Madhya Pradesh High Court
Tej Kumari And Ors. vs Hakim Singh And Ors. on 27 October, 1998
Equivalent citations: 2000ACJ1205
JUDGMENT S.P. Srivastava, J.
1. The claimants-appellants feeling aggrieved by the award given by the Motor Accidents Claims Tribunal in the proceedings under Section 166 of the Motor Vehicles Act have come up in appeal seeking redress to this court praying for the enhancement of the amount of compensation awarded by the Tribunal.
2. We have heard the learned counsel for the appellants as well as the learned counsel representing the respondents including the insurer and have carefully perused the record.
3. The facts in brief shorn of details and necessary for the disposal of this appeal lie in a narrow compass: Radheshyam Rathore, who was holding the post of Assistant Director, Agriculture, travelling from Ghatigaon to Gwalior in a motor vehicle Gypsy registration No. MP-07-A 6996 met with an accident caused by bus No. CIW 7262, which was travelling towards Ghatigaon and received the fatal injuries which ultimately resulted in his death on 21.12.1991.
4. The present appellants, who are wife, sons and daughter of the deceased Radheshyam Rathore, initiated proceedings praying for the award of compensation to the tune of Rs. 16,00,000 on the allegations that at the time of his death, Radheshyam was about 50 years of age and was getting a salary of about Rs. 5,000 per month. The death had been caused on account of the rash and negligent driving of the offending vehicle, the bus registration No. CIW 7262. The claimants asserted that the life expectancy of the deceased was at least 75 years of age and taking into consideration the amount earned by the deceased from which the claimants who were his dependants stood deprived on account of the untimely death, they were entitled to an amount of Rs. 1,00,000 towards mental agony and Rs. 15,00,000 towards loss of income. They claimed the payment of the aforesaid amount along with an interest calculated at the rate of 18 per cent per annum from the date of the application till its realisation.
5. The aforesaid claim was contested by Hakim Singh, the driver and Jagdish Singh, the owner of the offending bus, who filed a joint written statement. They denied the factum of the accident as alleged by the claimants asserting that the offending bus was not at all involved therein. So far as the other assertions of facts contained in the application filed by the claimants were concerned, they were denied for want of knowledge. It was, however, admitted that Hakim Singh was the driver of the bus and was in the employment of Jagdish Singh, the owner, and further that the aforesaid bus was insured with the Oriental Insurance Co. Ltd., which had been impleaded as respondent No. 3 in the application for compensation. They also disputed the correctness of the claim regarding quantum of compensation which was indicated to be highly exaggerated. The insurer filed a separate written statement denying the allegations made by the claimants. It was denied that the offending bus was being driven rashly and negligently. The insurer claimed that even if it be assumed that there had been a collision between the Gypsy and the bus, it was on account of the rash and negligent driving of the Gypsy and not the bus for which the driver and owner of the Gypsy were responsible. The insurer also denied the claim of the appellants to the effect that Radheshyam Rathore, the deceased, was about 50 years of age on the date of death and that he was receiving an amount of Rs. 5,000 towards salary. The insurer denied its liability to pay any amount of compensation to the claimants.
6. The Motor Accidents Claims Tribunal under the impugned award, accepted the claim of the appellants in regard to the manner in which the accident resulting in the death of the deceased Radheshyam had occurred. It was found established from the evidence on the record that the offending bus was being driven in a rash and negligent manner. It was found proved that Hakim Singh, the driver, was driving the offending bus in a rash and negligent manner and had hit the motor vehicle in which the deceased was travelling which had caused fatal injuries to Radheshyam Rathore and resulted in his untimely death.
7. On the question in regard to the quantum of compensation, the Tribunal came to the conclusion that the amount which had been sought for on this count was highly exaggerated. The Tribunal after considering the evidence and the materials brought on record found that the deceased was in Government service and had been serving in the Agriculture Department of the Government on the post of Assistant Director (Sugarcane) and at the time of the death he was getting an amount of about Rs. 5,280 as salary. It was also found that apart from the aforesaid salary, the deceased was enjoying the facilities of official residence and telephone. He was also getting medical facilities for himself and the members of the family. Relying upon the last pay certificate of the deceased, the Tribunal found that the deceased was getting a total amount of Rs. 5,280 per month, out of which the amount of Rs. 890 was being deducted towards General Provident Fund and an amount of Rs. 90 was being deducted towards insurance charges. Accepting the testimony of the witness Hari Mohan Pathak, the Assistant Director, Agriculture (Sugarcane), Dabra, who was successor in office of the deceased and had been examined as the witness by the claimants, the Tribunal came to the conclusion that the deceased was to attain the age of superannuation on 31.10.1997 and in the aforesaid view of the matter determined the age of deceased at the time of death to be 52 years. The Tribunal also found that while posted as Assistant Director, Agriculture (Sugarcane) at Dabra, the deceased was residing along with his family members in Saket Nagar, Tansen Road, Gwalior. The Tribunal came to the conclusion that out of the amount of the salary received by him, the deceased must have been spending an amount of about Rs. 1,500 per month on himself with the consequence that the total amount of dependency could not exceed Rs. 2,800 per month. Accordingly, the total amount of dependency was determined to be only Rs. 2,800 per month.
8. While determining the quantum of compensation, the Tribunal found it appropriate to apply the multiplier of 8. For reaching the aforesaid conclusion, the Tribunal took into account the fact that the wife of the deceased had attained 50 years of age and two of the sons of the deceased had become major and the third son was going to attain majority very shortly. It was further taken into account that the daughter of the deceased was to leave the family on her marriage. The Tribunal while holding that a multiplier of 8 would be reasonable, took into account the fact that the two sons of the deceased had the capacity to earn and there was no evidence led to show what was their earning or to indicate that they were not earning at all. In the aforesaid circumstances, the Tribunal also took into account the fact that after the death of her husband Radheshyam Rathore, his widow, the claimant No. 1, was entitled to an amount towards pension. Taking into account the aforesaid factors, the Tribunal found it appropriate to apply the multiplier of 8 instead of multiplier of 11 as provided for under Section 163A of the Motor Vehicles Act.
9. The learned counsel for the appellants has tried to assail the finding returned against the claimants on the question in regard to the amount of dependency which has been assessed to be Rs. 2,800 per month under the impugned award.
10. We have carefully considered the evidence brought on record in this connection and the factors which have been taken into account by the Tribunal for coming to the conclusion that the amount of dependency could not exceed Rs. 2,800 per month. We are satisfied that taking into consideration the facts and circumstances noticed in the award which are amply borne out from the evidence brought on record, no justifiable ground has been made out for any interference in the fixation of the amount of dependency as determined by the Tribunal. The finding returned by the Tribunal in this regard is liable to be affirmed.
11. The learned counsel for the appellants has, however, contended that the Tribunal has manifestly erred in applying the multiplier of 8 instead of the multiplier of 11 which ought to have been applied even on the findings returned by the Tribunal on the question in regard to the age of the deceased at the time of his death and the finding returned in this respect against the petitioner is not sustainable and there could be no justification for depriving the claimants of the benefit available to them by applying the multiplier of 11. It has been urged that the Tribunal has completely misunderstood the real implications arising under Section 163A of the Motor Vehicles Act which have to be read along with the Second Schedule and ordinarily the multiplier as indicated therein ought to have been applied.
12. What has been contended is that the facts which have been taken into account by the Tribunal for applying the multiplier of 8 instead of the multiplier of 11 are wholly irrelevant and based on wrong assumptions.
13. We have given our anxious consideration to the aforesaid submission.
14. A method of assessing damages is to calculate the net pecuniary loss upon an annual basis and to arrive at the total award by multiplying the figure assessed as the amount of the annual 'dependency' by a number of "years' purchase", i.e., number of years the benefit was expected to last, taking into consideration the imponderable factors in fixing either the multiplier or the multiplicand. The multiplier method as indicated by various judgments of Apex Court appears to be more sound and equitable and ought to be applied.
15. We are of the considered opinion that for the purpose of calculating the just compensation, annual dependency of the dependants should be determined in terms of the annual loss occurring to them due to the abrupt termination of the life and for this purpose the annual earning of the deceased at the time of accident and the amount out of the same which he was spending for the maintenance of the dependants will be determining factors and it is this basic figure which has to be multiplied by a suitable multiplier. For finding out a suitable multiplier, the number of years of the dependency of various dependants, the number of years by which the life of the deceased was cut short and the various imponderable factors, such as early natural death of the deceased who had become incapable of supporting the dependants, the prospects of remarriage of the widow, the coming up of the age of the dependants on their developing their independent sources of income as well as the pecuniary benefits which might accrue to the dependants on account of the death of the person concerned have to be taken into account. Such benefits should, however, not include the amount of insurance policy of the deceased for which the dependants may become entitled on account of the maturity as a result of the death.
16. In the aforesaid view of the matter, multiplying the amount of the annual loss of the dependants with the number of years by which the life has been cut short without anything else is not permissible. Since various factors have to be taken into account for determining a suitable multiplier and the facts and circumstances may differ from case to case, there can be no hard and fast rule or strait-jacket formula in this regard for finding out a suitable multiplier. If it is found that the deceased had prematurely died at a very young age and if it is further revealed that longevity in his family was more, then it may be safe to take a higher multiplier with a view to arrive at a figure of total compensation. As has already been indicated hereinabove, the choice of a suitable multiplier depends on a consideration of the individual facts of each case and it is not proper to adhere to any rigid formula but the endeavour has to be to award a compensation which is just. The Tribunal has to remain sympathetic and realistic in the considerations because every assessment of compensation in such circumstances has to be determined only on reasonable probabilities which appeal to a reasonable and prudent person. It must, however, be emphasised that the age of the deceased person is neither a conclusive nor a paramount factor in the determination of the compensation except in those cases where the remaining years of life expectancy are less than the multiplier which is sought to be applied.
17. In the present case, what we find is that for choosing the multiplier of 8 instead of 11 as indicated in the Second Schedule referred to in Section 163A of the Motor Vehicles Act, the Tribunal has taken into account the remaining period of service of the deceased as well as the fact that the wife was entitled to get an amount of family pension. It has been overlooked that it was not the remaining period of service of the deceased which was relevant but it was the life expectancy which could be said to be relevant so far as the wife was concerned as that would have affected considerably the amount of the dependency. The deceased who was in Government employment was also entitled to pension and the amount of pension available to him would have been larger than the pension to which the wife would have been entitled. The claimants had come up with a clear case that the life expectancy of the deceased was at least 75 years of age. No evidence was led by the respondents to indicate that it was not so. In any case, the normal expectancy of life in the present days could be safely presumed to be 70 years of age. The choice of a lesser multiplier on the ground that the wife was entitled to a family pension, considering the circumstances of the present case, was of no material bearing. The other factor for choosing a lesser multiplier which had been taken into account by the Tribunal was that there had been no evidence to show that the sons of the deceased were not earning, even though they had the earning capacity. In the claim petition, the age of Ashwini Kumar, one of the sons of the deceased, was disclosed to be 22 years. Awadhesh Rathore, the other son, was shown to be 18 years of age and the third son Ajay Singh was shown to be only 14 years of age. The age of the daughter Indira was disclosed to be 19 years. In the deposition of the wife of the deceased recorded on 25.9.1996, she had stated that Ashwini Kumar, the eldest son of the deceased, was studying in Delhi. The other son Awadhesh Rathore was, however, employed and getting monthly salary between Rs. 1,500 and Rs. 2,000. Ajay Singh, the third son, was studying. The objectors had led no evidence rebutting the aforesaid facts. It was, therefore, apparent that at the time of the death of Radheshyam Rathore, none of his sons was earning anything. In fact the eldest son was continuing to be unemployed and continuing with his studies on the date of the deposition. Similar was the situation with Ajay Singh, the other son of the deceased.
18. In the aforesaid circumstances, the choice of a lesser multiplier simply on the basis that the two sons of the deceased had attained the majority and had the capacity to earn cannot be said to be justified as this factor is not conclusive or decisive. Similarly, the fact that the daughter of the deceased will get married shortly and will become a member of the other family by itself cannot be held to be justified for selecting a lesser multiplier, specially when in the present case the death occurred in the year 1991 and at least up to the date of deposition of the wife in the year 1996, no marriage had taken place and the situation remained as it was at the time of death so far as the daughter was concerned.
19. We are of the considered opinion that in the facts and circumstances of the present case and in view of our conclusions indicated hereinabove, no justifiable ground could be said to have been made out for not applying the multiplier of 11 as provided for and contemplated under Section 163A of the Motor Vehicles Act and the Tribunal had erred in applying a lesser multiplier of 8 for determining the amount of compensation.
20. Considering the totality of the circumstances, the compensation awarded applying the multiplier of 11, in our considered opinion, would have resulted in award of a just compensation envisaged under Section 168 of Motor Vehicles Act.
21. In view of our conclusions indicated hereinabove, this appeal succeeds in part. The impugned award is modified providing that the multiplier of 8 applied by the Tribunal for calculating the amount of compensation shall be substituted by a multiplier of 11 and the amount of compensation shall be calculated accordingly, with the proportionate increase in the amount of compensation specified by the Tribunal to the various claimants.
22. Accordingly, the Tribunal shall make a fresh award calculating the amount of compensation as provided hereinabove ensuring that the exercise in this regard is completed within a period not later than two months from the receipt of the record by it from this court.
23. There shall, however, be no order as to costs so far as this appeal is concerned.