Apsrtc, Rep. by Its Vice Chairman and Managing Director Vs. G. Jana Bai and ors. - Court Judgment

Excerpt:
motor vehicles - compensation - section 166 of motor vehicles act and section 304a of indian penal code, 1860 - assessment of compensation without considering deduction of personal expense of deceased from salary challenged - deduction of one third from salary of deceased for assessment not mandatory - future prospects of deceased must be considered - held, respondents directed to pay compensation by applying multiplier of 15 on assessed net contribution of salary to family. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - counsel stated, in the impugned order, the tribunal below has failed to set apart any reasonable amount towards personal expenses of the deceased from his monthly salary but has taken the entire monthly salary of rs. learned senior counsel, therefore, submitted that the well-considered decision of the tribunal below need not be interfered with. , 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 altogether. 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.ordermotilal b. naik, j.1. appellant herein is the 1st respondent in o.p.no. 965 of 1990 on the file of the court of the i additional special judge for spe and acb cases -cum- additional chief judge, city civil court, hyderabad. the respondents who are the legal representatives of late g. umamaheshwar rao, who died in a motor accident on 20-7-1989, laid a claim in o.p.no. 965 of 1990 under section 166 of the m.v. act before the tribunal below seeking a total compensation of a sum of rs.10 lakhs.2. the 1st respondent herein is the wife and respondents 2 and 3 are the minor children of the deceased g.umamaheshwar rao, who was serving as sub manager in andhra bank, bhimadole branch in west godavari district. he was aged 37 years at the time of his death. on 20-7-1989 at 8.30 am, the deceased and his brother g. suryanarayana murthy, manager, andhra bank, mallavaram branch, west godavari district were traveling in an auto rickshaw bearing no. aht 8271 to go to secunderabad railway station and on the way near hockey stadium road, the rtc bus bearing no. aaz 7701 driven by the 2nd respondent in the o.p., in a rash and negligent manner hit the auto rickshaw, due to which g. umameshwar rao sustained serious injuries and was taken to gandhi hospital by his brother, who was with him at that time, where he was declared dead. a case in crime no. 116 of 1998 under section 304a of the indian penal code was registered by the police of ramgopalpet police station at about 10-15 pm on the same day. the claimants being the legal representatives of the deceased laid o.p.no. 965 of 1990 before the tribunal below claiming compensation of rs.10 lakhs for the untimely death of the deceased.3. before the tribunal below, in o.p.no. 965 of 1990 a counter was filed by the appellant who is the first respondent in the said o.p., denying the rashness and negligence on the part of the driver of the bus bearing no. aaz 7701. it was alleged that due to the rashness and negligence on the part of the driver of the auto rickshaw bearing no. aht 8271 the accident took place. it was also pleaded in the counter that the compensation claimed by the claimants is exorbitant.4. the driver of the rtc bus which involved in the accident who is the 2nd respondent in the above o.p., was set ex-parte.5. basing on the above pleadings, the tribunal below framed the following issues for consideration, viz.,1. whether the accident was due to rash and negligent driving of the driver of the rtc bus bearing no. aaz 7701? 2. whether the petitioners are entitled to any compensation and if so, to what amount ? 3. whether the compensation claimed is excessive and exorbitant ? 4. whether the respondents are liable to pay the compensation on behalf of the claimants, p.ws. 1 to 4 were examined and exs. a.1 to a.5 were marked. p.w.1 is the wife of the deceased. on behalf of the 1st respondent/apsrtc no witness was examined and no documents were marked.6. on the basis of the oral and documentary evidence, the tribunal came to the conclusion that the accident in question took place due to the rash and negligent driving of the driver of the rtc bus bearing no. aaz 7701 on account of which the deceased died. while considering the claim for compensation, the tribunal took into consideration the gross income of the deceased as on the date of the accident and also took into account the future prospects of the deceased and determined his monthly contribution to his family at rs.4,000/- per month. the tribunal applied the multiplier 13 and granted compensation of rs.6,24,000/- towards loss of earnings and also awarded rs.15,000/- to the wife of the deceased towards loss of consortium. thus, the tribunal awarded a total compensation of rs.6,39,000/- to the claimants with interest at 12% per annum from the date of the petition till the date of realization, by the impugned order dated 31-7-1992. it is this order which is challenged before this court in this appeal by the appellant, who is the 1st respondent in the claim petition in o.p.no. 965 of 1990.7. smt. nanda r. rao, standing counsel for the appellant-corporation raised two grounds while attacking the impugned order passed by the tribunal below. firstly, according to the counsel, for the purpose of determining the just and reasonable compensation to be awarded to the dependants of a deceased, some amount has to be deducted from the monthly contribution of the deceased for the maintenance of his family, towards personal expenses of the deceased. counsel stated, in the impugned order, the tribunal below has failed to set apart any reasonable amount towards personal expenses of the deceased from his monthly salary but has taken the entire monthly salary of rs.4,300/- of the deceased as his contribution for the maintenance of his family for determining the compensation, which according to the counsel, is contrary to settled legal prepositions. secondly, placing reliance on a decision of the division bench of this court in oriental insurance company limited v. gaddamaduga saibaba1 counsel submitted that in the said case, an injured person after the accident was re-employed by his employer without affecting his service conditions and though he claimed substantial amount towards compensation for the said injuries which has been granted by the tribunal, on appeal, the division bench of this court held that since there is no loss of earning capacity of the claimant therein, the compensation amount awarded by the tribunal was excessive and reduced the compensation. laying emphasis on the said decision, counsel submitted that by applying the same analogy to the facts of this case, the compensation awarded by the tribunal below could be substantially reduced as the first claimant who is the wife of the deceased is gainfully employed on compassionate grounds in the bank in which the deceased was working. 8. sri m.r.k. chowdary, learned senior counsel for the respondents-claimants submitted that the deceased at the time of his death was working as sub manager in andhra bank and was aged only 37 years and had he been alive, he would have got promotions in his service in course of time. he also placed reliance on the decisions of the supreme court in general manager, kerala state road transport corporation v. mrs. susamma thomas2 and in smt. sarala dixit v. balwant yadav3 and submitted that the in view of the ratio laid down in these decisions, the tribunal below has rightly taken into consideration the future prospects of promotion of the deceased in his service and has deliberately not deducted 1/3rd amount towards personal expenses of the deceased from his monthly income as the evidence on record adduced by the claimants suggested that the deceased was hardly spending any amount towards his personal expenses. learned senior counsel, therefore, submitted that the well-considered decision of the tribunal below need not be interfered with.9. in the wake of the above submissions, the point for determination is whether the impugned award made by the tribunal below is just and reasonable ?10. admittedly, as on date of the accident i.e., 20-7-1989, the deceased was 37 years old and was working as sub manager in andhra bank at bheemadolu branch of west godavari district drawing a monthly salary of rs.4,300/-. the tribunal below, at para 13 of the impugned order has recorded a finding that the future prospects of the deceased have to be taken into account and also taking into consideration the life expectancy of the deceased had he not died in the accident, applied multiplier 13 and determined the loss of future earnings at rs. 6,24,000/-.11. in kerala road transport corporation's case (2 supra), the supreme court at para-7 of the judgment held thus :' 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 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 capitalized by multiplying it by a figure representing the proper number of year's purchase. much of the calculation necessarily remains in the realm of hypothesis and in that region 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.' 12. at para-8 of the said judgment, the hon'ble supreme court further held thus :'there were two methods adopted for determination and for calculation of compensation in fatal accident actions, the first the multiplier mentioned in davies case (supra) and the second in nance v. british columbia electricity supply co. ltd., 1951 appeal cases 601. 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 for which the dependency is expected to last.' on a careful analysis of the above decision, it would appear to us that 1/3rd deduction towards the personal expenses of the deceased from out of his monthly salary could not be resorted to in all accident cases but it could be done depending upon the facts and circumstances of each case. 13. in the instant case, the claimants have examined p.w.4 who is the brother of the deceased. p.w.4 deposed that his deceased brother was contributing his entire monthly salary for his family and was hardly spending rs.200/- per month towards his personal expenses. this evidence of p.w.4 has not been controverted by the appellant. as held by the supreme court in the decision (2 supra) deduction of 1/3rd amount from the monthly salary towards the personal expenses of the deceased cannot be resorted to in all cases but only depending upon the facts and circumstances of each case. in this case, though p.w.4 testified that the monthly personal expenses of his brother (deceased) were around rs.200/-, we are of the view, it would be difficult for p.w.4 who is working at hyderabad at the relevant point of time, to know the exact amount the deceased was spending towards his personal expenses per month. however, in view of the facts and circumstances of this case, we are inclined to say that the general principle of 1/3rd deduction need not be followed in this case. nonetheless, taking into account the position of the deceased i.e., sub manager in a nationalized bank, we deduct an amount of rs. 1000/- per month towards the personal expenses of the deceased from out of his monthly salary of rs.4,300/- per month. thus, the net contribution of the deceased per month for the maintenance of his family is fixed at rs.3,300/-.14. insofar as the second contention of the appellant that the first respondent who is the wife of the deceased was gainfully employed and as such, substantial deduction has to be made from the compensation amount awarded by the claimants in view of the decision cited (1 supra), we are not inclined to accept this submission. it must be remembered that though the wife of the deceased has secured employment on compassionate grounds, her employment has nothing to do with the compensation to be awarded to the claimants as a result of the death of the deceased due to the rash and negligent driving of the driver of the appellant's bus. merely because the wife was provided with employment, it would not disentitle the claimants to claim just and reasonable compensation for the death of the deceased. though counsel for the appellant relied on a decision (cited 1 supra) in support of her contention in this regard, we are afraid, the ratio laid down in the said decision would not enure to the benefit of the appellant inasmuch as in the said case, the claimant himself was the injured person and even after sustaining injuries, he was re-employed by his employer without affecting his service conditions. under those circumstances, a division bench of this court in the said decision held that since there is no loss of earning capacity of the claimant therein, and as such the amount granted by the tribunal was reduced. however, in the instant case, the claimants are not the injured persons but they are the dependants of the deceased who died in a motor accident on account of the rash and negligent driving of the bus by the driver of the appellant. this is not the case where there is no loss of earning capacity of the injured but this is a case of death on account of the rash and negligent driving of the appellant's bus for which the claimants being the legal representatives of the deceased are entitled for just and reasonable compensation. therefore, the mere fact of the wife of the deceased gainfully employed on compassionate grounds cannot be a ground for awarding less compensation though the claimants are entitled for more compensation. we, therefore, reject the submission of the counsel for the appellant in this regard having regard to the view taken by us.15. as discussed by us in the foregoing paragraphs, the net contribution by the deceased per month for the maintenance of his family is rs.3,300/-. the question, therefore, would be what is the relevant multiplier which is to be applied for determining just and reasonable compensation to be awarded to the claimants. the tribunal below has applied the multiplier 13 basing on the age of the deceased which was 37 years at the time of his death. as indicated above, in kerala road transport corporation's case (2 supra), the supreme court has held that the future prospects of the deceased could also be considered as one of the criterion for awarding just and reasonable compensation. it is to be noted life is uncertain and none can be definite about his/her life span. as long as the vagaries of uncertainties are associated with life span, it would be difficult to fix any criterion for determining higher compensation. but some guess work has to be done having regard to the age of the deceased, his qualifications in a particular specialized field and the position held by him at the time of his death, while determining the loss of earnings. 16. in this case, the deceased, admittedly, was aged 37 years at the time of his death and was working as sub manager in andhra bank. there cannot be any doubt that had the deceased been alive, he would have probably got promotions with higher salary. however, these are all questions of uncertainty surrounding life span and therefore, a specific criterion cannot be evolved in cases of this nature. nonetheless, depending upon several aspects, courts could, in order to meet the ends of justice, adopt different methods for awarding just and reasonable compensation to the claimants. though the tribunal below applied the multiplier 13, but having regard to our discussion and in view of the age and earning capacity of the deceased had he been alive, we are of the view, multiplier 15 could be applied for the purpose of determining the just and reasonable compensation which would meet the ends of justice. therefore, by applying the multiplier 15, the claimants are entitled for the compensation under various heads, viz., 1) loss of earnings at rs.5,94,000/- (rs.3,300/- x 12 x 15); 2) loss of consortium to the first claimant = rs. 15,000/- and ; 3) loss of estate = rs. 15,000/-. thus, in all, the claimants are entitled to an amount of rs.6,24,000/- towards total compensation on all counts. the claimants are also entitled to interest at 12% per annum on the said amount as awarded by the tribunal below i.e., from the date of the petition till the date of realization. 17. the next question would be about the apportionment of the compensation amount among the claimants. the first claimant is the wife and claimants 2 and 3 are the children of late g. umamaheshwar rao. since the first claimant is gainfully employed, though the tribunal has awarded half of the compensation amount, in view of the changed circumstances, we hold that she is entitled for rs.15,000/- towards loss of consortium and 1/4th amount from the remaining compensation amount of rs.6,09,000/-. out of the share of the first claimant, she is entitled to withdraw half of the said amount and also accrued interest thereon and the other half share shall be kept in fixed deposit for a period of five years and she is entitled to withdraw periodical interest once in six months on this amount. insofar as claimants 2 and 3 are concerned who are minor children of the deceased, they are entitled for half share each in the remaining amount of compensation. the compensation amount of the minor claimants 2 and 3 shall be kept in fixed deposit in any nationalized bank till they attain the age of majority. the first claimant being their mother shall, however, be entitled to withdraw periodical interest on the said amount once in six months for the maintenance of the minors. the impugned award of the tribunal is modified to the extent indicated above.18. this appeal is disposed of accordingly. no costs.

Judgment:
ORDER

Motilal B. Naik, J.

1. Appellant herein is the 1st respondent in O.P.No. 965 of 1990 on the file of the Court of the I Additional Special Judge for SPE and ACB Cases -cum- Additional Chief Judge, City Civil Court, Hyderabad. The respondents who are the legal representatives of late G. Umamaheshwar Rao, who died in a motor accident on 20-7-1989, laid a claim in O.P.No. 965 of 1990 under Section 166 of the M.V. Act before the Tribunal below seeking a total compensation of a sum of Rs.10 lakhs.

2. The 1st respondent herein is the wife and respondents 2 and 3 are the minor children of the deceased G.Umamaheshwar Rao, who was serving as Sub Manager in Andhra Bank, Bhimadole Branch in West Godavari District. He was aged 37 years at the time of his death. On 20-7-1989 at 8.30 AM, the deceased and his brother G. Suryanarayana Murthy, Manager, Andhra Bank, Mallavaram Branch, West Godavari District were traveling in an auto rickshaw bearing No. AHT 8271 to go to Secunderabad Railway Station and on the way near Hockey Stadium Road, the RTC bus bearing No. AAZ 7701 driven by the 2nd respondent in the O.P., in a rash and negligent manner hit the auto rickshaw, due to which G. Umameshwar Rao sustained serious injuries and was taken to Gandhi Hospital by his brother, who was with him at that time, where he was declared dead. A case in Crime No. 116 of 1998 under Section 304A of the Indian Penal Code was registered by the Police of Ramgopalpet Police Station at about 10-15 PM on the same day. The claimants being the legal representatives of the deceased laid O.P.No. 965 of 1990 before the Tribunal below claiming compensation of Rs.10 lakhs for the untimely death of the deceased.

3. Before the Tribunal below, in O.P.No. 965 of 1990 a counter was filed by the appellant who is the first respondent in the said O.P., denying the rashness and negligence on the part of the driver of the bus bearing No. AAZ 7701. It was alleged that due to the rashness and negligence on the part of the driver of the auto rickshaw bearing No. AHT 8271 the accident took place. It was also pleaded in the counter that the compensation claimed by the claimants is exorbitant.

4. The driver of the RTC bus which involved in the accident who is the 2nd respondent in the above O.P., was set ex-parte.

5. Basing on the above pleadings, the Tribunal below framed the following issues for consideration, viz.,

1. Whether the accident was due to rash and negligent driving of the driver of the RTC bus bearing No. AAZ 7701?

2. Whether the petitioners are entitled to any compensation and if so, to what amount ?

3. Whether the compensation claimed is excessive and exorbitant ?

4. Whether the respondents are liable to pay the compensation

On behalf of the claimants, P.Ws. 1 to 4 were examined and Exs. A.1 to A.5 were marked. P.W.1 is the wife of the deceased. On behalf of the 1st respondent/APSRTC no witness was examined and no documents were marked.

6. On the basis of the oral and documentary evidence, the Tribunal came to the conclusion that the accident in question took place due to the rash and negligent driving of the driver of the RTC bus bearing No. AAZ 7701 on account of which the deceased died. While considering the claim for compensation, the Tribunal took into consideration the gross income of the deceased as on the date of the accident and also took into account the future prospects of the deceased and determined his monthly contribution to his family at Rs.4,000/- per month. The Tribunal applied the multiplier 13 and granted compensation of Rs.6,24,000/- towards loss of earnings and also awarded Rs.15,000/- to the wife of the deceased towards loss of consortium. Thus, the Tribunal awarded a total compensation of Rs.6,39,000/- to the claimants with interest at 12% per annum from the date of the petition till the date of realization, by the impugned order dated 31-7-1992. It is this order which is challenged before this Court in this appeal by the appellant, who is the 1st respondent in the claim petition in O.P.No. 965 of 1990.

7. Smt. Nanda R. Rao, standing counsel for the appellant-Corporation raised two grounds while attacking the impugned order passed by the Tribunal below. Firstly, according to the counsel, for the purpose of determining the just and reasonable compensation to be awarded to the dependants of a deceased, some amount has to be deducted from the monthly contribution of the deceased for the maintenance of his family, towards personal expenses of the deceased. Counsel stated, in the impugned order, the Tribunal below has failed to set apart any reasonable amount towards personal expenses of the deceased from his monthly salary but has taken the entire monthly salary of Rs.4,300/- of the deceased as his contribution for the maintenance of his family for determining the compensation, which according to the counsel, is contrary to settled legal prepositions. Secondly, placing reliance on a decision of the Division Bench of this Court in ORIENTAL INSURANCE COMPANY LIMITED v. GADDAMADUGA SAIBABA1 counsel submitted that in the said case, an injured person after the accident was re-employed by his employer without affecting his service conditions and though he claimed substantial amount towards compensation for the said injuries which has been granted by the Tribunal, on appeal, the Division Bench of this Court held that since there is no loss of earning capacity of the claimant therein, the compensation amount awarded by the Tribunal was excessive and reduced the compensation. Laying emphasis on the said decision, counsel submitted that by applying the same analogy to the facts of this case, the compensation awarded by the Tribunal below could be substantially reduced as the first claimant who is the wife of the deceased is gainfully employed on compassionate grounds in the Bank in which the deceased was working.

8. Sri M.R.K. Chowdary, learned senior counsel for the respondents-claimants submitted that the deceased at the time of his death was working as Sub Manager in Andhra Bank and was aged only 37 years and had he been alive, he would have got promotions in his service in course of time. He also placed reliance on the decisions of the Supreme Court in GENERAL MANAGER, KERALA STATE ROAD TRANSPORT CORPORATION v. MRS. SUSAMMA THOMAS2 and in SMT. SARALA DIXIT v. BALWANT YADAV3 and submitted that the in view of the ratio laid down in these decisions, the Tribunal below has rightly taken into consideration the future prospects of promotion of the deceased in his service and has deliberately not deducted 1/3rd amount towards personal expenses of the deceased from his monthly income as the evidence on record adduced by the claimants suggested that the deceased was hardly spending any amount towards his personal expenses. Learned senior counsel, therefore, submitted that the well-considered decision of the Tribunal below need not be interfered with.

9. In the wake of the above submissions, the point for determination is whether the impugned award made by the Tribunal below is just and reasonable ?

10. Admittedly, as on date of the accident i.e., 20-7-1989, the deceased was 37 years old and was working as Sub Manager in Andhra Bank at Bheemadolu Branch of West Godavari District drawing a monthly salary of Rs.4,300/-. The Tribunal below, at para 13 of the impugned order has recorded a finding that the future prospects of the deceased have to be taken into account and also taking into consideration the life expectancy of the deceased had he not died in the accident, applied multiplier 13 and determined the loss of future earnings at Rs. 6,24,000/-.

11. In KERALA ROAD TRANSPORT CORPORATION's case (2 supra), the Supreme Court at para-7 of the Judgment held thus :

' 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 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 capitalized by multiplying it by a figure representing the proper number of year's purchase.

Much of the calculation necessarily remains in the realm of hypothesis and in that region 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.'

12. At Para-8 of the said judgment, the Hon'ble Supreme Court further held thus :

'There were two methods adopted for determination and for calculation of compensation in fatal accident actions, the first the multiplier mentioned in Davies case (supra) and the second in Nance V. British Columbia Electricity Supply Co. Ltd., 1951 Appeal Cases 601.

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 for which the dependency is expected to last.'

On a careful analysis of the above decision, it would appear to us that 1/3rd deduction towards the personal expenses of the deceased from out of his monthly salary could not be resorted to in all accident cases but it could be done depending upon the facts and circumstances of each case.

13. In the instant case, the claimants have examined P.W.4 who is the brother of the deceased. P.W.4 deposed that his deceased brother was contributing his entire monthly salary for his family and was hardly spending Rs.200/- per month towards his personal expenses. This evidence of P.W.4 has not been controverted by the appellant. As held by the Supreme Court in the decision (2 supra) deduction of 1/3rd amount from the monthly salary towards the personal expenses of the deceased cannot be resorted to in all cases but only depending upon the facts and circumstances of each case. In this case, though P.W.4 testified that the monthly personal expenses of his brother (deceased) were around Rs.200/-, we are of the view, it would be difficult for P.W.4 who is working at Hyderabad at the relevant point of time, to know the exact amount the deceased was spending towards his personal expenses per month. However, in view of the facts and circumstances of this case, we are inclined to say that the general principle of 1/3rd deduction need not be followed in this case. Nonetheless, taking into account the position of the deceased i.e., Sub Manager in a nationalized bank, we deduct an amount of Rs. 1000/- per month towards the personal expenses of the deceased from out of his monthly salary of Rs.4,300/- per month. Thus, the net contribution of the deceased per month for the maintenance of his family is fixed at Rs.3,300/-.

14. Insofar as the second contention of the appellant that the first respondent who is the wife of the deceased was gainfully employed and as such, substantial deduction has to be made from the compensation amount awarded by the claimants in view of the decision cited (1 supra), we are not inclined to accept this submission. It must be remembered that though the wife of the deceased has secured employment on compassionate grounds, her employment has nothing to do with the compensation to be awarded to the claimants as a result of the death of the deceased due to the rash and negligent driving of the driver of the appellant's bus. Merely because the wife was provided with employment, it would not disentitle the claimants to claim just and reasonable compensation for the death of the deceased. Though counsel for the appellant relied on a decision (cited 1 supra) in support of her contention in this regard, we are afraid, the ratio laid down in the said decision would not enure to the benefit of the appellant inasmuch as in the said case, the claimant himself was the injured person and even after sustaining injuries, he was re-employed by his employer without affecting his service conditions. Under those circumstances, a Division Bench of this Court in the said decision held that since there is no loss of earning capacity of the claimant therein, and as such the amount granted by the Tribunal was reduced. However, in the instant case, the claimants are not the injured persons but they are the dependants of the deceased who died in a motor accident on account of the rash and negligent driving of the bus by the driver of the appellant. This is not the case where there is no loss of earning capacity of the injured but this is a case of death on account of the rash and negligent driving of the appellant's bus for which the claimants being the legal representatives of the deceased are entitled for just and reasonable compensation. Therefore, the mere fact of the wife of the deceased gainfully employed on compassionate grounds cannot be a ground for awarding less compensation though the claimants are entitled for more compensation. We, therefore, reject the submission of the counsel for the appellant in this regard having regard to the view taken by us.

15. As discussed by us in the foregoing paragraphs, the net contribution by the deceased per month for the maintenance of his family is Rs.3,300/-. The question, therefore, would be what is the relevant multiplier which is to be applied for determining just and reasonable compensation to be awarded to the claimants. The Tribunal below has applied the multiplier 13 basing on the age of the deceased which was 37 years at the time of his death. As indicated above, in KERALA ROAD TRANSPORT CORPORATION's case (2 supra), the Supreme Court has held that the future prospects of the deceased could also be considered as one of the criterion for awarding just and reasonable compensation. It is to be noted life is uncertain and none can be definite about his/her life span. As long as the vagaries of uncertainties are associated with life span, it would be difficult to fix any criterion for determining higher compensation. But some guess work has to be done having regard to the age of the deceased, his qualifications in a particular specialized field and the position held by him at the time of his death, while determining the loss of earnings.

16. In this case, the deceased, admittedly, was aged 37 years at the time of his death and was working as Sub Manager in Andhra Bank. There cannot be any doubt that had the deceased been alive, he would have probably got promotions with higher salary. However, these are all questions of uncertainty surrounding life span and therefore, a specific criterion cannot be evolved in cases of this nature. Nonetheless, depending upon several aspects, Courts could, in order to meet the ends of justice, adopt different methods for awarding just and reasonable compensation to the claimants. Though the Tribunal below applied the multiplier 13, but having regard to our discussion and in view of the age and earning capacity of the deceased had he been alive, we are of the view, multiplier 15 could be applied for the purpose of determining the just and reasonable compensation which would meet the ends of justice. Therefore, by applying the multiplier 15, the claimants are entitled for the compensation under various heads, viz., 1) Loss of earnings at Rs.5,94,000/- (Rs.3,300/- x 12 x 15); 2) Loss of consortium to the first claimant = Rs. 15,000/- and ; 3) Loss of estate = Rs. 15,000/-. Thus, in all, the claimants are entitled to an amount of Rs.6,24,000/- towards total compensation on all counts. The claimants are also entitled to interest at 12% per annum on the said amount as awarded by the Tribunal below i.e., from the date of the petition till the date of realization.

17. The next question would be about the apportionment of the compensation amount among the claimants. The first claimant is the wife and claimants 2 and 3 are the children of late G. Umamaheshwar Rao. Since the first claimant is gainfully employed, though the Tribunal has awarded half of the compensation amount, in view of the changed circumstances, we hold that she is entitled for Rs.15,000/- towards loss of consortium and 1/4th amount from the remaining compensation amount of Rs.6,09,000/-. Out of the share of the first claimant, she is entitled to withdraw half of the said amount and also accrued interest thereon and the other half share shall be kept in fixed deposit for a period of five years and she is entitled to withdraw periodical interest once in six months on this amount. Insofar as claimants 2 and 3 are concerned who are minor children of the deceased, they are entitled for half share each in the remaining amount of compensation. The compensation amount of the minor claimants 2 and 3 shall be kept in fixed deposit in any nationalized bank till they attain the age of majority. The first claimant being their mother shall, however, be entitled to withdraw periodical interest on the said amount once in six months for the maintenance of the minors. The impugned award of the Tribunal is modified to the extent indicated above.

18. This appeal is disposed of accordingly. NO costs.