JUDGMENT
Saldanha, J.
1. We have heard the learned Counsel on both sides in these two appeals.
2. Certain arguments of consequence have been advanced byboth the learned Counsel, which would have bearing on several other similar situation having regard to the modality of driving and the injuries occurring in the student community and consequently, it is necessary for us to record our findings with regard to the submissions canvassed. Both the deceased were students who were riding on a motor cycle on 8.2.1989 at about 7 p.m. near Nanthoor which is on the outskirts of Mangalore city, incidentally on the National Highway by-pass. As a result of the recklessness on the part of another motor cyclist who brushed against this motor cycle, the two boys who ware 3rd year BDS students were thrown off the vehicle, landed on the road and were immediately run over by a speeding truck. They died instantaneously and the claim petitions have been presented by their parents.
3. The principal contention raised before that Tribunal was two fold: The first being that the parents had virtually over-reached themselves in finding requisite funds for the purpose of educating the sons particularly through professional college and that the potential of the young boys was such that they would have taken up their professional avocations shortly after having completed their studies in the normal expectation they would have done well for themselves. The implied argument is that having virtually exhausted their resources and even taken loans that the parents would have legitimately expected total support from the sons in the years to come and that consequently, the dependency aspect is not only real but genuine. The Tribunal has done a notional assessment and come to the conclusion that it would be safe to fix a figure of Rs. 2400/- per month as the base figure for the purpose of doing computation and the only tenable argument that the appellants’ learned Counsel has advanced before us is that even if the Court were to take judicial notice of all the relevant factors, the figure is too low and it requires to be scaled up. What is pointed out to us is that the students were in the 3rd year BDS; that in the normal circumstances they would have completed their studies within the next two years and even assuming there was some short gestation period that they would have certainly started earning and as is the normal case in the profession, that their earning would not have been anything less than at least Rs. 5 to 6 thousand per month. The submission canvassed that even if the earlier period were to be excluded that the earning potential would rise very shortly and consequently, even if the Court were to average out the figure, Rs. 2400/- per month, that it was unduly low and the learned Advocate has submitted that the base figure of Rs. 5000/- would be every realistic and correct.
4. The respondents’ learned Counsel has pointed out to us thatthe Tribunal itself has committed and error while doing the computation in so far as 50% deduction would have to be applied whereas only 1/3rd has been deducted, that the appellants have consequently benefited substantially particularly since the insurance companies have not filed any appeal and in this view of the matter his submission is that this additional amount itself should be treated as adequate enhancement and that there is no ground made out for any variation. We have taken due note of the fact that the deduction ought to have been 50% and that an error has been committed, but we have given due credit to the respondents for this even though they have not filed any appeal because we have borne in mind what we need to once again reiterate that while the sympathies are always pleaded on the side of the injured or the deceased that the Court would not be justified in bending over backward and being extra liberal to the claimants at the expense of the nationalised insurance companies because a responsible approach would require that the compensation must be fair and reasonable, and that the Court ought not to be over generous merely because it may be carried away by emotion. This is the main reason why we have taken due note of what the respondents’ learned Counsel has pointed out to us while taking into consideration the over all aspects of the case.
5. The respondents’ learned Counsel has also emphasisedanother aspect, where he is duly right, in so far as he points out that there is a lacuna in the evidence adduced on behalf of the claimants because we do not know what the academic record of the students was; whether they were bright students who would normally have been expected to sail through their examinations or whether they belong to the category who spend half their life in the medical college. Though it was the primary duty on the part of the claimants to have adduced this evidence, in our considered view, there was an equal responsibility on the part of the learned Advocate who represented the respondents in having elicited this information from the witnesses when they were in the box and not having done so we will have to go on the normal presumption that they belong to the category of students who would have graduated in the next two years.
6. What is of consequence is that the respondent’s learnedCounsel points out to us that in the first instance the earning of the deceased for these two years would have been absolutely nil. Secondly, he is also right in pointing out that for the next at least two years, the income would have been either uncertain or meagre and even if they started off professionally that it would have been at least 5 to 7 years of professional life before they started earning at the scale which the learned Counsel has referred to. Lastly, he has reminded the Court that one would have to virtually go back to the point of time to the year 1989 and work on the basis of the earnings and economic conditions that were prevalent at that point of time, more importantly the aspect of rupee value and not to work on the basis of 2003 figures though the appeal is being heard and decided now. The respondents’ learned Counsel is perfectly right in so far as all these aspects are concerned and despite the meagre evidence on record we have done a careful and correct evaluation taking into consideration the fact that the claimants have benefited through only 1/3rd deduction which was wrongly done by the Tribunal and after doing of all this we have arrived at the base figure of Rs. 4000/- per month. In doing this, we have proceeded on the basis of a three tiered time frame: the first 1/3rd period being virtually no earning, the next one being a period of low earning and the third one being a period of reasonably good earning and we have averaged out the three periods while arriving at this figure.
7. We have applied a 50% deduction formula in both cases asadmittedly the deceased students were unmarried and on doing a recomputation we hold that an aggregate compensation of Rs. 2,72,000/- would be awardable, out of which we have deducted the amount awarded by the Tribunal earlier. The appellants in MFA 2242/95 would be entitled to an enhancement of Rs. 71,000/- on which we direct that they shall be entitled to interest at the rate of 8% per annum from the date of filing of the appeal up to the date of payment.
8. Since the amount is being awarded to the parents, we donot propose to direct any investment as the amount is not an abnormally large one and secondly, we direct that there is no need for apportionment in so far as the amount is to be shared equally by the parents.
9. As far as MFA 2833/96 is concerned, applying the same formula and after correcting the multiplier which ought to be 10 and not 8, we arrive at an aggregate figure of Rs. 2,34,000/- against which the Tribunal had awarded a sum of Rs. 1,62,000/-, leaving a balance of Rs. 72,000/- as the enhancement. In this case also we direct interest at the rate of 8% per annum which shall be payable from the date of filing of the appeal up to the date of payment. The amount in question shall be released to the father of the deceased as the mother has since passed away.
10. The two insurance companies are made liable equally. They are directed to deposit the balance amount with the Tribunal within the outer limit of 12 weeks from today. On receipt of the amount, the Tribunal to disburse the same to the appellants as directed earlier. The appeals succeed to that extent and stand disposed of. Parties to bear their own costs.