BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :
20. 04.2015 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR AND THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM Civil Miscellaneous Appeal(MD)No.999 of 2014 and M.P(MD)No.1 of 2014 The Managing Director, Tamil Nadu State Transport Corporation, Villupuram. ... Appellant Vs. 1)Clara Jeyamani 2)Sophiya 3)Minor Kirupa Salini 4)Maria Arockiam ... Respondents (R2 declared as major and guardianship discharged vide order dated 13.4.2015 made in M.P(MD)No.1 of 2015 in CMA(MD)No.999 of 2014) Appeal filed under Section 173 of the Motor Vehicles Act, 1988 amended by Motor Vehicle (Amendment) Act, 1994, against the judgment and award dated 28.02.2014 made in MCOP.No.209 of 2009 on the file of the Motor Accidents Claims Tribunal, Sub Court, Kulithalai. !For Appellant : Mr.S.Royce Emmanuel ^For Respondents : Mr.N.Sudhagar Nagaraj :
JUDGMENT(Judgment of the Court was made by S.MANIKUMAR, J.) Being aggrieved by the quantum of compensation of Rs.27,33,000/-, awarded to the legal representatives of the deceased, with interest @ 7.5% per annum, the Managing Director, Tamil Nadu State Transport Corporation, Villupuram, has filed the present appeal. 2.Record of proceedings shows that pending appeal, vide order dated 13.04.2014 made in M.P(MD)No.1 of 2015, respondent No.2, has been declared, as major, and her guardian has been discharged. 3.Though several grounds have been raised, assailing the correctness of the award, made in MCOP.No.209 of 2009, dated 28.02.2014, on the file of the Motor Accidents Claims Tribunal, Sub Court, Kulithalai, inviting the attention of this Court, to the decision, made in Oriental Insurance Co.Ltd., vs. Raja Esakki, reported in 2015 (1) TNMAC344DB), Mr.Royce Emmanuel, learned counsel for the appellant corporation, submitted that the Claims Tribunal has exceeded in its jurisdiction, in determining the quantum of compensation, without deducting income-tax. According to him, 20% of income, ought to have been deducted towards income-tax. 4.Per contra, placing reliance, on the latest decision of the Hon'ble Supreme Court in Kansingh and another vs. Tukaram and others, reported in 2015 (1) TN MAC1(SC), Mr.Sudhagar Nagaraj, learned counsel for the respondents, submitted that only 10% is deductible towards income-tax. He agreed for 10% deduction. Submission is placed on record. Heard the learned counsel for the parties and perused the materials available on record. 5.Material on record discloses that before death, the breadwinner, Mariadoss, aged about 43 years, was working as Headmaster in a Adi Dravidar Welfare Primary School, Sevalur, Manaparai, Trichy District. He died on 23.02.2009, and survived by his wife, aged about 34 years, Minor Sophiya, aged about 12 years and Minor Kirupa Salini, aged about 9 years and mother, aged about 73 years, at the time of filing the claim petition. They claimed compensation of Rs.35,00,000/-. 6.As per Ex.P4-Income Certificate, the last drawn salary of the deceased was Rs.16,412/-. As per the judgment of the Hon'ble Supreme Court in Smt.Sarla Verma and others vs. Delhi Transport Corporation and another, reported in 2009 (2) TN MAC1(SC), the Claims Tribunal adopted '14' multiplier. In the said decision, the Hon'ble Apex Court further held, that if the age of the deceased, is between 40 and 50 years, and if the deceased, had a permanent job, 30% of the salary, can be added towards future prospects. By applying the said decision, the Tribunal fixed the income as Rs.21,335/- i.e., 16412+4923(30% of Rs.21,335/-). Thereafter, for the purpose of computing loss of contribution to the family, the Tribunal deducted 1/4th of the salary towards the personal and living expenses of the deceased. As per Sarla Verma's case, if there are four dependants, 1/4th deduction towards personal and living expenses of the deceased, is permissible. Accordingly, the Tribunal deducted 1/4th and monthly contribution of the deceased to his family worked out to Rs.16,000/-. Annual income of the deceased arrived at is Rs.1,92,000/-. 7.Though Mr.S.Royce Emmanuel, learned counsel for the transport corporation relied on a Hon'ble Division Bench judgment of this Court in Oriental Insurance Co.Ltd., vs. Raja Esakki, reported in 2015 (1) TNMAC344DB), and prayed for 20% deduction towards income-tax, we are not inclined to accept the said submission, in view of the latest judgment of the Hon'ble Supreme Court in Kansingh and another vs. Tukaram and others, reported in 2015 (1) TN MAC1(SC), wherein, the Apex Court, by arriving at the annual income, added future prospects, on the basis of the age of the deceased and then, deducted 10% towards income-tax. It is well settled that the decision of the Apex Court is binding on all Courts throughout the country, under Article 142 of the Constitution of India. 8.In the light of the statutory provision and the law declared by the Hon'ble Supreme Court in Kansingh's case, reliance made by the Transport Corporation to Oriental Insurance Co.Ltd., vs. Raja Esakki, reported in 2015 (1) TNMAC344DB), would not lend any support to the case of the transport corporation. The calculation method, proposed in this appeal by the Transport Corporation, for deduction of income-tax, also cannot be accepted, in view of the decision in Kansingh's case, wherein, the Hon'ble Apex Court deducted 10% towards income-tax, from the annual income and thereafter proceeded to apply the multiplier, for computing the loss of contribution to the family. At this juncture, we would like to extract paragraph 10 of the judgment in Kansingh's case, as to how the Hon'ble Supreme Court has arrived at the loss of contribution to the family. "10.We have heard the learned counsel for the parties. In our considered view, the courts below have erred in taking the monthly income of the deceased at Rs.11,146/- p.m. From the facts, circumstances and evidence on record, it is clear that the deceased was 27 years of age, working with HDFC as the Manager earning Rs.1,81,860/- per annum (i.e. Rs.15,155/- p.m.) and there were definite chances of his further promotion and consequent increase in salary by way of periodical revision of the salary on the basis of cost of living Index prevalent in the area if he would alive and worked in the bank. Therefore, adding 50% under the head of future prospects to the annual income of the deceased according to the principle laid down in the case of Vimal Kanwar & Ors. (supra), the total loss of income comes to Rs.2,72,790/- per annum [Rs. 1,81,860 + (1/2 * Rs.1,81,860)].. Deducting 10% tax (Rs.27,279/-), net annual income comes to Rs.2,45,511/-. Deducting 1/3rd [Rs.81,837]. towards personal expenses since the claimants are the parents of the deceased, loss of dependency comes to 1,63,674 X11appropriate multiplier as per the age of the parent) Rs. 18,00,414/-."
9.If the procedure followed in Kansingh's case is applied to the facts on hand, then, the annual income of the deceased works out to Rs.1,96,944/-. If 30% is added under the head, 'future prospects' to the annual income of the deceased, then, the total loss of income comes to Rs.2,56,027/-. If 10% deduction towards income-tax is made, the amount comes to Rs.2,30,424/-. If 1/4th deduction is made towards the personal and living expenses of the deceased, and '14' multiplier is applied, as per Sarla Verma's case, the dependency compensation works out to Rs.24,19,452/-. 10.Compensation awarded under certain heads does not reflect the principle of law, "just compensation". Hence, this Court, in exercise of the powers under Order 41 Rule 23, is inclined to rectify the same and suo motu enhance the compensation. Reference can be made to few decisions:- (i) In National Insurance Co. Ltd., v. M.Jayagandhi reported in 2008 (1) TNMAC177 on the question as whether in the absence of any Cross Objection, the High Court could suo moto enhance the compensation, by exercising power under Order 41, Rule 33 CPC., this Court, at Paragraphs 37 and 38, held as follows: ?.37. The question arising for consideration is whether in the absence of any Cross Objection, the Appellate Court could suo motu enhance the compensation. The Appellate Court exercising power under Order 41, Rule 33, CPC could enhance the quantum of compensation even without Cross-Objection. The Courts and Tribunals have a duty to weigh various factors and quantify the amount of compensation which should be just. Reference could be made to the decision of the Supreme Court in Sheikhupura Trans. Co. Ltd. v. Northern India Transporter's Ins. Co. Ltd. , 1971 ACJ206(SC), wherein it is held that pecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately, but must necessarily be an estimate or even partly a conjecture. The general principle is that the pecuniary loss can be ascertained only by balancing, on the one hand, the loss to the Claimants of future pecuniary benefits and on the other any pecuniary advantage which from what-ever sources come to them by reason of the death, i.e. the balance of loss and gain to a dependant by the death must be ascertained. The determination of the question of compensation depends on several imponderables. In the assessment of those imponderables, there is likely to be a margin of error. Broadly speaking, in the case of death, the basis of compensation is loss of pecuniary bene-fits to the dependants of the deceased which includes pecuniary loss, expenses, etc. and loss to estate. Object is to mitigate hardship that has been caused to the legal representatives due to sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be un-reasonable, excessive nor deficient.
38. Of course, the Claimants who are widow, minor daughter and mother have not filed any Cross-Objection. Even without a Cross-Objection, questioning the quantum, the Court could suo motu enhance compensation under Or. 41, R. 33, CPC. In this context, reference could be made to 1999 ACJ977[Karnataka]. wherein it has been held as follows: ?.(6) I am in general agreement with the basic proposition of law that has been canvassed by the appellant's learned advocate when he points out that it is a well settled principle that a party who suffers an order or a decree and does not Appeal against it or assail it would normally not be permitted at the hearing of the Appeal to try and take advantage of the situation by asking for enhancement. The issue is not that but really as to whether this situation prescribes an absolute and total bar to the Court granting a relief if in the interest of justice such a relief is an absolute must. One has to view the situation from a rather practical point of view the first of them being with regard to the very poor quality of legal assistance that is usually available in and around the M.A.C.T. and thereafter, the second aspect of the matter being that the status of the parties and their general condition themselves may be such that they are unable to agitate the matter further and the third aspect of the matter which is relevant having regard to the present case, is the possibility of certain further tragic occurrences such as deaths that may have intervened, all of which may contribute to a situation wherein the Court finds that no Appeal or Cross- Objections have been filed. The essence of doing justice requires that compensation when awarded has got to be reasonable and fair and it has also got to be adequate having regard to the totality of the circumstances. The hearing of the Appeal involves a total review of the case and the Appeal is virtually an extension of the proceedings before the lower Court. The law is well settled with regard to one interesting aspect of the matter, namely, that the Courts do come across a few instances where instead of over-pitching the case before the Trial Court, a very modest amount is claimed and the Tribunals in these circumstances have been wrongly limiting the relief to the amount that has been claimed on the ground that even though the party is entitled to something higher, what was asked for is a lower figure. This Court had occasion to correct these orders and to lay down that the Tribunal is required to pass an order quantifying the compensation correctly irrespective of what has been claimed on the basis of the principle that it is not the amount that is claimed in that matter, insofar as if the Court has to the power to award a lesser amount, that it is equally equipped with the power to award a higher amount. It is that principle which applies with equal force to the Appeal Court and though I do not dispute that a Court would normally not permit a party to ask for enhancement unless an Appeal or Cross- Objections have been filed but there could be a very small category of cases in which the Court would make an exception, the reason being that the essence of doing justice requires that a Court will not refuse a relief only because of a technical or a procedural bar. I need to amplify here that if the technicalities are upheld, the result would be doing injustice insofar as the party will be left with a compensation lesser than what a fair evaluation entitles the party to. Again, I do not on the basis of the law as enunciated by the Courts in the decisions set out by me above, subscribe to the view that there exists any bar in the way of this Court exercising such powers. The powers do exist under Order 41, Rule 33, Civil Procedure Code and more importantly, such powers can certainly be exercised under section 151, Civil Procedure Code in the interest of justice.?. Applying the above decision, in Tamil Nadu State Transport Corporation v. Vasantha and Ors. , 2006 (3) ACJ1917 2006 (1) TN MAC336Justice Arumuga perumal Adithyan has enhanced compensation, exercising power under Or. 41, R. 33, CPC and Section 151, CPC.?. (ii) In Tamil Nadu State Transport Corporation v. Saroja and Ors., reported in 2008 (1) TNMAC352 this Court has considered the same issue and the said point is answered as follows: ?.6. On point: The learned counsel for the respondents/claimants placing reliance on Order XLI, Rule 33 of C.P.C. and the various decisions emerged thereunder would pray that the compensation might be enhanced even though no cross- objection has been filed by the claimants, whereas the learned counsel for the appellant - Transport Corporation would cite the decision of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. R. Swaminathan & Ors., 2006 (2) ACC701(SC), and develop his arguments to the effect that unless there is a cross objection, the question of enhancing the compensation would not arise. Hence, it is just and necessary to refer to the decision of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. R. Swaminathan & Ors. , 2006 (2)ACC701(SC). An excerpt from it would run thus: ?.Apparently the first respondent claimant was satisfied with the Tribunal's Award as he did not file any Appeal there against to the High Court. Nonetheless, being aggrieved by the Single Judge's judgment, the claimant filed a Letters Patent Appeal before the Division Bench of the High Court. This Appeal was allowed and by the impugned judgment the High Court has awarded total compensation amounting to Rs.7,44,000/- under different heads with a direction for payment of inte-rest at 18% from the date of Petition. The appellant-Insurance Company is aggrieved thereby and is in Appeal before us. The issue that arises in this case is, whether the Division Bench of the High Court was justified in in-creasing the compensation amount beyond the amount awarded by the Tribunal despite the fact that the Award of the Tribunal was not at all challenged by the claimant. The only reason given by the Division Bench of the High Court for doing so is: ?.In this connection, we may observe that we are aware of the fact that we are enhancing the compensation even though the injured has not claimed it. But, the question is covered by catena of decisions justifying enhancement of compensation even if cases where the injured has not preferred an Appeal, provided the circumstances of the case warrants the same.?. To say the least, this was a very facial way of interfering with the award when no interference was called for. We called upon the learned Counsel on both sides to show us at least one case (out of the catena of judgments referred to in the impugned judgment) in support of this proposition. Learned counsel frankly confessed that there was none. On the other hand, the learned Counsel for the appellant drew our attention the judgment of this Court in Banarsi v. Ram Phal , 2003 (2) SLT258 2003 (9) SCC606 which supports the proposition that in an Appeal filed by the defendant laying challenge to the grant a smaller relief, the plaintiff as a respondent cannot seek a higher relief if he had not filed an Appeal on his own or had not taken any cross- objection. In the present Appeal it would appear that the claimant neither Appealed against the award of compensation passed by the Tribunal, nor filed any cross-objection in the First Appeal filed by the Insurance Company. Thus, we are satisfied that the Division Bench of the High Court wholly erred in increasing the compensation amount beyond the amount awarded by the Tribunal in the Appeal filed by the Insurance Company.?.
7. A mere perusal of the excerpt from the said decision would clearly indicate that the Hon'ble Apex Court in that decision has not laid down as a universal rule of interpretation of Order 41, Rule 33 of C.P.C. Taking into consideration, the method and manner in which the Division Bench of this Court in the Letters Patent Appeal, without citing adequate reasons and precedents, enhanced the compensation amount to an extent of Rs. 7,44,000/- with 18% interest from that of Rs. 3,00,000/- awarded by the Single Bench of the same Court, the Hon'ble Apex Court found fault with it.
8. Furthermore, the above excerpt also would reveal that without even relying upon any precedent, the Division Bench of this Court, simply enhanced the compensation and that too to the extent of double that of what the Single Judge of this Court ordered. It is also clear that when the Hon'ble Apex Court wanted a precedent in that regard, the learned counsel for the appellant therein cited only the decision of the Hon'ble Apex Court in Banarsi v. Ram Phal, 2003 (2) SLT258 2003 (9) SCC606 As such, in the peculiar facts and circumstances of that case, the Hon'ble Apex Court felt that the power under order 41, Rule 33 of C.P.C. invoked by the High Court and that too in a case where such an enhancement was not at all warranted, looked askance at it. It is therefore explicite that the Hon'ble Apex Court in the cited decision has not laid down the law that even in a fit case, the High Court should not invoke Order 41, Rule 33 of C.P.C. in the absence of filing cross Appeal. Furthermore under Order 41, Rule 33, there are earlier decisions of the Hon'ble Apex Court, which could be cited as under: (i) Municipal Board, Mount Abu v. Hari Lal , 1988 ACJ281 (ii) Dangir v. Madan Mohna , AIR1988SC.
54. (iii) M.D. Pallavan Transport Corporation Ltd., v. Kalavathi , 1998 (1) ACJ151 (iv) State of Punjab v. Bakshish Singh , 1998 (8) S.C.C.
222. 9. The perusal of the aforesaid Judgments of the Hon'ble Apex Court would clearly highlight that without filing cross Appeal, the respondents in the Appeal could pray for reliefs and that the High Court under Order 41, Rule 33 could grant such reliefs also. This Court in several cases adhering to the aforesaid decisions of the Hon'ble Apex Court held that under Order 41, Rule 33 of C.P.C., this Court could enhance the compensation in appropriate cases. An excerpt from the decision of this Court in Managing Director, Thanthai Periyar Transport Corp., Villupuram v. Sundari Ammal and four Others reported in 1999 (2) CTC560would run thus: ?.Unfortunately, in the instant case, there is no cross-objection. Therefore, it would be essential, in this context, to consider whether this Court has got powers to enhance the amount of compensation, in the event of coming to the conclusion that the award was on the lower side, even though there is no cross-objection by the claimants. In Dangir v. Madan Mohan , AIR1988S.C. 54 and M.D., Pallavan Transport Corporation Ltd., v. Kalavathi , 1998 (1) A.C.J151 it is held that this Court has got power to enhance the compensation, even though the claimants had not filed any cross-objection against the award seeking for higher compensation, if this Court finds that the amount awarded by the Tribunal is not just and adequate. As pointed out by the Apex Court in State of Punjab v. Bakshish Singh , 1998 (8) S.C.C. 222, the reading of the provision would make it clear that the Appellate Court has got wide power to do complete justice between the parties and which enables this Court to pass such decree or order as ought to have been passed or as the nature of the case may require notwithstanding that the party in whose favour the power is sought to be exercised has not filed any Appeal or cross-objection. The Apex Court in Dhangir v. Madan Mohan, A.I.R. 1988 S.C. 54, be referring Order 41, Rule 33, would make the following observation: ?.The Appellate Court could exercise the power under Rule 33 even if the Appeal is only against a part of the decree of the lower Court. The Appellate Court could exercise that power in favour of all or any of the respondents although such respondent may not have filed any Appeal or objection. The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The Appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case. The words ?.as the case may be require?. used in Rule 33, Order 41 have been put in wide terms to enable the Appellate Court to pass any order or decree to meet the ends of Justice. What then should be the constraint?. We do not find many, we are giving any liberal interpretation. The rule itself is liberal enough. the only constraints that we could see may be these: That the parties before the lower Court should be there before the Appellate Court. The question raised must properly arise out of judgment of the lower Court. If these two requirements are there, the Appellate Court could consider any objection against any part of the judgment or decree of the lower Court. It is true that the power of the Appellate Court under S. 33 is discretionary. But, it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The Court should not refuse to exercise that discretion on mere technicalities.?.
10. And then the Division Bench of this Court in the decision in The Managing Director, Annai Sathya Transport Corporation Ltd., Dharmapuri v. Janardhanam and 7 others , 2000 (2) CTC272placing reliance on the decision of the Hon'ble Apex Court held a similar view that without cross Appeal Order 41, Rule 33 of C.P.C. could be invoked in appropriate cases. An excerpt from it would run thus: ?.At this stage, learned counsel appearing for the respondent/claimants would submit that the Tribunal has awarded interest only from the date of the Judgment and not from the date of the petition. The learned counsel for the respondents/claimants would submit that even though no Appeal has been filed by the respondents/claimants or no cross-objections have been filed by them, this Court has discretionary power by virtue of Order 41, Rule 33 of Code of Civil Procedure and also in view of the rulings of the Supreme Court in Dhangir v. Madan Mohan , AIR1988SC54to grant the proper relief. Of course, the Apex Court has pointed out in clear and categorical terms and the power conferred under Order 41, Rule 33 on the Appellate Court is discre- tionary, and then it must be used in proper case using the judicial discretion to render justice. The Apex Court in United India Insurance Co., Ltd., v. Narendra Pandu-rang Kadam and others , 1995 (1) SCC320has clearly laid down that the rate of interest must be awarded from the date of the petition and not from the date of the Judgment.?.
11. Over and above that the decision of the Hon'ble Three Judges?. Bench of the Hon'ble Apex Court, in Nagappa v. Gurudayal Singh and others , 2003 ACJ12 2004 (2) TN MAC398(SC), could be cited here. An excerpt from it would run thus: ?.Firstly, under the provisions of Motor Vehicles Act, 1988 (hereinafter referred to as ?.the M.V. Act?.), there is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case where from the evidence brought on record if Tribunal/Court considers that claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. Only embargo is - it should be 'just' compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. This would be clear by reference to the relevant provisions of the M.V. Act. Section 166 provides that an application for compensation arising out of an accident involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both, could be made (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. Under the proviso to subsection (1), all the legal representatives of the deceased who have not joined as the claimants are to be impleaded as respondents to the application for compensation. Other important part of the said Section is subsection (4) which provides that ?.the Claims Tribunal shall treat any report of accidents forwarded to it under subsection (6) of Section 158 as an application for compensation under this Act?.. Hence, Claims Tribunal in appropriate case can treat the report forwarded to it as an application for compensation even though no such claim is made or no specified amount is claimed.?. (iii) In Tamil Nadu State Transport Corporation v. Pothumponnu [CMA(MD)No.714 of 2009, dated 05.08.2009]., this Court, held as follows: ?.17. Notice can be issued to the opposite parties/respondents only in case where their rights are going to be affected be way of variation/reduction. In this case, the claimants are going to be benefited. Hence, no notice is necessary in the appeal. When the Tribunal commits a mistake that too a material mistake, this Court cannot close its eyes and decide the matter mechanically. When the mistake is noticed by this Court, this Court has got power to do away with it, even while dismissing the appeal at the admission stage itself. The presence of the respondent is not a must. When there is a case for admission, the matter can be admitted and notice can be ordered. When there is no case made out for admission, the appeal deserved to be dismissed. While dismissing, the material irregularity committed by the Tribunal can be set right by awarding suitable amounts to the respondents without notice to them. The presence of the claimants or absence does not make any difference. Even if they are present and they do not bring it to the notice of this Court about the irregularity, this Court can always remedy the same suo motu under Order XLI Rule 33 of the Code of Civil Procedure and Section 173 of the Motor Vehicles Act and invoking Articles 227 of the Constitution of India. Moreover, Sections 163 and 166 are beneficial provisions of the Motor Vehicles Act aimed at consoling and compensating the victims of the accident. This Court's approach should be humane in nature not whittled down by technicalities. The powers of the Court are wide enough to do complete justice.?. 11.Just and reasonable compensation has to be awarded to the legal representatives of the deceased, and the same has been explained in few decisions of the Supreme Court and they are as follows:- (i) In R.D.Hattangadi v. M/s.Pest Control (India) Pvt. Ltd., reported in AIR1995SC755 wherein, the Apex Court held as follows: "In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of disability caused. But all the aforesaid elements have to be viewed with objective standards."
(ii) In Common Cause, A Registered Society v. Union of India reported in 1999 (6) SCC667 at Paragraph 128, held as follows: ?.The object of an award of damages is to give the plaintiff compensation for damage, loss or injury he has suffered. The elements of damage recognised by law are divisible into two main groups : pecuniary and non- pecuniary. While the pecuniary loss is capable of being arithmetically worked out, the non-pecuniary loss is not so calculable. Non-pecuniary loss is compensated in terms of money, not as a substitute or replacement for other money, but as a substitute, what Mcgregor says, is generally more important than money: it is the best that a court can do. In Re: The Medianna (1900) A.C. 1300, Lord Halsbury L.C. observed as under: "How is anybody to measure pain and suffering in moneys counted?. Nobody can suggest that you can by arithmetical calculation establish what is the exact sum of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident...But nevertheless the law recognises that as a topic upon which damages may be given."
(iii) In yet another decision in Divisonal Controller, KSRTC v. Mahadeva Shetty and another reported in (2003) 7 SCC197 at Paragraph 12, the Supreme Court has held that, "Broadly speaking, in the case of death the basis of compensation is loss of pecuniary benefits to the dependents of the deceased which includes pecuniary benefits to the dependents of the deceased which includes pecuniary loss, expenses etc. and loss to the estate. The object is to mitigate hardship that has been caused to the legal representatives due to the sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be unreasonable, excessive, nor deficient. There can be no exact uniform rule for measuring the value of human life and the measure of damage cannot be arrived at by precise mathematical calculation; but amount recoverable depends on broad facts and circumstances of each case. It should neither be punitive against whom claim is decreed nor should it be a source of profit for the person in whose favour it is awarded."
In Paragraph 15 of the said judgment, the Supreme Court has held that, "Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just", a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness, and non-arbitrariness. If it is not so, it cannot be just."
(iv) In Nizam Institute of Medical Sciences v. Prasanth S.Dhananka reported in (2009) 6 SCC1= 2010 ACJ38(SC), the Supreme Court, comprising of three Hon'ble Judges Bench was dealing with a case arising out of a complaint filed under the Consumer Protection Act, 1986. While enhancing the compensation awarded by the National Consumer Disputes Redressal Commission from Rs.15 lakhs to Rs.1 crore, the Hon'ble Bench made the following observations which can appropriately be applied for deciding the petitions filed under Section 166 of the Act: ?.We must emphasise that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The ?.adequate compensation?. that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned. ...At the same time we often find that a person injured in an accident leaves his family in greater distress vis-`-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity.?. (emphasis supplied) (v) In Reshma Kumari and others v. Madan Mohan reported in (2009) 13 SCC422 the Apex Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the judgment are extracted below: ?.The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms. The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another (sic situation) the nature of employment was such that he might not have continued in service; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses or guess work may be inevitable. That may be so. In the Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Co. Ltd. v. Jashuben, 2008 ACJ1097(SC), held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration. One of the incidental issues which has also to be taken into consideration is inflation. Is the practice of taking inflation into consideration wholly incorrect?. Unfortunately, unlike other developed countries in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality. No hard-and-fast rule, however, can be laid down therefor.?. (emphasis supplied) 12.Death has occurred on 23.02.2009. The Claims Tribunal has awarded only Rs.5,000/- towards funeral expenses. At paragraph 11 in Kansingh's case, following the earlier judgment in Rajesh vs. Rajbir Singh, reported in 2013 (2) TN MAC55(SC) = 2013 (9) SCC54 the Apex Court, awarded Rs.25,000/- towards funeral expenses. Though there is no challenge by the claimants for enhancement of compensation under the abovesaid head, we are bound to follow the decision of the Apex Court and hence, the award towards funeral expenses is enhanced to Rs.25,000/-. 13.For the loss of love and affection, a sum of Rs.10,000/- each, has been awarded to the minor daughters, aged 12 and 9 years respectively, and mother of the deceased, aged 73 years, at the time of filing the claim petition. In Kansingh's case, the claimants were the parents of the deceased, who was aged 27 years and a Bank Manager. A sum of Rs.30,000/- awarded by the Tribunal was confirmed by the High Court. On appeal, following the earlier decision in M.Mansoor and another vs. United India Insurance Co.Ltd., reported in 2013 (2) TN MAC481(SC) = 2013 (12) Scale 324, in Kansingh's case, the Hon'ble Supreme Court awarded Rs.1,00,000/- towards loss of love and affection. 14.Reverting to the case on hand, it could be seen that at the time of filing the claim petition, minor daughters, were aged 12 and 9 years respectively. They have lost the love and affection and guidance of their father. Mother, at the age of 73, has lost her son. Following Kansingh's case, this Court deems it fit to award Rs.1,00,000/- under the head, 'loss of love and affection, to the children and mother. 15.A sum of Rs.10,000/- alone has been awarded towards loss of consortium, for the wife, who was aged 34 years, at the time of filing of the claim petition. She has to bear the responsibility of bringing up the minor daughters, provide them proper education, care and protection and perform marriages. 'Consortium', as per Best v. Samuel Fox reported in (1952) AC716 means, "Duty owned by a wife to her husband and vice versa, companionship, love and affection, comfort, mutual services, sexual intercourse, etc.,". A sum of Rs.10,000/- awarded under the head, 'loss of consortium', is less and therefore, we deem it fit to enhance the same to Rs.50,000/-. 16.There is no award for taking the corpse, to the residence of the respondents/claimants. Claimants are stated to be the residents of K.Pettai, Kulithalai Taluk, Karur District. Accident has occurred on Dindigul-Trichy main road. Breadwinner died on the spot. Postmortem has been conducted in Government Hospital, Manapparai, Trichy District. Considering the above, respondents/claimants would have certainly incurred some expenses for transportation of the corpse to the village, in Karur District. We find no award towards transportation expenses. Hence, we deem it fit to award a sum of Rs.10,000/- towards transportation. 17.There is no award for damages to clothes and articles. A sum of Rs.1,000/- is awarded under this head. 18.In the light of the discussion and decisions in Kansingh and another vs. Tukaram and others, reported in 2015 (1) TN MAC1(SC), Rajesh vs. Rajbir Singh, reported in 2013 (2) TN MAC55(SC) = 2013 (9) SCC54and M.Mansoor and another vs. United India Insurance Co.Ltd., reported in 2013 (2) TN MAC481(SC) = 2013 (12) Scale 324 and after re-working, we are of the view that the respondents/claimants would be entitled to a sum of Rs.26,05,452/- with interest @ 7.5%, per annum as apportioned hereunder:- Dependency compensation = Rs.24,19,452/- Loss of consortium = Rs. 50,000/- Loss of love and affection = Rs. 1,00,000/- Funeral expenses = Rs. 25,000/- Transportation = Rs. 10,000/- Damage to clothes = Rs. 1,000/- ------------------------- Total = Rs.26,05,452/- (Less) Amount awarded by the Tribunal = Rs.27,33,000/- ------------------------- Reduction = (-) 1,27,548/- ------------------------- 19.Thus out of a sum of Rs.27,33,000/- awarded as compensation with interest @ 7.5% per annum, by the Claims Tribunal, there shall be a reduction of Rs.1,27,548/-. 20.The Tribunal has been apportioned a sum of Rs.2,00,000/- to the 4th respondent/mother and Rs.6,50,000/- each, has been apportioned to the respondents 2 and 3/daughters of the deceased. We are concerned with the interest of the daughters, and hence, deem it fit to sustain the same. 21.Material on record discloses that while granting interim stay in M.P(MD)No.1 of 2014 in C.M.A(MD)No.999 of 2014, this Court has imposed a condition to the appellant transport corporation to deposit 50% of the award amount with proportionate accrued interest and costs, to the credit of MCOP.No.209 of 2009 on the file of the Motor Accidents Claims Tribunal, Sub Court, Kulithalai. Consequent to reduction, on the quantum of compensation, as stated supra, appellant is directed to deposit the balance compensation amount, with accrued interest @ 7.5% per annum and balance cost, if any. 22.On such deposit being made, wife, mother, daughter Sophiya, who has been declared as major, vide order dated 13.4.2015 made in M.P(MD)No.1 of 2015 in CMA(MD)No.999 of 2014, are permitted to withdraw, the share apportioned to them, with the proportionate interest. We direct the Tribunal to deposit the share of minor Kirupa Salini/3rd respondent, with interest in a Nationalised Bank, proximate to the residence of the respondents/claimants and maintain the same till the minor girl attains majority. Interest on such deposit, is permitted to be withdrawn by the 1st respondent/mother, once in three months, directly from the bank. The Civil Miscellaneous Appeal is accordingly, allowed in part. No costs. Consequently, M.P(MD)No.1 of 2014 is closed. (S.M.K.J) (G.C.J) 20.04.2015 Index : Yes Internet : Yes NB2 To Motor Accidents Claims Tribunal, Sub Court, Kulithalai. S.MANIKUMAR, J.
AND G.CHOCKALINGAM. J.
NB2 CMA(MD)No.999 of 2014 and M.P(MD)No.1 of 2014 20.04.2015