* HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE B. CHANDRA KUMAR + C.M.A.Nos.1154 and 1487 of 2004 % 10-09-2009 C.M.A. No. 1154 of 2004 # B. Ramulamma ..… Appellant Vs. $ M/s. Venkatesh Bus Union, rep. by A.M. Velu Mudaliyar and another. …Respondents !Counsel for the Appellant : Sri A. Vishnuvardhan Reddy ^Counsel for Respondent No.2: Sri Kota Subba Rao, <Gist : >Head Note: ?Cases Referred: 1. 2009(3) SUPREME 487 2. 2006 ACJ 1058 3. 2005 ACJ 2100 4. 2007(1) ALD (SC) 5. 1987 ACJ 411(SC) 6. 2009 ACJ 1229 7. 2003(7) SCC 484 8. 2005 Mhlr (1) 762 9. 1995 AD (Del)(1) 877 10. 2006 ACJ 260 11. 2006 ACJ 2129 12. 2009 ACJ 452 13. 1994 ACJ 1 (SC) 14. 2009 ACJ 690 15. 2005 ACJ 1131 (SC) 16. 2000(2) ALD 815 = 2000(85) FLR 725 17. 2008 ACJ 2770 18. 2009 ACJ 452 19. AIR 2007 MP 237 20. (1967) 2 Lab LJ 130 (Mys) 21. 1983 LIC 312 HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.M.A.Nos.1154 and 1487 of 2004 COMMON JUDGMENT: (Per Hon’ble Sri Justice B. Chandra Kumar) Since both the Appeals arise out of the same accident and common order, dated 05-01-2004 in O.P.Nos.595 and 300 of 2006 on the file of the Motor Accidents Claims Tribunal-cum-Additional District Judge, Mahabubnagar, respectively, they are being disposed of by this common Judgment. 2. For the sake of convenience, the parties will be referred to as they are arrayed in the Tribunal. Sixteen students including both the deceased were proceeding on eight motor cycles on a holiday trip. The deceased G. Prashanth Reddy and B. Ravi Kumar, both aged about 21 years, were proceeding on a motor cycle bearing No.AP 04/6504 on 01-05-1995 from Tumkur, Karnataka State, to Kemmanannagundi. The deceased Prashanth Reddy was driving the said motor cycle and the deceased Ravi Kumar was the pillion rider. When they reached Guddadapalaym gate and proceeding along with the left side of the national highway at about 3-15 PM, the tourist bus bearing No.KA 03/5252, owned by the first respondent and insured with the second respondent, being driven by it’s driver, came in a rash and negligent manner at high speed from opposite direction and dashed against the motor cycle of the deceased. As a result of which the motor cycle of the deceased was dragged to a distance of 75 feet on the road and both the deceased sustained serious injuries and the deceased Ravi Kumar died on the spot and the deceased Prashanth Reddy died on the way to the hospital at Gubbi. The bus driver did not stop the bus at the place of accident. PW-4, G. Vijayabhaskar Reddy, who was following the deceased on another motor cycle, lodged a report to the police at Tiptur. The Police, after completing the investigation, laid the charge sheet against the driver of the bus. 3. The parents of the deceased Prashanth Reddy filed O.P.No.300 of 1996 and the mother of the deceased Ravi Kumar filed O.P.No.595 of 1996. The Tribunal clubbed both the O.Ps and disposed of the same through the common order. 4. The specific case of the claimants in O.P.No.300 of 1996 is as follows: The deceased Prashanth Reddy was studying B.E. computers final year in Sidha Ganga Institute of Technology and he was hale and healthy at the time of accident. The claimants had high hopes about the future of the deceased. The deceased was a brilliant student. He would have become Engineer and would have earned Rs.15 lakhs as an Engineer in any government or private institution. He had bright prospects of securing handsome job in abroad. He would have contributed his earnings to the claimants. The claimants claimed a total compensation of Rs.15 lakhs. 5. The mother of the deceased Ravi Kumar, who is the claimant in O.P.No.595 of 1996, made the following averments: The deceased Ravi Kumar was studying B.E Computers final year and he was aged about 21 years and hale and healthy. He was the only son of the claimant. The deceased would have become Engineer and earned a salary of Rs.7,500/- per month. He would have looked after the claimant throughout her life. The claimant borrowed huge funds for educating the deceased. The deceased would have earned more than Rs.10 lakhs. The claimant claimed a total compensation of Rs.15 lakhs. 6. The first respondent remained ex parte. The second respondent filed separate counters in both the O.Ps. and denied the averments of the claimants that the accident occurred due to the rash and negligent driving of the bus driver. It is further averred that the deceased Prashanth Reddy himself had driven the motor cycle in a rash and negligent manner and he was responsible for the accident. The other averments of the claimants with regard to the age, health condition, education and future prospects of the deceased have been denied. It is not admitted that the vehicle was insured with the second respondent-insurance company and that the driver of the bus was having valid driving licence as on the date of accident. It is further averred that the claim of the claimants is excessive and exorbitant. 7. The Tribunal framed the following issues for trial: 1. Whether the accident occurred due to rash and negligent driving of the driver of Tourist bus No.KA-03/5252? 2. Whether the petitioners are entitled to claim compensation from the respondents and if so, to what amount and against whom? 3. Whether the respondents are liable to pay the compensation? 4. To what relief? 8. On behalf of the claimants, the first claimant in O.P.No.300 of 1996, the claimant in O.P.No.595 of 1996 and the two classmates of the deceased were examined as PWs.1 to 4 respectively and Exs.A-1 to A-17 were marked. On behalf of the Insurance Company, no witnesses were examined. But Ex.B-1 copy of the Insurance Policy was marked. 9. The Tribunal, on appreciation of oral and documentary evidence, came to the conclusion that the accident occurred due to rash and negligent driving of the bus driver. The Tribunal, considering that both the deceased were only students, fixed the notional income of each deceased @ Rs.5,000/- per month and after deducting half of the income towards personal expenses and after applying the multiplier ‘13’, awarded the compensation at Rs.3,90,000/- to the claimants in each O.P. The tribunal also awarded Rs.5,000/- towards funeral expenses and Rs.5,000/- towards loss of estate. Being aggrieved by the same, the claimants preferred the present Appeals. 10. The main contention of the learned counsel for the claimants, Sri A. Vishnuvardhan Reddy, is that both the deceased were final year students of B.E. Computers course and that the Tribunal failed to appreciate the evidence of PW-3, who is a classmate of both the deceased, and failed to consider his income as shown in Exs.A-8 to A-10. Ex.A-8 shows the gross pay of PW-3 at Rs.80.232.33 per month and net pay at Rs.54,633.53 per month. It is his further submission that the minimum income of the Computer Engineers ought to have been taken as basis for determining the income of both the deceased. It is further argued that Ex.A-7, the earnings statement of the another classmate of the deceased, shows that his gross pay is $ 2220.96 and net pay at $ 1855.83 per month. It is also submitted that the Tribunal ought to have taken multiplier ‘15’ as per the Judgment of the Hon’ble Supreme Court in SMT. SARALA VERMA & ORS. V. DELHI TRANSPORT CORPORATION & ANR. [1] and ought to have taken the minimum income of the both the deceased at Rs.15,000/- per month. Therefore, the order of the Tribunal cannot sustain and the same is liable to be modified by awarding Rs.15 lakhs compensation to the claimants in each O.P. 11. Sri K. Subba Rao, the learned Standing Council for the Insurance Company, submitted that the Tribunal had awarded a reasonable compensation and there is no need to enhance the compensation in these Appeals. It is also his submission that in view of the future uncertainties, the income of the Software Engineers cannot be taken as basis for determining the compensation. 12. In support of his contentions, the learned counsel for the claimants relied on the following decisions: BIJOY KUMAR DUGAR v. BIDYADHAR DUTTA [2], BALAKRISHNA N. SHETTY v. B.K. IBRAHIM [3] and NEW INDIA ASSURANCE CO. LTD. v. SATENDER AND OTHERS [4]. 13. The points that arise for consideration are: 1. Whether the accident occurred due to the negligence of the driver of the bus or not? 2. How to determine the income of a student, who is about to complete his course? 3. Whether the income of the classmate of the deceased can be taken as basis for determining the income of a student, who died in a motor accident? 4. Whether minimum wage or entry level salary prescribed to a job, which the deceased would have secured after completion of his education, could be taken as basis? POINT NO.1: 14. As seen from the evidence on record, on 01-05-1995, 16 students were proceeding on 8 motor cycles from Tumkur to Kemmanannagundi. PW-4, G. Vijayabhaskar Reddy is one of them. According to PW-4, they were all proceeding in a line one after another. The road at the place of accident is a straight road. According to PW-4, the offending bus came from the opposite direction, suddenly turned towards right and hit the motor cycle of the deceased and dragged the motor cycle for some distance. PW-4 specifically deposed that the accident occurred due to rash and negligent driving of the bus driver. According to him, the deceased Ravi Kumar died on the spot and the deceased Prashanth Reddy died in the hospital at Gubbi. He further deposed that he went to police station at Tiptur and lodged a report under Ex.A-1. He denied a suggestion that they are driving the motor cycles negligently and that the driver of the bus was not negligent in driving the bus. 15. Ex.A-1 is the C.C. of the FIR with true translation, which shows that PW-4 lodged the report to the police. Ex.A-2 is the copy of the charge sheet with true translation. Ex.A-3 is the copy of the postmortem examination report of the deceased Prasanth Reddy. Ex.A-4 is the MVI report, which shows that the accident had not occurred due to any mechanical defects of the vehicle. Ex.A-14 is the copy of postmortem examination report of the deceased Ravi Kumar. Except the evidence of PW-4, there is no other oral evidence in this case. The evidence of PW-4, which is corroborated with the contents of the above referred documents, clinchingly establishes that the bus came to wrong side and dashed against the motor cycle of the deceased. The very fact that the motor cycle was dragged to some distance itself proves that the bus driver was negligent while driving the bus. 16. In view of the above discussion, it is clear that the finding of the Tribunal on this issue is based on record. POINT NOs.2 to 4: 17. It is most unfortunate that both the claimants have lost their only sons shattering all their future hopes. The most lovable persons are their children to any parents. The parents work hard, save money, sometimes do overtime work just for the sake of their children to give good education to them. Most of the parents want to give the best possible they can give to their children. Their only hope would be that when they become old, weak and sick, the children would look after them and provide basic needs. Therefore, where the parents have the only child, the loss of such child would cause great mental agony to the parents. The object of the relevant provisions of the Motor Vehicles Act is to provide just and reasonable compensation to the victims of the motor accidents, may be injured or the dependants of the deceased. What is just and reasonable compensation is a question that arises very often. The object of the relevant provisions of the Act appears to be to give a sort of social security to the bereaved family. The life is precious and no amount of money can compensate the loss of life. Perhaps the only thing so far no Scientist could do is reviving of a lost life. It is impossible to bring back the life. Therefore, it has to be seen whether the Tribunal or the Court would keep the parents, wife or children of the deceased in the same position in which they would have lived had the deceased not died in the accident and that should be their object. Therefore, the Tribunals or Courts should award just and reasonable compensation and to give quick redressal to the victims of the accidents. The object should be to alleviate the victims from the tragedy in which the victims are placed keeping in view the object of the beneficial legislation. 18. The Hon’ble Supreme Court in SKANDIA INSURANCE CO. LTD. V. KOKILABEN CHANDRAVADAN [5], observed as follows: “When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependants on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by it, by way of business activity, there is hardly any choice. The court cannot but opt for the former view. Even if one were to make a strictly doctrinaire approach, very same conclusion would emerge in obeisance to the doctrine of 'reading down' the exclusion clause in the light of the 'main purpose' of the provision so that the 'exclusion clause' does not cross swords with the 'main purpose' highlighted earlier. The effort must be to harmonize the two instead of allowing the exclusion clause to snipe successfully at the main purpose.” 19. In UNITED INDIA INSURANCE CO. LTD. v. REETA DEVI [6], the Delhi High Court observed as follows: “FURTHER, the Claims Tribunal is expected to fix such compensation which may appear to it to be just. just compensation would mean 'reasonable' compensation for the injury caused in an accident resulted due to negligence of a motorist, including the driver of the bus. So, 'just' would mean appropriate, equitable, or proper. It signifies that the compensation amount should be so assessed as to make provision for the legal representatives of the deceased to receive or earn such pecuniary benefits as they could have obtained from the deceased if he had lived his normal life. The grant of compensation amount, which would enable the legal representatives of the deceased to earn more pecuniary benefit than one that had been available to them from the deceased during his lifetime, would not be proper and grant of compensation amount which would not enable such legal representatives to earn as much pecuniary benefit as was available to them from the deceased during his lifetime, would not be equitable.” 20. The very use of the words ‘just compensation’ under Section 168 of the Motor Vehicles Act, 1988 makes it clear that the Tribunal is duty bound to act in a realistic manner sitting in arms chair. Therefore, awarding just and reasonable compensation is neither charity nor out of sympathy. The claimants, as a matter of right, are entitled for just and reasonable compensation. It is their right which is being protected and assured to them while awarding just and reasonable compensation to them. The Courts have to do substantial justice and the technicalities and procedural law should not defeat the main object of rendering justice. 21. In STATE OF HARYANA AND ANOTHER v. JASBIR KAUR AND OTHERS [7], the Hon’ble Supreme Court observed as under: “(7) IT has to be kept in view that the Tribunal constituted under the Act as provided in section 168 is required to make an award determining the amount of compensation which is to be in the real sense "damages" which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has be to be borne in mind that the compensation is not expected to be a windfall 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 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 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 equitability, fairness and reasonableness, and non-arbitrary. If it is not so it cannot be just.” 22. I n MAHARASHTRA STATE ROAD TRANSPORT CORPORATION v. PRASAD VASANTRAO DESHPANDE [8], the Bombay High Court observed as follows: "The word "just" as its nomenclature denotes equally fairness and reasonableness having a large peripheral field. The largeness is, of course, not arbitrary, it is restricted by the conscientious which is fair, reasonable and equitable if it exists its term as unfair, unreasonable equitable, not just. Thus, this field of wider discretion of the Tribunal has to be within the said limitations and the limitations under any provisions of the Act or any other provisions having the force of law. " 23. In this case, admittedly both the deceased were studying final year B.E. computers course. PW-3, G. Vijaya Krishna, the classmate of the deceased, was also studying in the same engineering college in which both the deceased were studying, and according to PW-3, he has been working as a Senior Consultant in Oracle, Bangalore since September, 2003. Earlier he worked in HCL Perot Systems, Bangalore from January, 1996 to August, 2001. It is the case of PW-1 that his son, who was a student of B.E. Computers final year, would have become a Software Engineer and would have earned about Rs.25,000/- to Rs.30,000/- per month. Ex.A-7 is the earning statement of the classmate of the deceased showing gross pay at $ 2220.96 and net pay at $ 1855.83 per month. Ex.A-8 is the pay slip of PW-3 for the month of June, 2003, showing the income at Rs.40,000/- per month and Ex.A-9 is the revised salary certificate which shows that PW-3 was getting Rs.6,60,000/- per annum. Ex.A-10 is Form-16 of the income tax return, which also shows that the income of PW-3 is Rs.6,22,370/- per annum. PW-3 was getting a gross income of Rs.80,232.33 ps in June, 2003 and Rs.53,844.83 ps in July, 2003. There cannot be any doubt to say that PW-3 is getting handsome income and he is well placed in the society. The prospects of the deceased also getting job cannot be doubted. Of course uncertainties will be always there. 24. PW-2, the mother of the deceased Ravi Kumar, deposed that her son wanted to go to USA and would have earned Rs.2 lakhs per month and that he had very good prospects in his future career. 25. PW-4, another classmate of both the deceased, deposed that he is earning Rs.20,000/- per month on his business. Ex.A-16 is his course completion certificate and Ex.A-17 is the copy of pan card. 26. So the evidence of PWs.3 and 4 shows that they are in a very good position. PW-4 is of course doing business, but PW-3 is an employees earning handsome income. PWs.2 and 3 have categorically denied a suggestion that the deceased would have earned only Rs.3,000/- to Rs.5,000/- per month. Of Course PW-1 stated that may be an engineering student with similar degrees are earning nowadays Rs.3,000/- or Rs.5,000/- in our country. But that does not mean that PW-1 has admitted that the engineering students with similar degrees are earning Rs.3,000/- to Rs.5,000/- per month. It is common knowledge that for denying a suggestion some people sarcastingly may say as “may be”. It has to be seen that PW-1 has referred to the students and not to the employees who after completing B.E. course would have earned. PW-1 categorically deposed that his son would have earned Rs.25,000/- to Rs.30,000/- per month. Before treating a sentence as admission entire evidence must be considered to understand what the witness really wants to convey. Therefore, the Tribunal seems to have committed an error in holding that PW-1 admitted that after completing B.E. course, the deceased would have earned only Rs.Rs.3,000/- to Rs.5,000/- per month. Since it cannot be said that the deceased would have secured same job in the same company with same salary as earned by PW03, the salary of PW-3 cannot be taken as basis for determining the salary of the deceased. However, a rationale method has to be adopted. 27. In BIJOY KUMAR DUGAR’s case (2 supra), the accident took place on 15-04-1988 (21 years ago). The deceased was a science graduate and pursuing law study and was earning Rs.4,000/- as an attorney holder of a petrol pump. The Tribunal had accepted the income of the deceased at Rs.4,000/- per month and after deducting Rs.400/- towards his personal expenses, estimated the loss of earnings at Rs.3,600/- and calculated a total compensation of Rs.3,53,600/-, but awarded Rs.1,76,800/- due to contributory negligence of the deceased and the same was upheld by the Supreme Court. 28. In BALAKRISHNA N. SHETTY’s case (3 supra), the accident took place on 08-02-1989 (20 years ago) and the deceased was the third year BDS student in medical college. The loss of earnings were taken at Rs.4,000/- per month. 29. I n SATENDER AND OTHERS’s case (4 supra), the Hon’ble Supreme Court held that: “There are some aspects of human life which are capable of monetary measurement, but the totality of human life is like the beauty of sunrise or the splendor of the stars, beyond the reach of monetary tape-measure. The determination of damages for loss of human life is an extremely difficult task and it becomes all the more baffling when the deceased is a child and/or a non-earning person. The future of a child is uncertain. Where the deceased was a child, he was earning nothing but had a prospect to earn. The question of assessment of compensation, therefore, becomes stiffer. The figure of compensation in such cases involves a good deal of guesswork. In cases, where parents are claimants, relevant factor would be age of parents.” 30. In DELHI TRANSPORT CORPORATION v. SUDERSHAN YADAV [9], the accident occurred on 10-05-1980 (28 years ago). The deceased had completed B.E. Mechanical Engineering and was studying MBA second year. The Tribunal assessed the earning capacity of the deceased at Rs.2,000/- per month. The Delhi High Court, holding that the Tribunal has not taken into account the future prospects of the deceased and that he was a bright student, has taken the income of the deceased at Rs.3,000/- per month and the loss of contribution at Rs.2,.000/- per month. 31. I n HUKMABATI v. PUNJAB ROADWAYS [10], the Himachal Pradesh High Court while considering the case of the deceased, who was aged about 15 years and studying 10th class, estimated the future earnings of the deceased at Rs.5,000/- per month. The monetary loss to the mother was taken