Karnataka High Court
Bangalore Metropolitan Transport ... vs Sri B N Nagesh on 7 December, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
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R
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 7th DAY OF DECEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
M.F.A.NO.7665 OF 2008 (MV)
C/W
M.F.A NO.491 OF 2009(MV)
MFA.NO.7665 OF 2008
BETWEEN:
BANGALORE METROPOLITAN
TRANSPORT CORPORATION
CENTRAL OFFICE
K.H. DOUBLE ROAD
SHANTHINAGAR
BANGALORE
BY ITS MANAGING DIRECTOR ...APPELLANT
(BY SRI: D. VIJAYAKUMAR, ADV., )
AND:
1. SRI. B.N. NAGESH
S/O. SRI. NARASIMHA SHASTRY
AGED ABOUT 52 YEARS
2. SMT. KAMALA
W/O. SRI B.N. NAGESH
AGED ABOUT 47 YEARS
2
BOTH ARE R/O. NO.18/450
NEERA GANTHI STREET
ANANTHAPURA OLD TOWN
KOTESHWARA RAO
ANDHRAPRADESH .....RESPONDENTS
(BY SRI: R. CHANDRASHEKAR, ADV., FOR M/S LAWYERS
NET, FOR R1 & 2)
--------
THIS MFA IS FILED UNDER SECTION 173(1) OF M.V.
ACT AGAINST THE JUDGMENT AND AWARD DATED
28.3.2008 PASSED IN MVC NO.4185/2006 ON THE FILE OF
THE VI ADDL. JUDGE, COURT OF SMALL CAUSES,
MEMBER, MACT, METROPOLITAN AREA, BANGALROE
(SCCH.NO.2), AWARDING A COMPENSATION OF
RS.9,15,000/- WITH INTEREST AT 7% P.A. FROM THE DATE
OF PETITION TILL DEPOSIT.
M.F.A.NO.491 OF 2009
BETWEEN:
1. B.N. NAGESH
S/O. NARASIMHA SHASTRY
AGED ABOUT 53 YEARS
2. KAMALA
W/O. B.N. NAGESH
AGED ABOUT 48 YEARS
BOTH ARE R/O. NO.18/450
NEERA GANTHI STREET
ANANTHAPURA OLD TOWN
KOTESHWARA RAO
ANDHRAPRADESH ......APPELLANTS
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(BY SRI: R. CHANDRASHEKAR, ADV., FORM/S. LAWYERS
NET,)
AND:-
THE MANAGING DIRECTOR
B.M.T.C
K.H. ROAD
SHANTHINAGAR
BANGALORE-560 027. .....RESPONDENT
(BY SRI: D. VIJAYKUMAR, ADV.,)
--------
THIS MFA IS FILED UNDER SECTION 173(1) OF M.V.
ACT AGAINST THE JUDGMENT AND AWARD DATED
28.3.2008 PASSED IN MVC NO.4185/2006 ON THE FILE OF
THE VI ADDL. SCJ & MEMBER, MACT, BANGALORE PARLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are by the owner of the offending vehicle as well as the claimants questioning the correctness and legality of the judgment and award passed by MACT, Bangalore(SCCH-2) dated 28.3.2008 in MVC No.4185/2006, whereunder, the claim petition filed by the parents of the 4 deceased (Smt.B.N. Sai Jyothi) claiming compensation of `.25.00 lakhs came to be allowed-in-part and a compensation of `9,15,000/- with interest at 7% p.a.
2. In MFA No.7665/2008, the owner of the offending vehicle is challenging the judgment and award on the ground that the accident in question occurred on account of negligence attributable to the deceased to an extent of 100% and Tribunal committed a serious error in construing the income of the deceased as `.15,000/- without there being any positive evidence available on record. It is also contended that interest awarded @ 7% p.a. is on the higher side and requires to be scaled down.
3. In MFA No.491/2009 claimants have sought for enhancement of the compensation by contending that contributory negligence as apportioned by the Tribunal to the deceased at 25% is erroneous and same is liable to be set- aside. It is also contended that 100% negligence is attributable to the driver of the offending vehicle and as such 5 they seek for modification of the award. Claimants have also contended that Tribunal committed an error in construing the age of the mother of the deceased for adopting the multiplier and contends that as per the judgment of the Hon'ble Apex Court in the case of Amrit Bhanu Shali & Ors. Vs. National Insurance Co. Ltd., & Ors. reported in 2012 AIR SCW 3901 that appropriate multiplier which was required to be adopted was '17' by taking the age of the deceased into consideration. They have also contended that Tribunal ought to have taken into consideration the probable future income that deceased would have earned to an extent of 30% by placing reliance on the judgment of the Apex Court in the case of Santosh Devi Vs. National Insurance Co. Ltd., and Others reported in 2012 ACJ 1428 and on these grounds claimants seek for enhancement of compensation and pray to fasten the contributory negligence entirely on the driver of the offending vehicle.
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4. Perusal of the award would disclose that Tribunal on appreciation of entire evidence available on record viz., both oral and documentary evidence came to a conclusion that the accident in question had occurred when the deceased had come from eastern side and was proceeding towards bus stop situated on the western side and deceased could have crossed the road little away from the circle to avoid the traffic. Tribunal also found that there was no zebra crossing anywhere near the spot of the accident and held there was some negligence attributable to the deceased also and having found that she had crossed 3/4th of the road, contributory negligence has been fixed by the Tribunal on the driver of the offending vehicle at 75% and on the deceased at 25%. Tribunal has adopted the multiplier of '13' by taking the age of the mother of the deceased as 45 years and adopting the multiplier of '13' and computed the compensation under the heading 'loss of dependency'.
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5. Sri. D. Vijayakumar, learned counsel appearing for the Corporation would contend that the accident in question as per spot sketch Ex-P4 would go to show that the deceased had attempted to cross the road suddenly without caring for the oncoming vehicles on the main road and deceased had dashed against the bus viz., on the left side hind wheel and sustained injuries and died on account of the injuries sustained and contends as such the accident occurred on account of negligence of the deceased herself and it was not on account of any negligence on the part of the driver of the bus, as such, he prays for fixing the contributory negligence at 100% on the deceased. By elaborating his submission, he contends that Ex-P4 spot sketch and Ex-P5 Panchanama would establish that the accident had occurred in the middle of the junction where there was no zebra crossing and the deceased should have crossed the road by observing all the vehicles and only on the zebra crossing. He further contends that the offending vehicle had come from western side and was going towards southern side by taking a right turn and 8 deceased had come from eastern side where the driver had no opportunity or chance to see on the left side and as such, he contends that contributory negligence ought to have been fixed on the deceased herself. He further submits that Tribunal committed a serious error in construing the income of the deceased at `.15,000/- based on Ex-P11 when it was not proved in accordance with law and as such notional income ought to have been taken by the Tribunal and in not doing so, it committed a serious error in computing the compensation payable under the head 'loss of dependency' that too, by taking the income of the deceased at `15,000/-. Hence, he contends that the judgment and award passed by the tribunal is liable to be set-aside and Corporation be absolved of its liability.
6. Learned counsel appearing for the claimants in MFA 491/09 would contend that there was absolutely no negligence on the part of the deceased and admittedly there was no zebra crossing at the site of the accident. He submits 9 that undisputedly, deceased had crossed 75% of the road and when there was clear visibility for the driver of the bus to see as to whether any person was crossing and having not done so Tribunal committed an error in fastening contributory negligence to an extent of 25% on the deceased and seeks for setting aside the said percentage of contributory negligence fixed on the deceased. He would further elaborate his submission by contending that Tribunal committed an error in not considering the future prospects of the deceased while considering her income. He would submit that Tribunal ought to have taken 30% of the actual income by way of future income while computing the monthly income of the deceased and thereafter it ought to have computed 'loss of dependency' and as such he prays that income of the deceased be construed as `19,500/- per month and compensation be recomputed and awarded to the claimants. He would also submit that Tribunal committed an error in adopting the multiplier by taking the age of the parents when the Hon'ble Apex Court in Amrit Bhanu Shali's case referred to supra has 10 held that it is the age of the deceased which ought to have been taken and not the age of the living parents and as such he contends that Tribunal committed an error insofar as, adopting multiplier of '13' instead of adopting the multiplier of '17' as held in the case of Sarla Verma and others Vs. Delhi Transport Corporation & Another reported in 2009 ACJ 1298 by taking into consideration the age of the deceased at 26 years as per the post-mortem report Ex-P8 and also the matriculation marks card Ex-P10 which reflected the date of birth of deceased. On these grounds, he seeks for allowing the appeal filed by the claimants and modifying the judgment and award passed by the Tribunal.
7. Having heard the learned Advocates appearing for the parties, I am of the considered view that following points arises for my consideration:-
1. Whether the Tribunal was correct in fixing the contributory negligence on the deceased at 25% or in other words fixing the contributory 11 negligence on the driver of the offending vehicle at 75%? ;
2. Whether the Tribunal was correct in adopting the multiplier of '13' by taking the age of the mother of deceased into consideration and if not what is the appropriate multiplier which was required to be adopted?;
3. Whether the judgment and award passed by the Tribunal requires to be set-aside, affirmed or modified?;
4. What order?.
8. The facts in brief leading to filing of these appeals are as under:-
A claim petition was filed by the parents of Smt.B.N. Saijyothi under Section 166 of M.V. Act, 1988 claiming compensation of `25.00 lakhs contending that on 15.6.2006 at about 6.30 a.m., deceased was crossing M.S. Ramaiah 12 main road near the junction of M.K. Nagar and M.S. Ramaiah Main Road, Mathikere, Yeshwanthpur and the driver of the offending vehicle driving the vehicle viz., the bus in a rash and negligent manner took sudden right turn in high speed and she was knocked down by the bus viz., as a result of which she came under the back wheel of the bus and was run over as a result of which she died at the spot.
9. Respondent Corporation on service of notice appeared and filed written statement denying the petition averments and contended that the accident in question had occurred on account of negligence of the deceased herself since she attempted to get into the moving bus which was moving at a slow pace and when she found that the doors of the bus had been closed and she could not get into the bus, she tried to knock the door and despite of diligence exhibited by the driver to open the door, she could not get into the bus, slipped down and as such she came under the wheels of the 13 bus and was run over by the hind wheels of the vehicle. On these grounds, they sought for dismissal of the claim petition. Re-point No.1
10. Tribunal on appreciation of entire oral and documentary evidence found that deceased had also contributed to certain extent to the accident in question and accordingly apportioned contributory negligence on her to an extent of 25% and 75% on the driver of offending vehicle-Bus. The accident in question had occurred at a junction where five roads meet and spot of the accident is at the south western corner as reflected in the spot sketch prepared by the jurisdictional police, which came to be marked as Ex-P4. Corporation in MFA No.7665/2008 has contended that accident in question occurred on account of negligence attributable to the deceased herself by placing reliance on Ex.P.4 (spot sketch) and Ex.P.5 (spot panchanama) and further contended that accident in question had occurred in the middle of the junction and where there is no zebra crossing and deceased should have crossed the road at the 14 zebra crossing only by observing movements of all the vehicles. It is also contended that driver of the offending vehicle was coming from western side and going towards southern side by taking right turn and deceased had come from eastern side i.e., from the left side of the road where there was no chance for the driver of the bus to see on the left side and as such 100% negligence is attributable to the deceased herself for causing the accident. This is diametrically opposite to the stand taken by Corporation in its written statement filed before the Tribunal. In fact, corporation contended in its written statement filed before the Tribunal that the offending vehicle was about to take right turn and at that time, a girl all of a sudden tried to get into the bus as "it was moving very slowly" and it is further contended that she found that the doors of the bus were closed and she could not get into the bus despite her knocking on the doors and the driver of the bus was diligent in his duty and was observing right side mirror as he had to take a right turn and as such he did not observe the girl 15 attempting to get into the bus and since deceased could not get into the bus, she slipped down from the bus and got under the hind wheels of the bus. This stand is contrary to the ground urged in the appeal. Thus, Corporation is in- consistent in its stand. The driver of the offending vehicle has been examined as R.W-1. He has reiterated the contentions raised in the written statement filed by the Corporation. It is nowhere stated that deceased was crossing the road. But, on the other hand, it is the specific case of the Corporation that the deceased had attempted to get into a moving bus and in the process she fell down. In view of this inconsistent stand taken by Corporation contention of the learned counsel appearing for the appellant to fix the contributory negligence on the deceased to an extent of 100% cannot be accepted.
11. Further more, it can be noticed from the spot sketch Ex-P4 that the offending vehicle was proceeding from the side of Chowdeshwari bus stop towards Mathikere and taking a right turn from West to South and entering into a 16 double road called as "M.S. Ramaiah Road". In other words, Ex.P-4 would indicate that offending vehicle was entering from one main road to another main road in the early hours of the date of the accident namely at 6.30 a.m. and while taking a right turn at the South western corner, accident in question had occurred.
12. It is the specific case of the claimants supported by eye-witness PW-2 that deceased was crossing the road from East to West and she had almost crossed 75% of the road and at that time, the offending vehicle driven in a rash and negligent manner and not taking any caution to slow down the vehicle while taking right turn, that too while entering main road had dashed against the deceased on account of which, she sustained grievous injuries and succumbed to the same. As already noticed hereinabove, Ex- P4 would clearly indicate that deceased had crossed the road to an extent of 75%. Though it is stated that she ought to have crossed at the zebra crossing, it is admitted in cross- 17 examination of PW-2 and Ex-P4-spot sketch, that no such zebra crossing was found on either side of the road or in the vicinity of the accident site. The driver of the vehicle while entering the main road from other main road was also expected to slow down, particularly while taking a right turn and he ought to have taken care and caution to find out as to whether there was any incoming vehicle or any pedestrian was crossing the road and not having so observed as expected of an ordinary prudent driver, the plea of the corporation that there was no rash and negligent driving on the part of the driver of the offending vehicle was not accepted by the Tribunal and it has rightly found that contributory negligence attributable to the driver of the offending vehicle was at 75%. Said finding is based on sound appreciation of evidence both oral and documentary and there is no infirmity whatsoever. It is also required to be noticed that in the statement of objections filed by Corporation as well as Examination-in- chief of the driver of the offending vehicle, he does not speak anything with regard to the bus being conducted by the 18 conductor. Infact he would have been the best witness to state the manner in which the accident had occurred. For reasons best known, he has not been examined. On the other hand, said conductor Sri.Nagappa has also been arraigned as a witness-CW-4 by the jurisdictional police in the criminal case filed against the driver of the offending vehicle in Cr.No.173/2006(CC.No.15/06). As against this evidence tendered by Corporation, eye-witness to the accident has been examined as PW-2 by the claimants, who has categorically stated that he has seen the accident and death of the deceased was on account of negligence of the driver of the bus. Hence, the Tribunal has rightly observed that the accident has occurred at a junction where the vehicles cannot be driven at a high speed and while the deceased was attempting to cross the road has come under the wheels of the offending vehicle, which cost her life. Said finding does not require interference and same is hereby affirmed. 19 Re-point No.2:-
13. Learned counsel appearing for the claimants has contended that Tribunal committed an error in adopting the multiplier of '13' by considering the age of the mother of the deceased and it ought to have taken the age of the deceased as the same would be the appropriate multiplier for determining compensation payable for "loss of dependency". In support of his submission, he relies upon the judgment of the Hon'ble Apex Court in the case of Amruth Bhanu Shali Vs. National Insurance Co., Ltd., and Ors. reported in 2012 AIR SCW 3901, whereunder it has been held as follows:-
"17. The selection of multiplier is based on the age of the deceased and not on the basis of the age of dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of dependents has no nexus with the computation of compensation."
"18. In the case of Sarla Verma, (AIR 2009 SC 3104; 2009 AIR SCW 4992) (supra) this Court held that the multiplier to be used should be as mentioned in column(4) of the table of the said judgment which starts with an operative multiplier of 18. As the age of the deceased at the time of the death was 26 years, the multiplier of 17 ought to have been applied. The Tribunal taking into consideration 20 the age of the deceased rightly applied the multiplier of 17 but the High Court committed a serious error by not giving the benefit of multiplier of 17 and bringing it down to the multiplier of 13.
14. In the case of Sarla Verma' Vs Delhi Transport Corporation reported in (2009)6 SCC 121 four points came to be formulated by their Lordships for determination. They read as under:-
(i) Whether the future prospects can be taken into account for determining the income of the deceased? If so, whether pay revisions that occurred during the pendency of the claim proceedings or appeals therefrom should be taken into account?
(ii) Whether the deduction towards personal and living expenses of the deceased should be less than one-fourth(1/4th) as contended by the appellants, or should be one-third(1/3rd) as contended by the respondents?
(iii) Whether the High Court erred in taking the multiplier as 13?
(iv) What should be the compensation?
15. Issue regarding multiplier or point for determination was at point No.3, as extracted herein supra. 21 Said point came to be adjudicated and answered at paragraphs 33 to 42 and they read as under.
"33. In Susamma Thomas, this Court stated the principle relating to multiplier thus:
(SCC ppc.185-86, para 17) "17. 'The multiplier represents the number of years' purchase on which the loss of dependency is capitalized. Take for instance a case where annual loss of dependency is Rs.10,000. If a sum of Rs.1,00,000 is invested at 10% annual interest, the interest will take care of the dependency, perpetually.
The multiplier in this case work out to 10. If the rate of interest is 5% per annum and not 10% then the multiplier needed to capitalize 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 lumpsum 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 dependents, whichever is higher) goes up."
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34. The Motor Vehicle Act, 1988 was amended by Act 54 of 1994, interalia inserting Section 163A and the Second Schedule with effect from 14.11.1994.
Section 163A of the MV Act contains a special provision as to payment of compensation on structured formula basis, as indicated in the Second Schedule to the Act. The Second Schedule contains a Table prescribing the compensation to be awarded with reference to the age and income of the deceased. It specifies the amount of compensation to be awarded with reference to the annual income range of Rs.3,000/- to Rs.40,000/-. It does not specify the quantum of compensation in case the annual income of the deceased is more than Rs.40,000/-. But it provides the multiplier to be applied with reference to the age of the deceased. The table starts with a multiplier of 15, goes upto 18, and then steadily comes down to 5. It also provides the standard deduction as one-third on account of personal living expenses of the deceased. Therefore, where the application is under section 163A of the Act, it is possible to calculate the compensation on the structured formula basis, even where compensation is not specified with reference to the annual income of the deceased, or is more than Rs.40,000/-, by applying the formula: (2/3 x AI x M), that is two-thirds of the annual income multiplied by the multiplier applicable to the age of the deceased would be the compensation.
Several principles of tortious liability are 23 excluded when the claim is under section 163A of MV Act."
35. There are however discrepancies/ errors in the multiplier scale given in the Second Schedule Table. It prescribes a lesser compensation for cases where a higher multiplier of 18 is applicable and a larger compensation with reference to cases where a lesser multiplier of 15, 16, or 17 is applicable. From the quantum of compensation specified in the table, it is possible to infer that a clerical error has crept in the Schedule and the `multiplier' figures got wrongly typed as 15, 16, 17, 18, 17, 16, 15, 13, 11, 8, 5 & 5 instead of 20, 19, 18, 17, 16, 15, 14, 12, 10, 8, 6 and 5."
"36. Another noticeable incongruity is, having prescribed the notional minimum income of non-earning persons as Rs.15,000/- per annum, the table prescribes the compensation payable even in cases where the annual income ranges between Rs.3000/- and Rs.12000/-. This leads to an anomalous position in regard to applications under Section 163A of MV Act, as the compensation will be higher in cases where the deceased was idle and not having any income, than in cases where the deceased was honestly earning an income ranging between Rs.3000/- and Rs.12,000/- per annum. Be that as it may."
"37. The principles relating to determination of liability and quantum of compensation are 24 different for claims made under section 163A of the MV Act and claims under section 166 of MV Act. (See: Oriental Insurance Co. Ltd. vs. Meena Variyal.) Section 163A and Second Schedule in terms do not apply to determination of compensation in applications under Section 166. In Trilok Chandra, this Court, after reiterating the principles stated in Susamma Thomas, however, held that the operative (maximum) multiplier, should be increased as 18 (instead of 16 indicated in Susamma Thomas), even in cases under section 166 of MV Act, by borrowing the principle underlying section 163A and the Second Schedule."
"38. This Court observed in Trilok Chandra:
(SCC p.371, paras 17-18) "17. ......Section 163-A begins with a non obstante clause and provides for payment of compensation, as indicated in the Second Schedule, to the legal representatives of the deceased or injured, as the case may be.
Now if we turn to the Second Schedule, we find a table fixing the mode of calculation of compensation for third party accident injury claims arising out of fatal accidents. The first column gives the age group of the victims of accident, the second column indicates the multiplier and the subsequent horizontal figures indicate the quantum of compensation in thousand payable to the heirs of the deceased victim. According to this table the multiplier varies from 5 to 18 25 depending on the age group to which the victim belonged. Thus, under this Schedule the maximum multiplier can be up to 18 and not 16 as was held in Susamma Thomas case."
"18. .......Besides, the selection of multiplier cannot in all cases be solely dependent on the age of the deceased. For example, if the deceased, a bachelor, dies at the age of 45 and his dependents are his parents, age of the parents would also be relevant in the choice of the multiplier......What we propose to emphasise is that the multiplier cannot exceed 18 years' purchase factor. This is the improvement over the earlier position that ordinarily it should not exceed 16..."
"39. In New India Assurance Co. Ltd. vs. Charlie this Court noticed that in respect of claims under section 166 of the MV Act, the highest multiplier applicable was 18 and that the said multiplier should be applied to the age group of 21 to 25 years (commencement of normal productive years) and the lowest multiplier would be in respect of persons in the age group of 60 to 70 years (normal retiring age). This was reiterated in TN State Road Transport Corporation Ltd. vs. S.Rajapriya and U.P. SRTC vs. Krishna Bala."
"40. The multipliers indicated in Susamma Thomas, Trilok Chandra and Charlie (for claims under section 166 of the MV Act) is 26 given below in juxtaposition with the multiplier mentioned in the Second Schedule for claims under section 163A of the MV Act (with appropriate deceleration after 50 years) Multiplier Multiplier actually used Multiplier Multiplier specified in in Second Multiplier scale as scale in Second Schedule to scale as Age of the envisaged Trilok Column in the MV Act adopted deceased in Chandra the Table in (as seen from by Trilok Susamma as clarified Second the quantum Chandra Thomas in Charlie Schedule to of the MV Act compensatio
n) (1) (2) (3) (4) (5) (6) Up to 15 yrs - - - 15 20 15 to 20 yrs 16 18 18 16 19 21 to 25 15 17 18 17 18 yrs 26 to 30 14 16 17 18 17 yrs 31 to 35 yrs 13 15 16 17 16 36 to 40 yrs 12 14 15 16 15 41 to 45 yrs 11 13 14 15 14 46 to 50 yrs 10 12 13 13 12 51 to 55 9 11 11 11 10 yrs 56 to 60 8 10 09 8 8 yrs 61 to 65 6 08 07 5 6 yrs Above 65 5 05 05 5 5 yrs "41. Tribunals/courts adopt and apply different operative multipliers. Some follow the multiplier with reference to Susamma Thomas (set out in column 2 of the table above); some follow the multiplier with 27 reference to Trilok Chandra, (set out in column 3 of the table above); some follow the multiplier with reference to Charlie (Set out in column (4) of the Table above); many follow the multiplier given in second column of the Table in the Second Schedule of the MV Act (extracted in column 5 of the table above); and some follow the multiplier actually adopted in the Second Schedule while calculating the quantum of compensation (set out in column 6 of the table above). For example if the deceased is aged 38 years, the multiplier would be 12 as per Susamma Thomas, 14 as per Trilok Chandra, 15 as per Charlie, or 16 as per the multiplier given in column (2) of the Second schedule to the MV Act or 15 as per the multiplier actually adopted in the second Schedule to the MV Act. Some Tribunals, as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under section 166 and not under section 163A of the MV Act. In cases falling under section 166 of the MV Act, Davies method is applicable."
"42. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 28 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-
13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."
16. After referring to and analyzing the entire case laws of the Apex Court rendered in the matter of (1) General Manager, Kerala State Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others reported in AIR 1994 SC 1631, and (2) U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and others reported in (1996) 4 SCC 362, it was held in Sarla Verma's case referred to supra as under:
"42. We therefore hold that the multiplier to be used as mentioned in column (4) of the above table (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 xxxxxx for 66 to 70 years."
17. Three Judges Bench of the Hon'ble Apex Court had an occasion to consider the aspect of adopting suitable or appropriate multiplier in the case of UPSRTC vs TRILOK 29 CHANDRA reported in (1996)4 SCC 362 and it was observed at paragraph 4 as under:
"The Tribunals and High Courts have adopted divergent methods to determine the suitable multiplier. Even this Court has not been uniform; may be because the principle on which this method came to be evolved has been forgotten. It has, therefore, become necessary to examine the law and to state the correct principles to be adopted."
On account of various Tribunals and Courts adopting different multiplier, their Lordships have expressed that correct legal position is to be laid down and in the words of their Lordships, it reads as under:
"15 . We thought it necessary xxxx because, of late, we have noticed from the awards made by the Tribunals and Courts that the principle on which the multiplier method is developed has been lost sight of and once again a hybrid method based on the subjectivity of Tribunal/Court has surfaced. Compensation must be proportionate to the injuries. Compensation must be just."
And before concluding it was held as under:
"18. We must at once point xxxx Rs.1,71,000/-. To put it briefly, the table abounds in such mistakes. Neither the 30 Tribunals nor the Courts can go by the ready reckoner. It can only be used as a guide.
Besides, the selection of multiplier cannot in all cases be solely dependent on the age of the deceased. For example, if the deceased, a bachelor dies at the age of 45 and his dependents are his parents, age of the parents would also be relevant in the choice of the multiplier. But, xxx should not exceed 16. We thought it necessary to state the correct legal position as Courts and Tribunals are using higher multiplier as in the present case where the Tribunal used the multiplier of 24 which the High Court raised to 34, thereby, showing lack of awareness of the background of the multiplier system in Davies case."
(Emphasis supplied) Thus, it could be seen that in Trilok Chandra's case referred to supra, the principles enunciated by the Hon'ble Apex Court in the case of GENERAL MANAGER, KERALA STATE ROAD TRANSPORT CORPORATION vs SUSAMMA THOMAS reported in (1994)2 SCC 176 came to be affirmed except to the extent of enhancing the maximum multiplier upto 18 from 16 as was held in Susamma Thomas case.
18. Thus, turning my attention to Susamma Thomas's case, it can be noticed that issue regarding appropriate 31 multiplier which requires to be adopted while adjudicating a claim petition filed under the Motor Vehicles Act, came to be examined and analysed by their Lordships and held that it involves ascertainment of loss of dependency and capitalizing the multiplicand by an appropriate multiplier. It was held as under:
7. In a fatal accident action, the accepted measure of damages awarded to the dependents is the pecuniary loss suffered by them as a result of the death. "How much has the widow and family lost by the father's death?" The answer to this lies in the oft quoted passage from the opinion of Lord Wright in Davies Vs Powell Duffryn Associated Collieries Limited which says :-.
" The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend upon 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 ditum or basic figure which will generally be turned into a lump sum by taking a certain number of years' purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance, that the widow might have again married and thus, ceased to be dependent, 32 and other liked manners of speculation and doubt."
19. The Hon'ble Apex Court had noticed that the compensation to be awarded has two elements. One is the pecuniary loss to the estate of the deceased resulting from the accident, the other is the pecuniary loss sustained by the members of his family for his death. The Apex Court in Susamma Thomas's case has noticed various case laws to decide the multiplicand and multiplier that requires to be adopted by the Tribunals and the Courts and held as under:
"There were two methods adopted for determination and for calculation of compensation in fatal accident actions, the first the multiplier mentioned in Davies case (supra) and the second in Nance Vs. British Columbia Electric Supply Co., Ltd., 1951 appeal Cases
601. The multiplier method involves the ascertainment of the loss of dependency or the multiplicand and 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 33 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."
20. While affirming the judgment of Susamma Thomas's case rendered by two Hon'ble Judges which was based on Davies method, their Lordships also took into consideration to decide upon the multiplicand and multiplier that deserves to be used by referring to its earlier judgment in the case of GOBALD MOTOR SERVICE LTD vs R.M.K VELUSWAMY reported in AIR 1962 SC PAGE 1, wherein the Apex Court referred to Davies Vs Davies Vs Powell Duffryn Associated Collieries Limited reported in 1942(1) All England Report 657 and quoted the following passage from the said judgment:
"The damages are to be based on the reasonable expectation of pecuniary benefit or benefit reduceable to money value. In assessing the damages all circumstances which may be legitimately pleaded in diminution of the damages must be considered. The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing, on the 34 one hand, the loss to him of the future pecuniary benefit, and, on the other any pecuniary advantage which from whatever source comes to him by the reason of the death."
Thus, the Apex Court in Trilok Chandra's case felt that there can be no departure from the multiplier method adopted in Susamma Thomas case on the ground that Section 110-B of Motor Vehicles Act, 1939 and Section 168 of Motor Vehicles Act, 1988 envisaged payment of "just compensation" since the multiplier method is the accepted method for determining and ensuring payment of just compensation and is accepted and is expected to bring uniformity and certainty of the award made all over the country.
While analyzing the case law, the three Hon'ble Judges Bench of the Hon'ble Apex Court felt appropriate to refer the judgment of two Judges in Susamma Thomas case and during the course of the said analysis, it extracted the observations made in Susamma Thomas case which reads as under:
35
"The multiplier method involves the ascertainment of loss of dependency or 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 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 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 lost.
In fact, their Lordships have observed in Trilok Chandra's case at paragraph 20 to the following effect:
"The copy of this judgment may be sent to all the High Courts with a direction to circulate it to the Courts/Tribunals dealing with motor accident compensation cases."
The Apex Court in Trilok Chandra's case approved the ratio laid down in Susamma Thomas case namely;
(a) it approved the observations of Susamma
Thomas case relating to multiplier
method to be adopted by Courts and
Tribunals.
36
(b) Multiplier depends on age of the
claimants or deceased whichever is
higher.
21. The ratio laid down in Trilok Chandra's case has been subsequently followed in the case of NEW INDIA ASSURANCE COMPANY vs KALPANA & OTHERS reported in 2007 ACJ 825. The Hon'ble Apex Court once again referred to Trilok Chandra's case in RAMESH SINGH & ANOTHER vs SATBIR SINGH & ANOTHER reported in 2008 ACJ 814(SC) and observed as under:
"If a young man is killed in the accident, leaving behind his aged parents who may not survive long enough to match with a high multiplier provided by the Second Schedule, then the Court has to offset such high multiplier and balance the same with the short expectancy of the claimants. That precisely has happened in this case. Age of the parents was held as a relevant factor incase of minor's death."
Yet again, in the following decisions the Apex Court reiterated that age of the deceased has no relevance in adopting the appropriate multiplier when the claimants are the parents: 37
(1) NEW INDIA ASSURANCE CO. LTD vs CHARLIE & ANOTHER reported in 2005 ACJ 1131(SC).
" The assessment of damages to compensate the dependents 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 dependent, the amount that the deceased would have earned during the remainder of his life; the amount that he would have contributed to the dependents during that period, the chances that the deceased may not have lived or the dependents 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 together."
(2) SYED IBRAHIM vs ORIENTAL INSURANCE CO.LTD reported in 2007 ACJ 2816.
"There are some aspects of human life which are capable of monetary measurement, but the totality of human life is like the beauty of sunrise or the splendour of the starts, beyond the reach of monetary type measure. The determination of damages for loss of human life is an extremely difficult task and it becomes all the more baffling when the deceased is a child and/or a non earning person. The future of a child is uncertain. Where the deceased was a child, he was earning nothing but had a prospect to earn. The question of assessment of compensation, 38 therefore, becomes stiffer. The figure of compensation in such cases involves a good deal of guess work. In cases where parents are the claimants, relevant factor would be age of parents."
22. Three Judges of the Hon'ble Apex Court in the case of NEW INDIA ASSURANCE COMPANY LTD vs SHANTI PATHAK & OTHERS reported in 2007 ACJ 2188 has also taken the age of the younger parent to adopt the appropriate multiplier while awarding compensation for 'loss of dependency' to the claimants. Reasons have been assigned by the Apex Court to choose the appropriate multiplier. In the said case, Hon'ble Apex Court was considering a claim arising out of death of one Sri Hem Pathak who was aged about 25 years and claim petition had been filed by his parents and Tribunal adopted the multiplier of 17 by taking into consideration the age of the deceased for quantification of compensation. The High Court did not interfere in the appeal filed by the insurer and when the matter was taken by the Insurer to the Apex Court, it came to be held as under: 39
"It would be appropriate to take the multiplier of 5 considering the fact that the mother of the deceased is about 65 years at the time of the accident and the age of the father is more than 65 years.
Thus, in effect, the Three Judges Benches of the Apex Court in Shanthi Pathak's case has not chosen to adopt the multiplier by taking into consideration the age of the deceased but chose to take into consideration the age of the younger parent for adopting the appropriate multiplier and to quantify the compensation payable to the parents of the deceased.
23. In view of the same, it can be noticed that Susamma Thomas case came to be affirmed by a Larger Bench i.e., in Trilok Chandra's case and subsequently followed in Charlie's case, Syed Ibrahim's case and again by Three Judges Bench in the case of Shanthi Pathak. Thus, it emerges that while considering a claim petition filed under Section 166 of Motor Vehicles Act, 1988 compensation is computed on the principles of 'just and reasonable 40 compensation' namely, to offset the pecuniary loss that would accrue to the dependents and to meet the said contingency in future the compensation is awarded. It is this pecuniary loss to the living dependents which requires to be offset by awarding 'just and reasonable compensation' taking into consideration the age of the dependents/claimants. An illustration on this issue would illuminate the factual matrix:
ILLUSTRATION:
In a given case, if parents namely, father and mother of deceased are aged about 76 years and 73 years respectively and on account of the demise of their son who was aged about 25 years on the date of the accident, were to file a claim petition and seek for award of compensation, in such situation, can the Tribunal or Court adopt the multiplier of 18 by taking into consideration age of the deceased as held in Sarala Verma's case. It would not amount to offsetting the pecuniary loss caused to the dependents 41 inasmuch as, if the age of the deceased being 25 years if taken to adopt the multiplier of `18' it would virtually amount to adding the said age to the living parents to offset such loss and in such circumstances the dependency of the parents would be 101 years and 98 years respectively which would not be the loss of dependency.
As such, the age of the deceased was not taken into consideration by the Apex Court for adopting the appropriate multiplier when a petition is filed by the parents of the deceased in the case of Trilok Chandra, Charlie, Ramesh Singh and Shanthi Pathak.
24. In that view of the matter, I am of the considered view that Tribunal was justified in taking into consideration the age of the younger parent namely, the age of the mother (45 years) to apply the multiplier of 13 for assessing and computing the loss of dependency and award of compensation thereunder.
42Re-Point No.3:
25. Sri.Vijay Kumar, learned counsel appearing for appellant has contended that the income of the deceased that has been considered by the Tribunal at `.15,000/- per month is without any basis and Exhibit-P11 has not been proved and as such it ought to have taken the notional income of `.4,000/-pm while computing the loss of dependency. Per contra, Sri.R.Chandrashekar, learned counsel for respondent Nos.1 and 2 has contended that Tribunal ought to have added 30% to the income of the deceased, which was `.15,000/- per month at the time of accident and same having not done compensation requires to be enhanced by adding 30% to the income of deceased and compensation has to be recomputed. Both contentions requires to be examined for the purpose of outright rejection for the following reasons.
26. At the outset the contention of Sri.Vijay Kumar, when examined with reference to the facts on hand, it can be noticed that the father of deceased has entered the witness box. He has stated that deceased had completed her post 43 graduation in M.Sc-Electronics and she was the only issue of the claimants. He has stated that he was working at that undisputed point of time as a hotel manager, and also as an assistant priest in a temple. It is no doubt true that claimants did not produce either the certificate issued by the university or any material to show that deceased was a post graduate in M.Sc.-Electronics. However, at the same time this Court cannot loose sight of the fact that in order to establish that deceased had been employed by M/s.Racist Informatics, Indiranagar, Bangalore, the letter of appointment which had been issued to deceased at an undisputed point of time namely, dated 03.04.2006 came to be produced and marked as Exhibit P11. As per said certificate annual salary that was drawn by the deceased was `.2,76,012/-. No doubt author of the said document has not been examined. Merely because the author is not examined, said document cannot be brushed aside as not acceptable evidence. Though it was contended by the father of the deceased that she was working in Wipro Software Company as a permanent 44 employee, no material whatsoever was placed. In the absence of any material in that regard, and in view of the fact that Exhibit P11 cannot be brushed aside or rejected salary of the deceased as considered by the tribunal deserves to be accepted. Tribunal after analyzing the rival contentions raised in this regard at paragraphs 17 to 19 has noticed the judgment of the Hon'ble Apex Court reported in 2004 ACJ 448 in the matter of ASHA & OTHERS vs UNITED INDIA INSURANCE COMPANY LIMITED and came to a conclusion that as per Exhibit P11 the monthly income would be `.23,000/- and arrived at the net salary of the deceased at `.15,000/- per month and computed the loss of dependency after giving deduction of 50% towards personal expenses, since the deceased was unmarried. The said finding does not suffer from any infirmity whatsoever. Hence, the contention of the learned counsel for the claimants, as well as the corporation either to scale down the income of the deceased or to enhance the same does not call for acceptance and same stands rejected.
45Re-Point No.4:
27. In view of discussion made hereinabove compensation to be awarded requires to be recomputed and it is recomputed as under:
The income of the deceased is taken @ `.15,000/- per month and 50% is deducted towards personal expenses. Thus, net income of the deceased would be `.7,500/- per month. By adopting the Multiplier of '14' by taking into consideration the age of the Mother of the deceased as 45 years, Compensation to which the claimants would be entitled is:
15000 =7500 X 12 X 14 = 12,60,000/-
< 2 In view of the finding recorded by the Tribunal that deceased had contributed 25% to the accident in question and said finding having been affirmed by this Court same requires to be deducted namely `. 3,15,000/- (12,60,000/25%). When said amount is deducted the compensation that becomes payable to the claimants would 46 be `. 9,45,000/- (12,60,000-3,15,000) under the head 'loss of dependency'.
28. Tribunal has rightly awarded a compensation of `. 50,000/- under conventional heads and same does not call for any interference. Tribunal has awarded interest @ 7% p.a. and this court as well as the Division Bench of this Court have consistently held that claimants would be entitled for the interest at the rate of 6% p.a. from the date of claim petition till the date of payment or deposit whichever is earlier and as such the interest awarded by the Tribunal @ 7% p.a. requires to be reduced to 6% p.a. and accordingly award has to be modified.
For the reasons stated hereinabove, I pass the following:
ORDER
1. Appeals in MFA Nos.7665/2008 and 491/2009 are hereby allowed in part. Compensation as awarded by the Tribunal towards loss of dependency is enhanced to `.12,60,000/- from `.11,70,000/- and apportioning the negligence of the deceased @ 25% and deducting the same 47 from the compensation awarded, claimants would become entitled to a compensation of `.9,45,000/- as against `. 9,15,000/- awarded by the Tribunal under "loss of dependency"
together with interest payable @ 6% p.a. from the date of petition till date of payment or deposit whichever is earlier.
2. In so far as the award of the compensation passed by tribunal under the conventional heads is concerned same is hereby affirmed.
3. No order as to costs.
The amount in deposit in MFA No.7665/2008 is ordered to be transmitted to the Jurisdictional Tribunal for disbursement in accordance with this award.
Sri.A.N.Krishna Murthy, learned counsel appearing on behalf of Insurance Company by way of amicus curiae has assisted the Court by erudition of law and this Court places its appreciation for the able assistance rendered by him.
Sd/-
JUDGE MN/DR