S.J Mukhopadhaya, J.— Delay condoned. Leave granted. These appeals are directed against the judgment of the Division Bench of the Kerala High Court dated 12-4-2007 in Oriental Insurance Co. Ltd. v. Chinnamma Misc. First Appeal No. 1162 of 2001 whereby compensation awarded to the claimants by the Motor Accidents Claims Tribunal, Kottayam (hereinafter referred to as “the Tribunal”, for short) was enhanced and the liability for the accident was apportioned at the ratio of 50:50.
2. The facts that lead to the present case are as follows: on 16-4-1990 a motor accident took place on K.K Road, near Pampadi Mavell Store, whereby the car driven by one Joy Kuruvila (the deceased) had a head-on collision with a bus that came from the opposite direction. Joy Kuruvila sustained serious injuries and died on the way to the hospital. His four dependants, namely, Chinnamma Joy (widow of the deceased), Jiju Kuruvila aged 14 years, Jaison Kuruvila aged 11 years (2 minor children of the deceased) and Grace Kuruvila (mother of the deceased) aged 85 years filed a joint application under Sections 140 and 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”), claiming compensation of Rs 57,25,000 towards following heads:
(a)
Funeral expenses
Rs
25,000
(b)
Compensation for pain and suffering
Rs
1,00,000
(c)
Compensation on account of death of the deceased and consequent loss of income to the petitioners
Rs
54,00,000
(d)
Compensation for the loss of consortium to the first petitioner
Rs
1,00,000
(e)
Loss of paternal love, affection and guidance to the second and third petitioners
Rs
1,00,000
Total:
Rs
57,25,000
3. At the time of accident, Joy Kuruvila was about 45 years of age and was working as a Manager in Freeman Management Corporation, New York Branch in the United States of America for more than nine years and was receiving a monthly salary of 2500 US dollars equivalent to Rs 43,100. He was provided with quarters by the employer and was residing there along with his wife. Joy Kuruvila used to give Rs 30,000 per month to his wife for the household expenses and savings after meeting his personal expenses. He was healthy, energetic, otherwise had longevity of life and could have continued in service up to the age of 65 years as per service conditions i.e for another 20 years.
4. The first claimant is the wife, second and third claimants are the children and the fourth claimant was the mother of the deceased. P.C Kurian, who was the third respondent, was driving the bus at the time of the accident and the first respondent, Kunjujamma Mohan was the bus owner. It was alleged that the accident occurred solely due to rash and negligent driving of the bus driver P.C Kurian and the vehicle had valid insurance with Oriental Insurance Co. Ltd. Based on such facts, the claimants claimed a sum of Rs 57,25,000 as compensation with 18% interest and costs.
5. In spite of notice, the bus owner Kunjujamma Mohan and the driver P.C Kurian did not appear before the Tribunal and the High Court and had not denied the allegations.
6. Oriental Insurance Co. Ltd. (hereinafter referred to as “the Insurance Company”) in its written statement admitted the existence of the valid policy of Bus No. KRK 3057 in the name of Kunjujamma Mohan but denied the allegation of rash and negligent driving on the part of the bus driver P.C Kurian in causing the accident. The age, occupation, monthly income of the deceased and the claim of compensation were also disputed. According to the Insurance Company, the accident occurred due to rash and negligent driving of the deceased.
7. The evidence consisting of testimony of PW 1 to PW 3 and Ext. A-1 to Ext. 8 and Exts. B-1 to B-3 were brought on record.
8. During the pendency of the claim before the Tribunal, the fourth claimant, Grace Kuruvila, mother of the deceased expired; the rest of the claimants remained as legal heirs of the deceased. The second and third claimants, children of the deceased, who were minor at the time of filing the claim case attained majority during the pendency of the case and were declared as major.
9. The Tribunal after hearing the parties and recording the evidence held that the accident was caused due to rash and negligent driving of the bus driver. Considering the contributory negligence on the part of the deceased the Tribunal apportioned the liability for the accident in the ratio of 75:25 between the driver of the bus and the deceased. It assessed compensation to be Rs 18,38,500 and after deducting 25% towards contributory negligence on the part of the deceased, awarded a sum of Rs 13,80,625 with 12% interest for payment in favour of the claimants.
10. The High Court affirmed the view of the Tribunal regarding rash and negligent driving both on the part of the bus driver and the deceased, but apportioned the contributory negligence @ 50:50 for payment of compensation. The High Court held that the Tribunal wrongly fixed Rs 10,000 as the monthly contribution by the deceased to the family and observed that even if ⅓rd was deducted towards personal expenses of the deceased, more than 1600 US dollars could be taken as dependency benefit. However, while determining the compensation, the High Court took the figure of 1500 US dollars as the dependency benefit. The exchange rate as was prevailing on the date of filing of the claim petition i.e April 1990 was taken into consideration based on Ext. A-7 and worked out the contribution to the family was calculated to be Rs 25,950 per month. On the basis of such contribution, the High Court assessed the total compensation at Rs 47,09,500 and ordered to pay 50% of the amount i.e Rs 23,45,750 with interest in favour of the claimants.
11. The claimants have challenged the determination made by the High Court mainly on the following terms:
(i) The foreign exchange rate as was prevailing at the time of award i.e May 1993, and shown in Ext. A-8, ought to have been taken into consideration for calculation of compensation.
(ii) In absence of any evidence relating to negligence on the part of the deceased and in view of the direct evidence on record, both the Tribunal and the High Court erred in holding that there was negligence on the part of the deceased.
12. In this case, the questions which arise for consideration are:
(i) Whether the foreign currency amount has to be converted into the currency of the country on the basis of exchange rate as on the date of filing claim petition (April 1990) or as on the date of determination (May 1993)?
(ii) Whether there was any contributory negligence on the part of the deceased Joy Kuruvila? and
(iii) Whether compensation awarded is just and proper?
13. The question as to whether the proper date for fixing rate of exchange at which the foreign currency amount is to be converted into the currency of the country, for determination of amount payable to a claimant/plaintiff fell for consideration before this Court in Forasol v. ONGC 1984 Supp SCC 263 wherein this Court observed as follows:
“24. In an action to recover an amount payable in a foreign currency, five dates compete for selection by the Court as the proper date for fixing the rate of exchange at which the foreign currency amount has to be converted into the currency of the country in which the action has been commenced and decided. These dates are:
(1) the date when the amount became due and payable;
(2) the date of the commencement of the action;
(3) the date of the decree;
(4) the date when the Court orders execution to issue; and
(5) the date when the decretal amount is paid or realised.
25. In a case where a decree has been passed by the Court in terms of an award made in a foreign currency a sixth date also enters, the competition, namely, the date of the award. The case before us is one in which a decree in terms of such an award has been passed by the Court.”
14. Taking into consideration the claim as was made in the said case this Court held as follows: (Forasol case 1984 Supp SCC 263)
“70. It would be convenient if we now set out the practice, which according to us, ought to be followed in suits in which a sum of money expressed in a foreign currency can legitimately be claimed by the plaintiff and decreed by the court. It is unnecessary for us to categorise the cases in which such a claim can be made and decreed. They have been sufficiently indicated in the English decisions referred to by us above. Such instances can, however, never be exhausted because the law cannot afford to be static but must constantly develop and progress as the society to which it applies, changes its complexion and old ideologies and concepts are discarded and replaced by new. Suffice it to say that the case with which we are concerned was one which fell in this category. In such a suit, the plaintiff, who has not received the amount due to him in a foreign currency, and, therefore, desires to seek the assistance of the court to recover that amount, has two courses open to him. He can either claim the amount due to him in Indian currency or in the foreign currency in which it was payable. If he chooses the first alternative, he can only sue for that amount as converted into Indian rupees and his prayer in the plaint can only be for a sum in Indian currency. For this purpose, the plaintiff would have to convert the foreign currency amount due to him into Indian rupees. He can do so either at the rate of exchange prevailing on the date when the amount became payable for he was entitled to receive the amount on that date or, at his option, at the rate of exchange prevailing on the date of the filing of the suit because that is the date on which he is seeking the assistance of the court for recovering the amount due to him. In either event, the valuation of the suit for the purposes of court fees and the pecuniary limit of jurisdiction of the court will be the amount in Indian currency claimed in the suit. The plaintiff may, however, choose the second course open to him and claim in foreign currency the amount due to him. In such a suit, the proper prayer for the plaintiff to make in his plaint would be for a decree that the defendant do pay to him the foreign currency sum claimed in the plaint subject to the permission of the authorities concerned under the Foreign Exchange Regulation Act, 1973, being granted and that in the event of the foreign exchange authorities not granting the requisite permission or the defendant not wanting to make payment in foreign currency even though such permission has been granted or the defendant not making payment in foreign currency or in Indian rupees, whether such permission has been granted or not, the defendant do pay to the plaintiff the rupee equivalent of the foreign currency sum claimed at the rate of exchange prevailing on the date of the judgment. For the purposes of court fees and jurisdiction the plaintiff should, however, value his claim in the suit by converting the foreign currency sum claimed by him into Indian rupees at the rate of exchange prevailing on the date of the filing of the suit or the date nearest or most nearly preceding such date, stating in his plaint what such rate of exchange is. He should further give an undertaking in the plaint that he would make good the deficiency in the court fees, if any, if at the date of the judgment, at the rate of exchange then prevailing, the rupee equivalent of the foreign currency sum decreed is higher than that mentioned in the plaint for the purposes of court fees and jurisdiction. At the hearing of such a suit, before passing the decree, the court should call upon the plaintiff to prove the rate of exchange prevailing on the date of the judgment or on the date nearest or most nearly preceding the date of the judgment. If necessary, after delivering judgment on all other issues, the court may stand over the rest of the judgment and the passing of the decree and adjourn the matter to enable the plaintiff to prove such rate of exchange. The decree to be passed by the court should be one which orders the defendant to pay to the plaintiff the foreign currency sum adjudged by the court subject to the requisite permission of the authorities concerned under the Foreign Exchange Regulation Act, 1973, being granted, and in the event of the foreign exchange authorities not granting the requisite permission or the defendant not wanting to make payment in foreign currency even though such permission has been granted or the defendant not making payment in foreign currency or in Indian rupees, whether such permission has been granted or not, the equivalent of such foreign currency sum converted into Indian rupees at the rate of exchange proved before the court as aforesaid. In the event of the decree being challenged in appeal or other proceedings and such appeal or other proceedings being decided in whole or in part in favour of the plaintiff, the appellate court or the court hearing the application in the other proceedings challenging the decree should follow the same procedure as the trial court for the purpose of ascertaining the rate of exchange prevailing on the date of its appellate decree or of its order on such application or on the date nearest or most nearly preceding the date of such decree or order. If such rate of exchange is different from the rate in the decree which has been challenged, the court should make the necessary modification with respect to the rate of exchange by its appellate decree or final order. In all such cases, execution can only issue for the rupee equivalent specified in the decree, appellate decree or final order, as the case may be. These questions, of course, would not arise if pending appeal or other proceedings adopted by the defendant the decree has been executed or the money thereunder received by the plaintiff.”
15. In Renusagar Power Co. Ltd. v. General Electric Co. 1994 Supp (1) SCC 644 a similar question came up for consideration. In the said case, a foreign award was under consideration and the Arbitral Tribunal awarded the same in US dollars with interest. In the said case relying on the decision of this Court in Forasol 1984 Supp SCC 263, it was held as follows: (Renusagar Power Co. Ltd. case 1994 Supp (1) SCC 644)
“143. In accordance with the decision in Forasol case 1984 Supp SCC 263 the said amount has to be converted into Indian rupees on the basis of the rupee-dollar exchange rate prevailing at the time of this judgment. As per information supplied by Reserve Bank of India, the Rupee-Dollar Exchange (Selling) Rate as on 6-10-1993 was Rs 31.53 per dollar.
146. In the result, CAs Nos. 71 and 71-A of 1990 and CA No. 379 of 1992 are dismissed and the decree passed by the High Court is affirmed with the direction that in terms of the award an amount of US $12,333,355.14 is payable by Renusagar to General Electric out of which a sum of US $6,289,800.00 has already been paid by Renusagar in discharge of the decretal amount and the balance amount payable by Renusagar under the decree is US $6,043,555.14 which amount on conversion in Indian rupees at the rupee-dollar exchange rate of Rs 31.53 per dollar prevalent at the time of this judgment comes to Rs 19,05,53,293.56. Renusagar will be liable to pay future interest @ 18% on this amount of Rs 19,05,53,293.56p. from the date of this judgment till payment. The parties are left to bear their own costs.”
16. In the present case, admittedly the claimants filed a petition in April 1990 (affidavit sworn on 24-3-1990) and claimed compensation in INR i.e Rs 57,25,000. Such compensation was not claimed in US dollars. For the said reason and in view of the decision of this Court in Forasol 1984 Supp SCC 263 as followed in Renusagar Power Co. Ltd. 1994 Supp (1) SCC 644, we hold that the date of filing of the claim petition (April 1990) is the proper date for fixing the rate of exchange at which foreign currency amount has to be converted into currency of the country (INR). The Tribunal and the High Court have rightly relied on Ext. A-7, to fix the rate of exchange as Rs 17.30 (as was prevailing in April 1990).
17. The second question is relating to contributory negligence of the deceased. According to the claimants, accident occurred due to rash and negligent driving on the part of the bus driver P.C Kurian and there was no negligence on the part of the deceased Joy Kuruvila. Per contra, according to the Insurance Company, the accident took place due to negligent driving on the part of the deceased, who was in an intoxicated condition. They relied on Ext. A-5, the post-mortem report.
18. Three witnesses, PW 1 to PW 3 deposed before the Tribunal. The parties placed documentary evidence, Ext. A-1 to Ext. A-8, Exts. B-1 and B-2. On behalf of the claimants, they relied on the oral evidence and documentary evidence to show rash and negligent driving on the part of the bus driver. On behalf of the Insurance Company, the counsel relied on Ext. B-2 “scene mahazar” and Ext. A-5, post-mortem report to suggest negligence on the part of the deceased.
19. The High Court based on Ext. B-2 “scene mahazar” and Ext. A-5 post-mortem report held that there was also negligence on the part of the deceased as well.
20. On hearing the parties and perusal of record, the following facts emerge:
20.1 The owner of the vehicle Kunjujamma Mohan and the driver of the bus P.C Kurian who were the first and third respondents before the Tribunal and the High Court, had not denied the allegation that the accident occurred due to rash and negligent driving on the part of the bus driver.
20.2 PW 3, an independent eyewitness was accompanying the deceased during the journey on the fateful day. He stated that the bus coming from the opposite direction hit the car driven by the deceased and the accident occurred due to rash and negligent driving of the bus driver.
20.3 Ext. A-1, FIR registered by Pampady Police against the bus driver P.C Kurian under Sections 279, 337 and 304-A IPC shows that the accident occurred due to rash and negligent driving on the part of the bus driver. After investigation, the police submitted a charge-sheet (Ext. A-4) against the bus driver under Sections 279, 337 and 304-A IPC with specific allegation that the bus driver caused the death of Joy Kuruvila due to rash and negligent driving of the bus on 16-4-1990 at 4.50 p.m In view of the direct evidence, the Tribunal and the High Court held that the accident occurred due to rash and negligent driving on the part of the bus driver.
20.4 There is no evidence on record to suggest any negligence on the part of the deceased. Ext. B-2 “scene mahazar” also does not suggest any rash and negligent driving on the part of the deceased.
20.5 The mere position of the vehicles after accident, as shown in a scene mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction, etc. depends on a number of factors like the speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident was caused, but in the absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual.
20.6 The post-mortem report, Ext. A-5 shows the condition of the deceased at the time of death. The said report reflects that the deceased had already taken meal as his stomach was half-full and contained rice, vegetables and meat pieces in a fluid with strong smell of spirit. The aforesaid evidence, Ext. A-5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of accident. The mere suspicion based on Ext. B-2 “scene mahazar” and Ext. A-5 post-mortem report cannot take the place of evidence, particularly, when the direct evidence like PW 3 (independent eyewitness), Ext. A-1 (FIR), Ext. A-4 (charge-sheet) and Ext. B-1 (FI statement) are on record.
21. In view of the aforesaid, we, therefore, hold that the Tribunal and the High Court erred in concluding that the said accident occurred due to the negligence on the part of the deceased as well, as the said conclusion was not based on evidence but based on mere presumption and surmises.
22. The last question relates to just and proper compensation. Both the Tribunal and the High Court have accepted that the deceased was 45 years of age at the time of accident; he was working as Manager, Freeman Management Corporation, New York Branch, USA and was getting a monthly salary of 2500 US dollars. The High Court accepted that the deceased, as per conditions of service, could have continued the employment up to the age of 65 years.
23. Ext. A-6 is a certificate issued by the employer of the deceased i.e Freeman Management Corporation, USA dated 23-4-1990 which shows that his annual salary was 30,000 US dollars. He was in their employment for 9 years and had an excellent standing and his employment was of a permanent nature. The deceased would have continued in service up to the age of 65 years. Ext. A-6 was attested by the notary public and countersigned by the Consulate General of India, New York, as per Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948.
24. On the basis of the aforesaid annual income and exchange rate of Rs 17.30 per US dollar as applicable in April 1990 (Ext. A-7), the annual income of the deceased if converted into Indian currency will be Rs 30,000 × 17.30 = Rs 5,19,000 at the time of death. The deceased was 45 years of age, therefore, as per the decision in Sarla Verma v. DTC (2009) 6 SCC 121, multiplier of 14 shall be applicable. But the High Court and the Tribunal wrongly held that the multiplier of 15 will be applicable. Thus, by applying the multiplier of 14, the amount of compensation will be Rs 5,19,000 × 14 = Rs 72,66,000.
25. The family of the deceased consisted of 5 persons i.e the deceased himself, wife, two children and his mother. As per the decision of this Court in Sarla Verma (2009) 6 SCC 121 there being four dependants at the time of death, ¼th of the total income is to be deducted towards personal and living expenses of the deceased. The High Court has also noticed that out of 2500 US dollars, the deceased used to spend 500 US dollars i.e 1/5th of his income. Therefore, if ¼th of the total income i.e Rs 18,16,500 is deducted towards personal and living expenses of the deceased, the contribution to the family will be (Rs 72,66,000 − Rs 18,16,500 =) Rs 54,49,500.
26. Besides the aforesaid compensation, the claimants are entitled to get Rs 1,00,000 each towards love and affection for the two children i.e Rs 2,00,000 and a sum of Rs 1,00,000 towards loss of consortium to wife which seems to be reasonable. Therefore, the total amount comes to Rs 57,49,500.
27. The claimants are entitled to get the said amount of compensation along with interest @ 12% from the date of filing of the petition till the date of realisation, leaving rest of the conditions as mentioned in the award intact.
28. We, accordingly, allow the appeals filed by the claimants and partly allow the appeals preferred by the Insurance Company, so far as it relates to the application of the multiplier is concerned. The impugned judgment dated 12-4-2007 passed by the Division Bench of the Kerala High Court in Oriental Insurance Co. Ltd. v. Chinnamma Misc. First Appeal No. 1162 of 2001 and the award passed by the Tribunal are modified to the extent above. The amount which has already been paid to the claimants shall be adjusted and rest of the amount with interest as ordered above be paid within three months. There shall be no separate order as to costs.