of the minor share, it is directed to be deposited in a nationalised Bank in fixed deposit till the minor attains majority and the mother of the minor claimant is permitted to withdraw the interest accrued thereon once in three months on making proper application.