Chattisgarh High Court
National Insurance Co Ltd vs Shri Ram Kishan Dubey & Others on 28 August, 2010
HIGH COURT OF CHATTISGARH AT BILASPUR
MA No 1059 of 2003
National Insurance Co Ltd
...Petitioners
Versus
Shri Ram Kishan Dubey & others
...Respondents
! Mr Shree Kumar Agarwal Sr Advocate with Mr JA Lohani Advocate for the appellant * CORAM : HONBLE MR IM QUDDUSI J & HONBLE MR NAWAL KISHORE AGARWAL J % Dated : 28/08/2010 : Judgement ORDER Oral 28th August 2010 I.M. Quddusi, J;
1. When the matter is called, none appears on behalf of the respondents. Even in the second call, none appears on behalf of the respondents and therefore, the matter is decided ex-parte.
2. The appellant-Insurance Company has filed this appeal against the award dated 31.7.2003 passed in Claim Case No.78/2002 whereby the learned Motor Accident Claims Tribunal, Durg(CG) has allowed the claim petition filed by the claimants and awarded a sum of Rs.3,29,564/- to the parents of the deceased, who died at the age of 19 years in a road accident.
3. Brief facts of the case are that n 16.4.2002 at about 6- 7 p.m. in the evening the deceased Gopal Dubey, who was son of respondent Nos.1 & 2 herein, was going on his scooter to the Railway Station, Bhilai-3 to pick-up his father, however, on the way a bus, bearing registration number MH21- W-6969 coming from the opposite side, driven in rash and negligent manner by the driver, dashed the scooter of said Gopal as a result of which sustained injuries and died on the spot. The claimants, on account of death of their son, have filed a claim petition claiming an amount of Rs.73,55,000/- on various heads as compensation. The claimants in support of the monthly income of the deceased, have filed a certificate of the deceased Gopal Dubey as Ex.P- 5 which shows that the deceased had passed the DTP (2 months examination) held by IT Bhilai Computer Academy in the month of December, 2001 in second division. The claimants have also filed other documents in support of their claim.
4. The tribunal below after hearing the parties in the matter and considering evidence available on record, allowed the claim petition of the claimants and awarded a sum of Rs.3,29,564/- under various heads. The claims tribunal further held that the non-applicants to the claim petition shall be liable to satisfy the award jointly or severally. Hence this appeal by the appellant insurance company.
5. We have heard learned counsel for the parties and perused the impugned award as also the record of the claims tribunal below.
6. The appellant-insurance company has filed the instant appeal on the question of quantum only relying on the judgment of the Hon'ble Apex Court in the matter of Municipal Corporation of Greater Bombay Vs. Laxman Iyer and another reported in (2003) 8 SCC 731 in which the Hon'ble Apex Court has held that in cases where the deceased was aged about 18 years at the time of his death and was un- married, the multiplier cannot be more than 10. In that case, the parents were having their separate earnings being employed and educated. So far as the quantum of compensation is concerned, the Hon'ble Apex Court has held that it is not the age of the deceased alone but the age of the claimants is relevant in determination of appropriate multiplier.
7. The judgment delivered by the three Members Bench of the Hon'ble Apex Court in the matter of Lata Wadhwa and others Vs. State of Bihar and others reported in AIR 2001 SC 3218 is definitely a guiding factor in the matter of award of compensation wherein children died due to an unfortunate accident. Paras-8 & 11 of the said judgment are liable to be perused and therefore, the same are quoted as under:-
"8. So far as the determination of compensation in death cases is concerned, apart from the three decisions of the Andhra Pradesh High Court, which had been mentioned in the order of this Court dated 15-12-1993, this Court in the case of G.M., Kerala SRTC v. Susamma Thomas5 exhaustively dealt with the question. It has been held in the aforesaid case that for assessment of damages to compensate the dependants, it has to take into account many imponderables, as to 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 Court further observed that 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 and, thereafter, it should be capitalised by multiplying it by a figure representing the proper number of years' purchase. It was also stated that 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. On the acceptability of the multiplier method, the Court observed:
"The multiplier method is logically sound and legally well-established method of ensuring a `just' compensation which will make for uniformity and certainty of the awards. A departure from this method can only be justified in rare and extraordinary circumstances and very exceptional cases."
The Court also further observed that the proper method of computation is the multiplier method and any departure, except in exceptional and extraordinary cases, would introduce inconsistency of principle, lack of uniformity and an element of unpredictability in the assessment of compensation. The Court disapproved the contrary views taken by some of the High Courts and explained away the earlier view of the Supreme Court on the point. After considering a series of English decisions, it was held that the multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants, whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed up over the period for which the dependency is expected to last. In view of the aforesaid authoritative pronouncement of this Court and having regard to the determination made in the Report by Shri Justice Chandrachud, on the basis of the aforesaid multiplier method, it is difficult for us to accept the contention of Ms Rani Jethmalani that the settled principle for determination of compensation has not been followed in the present case. The further submission of the learned counsel that the determination made is arbitrary, is devoid of any substance, as Shri Justice Chandrachud has correctly applied the multiplier, on consideration of all the relevant factors. Damages are awarded on the basis of financial loss and the financial loss is assessed in the same way as prospective loss of earnings. The basic figure, instead of being the net earnings, is the net contribution to the support of the dependants, which would have been derived from the future income of the deceased. When the basic figure is fixed, then an estimate has to be made of the probable length of time for which the earnings or contribution would have continued and then a suitable multiple has to be determined (a number of years' purchase), which will reduce the total loss to its present value, taking into account the proved risks of rise or fall in the income. In the case of Mallett v. McMonagle Lord Diplock gave a full analysis of the uncertainties, which arise at various stages in the estimate and the practical ways of dealing with them. In the case of Davies v. Taylor it was held that the Court, in looking at future uncertain events, does not decide whether on balance one thing is more likely to happen than another, but merely puts a value on the chances. A possibility may be ignored if it is slight and remote. Any method of calculation is subordinate to the necessity for compensating the real loss. But a practical approach to the calculation of the damages has been stated by Lord Wright, in a passage which is frequently quoted, in Davies v. Powell Duffryn Associated Collieries Ltd.8 to the following effect: (All ER p. 665 A-B) "The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years' purchase."
11. So far as the award of compensation in case of children is concerned, Shri Justice Chandrachud has divided them into two groups, the first group between the age group of 5 to 10 years and the second group between the age group of 10 to 15 years. In case of children between the age group of 5 to 10 years, a uniform sum of Rs.50,000 has been held to be payable by way of compensation, to which the conventional figure of Rs 25,000 has been added and as such to the heirs of the 14 children, a consolidated sum of Rs.75,000 each, has been awarded. So far as the children in the age group of 10 to 15 years, there are 10 such children who died on the fateful day and having found their contribution to the family at Rs.12,000 per annum, 11 multiplier has been applied, particularly, depending upon the age of the father and then the conventional compensation of Rs.25,000 has been added to each case and consequently, the heirs of each of the deceased above 10 years of age, have been granted compensation to the tune of Rs.1,57,000 each. In case of the death of an infant, there may have been no actual pecuniary benefit derived by its parents during the child's lifetime. But this will not necessarily bar the parents' claim and prospective loss will found a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived. This principle was laid down by the House of Lords in the famous case of Taff Vale Rly. v. Jenkins and Lord Atkinson said thus:
".all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact - there must be a basis of fact from which the inference can reasonably be drawn; but I wish to express my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first, that the deceased earned money in the past, and, second, that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inference can, I think, be drawn from circumstances other than and different from them."
At the same time, it must be held that a mere speculative possibility of benefit is not sufficient. Question whether there exists a reasonable expectation of pecuniary advantage is always a mixed question of fact and law. There are several decided cases on this point, providing the guidelines for determination of compensation in such cases but we do not think it necessary for us to advert, as the claimants had not adduced any materials on the reasonable expectation of pecuniary benefits, which the parents expected. In case of a bright and healthy boy, his performances in the school, it would be easier for the authority to arrive at the compensation amount, which may be different from another sickly, unhealthy, rickety child and bad student, but as has been stated earlier, not an iota of material was produced before Shri Justice Chandrachud to enable him to arrive at a just compensation in such cases and, therefore, he has determined the same on an approximation. Mr Nariman, appearing for TISCO on his own, submitted that the compensation determined for the children of all age groups could be doubled, as in his views also, the determination made is grossly inadequate. Loss of a child to the parents is irrecoupable, and no amount of money could compensate the parents. Having regard to the environment from which these children were brought, their parents being reasonably well- placed officials of Tata Iron and Steel Company, and on considering the submission of Mr. Nariman, we would direct that the compensation amount for the children between the age group of 5 to 10 years should be three times. In other words, it should be Rs.1.5 lakhs, to which the conventional figure of Rs.50,000 should be added and thus the total amount in each case would be Rs.2.00 lakhs. So far as the children between the age group of 10 to 15 years, they are all students of Class VI to Class X and are children of employees of TISCO. TISCO itself has a tradition that every employee can get one of his children employed in the Company. Having regard to these facts, in their case, the contribution of Rs.12,000 per annum appears to us to be on the lower side and in our considered opinion, the contribution should be Rs.24,000 and instead of 11 multiplier, the appropriate multiplier would be 15. Therefore, the compensation, so calculated on the aforesaid basis should be worked out to Rs.3.60 lakhs, to which an additional sum of Rs.50,000 has to be added, thus making the total amount payable at Rs.4.10 lakhs for each of the claimants of the aforesaid deceased children."
8. The above judgments were of the period when the 2nd Schedule, which came into force w.e.f. 14.11.1994, did not exist, but in the second schedule the multiplier has been given agewise and deduction was given as 1/3rd in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive.
9. The Supreme Court in a recent decision reported in Sarla Verma (Smt.) and others -vs- Delhi Transport Corporation and another (2009) SCC 121 has laid down vide Para 40 that the multiplier scale according to Column (4) in the given table will be applicable. Besides this, the Apex Court further held that in a case where the deceased was bachelor and the parents are claimants; normally 50% is deducted as personal and living expenses because it is assumed that a bachelor would tend to spend more on him as self maintenance. Similar view has been expressed by the Supreme Court in Syed Basheer Ahamed and others -vs- Mohammed Jameel and another, (2009) 2 SCC 225 (Para 28).
10. The selection of multiplier cannot in all cases be solely dependent on the age of the deceased and the age of the claimants is also relevant. The Supreme Court in Sarla Verma's case (supra), referring to the decision in General Manager, Kerla S.R.T.C. -vs- Susamma Thomas, (1994) 2 SCC 176, has reiterated that the multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of multiplier is determined by the age of the deceased or that of the claimants whichever is higher (see para 13). It has been also been said vide Para 17 that usually in English Courts the operative multiplier rarely exceeds 16 as maximum and this will come down accordingly as the age of the deceased person (or that of the dependants whichever is higher) goes up.
11. In the instant case, the learned Claims Tribunal considering the age of the deceased, an un-married boy, to be 19 years applied the multiplier of 16 according to the second schedule and calculated the compensation at Rs.3,20,064/-. Besides this, a sum of Rs.5,000/- towards loss of love & affection, Rs.2,000/- towards funeral expenses and Rs.2,500/- towards of loss of estate were also awarded.
12. Considering the facts and circumstances of the case, we are of the opinion that the learned claims tribunal concerned has not considered the law laid down by the Hon'ble Apex Court in the matters of Municipal Corporation of Greater Bombay (supra) and Lata Wadhwa (supra) and therefore, we are of the view that the matter requires reconsideration.
13. Accordingly, we allow this appeal in part and set aside the impugned award dated 31.7.2003 and remit the matter to the learned Motor Accident Claims Tribunal, Durg (CG) for deciding the same afresh after affording opportunity to the parties to adduce additional evidence in support of their respective cases. It is made clear that whatever findings have been given in the impugned award shall not be taken into consideration and without being influenced by those findings, the decision shall be taken by the claims tribunal independently.
14. It is further directed that since the claimants are not present despite service of summons, if they do not turn in the proceedings before the claims tribunal concerned, it will be open for the tribunal to decide the claim petition in absence of the claimants on merits based on the evidence already on record or adduced by the party present. The claims tribunal may also consider the future prospectus of the income of the deceased.
15. Registry is directed to transmit record of the claims tribunal concerned without further delay.
16. Certified copy as per rules.
JUDGE JUDGE