Calcutta High Court (Appellete Side)
Sharmila Singh & Ors vs Sri Rabin Ghosh & Anr on 22 August, 2008
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Rudrendra Nath Banerjee
F.M.A. No. 186 of 2006
With
C.A.N. 4775 of 2008
Sharmila Singh & Ors.
Versus
Sri Rabin Ghosh & Anr.
For the Appellant/Petitioner: Mr Amit Ranjan Roy.
For the Respondent/Opposite Party: Mr K.K. Das.
Heard on: 21.07.2008.
Judgment on: 22.08.2008
Bhaskar Bhattacharya, J.:
This appeal is at the instance of the claimants and is directed against an award dated July 30, 2005 passed by the learned Judge, Sixth Bench, City Civil Court at Calcutta, in M.A.C. Case No.225 of 2002 thereby disposing of an application under Section 166 of the Motor Vehicles Act by awarding a sum of Rs.2,00,000/- as compensation on the death of the victim out of the which Rs.50,000/- had already been paid by the Insurance Company in an earlier proceeding under Section 140 of the Act.
Being dissatisfied, the claimants have come up with the present appeal. There is no dispute that the victim died of an accident on 23rd April, 2002 and that the offending vehicle, the bus, was insured by the Oriental Insurance Company Limited.
According to the claimants, the victim was aged 41 years and used to earn Rs.20,000/- a month from his business. In her cross-examination, the widow of the victim admitted that her husband had a matador van, which was let out to the Greater Calcutta Gas Company, and her husband used to receive hire charges of the matador van from the company. The TDS certificates in Form No.16A issued by the Greater Calcutta Gas Company, which were marked as Exbts.9, 9/1, and 9/2 disclosed that the victim received more than Rs.2,00,000/- as hire charges of the matador van from the said company for the financial year 2001-02 before his accidental death on 23rd April, 2002. The copy of the income-tax return filed by the victim for the assessment year 2001-02 disclosed that the annual income of the victim for the financial year 2000-01 was Rs.1,68,866/- out of which Rs.2,888/- were paid as tax.
It was contended on behalf of the Insurance Company before the Tribunal that it appeared from the evidence on record that after the death of the victim, his other heirs relinquished their claim in respect of the said matador van owned by the victim in favour of his widow and on the prayer of the widow, the Regional Transport Authority had transferred the ownership of the said vehicle in her favour. It was further disclosed that the widow had been receiving the same amount every month as hire charges of the said matador van let out to the Greater Calcutta Gas Company since the death of her husband.
After taking into consideration the aforesaid fact, the Tribunal below was of the opinion that the petitioners could not be said to have suffered any loss of earning due to the death of the victim in view of the fact that the victim had, apart from the income of the matador van, no other source of income before his death and as such, the petitioners would not be entitled to get any compensation on account of loss of earning for the death of the victim Arjun Singh.
The Tribunal, however, after taking into consideration the fact that the victim was aged 41 years and incurred certain expenses for the funeral right granted a lump sum of Rs.2,00,000/- for pain and suffering , loss of estate, loss of consortium and for deprivation of love and affection of the victim.
Being dissatisfied, the claimants have come up with the present appeal. Mr Roy, the learned advocate appearing on behalf of the appellants strenuously contended before us that the approach of the Tribunal below was totally erroneous, inasmuch as, it was required to calculate the loss by taking into consideration the income and the age of the victim by applying the multiplier method and the facts that the said vehicle has been transferred and from the said vehicle the same amount of earning is derived is no ground for refusing the compensation by applying the multiplier method. In support of such contention, Mr Roy relied upon the decision of the Supreme Court in the case of Helen C. Rebello & Ors. vs. Maharashtra State Road Transport Corporation & Anr. reported in AIR 1998 SC 3191, where it was held that the fact that heirs received family pension or that he got certain amount from the Life Insurance cannot be a factor to be taken into consideration while calculating the amount of compensation. He submits that instead of awarding the amount of Rs.2,00,000/- , the Tribunal below ought to have calculated the amount of compensation by applying the multiplier of 15 on the yearly income of the deceased as appearing from the Income-tax return. Mr Roy further contends that his clients are also entitled to get interest on the assessed amount.
Mr Das, the learned advocate appearing on behalf of the Insurance Company, however, opposes the aforesaid contention advanced by Mr Roy and supports the award impugned. According to Mr Das, even after the death of the victim, the same amount having been earned from the selfsame source, there was no just ground for giving separate compensation for the loss of earning. In support of such contention, Mr Das relies upon the following decisions:
(1) State of Haryana & Anr. vs. Jasbir Kaur & Ors. reported in AIR 2003 SC 3696=(2003) 7 Supreme Court Cases 484;
(2) Divisional Controller, KSRTC vs. Mahadeva Shetty & Anr. reported in (2003) 7 Supreme Court Cases 197;
(3) Ponnumany alias Krishnan & Anr. vs. V.A. Mohanan & Ors. reported in 2008 AIR SCW 2654;
(4) New India Assurance Co. Ltd. & Ors. vs. Vishwa Bandhu & Ors. reported in 1999 ACJ 42;
(5) B. Parimala & Ors. vs. Riyaz Ahmed & Ors. reported in 2002 ACJ 154;
(6) National Insurance Co. Ltd. vs. Chand Ratan & Ors. reported in 2003 ACJ
361.
Therefore, the first question that arises for determination in this appeal is whether the learned Tribunal below erred in not applying the multiplier of 15 on the income of the deceased after deducting one-third thereof as provided in the Second Schedule of the Motor Vehicles Act notwithstanding the fact that the proceeding was initiated under Section 166 of the Act.
After hearing the learned counsel for the parties and after going through the provisions contained in Section 166 of the Act, we find that in the proceedings under Section 166 of the Act, the Tribunal is required to assess the "just" compensation for the injury or the death of a person, as the case may be, involved in an accident where the negligence of the driver of any offending motor vehicle is the cause. While Section 163A of the Act has been enacted notwithstanding the provision of Section 166 of the Act, its application is limited only to the circumstances mentioned therein and the main difference between the two provisions is that in a proceeding under Section 163A of the Act, the applicant is not required to prove the negligence of the driver of the offending vehicle, but in a proceeding under Section 166 of the Act, the proof of negligence of the driver of the vehicle responsible is essential. The other important requirement of Section 163A is that the victim involved in the accident must not have annual income of more than Rupees forty thousand. (See: Deepal Girish Bhai Soni and others vs. United India Insurance Company Ltd. reported in AIR 2004 SC 2107). In the proceedings under Section 163A of the Act, the Tribunal is bound by the provisions contained in the Second Schedule of the Act subject to the deviation and the exceptions laid down by the Supreme Court, which by virtue of the provisions contained in the Article 141 of the Constitution of India, is the law of the land. The Apex Court in some of its decisions pointed out some of the defects in the Second Schedule of the Act and consequently, those provisions of the Second Schedule should not be applied even in the proceedings under Section 163A of the Act. Similarly, although, the Second Schedule does not permit taking into consideration the age of the claimant for the purpose of applying the correct multiplier and the same should be determined according to the age of the victim, in case of death of an unmarried person, the Supreme Court has accepted the position that the multiplier should be determined according to the age of the claimant notwithstanding the provisions contained in the Second Schedule of the Act. (See: U.P. State Road Corporation vs. Trilok Chandra reported in 1996 ACJ 831 (SC)). Such principle has been applied by the Apex Court even in the proceedings initiated under Section 163A of the Act. (See: Ramesh Singh & Anr. vs. Satbir Singh & Another reported in 2008 AIR SCW 1238 and Bangalore Metropolitan Transport Corporation vs. Sarojamma & Anr reported in (2008) 5 SCC 142).
However, the law relating to assessment of the amount of compensation enacted by the legislature intended for a victim having a limited income of Rupees forty thousand per annum and that too, without proving the negligence of the driver of the offending vehicle, cannot be the same in case of a victim having unlimited income where the claimant has undertaken the burden of proving the negligence of the driver of the offending vehicle. Therefore, the Second Schedule of the Motor Vehicles Act, 1988 in terms cannot apply to the proceedings under Section 166 of the Act. However, in a proceeding under Section 166 of the Act, if a claimant fails to prove negligence of the offending vehicle, the Tribunal can convert such proceeding to one under Section 163A of the Act if the claimant avers that the income of the victim was below Rupees forty thousand. In the case before us, the applicants having claimed that the victim had monthly income of Rs.20,000/-, there is no scope of converting this proceedings to the one under Section 163A of the Act.
Nonetheless, there can be no two opinions that the assessment of compensation by applying the multiplier method is also a recognised way of calculation of the assessment of just compensation in case of fatal accident. What is in essence the object of the multiplier method has been summarised by the Apex Court in the case of General Manager, Kerala State Road Transport Corporation vs. Mrs. Susamma Thomas and others reported in AIR 1994 SC 1631 in the following way:
"The multiplier represents the number of years' purchase on which the loss of dependency is capitalised. Take for instance a case where annual loss of dependency is Rs. 10,000/-. If a sum of Rs. 1,00,00/- is invested at 10% annual interest, the interest' will take care of the dependency, perpetually. T he multiplier in this case works out to 10. If the rate of interest is 5% per annum and not 10% then the multiplier needed to capitalise the loss of the annual dependency at Rupees 10,000/- would be 20. Then the multiplier, i.e., the number of years' purchase of 20 will yield the annual dependency perpetually. Then allowance to scale down the multiplier would have to be made taking into account the uncertainties of the future, the allowances for immediate lump sum payment, the period over which the dependency is to last being shorter and the capital feed also to be spent away over the period of dependency is to last etc. Usually in English Courts the operative multiplier rarely exceeds 16 as maximum. This will come down accordingly as the age of the deceased person (or that of the dependants, whichever is higher) goes up."
Therefore, in a proceeding under Section 166 of the Act involving death of the victim, the Tribunal is entitled to apply the multiplier method in the true sense of the term as pointed out by the Apex Court above after taking into consideration the rate of the present-days-bank-interest but not the chart given in the Second Schedule incorporated in the Act in the year 1994.
In a proceeding under Section 166 of the Act, if the negligence of the offending vehicle fully or partially is proved, the Tribunal is required to assess the damages in proportion to the negligence of the offending vehicle found by the Tribunal. In other words, if the offending vehicle is fully responsible for the injury or the death, the full compensation should be paid by the owner of the vehicle or the Insurance Company, if insured, depending upon the terms of the insurance agreement. Similarly, if more than one vehicle are involved, the damages will be divided between the owners or the Insurers of those vehicles in proportion to their respective negligence. If, on the other hand, there is some contributory negligence on the part of the victim, the damages actually suffered by him would be reduced by that percentage of the contributory negligence.
In the case before us, the involvement of the offending vehicle and the fact that it was fully covered by the insurance has been proved. At the same time, the negligence of the driver of the offending vehicle resulting in the death of the victim has also been proved.
Therefore, the next question is whether in view of the fact that the widow of the deceased is earning the same amount of income from the selfsame vehicle owned by the victim, it should be presumed that there is no loss of income for the death of the victim.
Undisputedly, the victim, at the time of death, had income only from the transport business of letting out his vehicle to a company and after his death, his heirs have surrendered their interest in the said vehicle in favour of one of them, i.e. the widow, and she is earning, virtually, the same amount from the said business. In other words, the widow of the victim has undertaken the said business alone after the interest inherited by the other heirs has been surrendered in her favour. It is well known that in this type of a business, the owner is required to keep the vehicle in a good condition during the period of hire and make arrangement of supply of a driver; in case of breakdown of the vehicle, the owner should make alternative arrangement for supply of a different vehicle. In case of accident and consequential loss, the owner is required to make payment of compensation. After deduction of the necessary expenses mentioned above, the owner should also pay the required amount of tax and insurance premium. A part of the net earning arising out of the vehicle should be kept apart and invested in a suitable venture so that within a few years, sufficient amount is accumulated for replacement of the old vehicle. In other words, the owner is required to devote his fulltime in the business for earning the net income arising out of the vehicle. Therefore, the present amount of earning from the said business is the outcome of the fulltime attachment of the widow of the victim. By devoting such time and energy, she could also earn similar amount or even more, from other means either by service or by engaging herself in a different business. If her husband was alive, she could earn additional amount by giving similar amount of labour in other business or service.
At this stage, it will not be inapt to refer to the decision of the Supreme Court in the case of Helen C Rebello and others vs. Maharashtra State Road Transport Corporation and another reported in AIR 1998 SC 3191 where the question was whether in adjudicating the amount of just compensation within the meaning of the Motor Vehicles Act, 1939, the Tribunal was justified in deducting the amount of money received by maturity of the life Insurance of the deceased. While answering the question in negative, the Apex Court made the following observations:
"So far as the general principle of estimating damages under the common law is concerned, it is settled that the pecuniary loss can be ascertained only by balancing on one hand, the loss to the claimant of the future pecuniary benefits that would have accrued to him but for the death with the 'pecuniary advantage' which from whatever source comes to him by reason of the death. In other words, it is the balancing of loss and gain of the claimant occasioned by the death. But this has to change its colour to the extent a statute intends to do. Thus, this has to be interpreted in the light of the provisions of the Motor Vehicles Act, 1939. It is very clear, to which there could be no doubt that this Act delivers compensation to the claimant only on account of accidental injury or death, not on account of any other death. Thus, the pecuniary advantage accruing under this Act has to be deciphered, co-relating with the accidental death. The compensation payable under the Motor Vehicles Act is on account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. If there is natural death or death by suicide, serious illness, including even death by accident, through train, air flight not involving motor vehicle, would not be covered under the Motor Vehicles Act. Thus, the application of general principle under the common law of loss and gain for the computation of compensation under this Act must co-relate to this type of injury or deaths, viz., accidental. If the words 'pecuniary advantage' from whatever source are to be interpreted to mean any form of death under this Act it would dilute all possible benefits conferred on the claimant and would be contrary to the spirit of the law. If the 'pecuniary advantage' resulting from death means pecuniary advantage coming under all forms of death then it will include all the assets movable, immovable shares, bank accounts, cash and every amount receivable under any contract. In other words, all heritable assets including what is willed by the deceased etc. This would obliterate both, all possible conferment of economic security to the claimant by the deceased and the intentions of the legislature. By such an interpretation the tortfeasor in spite of his wrongful act or negligence, which contributes to the death, would have in many cases no liability or meagre liability. In our considered opinion, the general principle of loss and gain takes colour of this statute, viz., the gain has to be interpreted which is as a result of the accidental death and the loss on account of the accidental death. Thus, under the present Act whatever pecuniary advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other form of death. The constitution of the Motor Accidents Claims Tribunal itself under Section 110, is as the Section states;
"....for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to,....."
Thus, it would not include that which claimant receives on account of other form of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no correlation to the accidental death for which compensation is computed. Any amount received or receivable not only on account of the accidental death but that would have come to the claimant even otherwise, could not be construed to be the 'pecuniary advantage', liable for deduction. However, where the employer insures his employee, as against injury or death arising out of an accident, any amount received out of such insurance on the happening of such incidence may be an amount liable for deduction. However, our legislature has taken note of such contingency, through the proviso of Section 95. Under it, the liability of the insurer is excluded in respect of injury or death, arising out of, in the course of employment of an employee.
This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. This, it is excluded thus, either through the wisdom of legislature or through the principle of loss and gain through deduction not to give gain to the claimant twice arising from the same transaction, viz., same accident. It is significant to record here in both the sources, viz., either under the Motor Vehicles Act or from the employer, the compensation receivable by the claimant is either statutory or through the security of the employer securing for his employee but in both cases he receives the amount without his contribution. How thus an amount earned out of one's labour or contribution towards one's wealth, savings, etc. either for himself or for his family, which such person knows, under the law, has to go to his heirs after his death either by succession or under a will could be said to be the 'pecuniary gain' only on account of one's accidental death. This, of course, is a pecuniary gain but how this is equitable or could be balanced out of the amount to be received as compensation under the Motor Vehicles Act. There is no co-relation between the two amounts. Not even remotely. How can an amount of loss and gain of one contract could be made applicable to the loss and gain of another contract. Similarly, how an amount receivable under a statute has any co-relation with an amount earned by an individual. Principle of loss and gain has to be on the same place within the same sphere, of course, subject to the contract to the contrary or any provisions of law.
Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the accidental death. This amount is secured, is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event, viz., accident, which may not take place at all. Similarly, family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No co-relation between the two. Similarly, life insurance policy is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which insured contributes in the form of premium. It is receivable even by the insured, if he lives till maturity after paying all the premiums, in the case of death insurer indemnifies to pay the sum to the heirs, again in terms of the contracts for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, bank balance, shares, fixed deposits, etc. though are all a pecuniary advantage receivable by the heirs on account of one's death but all these have no co-relation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as 'pecuniary advantage' liable for deduction. When we seek the principle of loss and gain, it has to be on similar and same plane having nexus inter se between them and not to which, there is no semblance of any co-relation. The insured (deceased) contributes his own money for which he receives the amount has no co-relation to the compensation computed as against tortfeasor for his negligence on account of accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act, he receives without any contribution. As we have said the compensation payable under the Motor Vehicles Act is statutory while the amount receivable under the life insurance policy is contractual." Thus, if the amount received on maturity of a life insurance policy of the victim (other than benefit of accidental death) or the amount of provident fund or the amount of family pension, or the fixed assets coming into the hands of the heirs are not relevant for the purpose of assessing just compensation, there is no reason why the income of the widow arising out of business run by her alone based on her labour and skill from the motor vehicle inherited by her from the victim should be deducted for assessing the just amount of compensation.
We now propose to deal with the decisions cited by Mr. Das in this connection.
In the case of State of Haryana and another vs. Jasbir Kaur and others (supra), the victim lost his life in a vehicle accident. His widow and minor son filed claim-petition under Section 166 of the Motor Vehicles Act for grant of compensation to the tune of Rs.10 lakh. The claimants asserted that the deceased was 25 years old, was an agriculturist and was earning about Rs.10,000/- per month by cultivating his agricultural land and from his avocation of purchasing and selling cattles, and by selling milk.
The Motor Accident Claims Tribunal held that the claimants were entitled to compensation of Rs.6.5 lakh for the loss of pecuniary benefits. It was further stipulated that the claimants would be entitled to the interest @ 9% on the amount of compensation from the date of application until realization. For determining the compensation, the Tribunal held that the monthly income of the deceased could be reasonably assessed at Rs.4,500/- a month. After deducting Rs.1,500/- for personal expenses, the Tribunal took Rs.3,000/- per mensem to be the contribution and multiplier of 18 was applied as per Second Schedule to the Act. The appeal before the High Court filed by the owner of the vehicle was dismissed on the ground that there was no infirmity in the award. In a further appeal by the owner, the Apex Court made the following observations:
"It is clear on a bare reading of the Tribunal's decision as affirmed by the High Court that no material was placed before the former to prove as to what was the income. As rightly contended by learned counsel for the appellants, there was not even any material adduced to show type of land which the deceased possessed. The matter can be approached from a different angle. The land possessed by the deceased still remains with the claimants as his legal heirs. There is however a possibility that the claimants may be required to engage persons to look after agriculture. Therefore, the normal rule about the deprivation of income is not strictly applicable to cases where agricultural income is the source. Attendant circumstances have to be considered. Furthermore, there was no material before the Tribunal to arrive at the figure of Rs. 4500 per month. No reason has been indicated to arrive at this figure. In the light of what has been discussed above about "just compensation" the income cannot be estimated without any material to justify the estimation. In the normal course, we would have remitted the matter back to the Tribunal for fresh consideration. But considering the fact that one young person lost his life, and the matter was pending before the Tribunal and the High Court for some years, we feel it appropriate to take all relevant factors into consideration, and decide the matter. Gauzing the relevant aspects, noted above, the monthly income is fixed at Rs. 3000/- per month, and after deducting Rs. 1,000/- for personal expenses, financial contribution so far as the claimants are concerned is fixed at Rs. 2,000/- per month. Worked out on the basis of multiplier of 18, the compensation is fixed at Rs. 4,32,000/-. The amount of Rs. 2,000/- awarded by the Tribunal for funeral expenses is not interfered with and thus the total compensation comes to Rs. 4,34,000/-. The rate of interest i.e. 9% per annum as fixed by the Tribunal and affirmed by the High Court is appropriate, and does not need any alteration."
By relying upon the above observations of the Apex Court quoted by us in bold letters, Mr. Das tried to impress upon us that the principles applicable to the income of agricultural land should also be applicable to the facts of the present case. We are afraid we are unable to accept such contention for the simple reason that even if we treat those observations as law laid down by the Supreme Court, the same is limited to income arising out of agricultural land and not applicable to the case in hand. In this connection, we may profitably refer to the following observations of the Apex Court in the case of Divisional Controller KSRTC vs. Mahadeva Shetty and another (supra) relied upon by Mr. Das:
"The decision ordinarily is a decision on the case before the Court, while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. Therefore, while applying the decision to a later case, the Court dealing with it should carefully try to ascertain the principle laid down by the previous decision. A decision often takes its colour from the question involved in the case in which it is rendered. The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation. The only thing binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty as without an investigation into the facts, it cannot be assumed whether a similar direction must or ought to be made as measure of social justice. Precedents sub silentio and without argument are of no moment. Mere casual expression carry no weight at all. Nor every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement having the weight of authority."
Over and above, the Supreme Court, in the case of Jasbir Kaur and others, set aside the orders of the High Court and the Tribunal primarily on the ground that there was no material before the Tribunal to arrive at the figure of Rs.4,500/- as monthly income of the deceased and thus, for doing complete justice between the parties instead of remanding the matter assessed the same to be Rs.3,000/- and applied the multiplier of 18. Moreover, the Supreme Court, in that case, did not take into consideration the observations of the same Court in the case of Helen C Rebello (supra), where it was specifically laid down that any fixed asset inherited by the claimants from the victim for the accidental death should not be taken into consideration for the purpose of assessing the loss. An agricultural land inherited by the claimant definitely comes within the aforesaid observations of the Supreme Court in the case of Helen C Rebello (supra). Therefore, the said decision does not help the respondent in anyway.
In the case of Divisional Controller KSRTC vs. Mahadeva Shetty and another (supra), the Supreme Court was dealing with a case of compensation for injury suffered by a mason having no fixed job who claimed Rs.9.83 lakh as compensation. The Tribunal awarded a sum of Rs.2.2 lakh, which was enhanced by the High Court to Rs.6.25 lakh. On appeal, the Supreme Court reduced the same to Rs.4.5 lakh with interest at the rate of 9% per annum. While arriving at such a figure, the Apex Court in paragraph 15 quoted with approval, the decision of Rebello C Helen (supra) relied upon by us in this case. We fail to appreciate how the said decision can be of any help to the respondent.
In the case of Ponnumany and another vs. V.A. Mohanan and others (supra), the appellant due to an accident, became paralysed and was found to have suffered 100% disability by the Tribunal which on assessment of evidence fixed Rs.10,000/- as yearly income from agriculture and after taking into consideration the age of the applicant applied the multiplier of 13 and awarded a compensation of Rs.1,30,000/- towards loss of earning capacity; Rs.20,000/- towards the pain and the sufferings; Rs.3,000/- towards the cost of hospitalization and Rs.50,000/- towards the continued loss of amenities. Thus, the total amount of compensation figured at Rs.2,03,000/-. Being aggrieved, the claimant preferred an appeal before the High Court, which enhanced the compensation towards loss of earning capacity to Rs.1,95,000/-. The High Court further enhanced the nursing cost and medical expenses by Rs.30,000/-. Therefore, there was enhancement of Rs.95,000/-. Still being aggrieved, the claimant preferred an appeal before the Apex Court. It was contended on behalf of the appellant that assessment of compensation based on notional income as specified in the Second Schedule of the Act was erroneous as the appellant was an agriculturist and had a land of 5 Acres. The Supreme Court overruled such contention and observed as follows:
"In the present case, although the first appellant has placed material before the court to show that he owned the agricultural lands but there is no convincing evidence to prove the income out of that. That apart, since he owned the land it cannot be said that there is total loss of income due to injury suffered by the appellant: thus, the calculation of the amount of compensation on the basis of notional income cannot be faulted with."
The said decision is distinguishable in the same way we have distinguished the case of Jasbir Kaur and others (supra).
In the case of New India Assurance Co. Ltd. and others vs. Viswa Bahdhu and others (supra), contention was advanced on behalf of the cross-objector that the victim was a partner in the family business and her income for the year 1982-83 had been assessed at Rs.38,520/- and that she was assessed frequently for almost the same amount and as such, by taking into consideration that amount, a higher amount of compensation should have been given. A learned Single Judge of the Punjab and Hariyana High Court, however, overruled such contention. The learned Judge was of the view that there was no evidence to show that the victim was really involved in the family business and was conducting it by herself. According to His Lordship, it was, therefore, clear that the income that would accrue to her as a partner would go to her heirs and thus, there would not be any loss of estate. In the case before us, the business was the sole business of the victim and he devoted his labour and skill in such business. In such circumstances, the principle applicable to the income of a sleeping partner of a business cannot have any application to the facts of the present case.
In the case of B. Parimala and others vs. Riyaz Ahmed and others (supra), a Division Bench of Karnataka High Court was considering a case where the question was what should be the approach of a Tribunal in assessing compensation when the victim was a partner of a firm. In our view, principles laid down in that decision cannot have any application to a case a victim who was running a business based on his own labour and skill without the assistance of the others. We, therefore, find that the said decision is not relevant to the facts of the present case and is of no assistance to the respondent. We make no comments on the principles laid down therein as we are not concerned with the case of death of a partner of a firm.
In the case of National Insurance Co. Ltd vs. Chand Ratan and others, a Division Bench of the Madhya Pradesh High Court was of the opinion that if a business owned by the victim is run in the same manner by his son with same profit after his death, there is no monetary loss but the family had been deprived of the services rendered by the victim to his family and the value of such service was assessed to be Rs.2,000/- a month in that case. The Court, based on such loss of service, applied the appropriate multiplier in accordance with the age of the victim and assessed at the figure of compensation. With great respect to the learned Judges of the said Division Bench, we are unable to accept such proposition as a correct proposition of law as the Division Bench did not take into consideration the fact that the son of the victim had to give his full labour and skill for maintaining the said business and such labour and skill coupled with devotion of time could be utilized for earning similar amount or even more, from his independent enterprise. We, therefore, find that the decisions cited by Mr Das are of no avail to his client.
The next question is what should be the amount of compensation in this case payable to the heirs of the deceased for the death caused for no fault of the victim.
It appears from the Income-Tax Return of the victim for the last year before his death that his annual net income was Rs.1,66,866/- out of which a sum of Rupees two thousand and odd was paid as tax. By making it a round figure of Rs.1,50,000/- and deducting one-third from the said amount as his personal expenses and after taking into consideration the fact that he was aged 41 years at the time of death and the present rate of bank interest, we propose to apply the multiplier of 8 and the amount of compensation comes to Rs.8 lakh. By investing the amount of Rs.8 lakh in a nationalised bank, although the appellants will get about Rs.70,000/- per annum whereas the annual income of their predecessor after deducting one-third was Rs.1 lakh, we have taken into consideration the uncertainties of the future, the allowances for immediate lump sum payment, the fact that the period over which the dependency is to last is shorter (the two children were aged 18 and 17 years respectively) and the capital feed also to be spent away over the period the dependency is to last and above all, the onetime marriage expenses of the unmarried daughter of the victim. In our view, the total amount of Rs.8 lakh will be the just compensation in the facts of the present case. Claimants are also entitled to get interest at the rate of 8% per annum from the date of filing the application until the actual payment. The Insurance Company is directed to deposit the balance amount within four weeks from today before the Tribunal. It is needles to mention that the running of interest on the deposited amount will stop from the date of deposit of the amount before the Tribunal.
Let the enhanced amount be released by four different cheques of equal amount in the name of the widow, namely, Sharmila Singh, the two children, namely, Amit Kumar Singh and Amrita Singh and the mother of the victim, namely, Smt. Pachratan Devi, who are the heirs of the victim according to Hindu Marriage Act.
Let the Lower Court Records be immediately sent down to the learned Tribunal below.
The appeal is, thus, allowed. The award passed by the Tribunal below is modified to the extent indicated above. In the facts and circumstances, there will be, however, no order as to costs.
( Bhaskar Bhattacharya, J. ) I agree.
( Rudrendra Nath Banerjee, J. )