Himachal Pradesh High Court
Rajan Bus Service Pvt. Ltd. vs Parhalad Chand Sharma And Ors. on 18 July, 1997
Equivalent citations: 1998ACJ804
Author: Lokeshwar Singh Panta
Bench: Lokeshwar Singh Panta
JUDGMENT Lokeshwar Singh Panta, J.
1. These appeals have been taken and heard together and are being disposed of by this common judgment as they have arisen out of the single accident.
2. The relevant facts giving rise to the appeals are as under:
3. A bus bearing registration No. HPM 673 owned by Rajan Bus Service Private Ltd. and driven by its driver Sher Singh was going from Chintpurni to Talwara on 17.11.1986. The said bus had rolled down into a khud to the depth of about 200 ft. As a result of the accident, few passengers had died.
4. The claimants of the deceased persons filed the claim petitions before the Motor Accidents Claims Tribunal, Kangra at Dharamshala, claiming compensation. It was alleged in the petitions that the illfated bus was being driven rashly and negligently at a very high speed by its driver at the material time and the accident was the result of such rash and negligent driving of the bus. It was further averred that the driver of the bus could not control the vehicle at a curve near the place known as Pucca Tiyala and that the bus rolled down into a khud (gorge).
5. In the claim petitions the owner of the bus was the respondent No. 1, Sher Singh driver was respondent No. 2 and National Insurance Co. Ltd. was respondent No. 3. The respondents contested the claim petitions. A joint written statement was filed on behalf of respondent Nos. 1 and 2. They after admitting the factum of accident and death of a few passengers pleaded that the accident was not the result of rash and negligent driving of the bus. It was stated that the bus was being driven at a normal speed. They pleaded that a Himachal Road Transport Corporation bus had approached from the opposite direction at the scene of the accident and the respondent driver took his bus to one side of kacha portion of the road to give way for the second bus. It was then stated that there was a sudden sagging of the road as a result of which the bus rolled down into a khud and, therefore, there was no negligence on the part of the driver.
6. The insurance company, in its separate reply denied the allegation of driving the bus by its driver in a rash and negligent manner. However, it is further stated that the liability of the company to pay the amount of compensation, if any, was limited as per the terms and conditions of the insurance policy.
7. On the controversial pleadings of the parties, three issues were framed by the learned Tribunal below for decision.
8. Learned Tribunal below returned the findings on issue No. 1 against the driver of the bus holding that the accident in question was the result of rash and negligent driving of the said driver. On issue Nos. 2 and 3 compensation was awarded in favour of the claimants holding the insurance company liable to the extent of payment of Rs. 15,000/- under the insurance policy and the balance amount was ordered to be paid by the owner of the bus and its driver jointly and severally along with interest at the rate of 12 per cent per annum.
9. Feeling aggrieved the owner of the bus filed these appeals challenging the correctness and validity of the awards of the learned Tribunal below. Claimants have filed the memorandum of cross-objections.
10. We have heard learned Counsel on both sides and examined the material on record.
11. First contention of the learned Counsel for the appellant was that the learned Tribunal below has not considered the evidence in its proper perspective. According to the learned Counsel, it is proved on record that the accident had occurred due to sagging of the road and the driver could not control the bus rolling down because of that unforeseen circumstance. To appreciate the contention of the learned Counsel, we have examined the evidence adduced on record by the parties. It is not in dispute that the ill-fated bus was being driven by its driver Sher Singh (respondent No. 5 herein) and the appellant was its owner. It is also not in dispute that on 17.11.1986 the bus had met with an accident and rolled down in a khud. On the point of rash and negligent driving of the bus by its driver, the claimants have produced Attar Singh, Rachhpal Singh and Lilawati, occupants of the ill-fated bus, besides Keshav Ram and Bidhi Chand. In their statements Attar Singh, Rachhpal Singh and Lilawati have unequivocally deposed that the bus was being driven rashly and negligently by the bus driver with a fast speed and when it reached a place near Pucca Tiyala at a curve, the driver could not negotiate the curve and as such the bus had rolled down. They have denied emphatically that the accident had taken place due to sagging of the road or that a H.R.T.C. bus was crossing from the opposite side at the place of the accident. They have stated that the H.R.T.C. bus had already crossed some time before and the accident had taken place thereafter. Keshav Ram was running a tea-stall at the Pucca Tiyala. He stated that the ill-fated bus was being driven at a fast speed and on the curve the bus turned turtle. He also denied the suggestion that he had not witnessed the accident or the accident had taken place due to sagging of the road. His testimony was supported by another independent witness Bidhi Chand. On the other hand, driver Sher Singh stated that he took the bus towards kacha portion of the road to give way to H.R.T.C. bus which was coming from the opposite direction and as a result the bus rolled down into the khud due to sudden sagging of the road. Two more witnesses, namely, Mehar Singh and Parkash Chand, were examined by the respondents to support that the accident was caused due to sagging of the road and it was not the result of rash and negligent driving of the bus by the driver.
12. The Tribunal on appraisal of the evidence found the driver guilty of rash and negligent driving of the bus and has not accepted the defence that the accident had taken place due to sagging of the road. The reasoning of the Tribunal that the bus was being driven on kacha portion of the road and it rolled down into a 200 feet deep khud, was indicative of the fact that the bus was being driven rashly or negligently. The respondents have not examined any expert to prove that at the site of accident the road had given way. Had there been actual sagging of the road this fact should have been noticed by the officials of the Public Works Department who were responsible for the construction and maintenance of the road. There is no independent evidence led by the respondents to show that there was actually any damage to the road or that it had collapsed suddenly. The driver of the vehicle is an interested witness and his testimony cannot be accepted as gospel truth. The other witnesses examined by the respondents are not the expert witnesses in regard to the road construction. It was the duty of the driver of the bus to take due care and caution while driving the bus and he ought not to have driven his vehicle on the extreme kacha road. A very heavy responsibility lies upon the driver to drive heavy vehicle with due care and caution because due to the negligence of the driver the lives of many passengers are involved. The driver of the vehicle in the present case was not discharging his duty with due care and diligence and he was rightly held guilty of rash and negligent driving of the vehicle by the Tribunal below. Though this finding is attacked by the appellant, we do not find any justification whatever to interfere with the said finding. It is based on the evidence on record and there is ample material on record to come to a conclusion that the bus was driven in a rash and negligent manner. Hence, that finding is affirmed.
13. The second contention of the learned Counsel for the appellant that the liability of the insurance company was comprehensive and the company is liable to indemnify the entire amount of compensation to the appellant and that the finding of the learned Tribunal below fixing the liability of the insurance company to the tune of Rs. 15,000/- only is perverse and illegal. We have given our best consideration to the contention and are of the opinion that the same deserves to be rejected. The owner of the vehicle did not choose to step into the witness-box or produce the original insurance policy of the vehicle. The insurance policy Exh. R-1 was tendered in evidence by the company and the liability to public risk was Rs. 492/- covering 41 passengers. The premium which had been paid is at the rate of Rs. 12/- per passenger and is clearly referable to the statutory liability of Rs. 15,000/- per passenger. Limits of amount of company's liability under Section II-(i) in respect of any one accident was such amount as is necessary to meet the requirement of the Motor Vehicles Act, 1939. The said liability is clearly referable to the statutory liability of Rs. 15,000/- per passenger under Section 95(2)(b)(ii) of the Motor Vehicles Act, 1939. In the present case there is no special contract between the appellant company and the insurance company to cover unlimited liability in respect of an accident to a passenger. In the absence of such an express provision the policy covers only the statutory liability. The mere fact that the insurance policy is a comprehensive policy will not help the appellant in any manner that the limit of liability with regard to third party risk becomes unlimited or higher than the statutory liability. For the purpose a specific agreement is necessary which is absent in the present case. The insurance company, therefore, has rightly been held liable to pay an amount of Rs. 15,000/- per passenger. In this conclusion, we are supported by the judgments of the Supreme Court in M.K. Kunhimohammed v. P.A. Ahmedkutty 1987 ACJ 872 (SC); National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 (SC); and New India Assurance Co. Ltd. v. Shanti Bai 1995 ACJ 470 (SC).
14. The contention of learned Counsel for the claimants was that no fault liability in the case of death caused by accident was increased to Rs. 25,000/- in Section 140 of the Motor Vehicles Act, 1988 and Rs. 50,000/- under the Motor Vehicles (Amendment) Act, 1994. In support of this contention the learned Counsel have relied upon the judgment of the Division Bench of this Court in Manjit Singh v. Rattan Singh 1997 ACJ 1204 (HP). In that case the accident had taken place on 20.10.1990 and the claimants filed their claim petition in the year 1991 which was decided in the year 1994. The owner of the vehicle filed the appeal which was decided on 27.9.96. One of the contentions raised in the appeal was that the award was contrary to the provisions of Sections 140 and 141 of the Motor Vehicles Act, 1988, as Section 140 of the Motor Vehicles Act, 1988, stands amended from 14.11.1994 and therefore, the provisions of the amended Act should have been given retrospective effect. The learned Bench held that the amended provision of Section 140(2) of the Motor Vehicles Act, 1988, was retrospective in its application and, therefore, the claimants were held entitled to compensation of Rs. 50,000/- under no fault liability.
In Ramesh Singh v. Cinta Devi 1996 ACJ 730 (SC), a question before the Supreme Court was whether right of appeal accrued to a claimant under the Motor Vehicles Act, 1939, on the institution of a claim application in the Motor Accidents Claims Tribunal, notwithstanding its repeal by the Motor Vehicles Act, 1988. The Supreme Court has answered the question in the following terms:
In our view the point at issue stands squarely covered by three decisions of this Court reported in Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh AIR 1953 SC 221, State of Bombay v. Supreme General Films Exchange Ltd. AIR 1960 SC 980 and Vitthalbhai Naranbhai Patel v. Commissioner of Sales Tax AIR 1967 SC 344. In all these decisions the view taken is that unless the new Act expressly or by necessary implication makes the provision applicable retrospectively, the right to appeal will crystallise in the appellant on the institution of the application in the Tribunal of first instance and that vested right of appeal would not be dislodged by the enactment of the new Act. In other words, the appellant would be entitled to file the appeal without being required to make the deposit under the proviso to Section 173 of the new Act. The law, therefore, seems to be fairly well settled by the said three decisions of this Court.
15. In Padma Srinivasan v. Premier Insurance Co. Ltd. 1982 ACJ 191 (SC), the question for consideration was whether the liability of the insurance company depended upon the policy of insurance which had been issued in conformity with the liability imposed under Section 95(2) of the Motor Vehicles Act which was in force on the date of issue of the policy or whether the liability of the insurance company was according to the amended provisions which had come into force before the date of accident and during the period when the insurance policy issued earlier was in force. The Supreme Court held that the liability of the insurance company has to be determined with reference to the legal provision as it stood on the date of accident. The relevant facts set out in para 5 of the judgment read:
The question which arises for consideration is whether insurer's liability for third party risks under the statutory policy must be held to be limited to Rs. 20,000/- according to the relevant legal provision as it existed on the date on which the policy came into force or, whether, that liability can be extended to Rs. 50,000/- in accordance with the legal provision as it stood on the date of the accident, the accident having occurred during the currency of the policy. The relevant dates which have to be borne in mind in this behalf are these: The insurance policy came into force on 30.6.1969 and covered the period from 30.6.1969 to 29.6.1970; the amendment by which the statutory liability of the insurer was increased from Rs. 20,000/- to Rs. 50,000/- came into force on 2.3.1970; and the accident which gave rise to these proceedings occurred on 5.4.1970.
The principle laid down in that case was that in order to find out the liability of the insurance company one should find out as to what was the liability on the date of the accident. In our opinion, the above ratio applies on all fours to the question raised by the learned Counsel for consideration on this point. On this question there is no dispute at all. It is common ground that it is the date of accident which gave rise to the claim petitions out of which these appeals arise before us and on that date Section 92-A of the 1939 Act was in force. Therefore, no fault liability was only Rs. 15,000/- according to Section 92-A of the said Act. Section 140 of the 1988 Act came into force only on 1.7.1989 subsequent to the date of accident which occurred in the present case on 17.11.1986 and the awards were passed by the Tribunal below on 28.11.1987 and 21.3.1988. Hence the provisions of the Act of 1988 or the amendment of 1994 will not apply.
16. In M.K. Kunhimohammed v. P.A. Ahmedkutty 1987 ACJ 872 (SC), the question before the Supreme Court was about the interpretation of Section 95(2)(b) of Motor Vehicles Act, 1939, as it existed before its amendment in 1982. The Supreme Court said the limits of liability of an insurer in the case of motor vehicles in which the passengers were carried for hire and reward or by reason of or in pursuance of a contract of employment: Sub-clause (i) of Section 95(2)(b) provided that in respect of the death of or injury to persons other than passengers carried for hire or reward, a limit of Rs. 50,000/- in all was the limit of liability of the insurer. Sub-clause (ii) dealt with the liability in respect of death of or injury to passenger. Under that sub-clause there were two specific limits on the liability of the insurer in the case of motor vehicles carrying passengers. The first limit related to the aggregate liability of the insurer in any one accident. It was fixed at Rs. 50,000 in all where the vehicle was registered to carry not more than thirty passengers, at Rs. 75,000/- in all where the vehicle was registered to carry more than thirty but not more than sixty passengers and at Rs. 1,00,000/- in all where the vehicle was registered to carry more than sixty passengers. The said sub-clause proceeded to lay down the other limit in respect of each passenger by providing that subject to the limits aforesaid as regards the aggregate liability, the liability extended up to Rs. 10,000/- for each individual passenger where the vehicle was a motor cab and Rs. 5,000/- for each individual passenger in any other case. Neither of the two limits can be ignored. In the statement of objects and reasons attached to the Bill which ultimately became Act 47 of 1982, it was stated that the limits with respect to insurer's liability to a passenger involved in an accident in a public service vehicle was being fixed at Rs. 15,000/-. After the above amendment, which was intended to increase the liability of the insurer instead of Rs. 10,000/- in the case of each individual passenger where the vehicle was a motor cab and Rs. 5,000/- for each individual passenger in other cases which were the limits in force immediately prior to the said amendment, the liability in respect of an individual passenger is now raised to Rs. 15,000/-. The Supreme Court held that having regard to the statute as it stood prior to the amendment by the Act 47 of 1982, the insurer was liable to pay Rs. 10,000/- for each individual passenger where the vehicle involved was a motor cab and Rs. 5,000/- for each individual passenger in any other case and the provision of Section 95(2) of the 1939 Act as it existed at the time when the accident took place would apply in spite of the fact that an amendment was brought into force enhancing the limit of compensation by Act No. 47 of 1982 during the pendency of the proceedings in the Tribunal. In Rukmaniyamma v. A.M. Venkata Swamy 1992 ACJ 173 (Karnataka), a similar question was posed to the Bench which was answered as follows:
No fault liability in the case of death caused by motor accident is Rs. 15,000 as fixed in Section 92-A of the Motor Vehicles Act, 1939, which was in force on the date of the accident, which gave rise to the claim petitions, out of which the appeals arise and not Rs. 25,000/- as fixed in Section 140 of the Motor Vehicles Act, 1988, which came into force on 1.7.1989, i.e., subsequent to the date of accident, merely because that section was in force on the date on which the Tribunal made the order.
In the light of the above settled position of law, the judgment of this Court in Manjit Singh v. Rattan Singh 1997 ACJ 1204 (HP), is not good law as it runs counter to the judgments of the Supreme Court. It appears that the judgments of the Supreme Court and High Court referred to above were not brought to the notice of the Bench. Therefore, the contention of the learned Counsel that the provisions of the 1988 Act and also amendment Act of 1994 shall be made retrospectively applicable in the instant appeals shall stand rejected.
17. Now the next question that arises for our consideration is about the quantum of compensation awarded to the claimants by the learned Tribunal. It was contended on behalf of the appellant that the amount of compensation awarded by the learned Tribunal is excessive whereas the claimants have prayed for the enhancement of the same in their memorandum of cross-objections.
F.A.O. (MVA) No. 33 of 1988 C.O. No. 143 of 1989
18. In F.A.O. (MVA) No. 33 of 1988 compensation was claimed by the claimants to the tune of Rs. 1,65,860/- under Section 110-A and Rs. 15,000/- under Section 92-A of the Motor Vehicles Act. Tribunal awarded a sum of Rs. 48,000/- as total loss of dependency and added Rs. 3,000/- as the conventional damages suffered by the claimants due to loss of expectation of life. Thus, a total amount of compensation was worked out to be Rs. 51,000/-. In that case Asha Rani, aged about 30 years, had died in the accident. Claimant Parhalad Chand is the husband of deceased Asha Rani whereas other claimants are her minor children. It was stated by claimant Parhalad Chand in his statement that the deceased was knowing tailoring work and was earning Rs. 4,000 to Rs. 5,000/- per annum by doing tailoring work at home and was earning as such by stitching the clothes of others. Besides, she was doing entire domestic work and also teaching the minor children at home. We find that no such statements were made by the claimants in the petition that the deceased was doing the tailoring work and was earning Rs. 4,000/- to 5,000/- per year on that score. The learned Tribunal concluded that the deceased was not earning anything by doing the tailoring work from the outsiders. This reasoning of the Tribunal appears to be correct and proper. There is no pleading nor evidence produced on record to prove that the deceased was earning her income from any source. The learned Tribunal recorded a finding that the deceased was doing the entire domestic work in the house, besides some tailoring work and she was also teaching her children at home. The learned Tribunal assessed the monthly pecuniary loss suffered by the dependants at the rate of Rs. 200/- on the basis that a domestic servant at the disposal of his master for 24 hours a day would have cost not less than Rs. 200/- per month apart from meals and clothing, etc. In addition to this, the learned Tribunal observed that a school master engaged as tutor for teaching the children would cost not less than Rs. 100/- per month. Having regard to all the facts and circumstances of the case a sum of Rs. 200 per month was assessed as monthly pecuniary loss suffered by the claimants due to the death of Asha Rani. The Tribunal selected the multiplier of 20 and assessed the amount of compensation at Rs. 48,000 for the total loss suffered by the claimants due to the death of Asha Rani and further Rs. 3,000/- were added as conventional damages with interest at the rate of 12 per cent from the date of institution of the petition till realization thereof.
19. The appellant vehemently attacks the method adopted by the learned Tribunal in arriving at a total compensation of Rs. 51,000/-. According to the appellant the multiplier chosen by the Tribunal is not based upon any principle. It is also the contention of the appellant that a sum of Rs. 200/- assessed as monthly pecuniary loss suffered by the claimants due to death of Asha Rani is not based on evidence and has been awarded on conjectures and surmises by the Tribunal. We find that the method adopted by the learned Tribunal is not proper and legal and is based on no evidence on record. There is not an iota of evidence adduced on record to prove that after the death of Asha Rani, claimants had engaged a servant for doing the domestic work and a teacher for teaching the children. In the absence of positive evidence the criterion was adopted by the learned Tribunal on mere conjectures and surmises. The loss of the wife of Parhalad Chand and mother of the minor children is irreparable and it is not possible to calculate the loss in terms of money. The claimants have also suffered loss of companionship, love and affection besides they are put to a great mental agony. The family has become rudderless with young minor children. In the facts and circumstances of the present case the compensation can be awarded on the footing that the claimants have suffered loss of consortium. It is only in certain kinds of damages the pecuniary value can be ascertained. The other damages have to be brought under the heading non-pecuniary damages and the Court has to award just compensation having regard to the facts and circumstances of each case. In R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. 1995 ACJ 366 (SC), it was observed as under (para 9):
Broadly speaking, while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas the non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as non-pecuniary damages are concerned, they include (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.
20. In para 12 it was further held that in its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess-work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards.
21. In General Manager, Kerala State Road Trans. Corpn. v. Susamma Thomas 1994 ACJ 1 (SC), it was held as under (para 7):
The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income altogether.
The manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalized by multiplying it by a figure representing the proper number of years' purchase.
Much of the calculation necessarily remains in the realm of hypothesis 'and in that region arithmetic is a good servant but a bad master' since there are so often many imponderables. In every case 'it is the overall picture that matters' and the Court must try to assess as best as it can the loss suffered.
22. In the present appeal the deceased was housewife and her net income could not be assessed for the support of herself and her dependants. In the facts and circumstances of the present case, we are of the considered view that the compensation can be awarded to the claimants on the footing that they have suffered loss of consortium, companionship, love and affection, etc. The award of Rs. 51,000/- for the husband and three children of the deceased in our view is not on the higher side and is extremely moderate. The total amount of compensation of Rs. 51,000/- has to be apportioned among the claimants as follows:
(1) Claimant Parhalad Chand Sharma shall be paid Rs. 15,000/-.
(2) The minor children, namely, Kanchan Lata, Vijay Kumar and Parvesh Kumar shall be paid Rs. 12,000/- each.
The claimants are entitled to interest at the rate of 12 per cent per annum as awarded by the learned Tribunal from the date of presentation of the petition, i.e., 28.11.87 till payment of the compensation. Thus, we do not find any justification to interfere with the award of the learned Tribunal. The claimants have not adduced on record the evidence which would entitle them for enhancement of the compensation. Therefore, their cross-objections are dismissed.
23. Reliance on behalf of the claimants has been placed upon Rakesh Kumar v. Prem Lal 1996 ACJ 980 (HP), by urging that while estimating the services of the deceased who is wife, a narrow meaning should not be given to the meaning of the word 'services' but should be construed broadly and the pecuniary loss to the family in the form of loss of services including love and affection and loss of income of the deceased should be assessed by affixing a reasonable amount. The facts of that case were different than the one we are dealing presently. In that case it was found that the deceased was working as maid-servant at different houses and she was being paid Rs. 60/- per month by her master of each house. The learned Judges have assessed the services of the deceased housewife in that case in terms of money based upon the said income. Therefore, the authority cited by the learned Counsel is not attracted in the present case.
F.A.O. (MVA) No. 34 of 1988 C.O. No. 176 of 1988
24. In this case Om Prakash, who was serving as Havildar/Laboratory Assistant in Military Hospital, Dalhousie, was about 42 years of age at the time of his death. The claimants are his wife, mother and two minor children, son and a daughter. They made a claim of Rs. 1,92,550/- under Section 110-A, Rs. 15,000/- under Section 92-A of Motor Vehicles Act, 1939. The Tribunal awarded a sum of Rs. 1,20,000/- as loss of dependency and further a sum of Rs. 3,000/- as conventional damages along with interest at the rate of 12 per cent per annum from the date of filing of the petition, i.e., 7.5.1987 till the date of actual payment. Out of the total amount of Rs. 1,23,000/- a sum of Rs. 30,000/- was payable to each of the minor claimants and Rs. 10,000/- to Makhni Devi, mother of the deceased and Rs. 53,000/- to his wife Satya Devi.
25. The learned Counsel for the appellant has vehemently attacked the method adopted by the Tribunal in arriving at a total compensation of Rs. 1,23,000/-. According to the appellant, the multiplier chosen by the Tribunal is not based on any principle. It is seen from the statement of Satya Devi, claimant, that her husband deceased Om Prakash was earning a sum of Rs. 1,500/- per month. Her statement finds corroboration from a certificate Exh. P-2 issued by the Commanding Officer of the deceased and brought on record in the evidence of Havildar Clerk P.R. Singh PW 4. As per this certificate Om Prakash was earning a sum of Rs. 1,266/- per month as salary at the time of his death. It is, however, further certified that the emoluments of deceased Om Prakash had been enhanced to Rs. 1,500/- per month after the implementation of the report of Fourth Pay Commission. Therefore, the monthly salary of Om Prakash could be safely taken to be Rs. 1,500/-. It is seen from the evidence on record that Om Prakash was also getting free ration and lodging facilities being available to him as a defence employee. The learned Tribunal on the basis of the evidence found that the pecuniary loss suffered by the claimants due to the death of Om Prakash would work out to Rs. 1,000/- per month and annual loss of dependency suffered by the claimants would come to Rs. 12,000/-. The age of the deceased at the time of death was 42 years and multiplier of 10 for working out total loss of dependency was adopted. In the strata of life to which the claimants and deceased belong there can be no difficulty in accepting the evidence of PW Satya Devi as true. It can be easily appreciated that the deceased might have been spending less on himself as he was getting free ration, uniform and lodging facilities, etc. There is nothing on record to show that the deceased was wasting the income or leading a reckless life without caring for his family. In such a situation there is no warrant to differ from the Tribunal and the Tribunal was not in error in taking Rs. 1,000/- as multiplicand. We affirm the finding of the Tribunal in that regard holding that the deceased was giving Rs. 1,000 for household expenses and that amount happened to be loss of dependency of the claimants. As regards the multiplier, we are of the opinion that the Tribunal's view is correct on the facts and circumstances of the case. The Supreme Court in U.P. State Road Trans. Corporation v. Trilok Chandra 1996 ACJ 831 (SC), relying upon an earlier judgment in General Manager, Kerala State Road Trans. Corpn. v. Susamma Thomas 1994 ACJ 1 (SC), said that it was rightly clarified that there should be no departure from the multiplier method on the ground that Section 110-B of the Motor Vehicles Act, 1939, envisaged payment of just compensation since the multiplier method is the accepted method for determining and ensuring payment of just compensation and is expected to bring uniformity and certainty of the awards made all over the country.
26. In 5. Chandra v. Pallavan Trans. Corporation 1995 ACJ 1170 (SC), the Supreme Court held that the multiplier was appropriate on the facts of the case and having regard to the annual expenditure of the family a claim of Rs. 1,00,000/- made in that case was justified.
27. Thus, it is clear from the above cited judgments of the Supreme Court that the multiplier has to be fixed on the basis of facts and circumstances of each case and it cannot be a fixed figure for all the cases on hypothetical basis. If we look into the facts and circumstances of this case it is seen that Om Prakash died at the age of 42 years. However, deceased would have retired after 5 years had he not been promoted to the rank of Subedar. In case of promotion to the rank of Subedar the deceased would have remained in service for 10 years more. The amount which was given to the family by him was found to be Rs. 1,000/- p.m., if the said amount is capitalised by taking into account the normal rate of interest paid by the nationalised banks, it can be easily said that the total amount which is payable by way of compensation is something very near to the amount fixed by the Tribunal. It may happen to be more than what is fixed by the Tribunal. Thus, the amount fixed by the Tribunal can be justified as proper compensation. Hence we hold that the multiplier of 10 adopted by the Tribunal is correct on the facts and circumstances of the case and we do not find any justification to interfere with the same.
28. In this case the multiplier is only 10 and therefore, the principle laid down by the Supreme Court is in no way violated in the present case. Further, the Schedule introduced by the amendment Act, 1994, is not applicable to the present case as the accident took place long before the amendment Act came into force. Hence the Court cannot be guided by the Table introduced in the Schedule by the amendment Act, 1994.
29. Thus, we have no difficulty in holding that the appeal has to fail and compensation awarded by the Tribunal is just on the facts and circumstances of the case.
30. In their cross-objections, the claimants have prayed for multiplier of at least 15 years purchase factor. We do not find any substance in the contention of the claimants and there is no evidence brought on record to enhance the multiplier from 10 to 15 in the present case. However, an amount of Rs. 3,000/- added as conventional damages by the Tribunal shall be treated as having been awarded for the funeral and performance of last rites of the deceased and not due to the loss of expectation of life.
F.A.O. (MVA) No. 66 of 1988 C.O. No. 173 of 1988
31. In the present case Gurbaksh Singh after retirement from the Indian Army was serving as Security Supervisor in New Industrial Security Agency (P) Ltd. at Bombay. Claimants are the wife of the deceased, one major and three minor daughters. They claimed compensation to the tune of Rs. 7,00,000/- on account of the death of Gurbaksh Singh. The Tribunal found that Gurbaksh Singh, at the time of death, was serving as Security Supervisor and drawing a monthly salary of Rs. 860. The Tribunal assessed the loss of income to the family at the rate of Rs. 400/- per month, i.e., Rs. 4,800/- per annum and applied multiplier of 15. Thus, the total amount of compensation awarded by the Tribunal was Rs. 72,000/- along with interest at the rate of 12 per cent per annum after 60 days from 21.3.1988 when the claim petition was decided by the Tribunal. The amount of compensation was apportioned to the shares of Lilawati, wife of late Gurbaksh Singh, his three minor daughters in equal shares and no amount of compensation was awarded in favour of claimant Surjit Kaur who was married during the pendency of the claim petition. The appellant vehemently attacked the method adopted by the Tribunal in arriving at a total compensation of Rs. 72,000/-. According to the appellant the multiplier chosen by the Tribunal is not based on any principle. At any rate, it is against the principles settled by the Supreme Court of India in several judgments. It is also the contention of the appellant that the multiplicand taken by the Tribunal into account is also wrong and it should not have taken into account Rs. 400/- as multiplicand. It is seen from the evidence that the deceased was earning Rs. 1,400/- as salary per month, as deposed by first claimant Lilawati PW 1. In certificate marked 'X' issued by Commandant (Retd.), Managing Director of the company where Gurbaksh Singh, deceased, was working as Security Supervisor, it is found mentioned that he was drawing approximately Rs. 1,400/- per month and the age of the deceased at the time of accident was 45 years. It is in evidence that the deceased was in good state of health. There is no rebuttal to this piece of evidence. The income of the deceased was assessed at Rs. 860/-, per month by the Tribunal. The family constituted seven units including the deceased. After deducting a sum of Rs. 260/- that the deceased might have been spending on his own maintenance, sum of Rs. 600/- p.m. is assessed which the deceased could have contributed towards the claimants. Therefore, the pecuniary loss suffered by the claimants due to the death of Gurbaksh Singh is worked out to be Rs. 600/- per month and annual loss of dependency suffered would come to Rs. 7,200/- for household expenses.
32. As regards the multiplier, we are of the opinion that the Tribunal's view is not correct on the facts and circumstances of the case. The age of Gurbaksh Singh at the time of his death was about 45 years. The Tribunal was not justified in adopting the multiplier of 15 in the present case. Looking to the facts and circumstances of the case we adopt the multiplier of 10. Thus by multiplying the annual loss of dependency of Rs. 7,200/- by multiplier of 10, the total loss of dependency suffered by the claimants shall work out to Rs. 72,000/-. Therefore, the claimants are entitled to a sum of Rs. 72,000/- as the compensation for the loss of dependency suffered by them due to the death of Gurbaksh Singh along with interest at the rate of 12 per cent per annum from the date of institution of the claim petition, i.e., 13.5.1987 till the date of payment. The claimants have prayed in their cross-objections for enhancement of multiplier to 20 years purchase on which the loss of dependency is capitalized. This contention of the learned Counsel cannot be accepted for the reason that the Supreme Court in the aforesaid judgments has held that the multiplier has to be fixed on the basis of facts and circumstances of each case and it cannot be a fixed figure for all the cases on a hypothetical basis. The Supreme Court, after referring to the Table of Schedule in the Motor Vehicles (Amendment) Act, 1994, has emphasised that multiplier cannot exceed 18 years' purchase factor. Further the Schedule introduced by the amendment Act is not applicable in this case as the accident took place long before the amendment Act came into force. Hence, the Court cannot be guided by the Table introduced in the Schedule by the amendment Act, 1994. There is no evidence on record adduced by the claimants to show that the claimants are entitled for the enhanced amount of compensation. Sweeping statement has been made by claimant, PW 1, that she was receiving Rs. 2,000/- per month for the household expenses from her late husband and this statement is not believable for the reason that if the deceased was getting monthly salary of less than Rs. 2,000/- how could he send Rs. 2,000/- to the dependants. The deceased was living in Bombay and must be spending some amount on his personal expenses, house rent, food and clothing, etc. In the facts and circumstances of the present case, we uphold the award to the aforesaid extent and find no merit in the cross-objections. The total amount of compensation shall be shared by all the claimants in equal shares as awarded by the learned Tribunal. During the pendency of this appeal, minor daughter Manjit Kaur had died and her name stood deleted from the array of the respondents. The share of deceased Manjit Kaur shall be paid to her mother Lilawati, the claimant.
33. No other point was urged by the learned Counsel for the parties.
34. In the result, for the reasons aforesaid, the appeals and memorandum of cross-objections are dismissed. Costs on parties.