Sathasivam, J.

Marudhu Pandiyar Transport Corporation Limited, aggrieved against the award dated 21.2.1994 in M.C.O.P No. 19 of 1993, on the file of the Motor Accidents Claims Tribunal (District Judge), Sivaganga, respondent therein, has filed the present appeal under Section 173(1) of the Motor Vehicles Act, 1988, (hereinafter referred to as Act)/challenging both negligence and quantum aspects.

2. The facts leading to the filing of the present appeal as alleged in the claim petition are briefly stated hereunder:—

The respondents herein who are the claimants before the court below filed the said petition for fixation of Rs. 20,00,000/- under Section 166 of the Act for the death of one Ramachandran. The first respondent herein is the widow. Respondents 2 and 3 are sons, the fourth respondent is the daughter and the fifth respondent is the mother of the deceased. According to the claimants, on 17.7.1992 when the deceased Ramachandran was travelling in a bus TN. 63 No. 0269, belonging to the appellant-Transport Corporation from Sivaganga to Manamadurai at about 7.30 pm near Katturani Vilakku Road, due to the rash and negligent driving of the driver of the said bus, the bus dashed against the roadside tamarind tree. Due to the said impact, the deceased Ramachandran sustained multiple injuries and he was immediately taken to Madurai where he was declared as dead. It is further averred by the claimants that the police after investigation charge-sheeted the driver of the transport bus. The deceased was aged about 45 years and was hale and healthy at the time of the accident. He was a Managing Director in many concerns and also owned 10 acres of wet land. Prior to the death he was earning Rs. 1,00,000/- per month both from the business as well as from the agriculture. Because of the sudden death of the deceased, the claimants have claimed a sum of Rs. 20,00,000/- as compensation.

3. On the other hand, in the counter filed by the Transport Corporation it is contended that while taking a curve at the accident spot and in order to avert an accident with an uncontrollable travelling lorry which was proceeding from the opposite side, the driver took the bus to the right side. While doing so, since the deceased was protruding his head outside the bus in order to know what had happened, he sustained injuries. It was also contended that the accident was caused only due to the negligence and carelessness of the deceased. They also disputed the various factual details such as age, occupation income of the deceased etc.

4. The widow of the deceased was examined as P.W 1. One Panjai who witnessed the occurrence was examined as P.W 2. The brother of the deceased was examined as P.W 3 and the Investigation Officer was examined as P.W 4. They also marked Exs. A-1 to A-6, in support of their claim. On the other hand the Transport Corporation examined its driver as R.W 1 and they have not marked any document in support of its defence. The tribunal on the basis of the oral and documentary evidence, came to the conclusion that the accident was caused only due to the rashness and negligence of the bus driver and ultimately passed an award for Rs. 5,00,750/- as compensation. Aggrieved by the said award the Transport-corporation has preferred this appeal before this Court.

5. Mr. P. Pandi, learned counsel appearing for the appellant raised the following submissions:—

(1) The deceased sustained fatal injuries due to his own negligence, carelessness by protruding his head outside the bus at the time of the accident.

(2) There is no acceptable evidence to hold that the deceased was earning Rs. 1,00,000/- per month. Consequently, the fixation of Rs. 4,00,000/- towards pecuniary loss is highly excessive.

(3) Since there is no sanction of law or authority of law to award compensation under the heads of mental agony and loss of love and affection, the award of Rs. 1,00,000/- by the tribunal is contrary to law.

In order to strengthen the abovesaid submissions, he has also relied on

(1) 1985 ACJ - 75 (S.C) (New Majha Trans. Co. Society Ltd. v. Narinder Kaur)

(2) 1987 ACJ - 419 (A.P - Full Bench) - (Andhra Pradesh State Road Trans. Corpn. v. Ch. Narasayya)

(3) 88 L.W - 144 - Division Bench (Srinivas-Roadways, Madurai v. Saroja (D.B-Kailasam, j).

(4) 1993 ACJ - 1058 - Allahabad (U.P State Road Transport Corporation v. Hama Devi).

6. On the other hand Mr. V. Ragavachari, learned counsel for the respondents submitted that in view of the factual position established before the tribunal by way of oral and documentary evidence, there is no warrant to interfere with the said award and prayed for dismissal of the appeal. We have carefully considered the rival submission.

7. With regard to the first submission of the learned counsel for the appellant, namely, that the deceased alone was responsible for the accident, he points out some discrepany in the First Information Report Ex. A-1 and the oral evidence of P.W 2, the eye-witness. The said discrepancy with regard to taking the deceased (injured at the time of the accident) to the hospital would not affect the case of the claimants. As a matter of fact, it is not disputed that the bus driver dashed against the tamarinnd tree and one of the branches of the tree came and hit the deceased who was sitting on the rear side of the bus. It is the duty of the driver and conductor of the public transport bus to take the passengers safely till their destination.

Moreover, the learned counsel relied upon the only evidence examined on their side, namely, driver of the bus as R.W 1. His evidence no way helps the case of the appellant. Even in the chief-examination he has admitted that he did not know how the accident had happened. Only on the information given by the other persons, he has deposed before this Court. It is useful to mention the deposition of R.W 1 in this regard which is extracted thus:—

Since the above evidence of R.W 1 is only a hear-say and in the absence of any other evidence it is not safe to rely upon his evidence in this regard. Consequently, we are unable to accept the arguments of the learned counsel for the appellant on the negligence aspect and we confirm the finding of the tribunal that the accident was caused only due to the negligence of the driver of the bus.

8. Cominng to the quantum of compensation, the widow of the deceased was examined as P.W 1. She has deposed that the deceased was aged about 45. Post-mortem certificate which was marked as Ex. A-2 also shows the age as 45. It is the evidence of P.W 1 that her husband was Managing Director in many Companies and from the business he was earning a sum of Rs. 1,00,00/- per month. In chief-examination as P.W 1 she deposed as follows:—

The brother of the deceased was also examined as P.W 3, He has also deposed as follows:—

Further in the cross-examination he has admitted thus:—

In the light of the abovesaid oral evidence, we have analaysed Ex. A4, which is a copy of the Income tax return in relation to all the abovesaid businesses for the Assessment year 1991-1992 certified by the Income tax practitioner. In this case the accident took place in the year 1992. Even according to Ex. A4 income for the Assessment year 1991-1992 the “total income” is only Rs. 51,260/-. Likewise, for 1990-1991 the “total income” is only Rs. 47,336/-. Even though many businesses were managed by the deceased no documents have been filed in order to show that the deceased was actually in-charge of the affairs of the said businesses. As a matter of fact the oral evidence of P.Ws 1 and 3, that is, the widow and brother of the deceased shows that apart from the deceased, the businesses Were managed by his brother and other Children. If the income mentioned in Ex. A-4 is considered, at the worst, it is possible to hold that the deceased was earning Rs. 1,000/- per month. In view of the recent decision of the Apex Court in 1994 ACJ - 1 (G.M Kerala State Road Trans. Corpn. v. Susamma Thomas), considering the age and his prospects for the rest of the period, we can safely fix a sum of Rs. 1,500/- as the multiplicand in this case. Likewise, by applying the principle in the same judgment, 10 years multiplier would be reasonable and proper. In this manner the total pecuniary loss to the claimants would be Rs. 1,80,000/-. Hence, the amount of Rs. 4,00,000/- fixed towards pecuniary loss by the Tribunal cannot be sustained. It is very unfortunate that the Tribunal has very callously come to the conclusion that the said pecuniary loss is Rs. 4,00,000/- without any discussion whatsoever except stating at the end of paragraph 14 thus:—

Likewise, even regarding loss towards mental agony and loss love and affection, the Tribunal has fixed Rs. 1,0,000/- as compensation without any discussion, after simply mentioning that the claim in this regard is Rs. 10,00,000/-.

9. Regarding the abovesaid sum towards mental agony of the claimants, as per the decision of the Supreme Court in 1985 ACJ - 75, there is no need to award any amount to the claimants for the mental agony suffered by the deceased prior to his death. No doubt, in the very same judgment their Lordships of the Supreme Court observed that the deceased prior to his death must have suffered continuous pain and sufferings and compensation was admissible for pain and suffereings suffered by the deceased. So, they have awarded the same amount of Rs. 5,000/-, awarded by the High Court the head, mental agony suffered by the claimants, in another head, namely, pain and suffering by the deceased. Hence, though the calimants are not entitled to any amount towards mental agony for the death of the deceased, as pointed out by the Supreme Court in the abovesaid decision, the deceased would have undergone severe plain and suffering before his death due to the injuries for which a sum of Rs. 10,000/- can be fixed as reasonable under the head, pain and suffereing undergone by the deceased.

10. In 1987 ACJ - 419, the Full Bench of Andhra Pradesh High Court has also held that no compensation can be awarded for mental agony suffered by the dependants. The very same view has been expressed by the Division Bench of this Court in a decision reported in 88 L.W- 144. In the said decision, the Bench has observed as follow:—

“The Tribunal was wrong in awarding any compensation for the mental agony of the survivors”

In view of the distinction made between mental agony of the dependants and pain and suffering of the deceased, as pointed out by the Apex Court in the first decision, namely, 1985 ACJ - 75, we are justified in awarding a sum of Rs. 10,000/- towards pain and suffering undergone by the deceased till his death. The other contention of the learned counsel for the appellant is regarding the award passed under the head, loss of love and affection. He has relied upon the judgment reported in 1983 ACJ - 1058. The learned counsel for the appellant submitted that no amount could be awarded under the head, loss of love and affection. For the abovesaid purpose it is useful to extract the conclusion of the Allahabad High Court in the said decision which is extracted hereunder:—

“In a Full Bench decision of the Punjab and Haryana High Court in Lachman Singh v. Gurmit Kaur, 1979 ACJ 170 (P & H), it was held that:

“The compensation to be assessed is the pecuniary loss caused to the dependants by the death of the person concerned and no compensation is to be assessed on any extraneous consideration, like love and affection, mental agony or any such similar consideration. Solatium is alien to the concept of compensation”.

Agreeing with the aforesaid Full Bench decision of the Punjab and Haryana High Court, I come to the conclusion that the amount of Rs. 20,00,000/- awarded by the Claims Tribunal as compensation for loss of love and affection should be reduced from the compensation awarded, as it is not payable on that account. However, it has to be remarked that the Claims Tribunal has not awarded any amount for the loss caused due to the loss of consortium or companionship. To my mind an amount of Rs. 6,000/- would be enough compensation on this account. Hence instead of Rs. 20,000/-, which has to be reduced, the widow of the deceased is entitled to get Rs. 6,000/- as compensation for loss of consortium”.

On the other hand, the learned counsel for the respondent brought to our notice two decisions reported in 1984 ACJ Punjab & Haryana 54 (Neena Kapur v. Lakha Singh) and 1975 ACJ - Punjab & Haryana 372 (State of Punjab v. Brij Mohan Singh) and submitted that the claimants are entitled to some reasonable amount towards loss of love and affection. In the said decisions, no doubt it is observed that on the death of father-mother, the dependants are entitled to some reasonable amount towards loss of love and affection. Despite the abovesaid conflicting views, we prefer to follow the latter view and hold, for the death of father-mother, certainly, the children are entitled to some reasonable amount towards loss of love and affection. We, therefore, grant a moderateum of Rs. 10,000/- on this head. Then, though the claimants have not specifically claimed any amount under the head, loss of consortium by the widow, in view of our reduction, we would be justified in fixing a sum of Rs. 10,000/- towards loss of consortium in favour of the widow. Though the learned counsel for the respondents submitted that while fixing compensation most beneficial method should be adopted, in view of the law laid down by the Apex Court in a recent judgment, namely, 1994 ACJ - page 1, wherein it is stated that multiplier method is a scientific method, we are not referring the earlier decisions referred by him on this aspect.

11. Under these circumstances, we are modifying the award of the Tribunal and fix the compensation in the following manner:—

Towards pecuniary loss:. Rs. 1,80,000/- Towards pain and suffering} undergone by the deceased} 10,000/- Towards loss of love and affection: 10,000/- Towards consortium for the} first claimant 1,0,000/- Transport charges 500/- Damage to the clothes 250/- Total: 2,10,750

Net result, the award of the Tribunal is reduced and there shall be an award for a sum of Rs. 2,10,750/- with interest at 12% from the date of the petition. Out of this, the first respondent, i.e, the widow is entitled to a sum of Rs. 1,10,750/- and the respondents 2 to 5 each are entitled to a sum of Rs. 25,000/-. The C.M.A is allowed in part as indicated above. No costs.

KA/RR/VCS