Managing Director,Thiruvalluvar Transport Corporation Ltd.,Madras v. Abudhali

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED : 25.10.2010CORAMTHE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJAC.M.A.(MD)No.1511 of 2010Managing Director,Thiruvalluvar Transport Corporation Ltd.,Madras. .. Appellant/RespondentVs1.Abudhali2.Mohamed Dhari3.Jawahar Begum Minor4.Minor Ahamed Benbellah5.Minor Abdul Hassan Phalis6.Minor Amjad Begum7.Minor Jahangeer.. Respondents/PetitionerAppeal filed under Section 173 of the Motor Vehicles Act, 1988 againstthe judgment and decree made in MCOP No.1554 of 1990 dated 28.02.1994 onthe file of the Motor Accidents Claims Tribunal, Principal District Judge,Trichy.For Appellant : Mr.R.KannanJUDGMENTThe appeal is preferred by the Transport Corporation against thejudgment and decree made in MCOP No.1554 of 1990 dated 28.02.1994 on thefile of the Motor Accidents Claims Tribunal, Principal District Judge,Trichy.2. Background facts in a nutshell are as follows:The deceased-Parisalbibi met with motor traffic accident that tookplace on 11.07.1990 at about 23.30 hours. The said deceased was a passengerin a bus belonging to the appellant / Transport Corporation, bearingRegistration No.TCB-9730. The said bus was proceeding from Chennai toAirvadi. The driver of the bus drove it in a rash and negligent manner andalso at high speed and hit against a lorry bearing Registration No.TCB-7005which was stationed in the road, which was 2 Kms from Siruganur. Due to thesaid impact, the deceased sustained injuries and died. The claimants arethe husband and children of the deceased. They claimed a compensation ofRs.5,00,000/- before the Tribunal. The appellant-Transport Corporationresisted the claim. On pleadings, the Tribunal framed the following issues:-1. Who is responsible for the accident? 2. Whether the claimant is entitled to compensation? If soto what extent?"After considering the oral and documentary evidence, the Tribunal held thatthe accident had occurred only due to the rash and negligent driving of the https://hcservices.ecourts.gov.in/hcservices/ 2driver of the bus belonging to the appellant / Transport Corporation andawarded a sum of Rs.61,000/- as compensation with interest at 12% p.a.from the date of petition. The details of the compensation are as under:- RupeesLoss of dependancy 36,000/-Loss of loss of love and affection 20,000/-Loss of consortium 5,000/- --------- Total... 61,000/- ==========Aggrieved by that award, the appellant / Transport Corporation has filedthe present appeal.3. Learned counsel for the appellant/Transport Corporation questionedonly the quantum of compensation awarded by the Tribunal and submitted thatthe compensation awarded by the Tribunal is excessive, exorbitant andwithout any basis and justification. Hence the order passed by the Tribunalis not in accordance with law and the same should be set aside.4. Heard the learned counsel for the appellant and perused thematerials available on record. On the side of the claimants, P.W.1 andP.W.2 were examined and documents Exs.P1 to P3 were marked. On the side ofthe Transport Corporation, one Subramanian was examined as R.W.1 and nodocument was marked. P.W.1 is the husband of the deceased. P.W.2 is the co-passenger who travelled with the deceased. Ex.P1 is the copy of the F.I.R.Ex.P2 is the Post Mortem Report of the deceased. Ex.P3 is the DisabilityCertificate of P.W.1. After considering the above oral and documentaryevidence, the Tribunal had given a categorical finding that the accidenthad occurred only due to the rash and negligent driving of the driver ofthe bus belonging to the appellant / Transport Corporation. It is aquestion of fact and it is based on valid materials and evidence, and hencethe same is confirmed.5. In the case of SARLA VERMA AND OTHERS VS. DELHI TRANSPORTCORPORATION AND ANOTHER reported in (2009) 4 MLJ 997, the Apex Court hasconsidered the relevant factors to be taken into consideration beforeawarding compensation and held as follows:"7. Before considering the questions arising for decision, itwould be appropriate to recall the relevant principlesrelating to assessment of compensation in cases of death.Earlier, there used to be considerable variation andinconsistency in the decisions of Courts Tribunals on accountof some adopting the Nance method enunciated in Nance V.British Columbia Electric Rly. Co. Ltd. (1951) AC 601 and someadopting the Davies method enunciated in Davies V. PowellDuffryn Associated Collieries ltd., (1942) AC 601. Thedifference between the two methods was considered andexplained by this Court in General Manager, Kerala State RoadTransport Corporation Vs. Susamma Thomas AIR 1994 SC 1631:(1994) 2 SCC 176. After exhaustive consideration, this Courtpreferred the Davies method to Nance method. We extract belowthe principles laid down in General Manager, Kerala State Road https://hcservices.ecourts.gov.in/hcservices/ 3Transport Corporation V. Susamma Thomas (supra)."In fatal accident action, the measure of damage is thepecuniary loss suffered and is likely to be suffered byeach dependent as a result of the death. The assessmentof damages to compensate the dependants is beset withdifficulties because from the nature of things, it hasto take into account many imponderables, e.g., the lifeexpectancy of the deceased and the dependants, theamount that the deceased would have earned during theremainder of his life, the amount that he would havecontributed to the dependants during that period, thechances that the deceased may not have live or thedependants may not live up to the estimated remainingperiod of their life expectancy, the chances that thedeceased might have got better employment or income ormight have lost his employment or income altogether." " The manner of arriving at the damages is to ascertainthe net income of the deceased available for the supportof himself and his dependants, and to deduct therefromsuch part of his income as the deceased was accustomedto spend upon himself, as regards both self-maintenanceand pleasure, and to ascertain what part of his netincome the deceased was accustomed to spend for thebenefit of the dependants. Then that should becapitalised by multiplying it by a figure representingthe proper number of year’s purchase.""The multiplier method involves the ascertainment of theloss of dependency or the multiplicand having regard tothe circumstances of the case and capitalizing themultiplicand by an appropriate multiplier. The choice ofthe multiplier is determined by the age of the deceased(or that of the claimants whichever is higher) and bythe calculation as to what capital sum, if invested at arate of interest appropriate to a stable economy, wouldyield the multiplicand by way of annual interest. Inascertaining this, regard should also be had to the factthat ultimately the capital sum should also be consumed-up over the period for which the dependency is expectedto last." "It is necessary to reiterate that the multipliermethod is logically sound and legally well-established.There are some cases which have proceeded to determinethe compensation on the basis of aggregating the entirefuture earnings for over the period the life expectancywas lost, deducted a percentage therefrom towardsuncertainties of future life and award the resulting sumas compensation. This is clearly unscientific. Forinstance, if the deceased was, say 25 years of age atthe time of death and the life expectancy is 70 years,this method would multiply the loss of dependency for 45 https://hcservices.ecourts.gov.in/hcservices/ 4years — virtually adopting a multiplier of 45 — and evenif one-third or one-fourth is deducted therefrom towardsthe uncertainties of future life and for immediate lumpsum payment, the effective multiplier would be between30 and 34. This is wholly impermissible."In UP State Road Transport Corporation V. Trilok Chandra(1996) 4 SCC 362, this Court, while reiterating the preferenceto Davies method followed in General Manager, Kerala StateRoad Transport Corporation V. Susamma Thomas (supra), statedthus: "In the method adopted by Viscount Simon in the case of Nancealso, first the annual dependency is worked out and thenmultiplied by the estimated useful life of the deceased. Thisis generally determined on the basis of longevity. But then,proper discounting on various factors having a bearing on theuncertainties of life, such as, premature death of thedeceased or the dependent, remarriage, accelerated payment andincreased earning by wise and prudent investments, etc., wouldbecome necessary. It was generally felt that discounting onvarious imponderables made assessment of compensation rathercomplicated and cumbersome and very often as a rough and readymeasure, one-third to one-half of the dependency was reduced,depending on the life span taken. That is the reason whycourts in India as well as England preferred the Daviesformula as being simple and more realistic. However, asobserved 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 recentlywhen tribunals/courts began to use a hybrid method of usingNance method without making deduction for imponderables.....Under the formula Advocated by Lord Wright in Davies, the losshas to be ascertained by first determining the monthly incomeof the deceased, then deducting therefrom the amount spent onthe deceased, and thus assessing the loss to the dependants ofthe deceased. The annual dependency assessed in this manneris then to be multiplied by the use of an appropriatemultiplier"(emphasis supplied)6. In the case of SYED BASHEER AHAMED AND OTHERS VS. MOHAMMED JAMEELAND ANOTHER reported in (2009) 2 Supreme Court Cases 225, the Apex Courthas held as follows:"13. Section 168 of the Act enjoins the Tribunal to make anaward determining “the amount of compensation which appears tobe just”. However, the objective factors, which may constitutethe basis of compensation appearing as just, have not beenindicated in the Act. Thus, the expression “which appears tobe just” vests a wide discretion in the Tribunal in the matterof determination of compensation. Nevertheless, the wideamplitude of such power does not empower the Tribunal todetermine the compensation arbitrarily, or to ignore settled https://hcservices.ecourts.gov.in/hcservices/ 5principles 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 bepunitive to the person(s) liable to pay compensation. Thedetermination of compensation must be based on certain data,establishing reasonable nexus between the loss incurred by thedependants of the deceased and the compensation to be awardedto them. In a nutshell, the amount of compensation determinedto be payable to the claimant(s) has to be fair and reasonableby 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, para5)“5. … The determination of the quantum must answer whatcontemporary society ‘would deem to be a fair sum such aswould allow the wrongdoer to hold up his head among hisneighbours and say with their approval that he has done thefair thing’. The amount awarded must not be niggardly sincethe ‘law values life and limb in a free society in generousscales’.”At the same time, a misplaced sympathy, generosity andbenevolence cannot be the guiding factor for determining thecompensation. The object of providing compensation is to placethe claimant(s), to the extent possible, in almost the samefinancial position, as they were in before the accident andnot to make a fortune out of misfortune that has befallenthem. 18. The question as to what factors should be kept in view forcalculating pecuniary loss to a dependant came up forconsideration before a three-Judge Bench of this Court inGobald Motor Service Ltd. v. R.M.K. Veluswami4, with referenceto a case under the Fatal Accidents Act, 1855, wherein, K.Subba Rao, J. (as His Lordship then was) speaking for theBench observed thus: (AIR p.1)“In calculating the pecuniary loss to the dependants manyimponderables enter into the calculation. Therefore, theactual extent of the pecuniary loss to the dependants maydepend upon data which cannot be ascertained accurately, butmust necessarily be an estimate, or even partly a conjecture.Shortly stated, the general principle is that the pecuniaryloss can be ascertained only by balancing on the one hand theloss to the claimants of the future pecuniary benefit and onthe other any pecuniary advantage which from whatever sourcecomes to them by reason of the death, that is, the balance of https://hcservices.ecourts.gov.in/hcservices/ 6loss and gain to a dependant by the death must beascertained.”19. Taking note of the afore extracted observations in GobaldMotor 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 isbeset with difficulties because from the nature of things, ithas to take into account many imponderables e.g.the lifeexpectancy of the deceased and the dependants, the amount thatthe deceased would have earned during the remainder of hislife, the amount that he would have contributed to thedependants during that period, the chances that the deceasedmay not have lived or the dependants may not live up to theestimated remaining period of their life expectancy, thechances that the deceased might have got better employment orincome or might have lost his employment or incomealtogether.”20. Thus, for arriving at a just compensation, it is necessaryto ascertain the net income of the deceased available for thesupport of himself and his dependants at the time of his deathand the amount, which he was accustomed to spend upon himself.This exercise has to be on the basis of the data, brought onrecord by the claimant, which again cannot be accuratelyascertained and necessarily involves an element of estimate orit may partly be even a conjecture. The figure arrived at bydeducting from the net income of the deceased such part ofincome as he was spending upon himself, provides a datum, toconvert it into a lump sum, by capitalising it by anappropriate multiplier (when multiplier method is adopted). Anappropriate multiplier is again determined by taking intoconsideration several imponderable factors. Since in thepresent 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.7. The age of the deceased was 45 years old at the time of accident.P.W.1, in his evidence, has stated that the deceased was 45 years old atthe time of accident. In Ex.P2-Post Mortem Report, it is stated that theage of the deceased was 55 years. Therefore, the Tribunal has taken the ageof the deceased as 55 years at the time of accident. Further, it is statedthat the deceased was an agriculturist, milk vendor and she was alsoselling chicken. P.W.1 was a polio affected person. Ex.P3-DisabilityCertificate corroborates the same. It is also stated that the deceased wasearning a sum of Rs.6,000/- per month. Since there is no concrete evidenceavailable on record to prove the income, the Tribunal fixed the monthlycontribution of the deceased to the family at Rs.300/- and calculated theannual contribution at Rs.3,600/-. After taking into consideration the age https://hcservices.ecourts.gov.in/hcservices/ 7of the deceased, the Tribunal adopted the multiplier of 10 and arrived atRs.36,000/- towards loss of dependancy. The Tribunal has correctly fixedthe monthly contribution of the deceased to the family and also adopted thecorrect multiplier of 10 and awarded Rs.36,000/- towards loss ofdependancy. The amount awarded towards this head is also very reasonableand hence it is confirmed. The Tribunal has awarded Rs.20000/- towards lossof love and affection to the minor children and Rs.5000/- towards loss ofconsortium to the husband of the deceased. The amounts awarded towardsthese heads are very reasonable and hence the same are confirmed. TheTribunal has awarded interest rate at 12% p.a. from the date of petition.After taking into consideration of the date of accident, date of award andthe prevailing rate of interest during the relevant period, this Court isof the view that the interest rate fixed by the Tribunal at 12% p.a. fromthe date of petition is very reasonable and hence the same is confirmed. Ido not find any error or illegality in the order of the Tribunal so as towarrant interference. The findings given by the Tribunal are based on validmaterials and evidence. It is a question of fact and it is not a perverseorder. Therefore, the award passed by the Tribunal is in accordance withlaw and hence the same is confirmed.8. The Civil Miscellaneous Appeal is devoid of merits and it is not afit case for admission, especially taking into consideration the date ofaccident, i.e. 11.07.1990, and therefore, the same is dismissed.Consequently, M.P.(MD)No.1 of 2010 is closed. No costs.SD ASST REGISTRAR (CRL SIDE)/TRUE COPY/SUB ASST REGISTRAR KMToThe Principal District Judge,Motor Accidents Claims Tribunal, Trichy.DM:2010:DECEMBER:31:: C.M.A.(MD)No.1511 of 2010 25.10.20107p:2C::