CMA/2758/2000 of V.RAMANAMMA Vs D.APPA RAO AND 2 OTHERS on 24 December 2009

ORDER :

Both these appeals, under Section 173 ofthe Motor Vehicles Act, 1988, arise out of the judgmentrendered by the II Addl. District Judge, Visakhapatnam inOP No. 1399 of 1998. CMA No. 2547 of 2000 ispreferred by the APSRTC, henceforth, referred to as`corporation’ aggrieved by the quantum of compensationawarded to the claimants. CMA No. 2758 of 2000 hasbeen preferred by the claimants aggrieved by the denialof a sum of Rs.1,66,000/- in the process. Hence boththese appeals were heard together. The facts that arerelevant for the present inquiry are these :- On 10.10.1998, the deceased was returningfrom his office on his bicycle and when he reached justabout Kapprada junction of Visakhapatnam city, a busbearing Registration No. AP 10Z 5193, belonging toPaderu Depot of the corporation came in a rash andnegligent manner from behind his back and hit him thuscausing an accident. The deceased fell on to his left sideand the bus proceeded for a little distance away andstopped. Due to the impact, the deceased sustained agrevious head injury. One of his colleagues immediatelyremoved him to a nearby private hospital for securingmedical attention and subsequently he has been shiftedto King George Hospital, Visakhapatnam, where he succumbed to the injuries at about 3.30 AM the next day. The deceased was working as a semi skilled labour inNaval Dock Yard, a Ministry of Defence Establishment atVisakhapatnam. The two claimants in the OP are thewife and minor daughter of the deceased. To the OP, thedriver of the offending bus has been impleaded as the 1[st]respondent, while the Depot Manager was impleaded asthe 2[nd] respondent and the General Manager of theCorporation as the 3[rd] respondent. The 1[st] and 2[nd]respondents remained ex parte and on behalf of the 3[rd]respondent the OP is contested. It is specificallyasserted that while the bus driver was driving the buswhich is proceeding towards Paderu, when it reachednear Kapprada junction, the driver noticed that one of thetwo cyclists who are proceeding ahead of his bus startedpeddaling to his right and in order to avoid any collisionwith the said cyclist, the driver of the bus had swerved thebus further to the right side and applied the brakes. But,in spite of the same, the cyclist was hit by the bumper ofthe bus and that the accident had been caused whollydue to the negligence of the cyclist. More importantly, itwas further asserted that the bus driver had taken theinjured to the hospital and that he had noticed alcoholicsmell emanating from the mouth of the accident victim.

On behalf of the claimants, the 1[st] claimantwife of the deceased was examined as PW1 and aneyewitness as PW2. The claimants also got marked

Exs.A1 to A5, while the driver and conductor of the bushave been examined as RW1 and 2 and the roughsketch of the accident location has been got marked asEx.B1. The claimants had laid a claim totally in a sum ofRs.5 lakhs. PW1 has deposed that the deceased wasonly 45 year old at the time of his death and that he wasworking with the Naval Dock Yard. He is a semi skilledlabour and that he was earning substantial amounts byundertaking private job work as an electrician also. PW2is an eyewitness to the accident. He was working in thesame Naval Dock Yard where the deceased was alsoworking. He has deposed that after the duty hours areover on 10.10.1998 at 2 PM, he was also returning homefrom duty and that the deceased Manikya Rao wasproceeding in front of him on his cycle and that theoffending bus which came from behind, without blowingits horn, dashed against the cycle of the deceased anddue to the impact of the accident, the deceased hassustained a grevious head injury and that the deceasedhas been initially shifted to a nearby private hospital. From there he was later on shifted in an Auto to KingGeorge Hospital for securing better medical attention andthat the deceased has succumbed to the injuriesbetween 3 and 4 AM the next day. PW2 has alsodeposed that the age of retirement on superannuation inNaval Dock Yard is 60 years. Ex.A1 is the true copy ofthe FIR registered by the police. Ex.A2 is the true copy of the vehicle inspection report of the Motor VehicleInspector. Ex.A3 is the true copy of the post mortemcertificate. Ex.A4 is the salary slip of the deceased forthe month of September, 1998. Ex.A5 is the dependencycertificate of the claimant/legal heirs of the deceased. RW1 is none other than the 1[st] respondent – driver of theoffending bus. Though he did not contest the OP, he hasbeen examined on behalf of the corporation. He hasdeposed that he has started the journey to Paderu fromRTC complex at about 1.30 PM and that on the NationalHighway No.5 when the bus was just about to reachKapprada junction, he had noticed two cyclistsproceeding ahead of his bus and that one of the cyclistssuddenly turned towards the right without any indicationor providing any signal, obviously with a view to crossover the road. The bus driver with an attempt to save anycollision swerved the bus to the extreme right side of theroad and in spite of the same the bumper of the bus hadhit the cyclists. The driver deposed that he has stoppedthe bus immediately and noticed that the victim was in afully drunken state and that explains, his conduct forimproper way of crossing over a national highway. Hehas also deposed that the victim has been shifted to KingGeorge Hospital in an Auto. RW1 had asserted that theaccident had occasioned only due to the negligence onthe part of the deceased – cyclist and not due to anynegligence on the part of the bus driver. RW2, theconductor of the bus has deposed that he was sitting in the single seat that is provided on the corresponding leftside to the seat of the bus driver and that he had noticedthe two cyclists who are proceeding ahead of the bus atabout Kapparada junction and that one of them had takento the right side of the road suddenly and thus he cameinto the conflict zone of the onward journey of the busand in spite of taking necessary precautions by the driverby swerving the bus to the extreme right side of the roadand applying brakes, the collision could not be avoidedand that the accident had occasioned only due to thenegligence of the cyclists. RW2, the conductor had alsoasserted that the cyclist was noticed to be in a drunkenstate.

Both the witnesses RW1 and RW2 haveadmitted that on the National Highway No.5, 14 ft roaddivider has been constructed to segregate motor vehicletraffic moving in opposite directions. Therefore, motorvehicles utilize the road space exclusively for a uni-direction drive. The Tribunal did not place much relianceupon the testimonies of RWs 1 and 2. It had returned afinding that the accident in question has been causedwholly due to the rash and negligent manner of driving ofthe bus by the 1[st] respondent – driver. The Tribunal hadalso found fault that without contesting the OP, the 1[st]respondent is getting into the witness box to orally statehis version of the incident. More importantly, the Tribunalhad not found any valid or justifiable reasons for RW2 –

conductor to be sitting in the seat provided on thecorresponding left side of the bus instead of his normaland regular seat, which is provided near the door of thebus. The Tribunal has also found that an independentwitness, such as a passenger traveling in the bus shouldhave been examined to establish that there is nonegligence on the part of the 1[st] respondent – driver ofthe bus or at least to vouch for the precautionary swerveto the right side said to have been taken by RW1 and forthese failures an adverse inference has been drawnagainst the corporation.

The Tribunal has placed reliance uponEx.A3, copy of the post mortem examination report andfound that the deceased was 53 year old. Placingreliance upon Ex.A4 – salary slip of the deceased for themonth of September,1998 which was the immediatelypreceding month when the accident took place, theTribunal had arrived at the annual contribution of thedeceased to his family to be Rs.45,600/-. It had appliedmultiplier `7’ and arrived at the quantum of compensationpayable for the loss of life and earnings at Rs.3,19,200/-. The 1[st] claimant had also been awarded a sum ofRs.15,000/- towards loss of consortium and thus workedout the total quantum of compensation payable asRs.3,44,000/-.

As noticed supra, the claimants areaggrieved by the denial of the balance compensation amount of Rs.1,66,000/- while the corporation isaggrieved that a high amount of compensation ofRs.3,44,000/- has been ordered to be paid and with ahigh rate of interest of 12%.

Learned Standing Counsel for theCorporation had attacked the findings recorded by theTribunal, characterizing the same as the result ofimproper appreciation of the oral and documentaryevidence. Further, the Tribunal had unjustly ignored thecontention canvassed on behalf of the corporation that itis the cyclist who has contributed wholly to the accidentby suddenly taking a right turn with a view to cross overto the other half of the National Highway No.5 andtherefore it is the cyclist who came into the conflict zoneand consequently the Tribunal should have held that heis solely responsible for the accident and the corporationcannot be mulched with any accountability by way ofpayment of compensation. On the contra, the learnedcounsel for the claimants/appellants in CMA No. 2758 of2000 urges that that PW2 is an eye-witness to theaccident from a very close quarters and there is nomaterial to discredit his testimony. Further, theCorporation having taken an unholy plea that the victimwas in a drunken state, at the time of accident, had notbothered to lead any evidence to establish such a plea. Further, the very basis of the case set up by thecorporation depended upon this fact and for the failure ofthe corporation to lead any evidence, much less establish such a fact, it shall not be permitted to urge that it is thecyclist who has caused and contributed to the accident.Three questions of importance forconsideration.

(1) If the cyclist had contributed wholly tothe accident by his sudden movementon to the right side of the road and thuscoming into the conflict zone, can thecorporation be held accountable andliable to compensate his legal heirs?the accident by his sudden movementon to the right side of the road and thuscoming into the conflict zone, can thecorporation be held accountable andliable to compensate his legal heirs?(2)Was the material on record justify thefinding that the accident had beencaused wholly due to rash andnegligent driving of the bus driver?finding that the accident had beencaused wholly due to rash andnegligent driving of the bus driver?(3)Is the quantum of compensationpayable, if at all is to be paid, correctlycalculated by the Tribunal?payable, if at all is to be paid, correctlycalculated by the Tribunal?

The facts which have been undoubtedlyestablished on record are these :

That the accident had occasioned at about2.30 in the afternoon on 10.10.1998, which is aSaturday. It is further established that the deceased wasreturning after performing his duties at the Naval DockYard, a Ministry of Defence Establishment atVisakhapatnam. It is further established that PW2 was acolleague of the deceased working in the same NavalDock Yard and he was also returning from duty. BothRW1 and RW2 had categorically deposed that twocyclists were noticed as proceeding ahead of the buswhen it was just about to reach Kapparada junction onNational Highway No.5. Ex.A4 is a salary slip of the

deceased for the immediately preceding month ofSeptember 1998. Therefore, there is no room or scope todoubt that the deceased was an employee of the NavalDock Yard and that he was returning on the fateful dayafter performing his duties till 2 PM. The accident hadoccasioned at around 2.30 PM. Therefore, the plea thatthe deceased cyclist, under the influence of alcoholicbeverage had contributed to the accident is a mysteriouselement, which is sought to be introduced into the caseby the corporation. Ex.A3 is the post mortemexamination report of the deceased issued by the KingGeorge Hospital, Visakhapatnam. After having noted theexternal and internal injuries, Ex.A3 noted as under :Stomach contained 100 ml of bile stained liquid. No suspicious smell noted. Intestines – Normal. Adrenal– Normal. Pelvic walls – Normal. Urinary bladder –contained 200 ml of urine, normal.

Dr.N.V.S.L.Narasimham, Professor of ForensicSurgery of Andhra Medical College had opined that thedeceased would appear to have died of head injury,fracture of skull, internal haemorrhage and injury tobrain. The presence of any intoxicating substane has notbeen noticed. It is manifestly clear from the analysis ofthe contents of Ex.A3 – post mortem report that thedeceased was not found to be under the influence ofalcohol. Even if one were to assume that the postmortem examination having been conducted nearly 24hours later to the time of the accident, presence of small quantities of alcohol can be ruled out, the corporation hasnot moved its little finger to summon the case sheet fromKing George Hospital, which is a teaching generalhospital attached to Andhra Medical College. The casesheet would have recorded and noted the physical stageof the patient at the time of admission. It is not in disputethat the deceased had undergone treatment for nearly 10to 12 hours and thereafterwards he died.

This apart PW2 has also deposed thatimmediately after the accident, the victim has been takento a nearby private hospital for securing medical attentionand that thereafter wards he has been shifted to KingGeorge Hospital. In fact, Ex.A1, FIR also noted the saidfact. Therefore, the assertion of RW1 that it is he whohas shifted the victim to King George Hospital does notbear any ring of truth. If it were truly RW1, the driver ofthe bus who has shifted the victim to the hospital, hewould have also reported to the police as well as to hissuperior officers of the corporation about the accident. No such material has been brought on record. Theexplanation of PW2 is quite probable and in tune withnormal human conduct. He deposed that the victim hadbeen taken to a nearby private nursing home where hehas been given first aid and realizing that the victimneeded better medical attention he has been shifted in anauto to King George Hospital. It is quite natural, as anormal instinct that any accident victim would be rushed to the nearest hospital first for securing medical attention. He would only be shifted to a hospital with superiorfacilities later on, depending upon the assessment ofsuch necessity. Therefore, the finding of the Tribunal,that the depositions of RWs 1 and 2 are not inspiringconfidence for acceptance, does not appear to be faultywarranting any interference.

Every fatal accident involving buses of thecorporation is required to be investigated upon. All themore so for, the corporation does not get their busesinsured. No other official of the corporation has beenexamined other than the bus driver and the conductor. No material by way of investigation report has been gotmarked. Section 114 of the Evidence Act enables aCourt to presume the existence of any fact which it thinksit likely to have happened, regard being had to thecommon course of natural events, human conduct andpublic and private business, in their relation to the facts ofa particular case. Further the illustration (g) providedunder Section 114 offers greater depth to understand theamplitude of said Section. Illustration (g) reads thus:

“that evidence which could be and is notproduced, would, if produced, be unfavourable tothe person who withholds it.”

Let us consider now the theory set up bythe corporation and sought to be established through theoral evidence of RWs 1 and 2. One of the two cyclistsproceeding ahead of the bus is alleged to have turned to his right without any indication whatsoever and withoutregard being had to the motor vehicle traffic that followson the road. The respondents marked Ex.B1. It’s arough sketch of the accident site. The National HighwayNo.5 has been separated at its center by a 14 ft wideroad divider. Thus the upward and downward movingmotor vehicle traffic is completely separated by the roaddivider. Each half of the road is found to be 31 ft wide. Ifthe 1[st] respondent – bus driver did not anticipate that oneof the cyclists is likely to turn to his right suddenly, thenone can try to make an assessment with regard to thepoint of impact. From the narration of facts by PW2, RWs1 and 2, it is clear that the two cyclists were proceedingahead of the bus. Obviously the speed at which a 50year old person would be cycling at about the afternoontime, that too after performing duty, could be considerablyvery slow. The bus in question was not a city bus. It runsbetween Visakhapatnam city and Paderu, a ruraldestination in the district. It is therefore reasonable toinfer that there being no necessity to pick up anypassengers at about the accident site, it must have beentraveling at a relatively higher speed of at least 40km/hour speed. If a cyclist proceeding on the left side ofa 30 ft road were to suddenly turn to his right, the impactcould have been almost instantaneous the moment heturns to his right. Far from that RWs 1 and 2 havedeposed that they have noticed one of the two cycliststurning suddenly to his right and that RW1 has tried to

Analysis

take the bus to the further extreme right side of the roadand since there is a road divider he had difficulty to movethe vehicle beyond a particular point and that in spite ofhis applying brakes he could not avoid the collision. Thisnarrative gives an impression that there was at least 10 to15 seconds time available for the bus driver to avoid thecollision. If in spite of applying brakes even afterswerving to the extreme right of the road, the bus couldnot be halted, immediately, it implies that 10 to 15seconds time was not sufficient enough for themomentum of the vehicle to be brought to a near halt. Itis clear therefore that the bus was traveling at more than40 km/hour speed and the bus driver failed to anticipatequickly the method of avoiding the collision. If a cyclist ismoving to the right of the road, an attempt should havebeen made by the bus driver to caution him not to movein that direction, by blowing the horn. Both RWs 1 and 2did not utter a word that attempts have been made by thedriver to caution the cyclists not to move to their right byway of blowing the horn of the bus. On the contra, PW2has specifically spoken that the bus did not warn orcaution the cyclists at all by blowing its horn. It is a clearcase where the 1[st] respondent – bus driver has failed toexercise reasonable degree of care and cautionexpected of him. He has also failed to drive the busemploying the necessary degree of skill. Therefore, he issquarely responsible for causing the accident. The finding recorded by the Tribunal in this regard therefore isjustified. No exception can be taken thereto. When onceit is to be held that the accident had been caused whollydue to rash and negligent manner of driving of the bus,then the liability to compensate the accident victim liesonly with the appellant corporation.

The relevant principles for fixation ofcompensation for accident victims, which has since beenintroduced as a social security measure into the StatuteBook - has fallen for consideration in the following case. The Supreme Court had set out the underlyingjurisprudential principles in the following manner.

SARLA DIXIT vs. BALWANTYADAV

S. B. MAJMUDAR, J. - 1996-AIR(SC)-0-1274 , 1996-SCC-3-179 ,1996 (TLS)15989

In this connection reliance wasplaced on two decisions of thisCourt. In the case of Hardeo Kaur v.Rajasthan State TransportCorporation, (1992) 2 SCC 567 :(1992 AIR SCW 1213),forcomputing compensation availableto the claimant-dependents ofdeceased Major in the military, whodied at the age of 39 because ofvehicular accident the Court adoptedmultiplier of 24. Strong reliance wasplaced on the said decision foradopting that multiplier. In our viewon the peculiar facts of that case theCourt had adopted multiplier of 24. In

paragraph 10 of the Report nospecial reasons were assigned foradopting that multiplier. However, ascientific basis for arriving at propermultiplicand and multiplier issupplied by a latter decision of thisCourt in the case of GeneralManager, Kerala State RoadTransport Corporation,Trivandrum v. Susamma Thomas(Mrs.), (1994) 2 SCC 176 : (1994AIR SCW 1356 ). A Division Benchof this Court consisting of M. N.Venkatachaliah, J. (as his Lordshipthen was) and G. N. Ray, J.considered in details appropriatemethod for arriving at propermultiplicand and multiplier in fatalaccident cases in the light of decidedcases in this country as well as inEngland and laid down principles forcomputing compensation in motorvehicle accident cases. Inparagraphs 12 and 13 of the Reportthe following pertinent observationswere made"there were two methods adopted fordetermination and for calculation ofcompensation in fatal accidentactions, the first the multipliermentioned in Davies case (1942 AC601), and the second in Nance v.British Columbia Electric RailwayCo. Ltd. , (1951 AC 601 ).The multiplier method involves theascertainment of the loss ofdependency or the multiplicandhaving regard to the circumstancesof the case and capitalizing themultiplicand by an appropriatemultiplier. The choice of themultiplier is determined by the age of the deceased (or that of theclaimants whichever is higher) andby the calculation as to what capitalsum, if invested at a rate of interestappropriate to a stable economy,would yield the multiplicand by wayof annual interest. In ascertainingthis, regard should also be had to thefact that ultimately the capital sumshould also be consumed-up overthe period for which the dependencyis expected to last. "Thereafter on consideration of casesdecided by English Courts and alsoobservations found in Halsbury'sLaws of England in Vol. 34, para98, the Court laid down the test foradopting the multiplier in such casesin paragraphs 16 and 17 of theReport as under : (1994 AIR SCW1356 at PP. 1362 and 1363 )."it is necessary to reiterate that themultiplier method is logically soundand legally well-established. Thereare some cases which haveproceeded to determine thecompensation on the basis ofaggregating the entire futureearnings for over the period the lifeexpectancy was lost, deducted apercentage therefrom towardsuncertainties of future life and awardthe resulting sum as compensation.This is clearly unscientific. Forinstance, if the deceased was, say25 years of age at the time of deathand the life expectancy is 70 years,this method would multiply the lossof dependency for 45 years - virtuallyadopting a multiplier of 45 - and evenif one-third or one-fourth is deductedtherefrom towards the uncertainties

of future life and for immediate lumsum payment, the effective multiplierwould be between 30 and 34. This iswholly impermissible. We are, awarethat some decisions of the HighCourts and of this Court as well havearrived at compensation on somesuch basis. These decisions cannotbe said to have laid down a settledprinciple. They are merely instancesof particular awards in individualcases. The proper method ofcomputation is the multiplier-method.Any departure, except in exceptionaland extraordinary cases, wouldintroduce inconsistency of principle,lack of uniformity and an element ofunpredictability for the assessment ofcompensation. Some judgments ofthe High courts have justified adeparture from the multiplier methodon the ground that Section 110-B ofthe Motor Vehicles Act. 1939, insofaras it envisages the compensation tobe 'just', the statutory determinationof a 'just' compensation wouldunshackle the exercise from anyrigid formula. It must be borne inmind that the multiplier method is theaccepted method of ensuring a 'just'compensation which will make foruniformity and certainly of theawards. We disapprove thesedecisions of the High Courts whichhave taken a contrary view. Weindicate that the multiplier method isthe appropriate method, a departurefrom which can only be justified inrare and extraordinary circumstancesand very exceptional cases.The multiplier represents the numberof years' purchase on which the loss of dependency is capitalised. Takefor instance a case where annualloss of dependency is Rs. 10,000. Ifa sum of Rs. 1,00,000 is invested at10 Per Cent annual interest, theinterest will take care of thedependency, perpetually. Themultiplier in this case works out to10. If the rate of interest is 5 Per Centper annum and not 10 Per Cent thenthe multiplier needed to capitalisethe loss of the annual dependency atRs. 10,000 would be 20. Then themultiplier, i. e. , the number of year'spurchase of 20 will yield the annualdependency perpetually. Thenallowance to scale down themultiplier would have to be madetaking into account the uncertaintiesof the future, the allowances forimmediate lump sum payment, theperiod over which the dependency isto last being shorter and the capitalfeed also to be spent away over theperiod of dependency is to last etc.Usually in English Courts theoperative multiplier rarely exceeds16 as maximum. This will comedown accordingly as the age of thedeceased person (or that of thedependants, whichever is higher)goes up. "

So far as the adoption of the propermultiplier is concerned, it wasobserved that the future prospects ofadvancement in life and careershould also be sounded in terms ofmoney to augment the multiplicand.While the chance of the multiplier isdetermined by two factors, namely,the rate of interest appropriate to astable economy and the age of the

deceased or of the claimantwhichever is higher, theascertainment of the multiplicand is amore difficult exercise. Indeed, manyfactors have to be put into the scalesto evaluate the contingencies of thefuture. All contingencies of the futureneed not necessarily be baneful.Applying these principles to the factsof the case before this Court in theaforesaid case it was observed thatthe deceased in that case was of 39years of age. His income was Rs.1,032. 00 per month. He was more orless on a stable job and consideringthe prospects of advancement infuture career the proper higherestimate of monthly income of Rs.2,000. 00 as gross income to betaken as average gross futureincome of the deceased anddeducting at least 1/3rd therefrom byway of personal living expenses, hadhe survived the loss of dependency,could be capitalised by adopting themultiplicand of Rupees 1,400/- permonth or Rs. 17,000.00 per year andthat figure could be capitalised byadopting multiplier of 12 which wasappropriate to the age of deceasedbeing 39 and to that amount wasadded the conventional figure ofRupees 15,000/- by way of loss ofconsortium and loss of estate.Adopting the same scientificyardstick as laid down in theaforesaid judgment; the computationof compensation in the present casecan almost be subjected to a wellsettled mathematical formula.

In Supe Dei v. National Insurance Co.

Ltd.[[1]],the Supreme Court held as under :

(8) While considering the question ofjust compensation payable in a caseall relevant factors including theappropriate multiplier are to be keptin mind. The position is well settledthat the second schedule undersection 163-A to the Act which givesthe amount of compensation to bedetermined for the purpose of claimunder the section can be taken as aguideline while determining thecompensation under section 166 ofthe Act. In that view of the matter,there is no reason why multiplier of17 should not be taken as theappropriate multiplier in the case.( 9 ) COMING to the question ofinterest this court in the case ofKaushnuma Begum (Smt.) andOrs. v. New India Assurance co.Ltd. and Ors. reported in [IT 2001(1) SC 375] observed that 9% is theappropriate rate of interest to beawarded and that rate is beingapplied in motor accidentcompensation cases.

It becomes clear that even with regard tothe proceedings, which have been initiated underSection 166, the multiplier method tabulated andincorporated in the Second Schedule to the Act offersexcellent guidance. For the age group of 50 5o 55, themultiplier fixed under the Second Schedule is `11’. But,however, in the instant case, the Tribunal has applied

multiplier `7’. No specific reasons have been spelt out asto why multiplier `7’ has been applied in the instant case. The deceased was working as a semi-skilled labour inthe Naval Dock Yard, a Ministry of DefenceEstablishment. The judicial fact which can be taken noteof is that the age of superannuation for the Government ofIndia servants, post 1996, is `60’ years. Obviouslybearing this in mind, perhaps the Tribunal had appliedthe multiplier `7’ as it came to conclusion that the age ofthe deceased was 53 years. The prospects of hisprogression in the service as well as improvement ofearning capacity have obviously not taken note of by theTribunal. Therefore, the Tribunal should have appliedmultiplier `11’ while computing the quantum ofcompensation. Ex.A5 is the pay slip of the deceased forthe previous month. The Tribunal had not properlynoticed the contents thereof. The deceased had receivedcertain overtime allowance arrears during the month ofSeptember 1998. Therefore, such amounts cannot beassumed to be regular and monthly payments. What isliable to be received by an employee are the salary andallowances fixed on regular basis. Requirement to renderovertime service and getting remunerated therefore is asan occasional occurrence. It cannot be assumed to be aregular feature of every employment. Thus taking intoaccount and consideration and also the prospects that ofhis further progression into account, his monthlycontribution to the family could have been taken as Rs.3,000/- and consequently his annual contributionshould have been taken as Rs.36,000/-. Applying themultiplier of `11’ thereto, even though the OP is movedunder Section 166, but not under Section 163A, the totalquantum of compensation payable towards loss of estatewould work out to Rs.3,96,000/-. The Tribunal hasawarded a sum of Rs.15,000/- towards loss of consortiumto the 1[st] claimant, wife of the deceased. The 2[nd]claimant is a minor daughter. She was denied the benefitand advantage of parental guidance due to the untimelydemise of her father due to the accident. She also shouldhave been compensated in a sum of Rs.10,000/-. Sincethe victim suffered fracture of his skull and injury to hisbrain, he may not have perceived the pain and sufferingdue to the injuries. Otherwise, he should have beencompensated for the pain and suffering as well.

For the reasons stated above, the appealpreferred by the RTC is dismissed. The appeal preferredby the claimant is allowed to the extent indicated supraby substituting the amount of compensation orderedsupra. The parties do bear their respective costs.

-------------------------------------------- NOOTY RAMAMOHANA

RAO,J

KnkDt :24.12.2009

[1]I(2005) ACC 63 (SC)