IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.11.2010 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR C.M.A.No.391 of 2003 The Managing Director, Tamilnadu State Transport Corporation (Villupuram Division II) Ltd, Sathuvacheri, Vellore. .. Appellant/Respondent ..Vs.. 1.S.Gouselya 2.Pushpam 3.S.Jebakumar @ Kumar 4.S.Sweety 5.Minor. S.Sureshkumar 6.Minor.S.Santhosh Kumar .. Respondents/Petitioners (R5 and R6 Minors represented by natural guardian and mother R1 S.Gouselya) Prayer : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the award and decree dated 21.10.2002 in M.C.O.P.No.432 of 1999 on the file of the Motor Vehicles Accident Claims Tribunal,the Principal District Court, Vellore. For appellant : Mr. A.Babu For Respondent : Mr.S.Vijayakumar for R1, R4 to R6 No appearance for R2 & R3. JUDGEMENT Being aggrieved by the finding regarding negligence and the quantum of compensation awarded to the wife and other legal representatives, respondents herein, the appellant/State Transport Corporation has preferred this appeal. 2. According to the respondents/claimants that on 1.4.1999, while the petitioner's husband Selva Kumar was attempting to board a Transport bus bearing Registration No.TN.23.N.1322, the driver of the bus, suddenly started the vehicle in a rash and negligent manner and dashed against the right side of another bus bearing Registration No.TN.23.N.0688. Due to the accident, Selva Kumar sustained grievous injuries and died. According to the respondents/claimants, at the time of accident, he was a Salesman and earned Rs.2,500/- per month. They have claimed compensation of Rs.4,00,000/-. The appellant/State Transport Corporation resisted the claim contending inter alia that when the bus was slowly moving near C.M.C.Hospital bus stop opposite to C.M.C.Hospital out gate, the said Selva Kumar came running and tried to board a moving bus bearing Registration No.TN.23.N.1322 through the rear entrance and at that time, when the abovesaid bus was negotiating another bus parked just in front of the bus and when it was turning to its right, the said person who was trying to board the moving bus, caught in between the two buses and he dashed against the stationed vehicle and sustained injuries and in these circumstances, the Corporation contended that the accident was not due to the rash and negligent driving of the bus bearing Registration No.TN.23.N.1322. It is therefore submitted that the accident occurred solely due to the fault of the deceased, who tried to board a moving bus. Without prejudice to the above, the appellant/Transport Corporation also disputed the monthly income of the deceased and the quantum of compensation claimed under various heads. 3. Before the Tribunal, wife of the deceased examined herself as PW.1 and reiterated the manner of accident. Ex.P1 dated 1.4.1999 copy of First Information Report and Ex.P2, dated 2.4.1999, copy of the Post Mortem Certificate. Driving Inspector was examined on behalf of the appellant/Transport Corporation as R.W.1, who has deposed that he received a message about the accident and thereafter, visited the spot. The driver of the bus has not been examined. Though PW.1 is not a direct witness to the accident, her oral testimony has been duly corroborated by Ex.P1- FIR. Admittedly, the driver of the vehicle, against whom rash and negligent driving has been alleged, has not been examined. Drawing adverse inference, the Tribunal has held that the accident has occurred solely due to the rash and negligent driving of the bus by its driver. Rash and negligent act is a personal act attributed to the cause of accident and in the absence of any rebuttal to the manner of accident as spoken to by PW.1 and duly corroborated by Ex.P1 dated 1.4.1999 FIR, the finding of the Tribunal fixing negligence on the driver of the Transport Corporation bus cannot be said to be perverse warranting interference. 4. While ascertaining the quantum of compensation, based on the entry in Ex.P2 Post Mortem Certificate and the oral testimony of PW.1, wife, the Tribunal has fixed the age of the deceased as 45 years. There is no irregularity in the determination of age. Though PW1 has contended that her husband was a Salesman in a Company, no documentary evidence was let in to prove the same. However, the Tribunal, having regard to the fact that the deceased was a father of four children, fixed his monthly income at Rs.2,000/-. Applying '15' multiplier, and after deducting 1/3rd towards his personal and living expenses computed the loss of dependency compensation at Rs.2,24,000/- and rounded of the same to Rs.2,50,000/-. Except the above, the Tribunal has not awarded compensation under any other head. 5. Though the appellant Transport Corporation, has disputed the finding regarding negligence and the compensation awarded to the respondents/claimants, placing reliance on the decisions of this Court in Tamilnadu State Transport Corporation (Kumbakonam- Division III) Ltd., through its Managing Director, Karaikudi Town Vs. Vasantha and Others reported in 2006 (3) CTC 141 and Managing Director, Tamilnadu State Transport Corporation (Kumbakonam-Division II), Periamilaguparai, Trichy Vs. Mrs.1. S.Indrani 2. M.Sivanantham reported in 2009 (2) Tamil Nadu MAC 348, learned Counsel for the respondents/claimants submitted that though a claim of Rs.4,00,000/- was made for compensation towards pecuniary and non-pecuniary losses including loss of love and affection, and other conventional damages, the Tribunal has failed to award a just and reasonable compensation. He also submitted that as per the decision of the Supreme Court in Smt. Sarala Verma and Others, Vs. Delhi Transport Corporation and another reported in (2009) 4 MLJ, 997, the Tribunal ought to have deducted only 1/4th from the annual income, towards personal and living expenses of the deceased and arrived at appropriate dependency compensation, instead of deducting 1/3rd for the above said purpose. 6. Learned counsel for the respondents/claimants submitted that when power is conferred on the appellate court to enhance the compensation, even if no appeal or cross objection, is filed by the respondents/claimants, this Court, in the interest of justice can enhance the quantum of compensation, as the Tribunal has grossly failed to award a reasonable compensation under other heads. 7. Opposing the said prayer, Mr.A.Babu, learned counsel appearing for the appellant/State Transport Corporation submitted that the respondents/claimants have failed to file a cross objection or appeal for enhancement, within the time provided under Order 41, Rule 33 of Civil Procedure Code and in the absence of the same, there is no need to enhance the compensation. 8. As per the decision of the Supreme Court in Smt. Sarala Verma and Others, Vs. Delhi Transport Corporation and another reported in (2009) 4 MLJ, 997, the proper multiplier for computation of dependency compensation for the age group of persons, between 41 to 45 is '14'. The Apex Court has also held that if the number of dependents in the family is 4 to 6, then the proper deduction towards personal and living expenses should be 1/4 th . It is to be noted that in Smt.Sarala Verma's case, though the accident had occurred on 18.4.1998, after considering the inconsistencies in applying different multipliers, the Supreme Court by its judgement dated 15.4.2009, has devised a uniform procedure to be followed in motor accident claims cases. At paragraph No.26 of the said judgement, the Supreme Court has held that the claimants therein would be entitled to Rs.5,000/- under the head loss of estate. 9. Insofar as the exercise of power for suo moto enhancement of compensation is concerned, in Tamilnadu State Transport Corporation (Kumbakonam-Division III) Ltd., through its Managing Director, Karaikudi Town Vs. Vasantha and Others reported in 2006 (3) CTC 141, this Court, after considering the catena of decisions, enhanced the compensation without any cross objection or appeal by the respondents. Useful reference can also be made to the decisions in Oriental Fire & General Insurance Co. Ltd. Vs.Jagadish Babu, 1986 ACJ 890 (Kar.) and National Insurance Company Limited Vs. Labanya Roy, 1985 ACJ 720 (Cal.). 10. The Managing Director, Tamilnadu State Transport Corporation (Kumbakonam-Division II), Periamilaguparai, Trichy Vs. Mrs.1. S.Indrani 2. M.Sivanantham reported in 2009 (2) Tamil Nadu MAC 348, when a similar plea for enhancement of compensation was made in the absence of any cross objection/appeal, a learned Single Judge of this Court, after considering the decisions of the Supreme Court in Nagappa Vs.Gurudayal Singh, 2004 (1) TN MAC 398 (SC): 2003 (2) SCC 274 and New India Assurance Company Limited Vs.JKalpana (Smt) and Others, 2007 (1) TNMAC 1 (SC) : 2007 (1) CTC 523 (SC): 2007 (3) SCC 538, has enhanced the compensation amount. 11. In the light of the decisions stated supra, and as rightly contended by the learned counsel for the respondents/claimants that in the interest of justice, the appellate court can always enhance the compensation, if the Court finds that the compensation awarded, does not satisfy the principles of 'just compensation' which is explained by the Supreme Court in Utter Pradesh State Road Transport Corporation v. Trilok chandra reported in 1996 ACJ 851, State of Haryana & another v. Jashir kaur & others reported in 2004(1) L.W. 1, and Mrs. Helen C.Rebello and others v. Maharashtra State Road Transport Corporation reported in II (1998) ACC 512(SC)=1999-1-L.W.208 held that the compensation awarded to the victim should be 'just' which would denote equity, fairness and reasonableness and it should not be treated as bonanza. In the Divisional Controller, KSRTC v. Mahadeva Shetty and another reported in 2003 AIR SCW 3797 in paragraph 15, the Supreme Court held that , "It has to be kept in view that the Tribunal constituted under the Act as provided in S.168 is required to make an award determining the amount of compensation which to it appears to be 'just'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. Bodily injury is nothing but a deprivation which entitles the claimant to damages. The quantum of damages fixed should be in accordance to the injury. An Injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to damages for the mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life which has been curtailed because of physical handicap. The normal expectation of life is impaired. But at the same time it has to be borne in mind that the compensation is not expected to be a wind fall for the victim. Statutory provisions clearly indicate the compensation must be "just" and it cannot be a bonanza; not a source of profit but the same should not be a pittance. The Courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at a 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 on 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. The expression "just" denotes equitablity, fairness and reasonableness, and non arbitrary. If it is not so it cannot be just." 12. In the case on hand, the Tribunal has failed to consider that at the time of accident, there were four other dependants besides wife, mother of the deceased. If Smt.Sarala Verma's case is applied, after 1/4th towards the personal and living expenses of the deceased, the dependency compensation works out to Rs.2,000 x 12 x 12 (Rs.2,88,000/-). As rightly contended by the learned counsel for the respondents/claimants, that the minor children have lost the love and affection of the father and so also the second respondent, mother. They are entitled to a sum of Rs. 50,000/-, towards loss of love and affection, at Rs.10,000/- each. The first respondent wife widow would be entitled to a sum of Rs.10,000/- towards loss of consortium. In addition to the above, a conventional damages of Rs.3,000/- for transportation and funeral expenses is also awarded. 13. The Civil Miscellaneous Appeal filed by the Transport Corporation is dismissed. In the result, The respondents/claimants would be entitled to a compensation Rs.3,51,000/- as apportioned hereunder: Love and affection (mother, 4 minor children) Rs. 50,000/- Dependency compensation Rs. 2,88,000/- Loss of consortium Rs. 10,000/- Other conventional charges (Transport and funeral expenses)Rs. 3,000/- --------------- Total Rs.3,51,000/- Less the amount already awarded Rs.2,50,000/- ---------------- Total Rs.1,01,000/- ---------------- 14. The Tribunal has awarded a sum of Rs. 2,50,000/- as compensation with interest at the rate of 9% per annum. The respondents/claimants would be entitled to an enhanced compensation of Rs.1,01,000/-with interest at the rate 7.5% from the date of claim petition. The appellant/Transport Corporation is directed to deposit the enhanced compensation with proportionate accrued interest to the credit of M.C.O.P. No.432 of 1999 on the file of the Motor Vehicles Accident Claims Tribunal,the Principal District Court, Vellore, within eight weeks from the date of receipt of a copy of this order. No costs. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar aes To 1. Motor Vehicles Accident Claims Tribunal The Principal District Court, Vellore. 2. The Section Officer, VR Section, High Court, Madras-104. +1 CC to Mr.A.Balu, Advocate Sr.No.80796 +1 CC to Mr.K.A.Ravindran, Advocate Sr.No.80802 C.M.A.No .391 of 2003 KSK(CO DRL : 06/05/2011