Calcutta High Court (Appellete Side)
Smt. Mousumi Ghosh & Ors vs The Oriental Insurance Company Limited ... on 11 May, 2009
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 Tapan Kumar Dutt
F.M.A.T. No. 30 of 2004
Smt. Mousumi Ghosh & Ors.
Versus
The Oriental Insurance Company Limited & Anr.
For the Appellants: Mr. Purna Chandra Maity
Mr. Nirmalendu Patra.
For the Insurance Company: Mr. Sanjoy Pal.
Heard on: 17.04.2009.
Judgment on: 11th May, 2009.
Bhaskar Bhattacharya, J.:
This appeal is at the instance of claimants in a proceeding under Section 166 of the Motor Vehicles Act and is directed against an award dated 7th November, 2003, passed by the learned Judge, Motor Accident Claim Tribunal, South 24-Parganas at Alipore in M.A.C. Case No.762 of 2001 thereby disposing of the proceeding by awarding a sum of Rs.7,37,000/- as compensation to the claimants with a direction upon the Insurance Company to pay the said amount within a specified date. It was further stipulated in the award that in case of default of payment of the said amount within the date fixed, the amount would carry interest @ 10 percent per annum from the date of application till payment.
Being dissatisfied, the claimants have come up with the present appeal. There is no dispute about the involvement of the offending vehicle in the accident resulting in the death of the victim and the fact that such vehicle was insured by the Oriental Insurance Company Limited. There is also no dispute that the victim was aged 31 years at the time of death and was a qualified schoolteacher in a High School having educational qualification of B.Sc (Hons.) in Zoology and also M.Sc in the said subject. The claimants are the widow, minor daughter and the mother of the victim.
The owner of the vehicle did not contest the proceeding. The Insurance Company, however, by taking leave under Section 170 of the Motor Vehicles Act contested the said proceeding but did not adduce any evidence of its own. It has been proved from the salary certificate exhibited in the proceeding that the victim had gross salary of Rs.10,313/- at the time of death and that he used to pay annually a sum of Rs. 8,451/- as income tax as it appeared from Exhibit 14. The Tribunal below, therefore, held that after the various deductions other than Income Tax, the net salary of the victim was Rs. 9,786/- and thus, the yearly income was Rs.1,17,432/-. After deduction of the Income Tax of Rs.8,451/- the amount came down to Rs.1,08,981/- and that was treated to be the annual income of the victim for the purpose of the assessment. The learned Tribunal below, thereafter, deducted one-third of such amount as the personal expenses of the victim and after deducting the one-third of such amount, a sum of Rs.72,654/- was treated to be the amount available for the benefit of the claimants. The learned Tribunal below, consequently, having regard to the age of the victim applied the multiplier of 10 and arrived at a figure of Rs.7,26,540/- and further added Rs.10,460/- as symbolic recognition of the agony suffered by the claimants. The total amount, thus, was assessed to be Rs.7,37,000/-.
Being dissatisfied, the claimants have come up with the present appeal. Mr. Maity, the learned advocate appearing on behalf of the appellant, at the outset, submitted before us that the victim being a permanent teacher of a secondary school having a good educational background, the learned Tribunal below ought to have considered the future prospect of the victim. According to him the compensation should be assessed not on the basis of actual income of the victim at the time of accident but a notional figure which should be at least the double the said amount should be treated to be the annual income of the victim inasmuch as he had 30 years of secured service still left. Mr. Maity further submits that there was no justification of applying the multiplier of 10 for the death of a victim aged 31 years only. Mr. Maity further contends that the learned Tribunal below should have awarded interest on the awarded amount from the date of filing of the application till actual deposit without making any stipulation of default on the part of the Insurance company to pay the same within a specified period as condition for grant of interest. He, therefore, prays for setting aside the order impugned by enhancing the same with interest on the basis of at least double the actual annual income of the victim at the time of death and by application of a higher multiplier.
Mr. Pal, the learned advocate appearing on behalf of the Insurance Company, has, on the other hand, opposed the aforesaid contentions of Mr. Maity and has contended that the learned Tribunal below in the facts of the present case having assessed a quite reasonable figure of compensation, this Court should not interfere with such discretion exercised by the Tribunal. In support of the contention that the amount assessed by the Tribunal was quite justified, Mr. Pal has relied upon the following decisions:
1. General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas & Ors. reported in AIR1994 Supreme Court 1631;
2. Divisional Controller, KSRTC vs. Mahadeva Shetty & anr. reported in (2003) 7 Supreme Court Cases 197;
3. The Managing Director, TNSTC Ltd. vs. K.I. Bindu & Ors. reported in (2006) 1 WBLR (SC) 243;
4. Bijoy Kumar Dugar vs. Bidya Dhar Dutta & Ors. reported in (2006) 3 Supreme Court Cases 242;
5. Oriental Insurance Company Ltd. vs. Jashuben & Ors. reported in (2008) 4 Supreme Court Cases 162;
6. Bangalore Metropolitan Transport Corporation vs. Sarojamma & Anr.
reported in (2008) 5 Supreme Court Cases 142;
7. United India Assurance Company Limited Vs. Subhomoy Nag & Anr. reported in 2008(4) CHN, 452;
8. Syed Basher Ahamed & Ors. Vs. Mohd. Jameel & Anr reported in 2009(1) T.A.C. 794 (S.C.) = 2009 (2) SCC 225.
In other words, according to Mr. Pal, the Tribunal below has taken into consideration all the relevant factors indicated by the Supreme Court in the above decisions and there is no justification of interfering with the award of the Tribunal. He, therefore, prays for dismissal of the appeal.
At the time of hearing of the appeal, the appellants have also filed an application for amendment of the claim by which they sought to enhance their claim of Rs.15,00,000/- prayed before the Tribunal to Rs.25,00,000/- and odd. We have also heard the said application along with the present appeal.
Therefore, the question that arises for determination in this appeal is whether the learned Tribunal below was justified in restricting the amount of compensation to the amount of Rs.7,37,000/- by wrongly applying the multiplier of 10 and that too, on the basis of actual income of the victim at the time of death without taking into consideration the future prospect of the victim.
In this case, the involvement of the offending vehicle in the accident resulting in the death of the victim and the fact that the offending vehicle was insured by the Insurance Company, the respondent No.1 before us are not in dispute. The age of the victim and his monthly salary have been proved by production of the documentary evidence and the insurance company has neither preferred any appeal nor any cross-objection against the award.
The first question that falls for determination in this appeal is whether the learned Tribunal below was justified in applying the multiplier of 10 in the facts of the present case for assessing the compensation.
Mr. Maity, the learned Advocate appearing on behalf of the appellants, in this connection laboriously contended that the victim being aged 31 years at the time of accident, the learned Tribunal below ought to have applied the multiplier of 17 in the facts of the present case by following the second schedule of the Motor Vehicles Act, 1988.
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 the 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 indispensable. The other important requirement of Section 163A is that the victim involved in the accident must not have annual income exceeding 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 deviations and the exceptions mandated 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 income of more than Rupees forty thousand per annum 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, enacted principally for the purpose of giving benefit to the family of a comparatively weaker section of the citizens whose annual income does not exceed Rupees forty thousand, 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 and proves that the income of the victim was below Rupees forty thousand and that he did not avail of the benefit of Section 140 of the Act.
Nonetheless, there is no two-opinion that the assessment of compensation by applying the multiplier method is also a recognised way of calculation of the assessment of just compensation but its application is limited only to the fatal accidents because the said method involves ascertainment of loss of dependency and capitalizing the same by appropriate multiplier. 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. The 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 relating to 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 the abovementioned decision, the Supreme Court has also taken note of the question of stability of service of the victim and the future prospect in the service while assessing the compensation as would appear from the following observations:
"In the present case the deceased was 39 years of age. His income was Rs. 1032/- per month. Of course, the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand. While the chance of the multiplier is determined by two factors, namely, the rate of interest appropriate to a stable economy and the age of the deceased or of the claimant whichever is higher, the ascertainment of the multiplicand is a more difficult exercise. Indeed, many factors have to be put into the scales to evaluate the contingencies of the future. All contingencies of the future need not necessarily be baneful. The deceased person in this case had a more or less stable job. It will not be inappropriate to take a reasonably liberal view of the prospects of the future and in estimating the gross income it will be unreasonable to estimate the loss of dependency on the present actual income of Rs. 1032/- per month. We think, having regard to the prospects of advancement in the future career, respecting which there is evidence on record, we will not be In error in, making a higher estimate of monthly income at R Rs. 2,000/ -as the gross income. From this; has to be deducted his personal living expenses, the quantum of which again depends on various factors such as whether the style of; living was spartan or bohemian. In the absence of evidence it is not unusual to deduct one-third of the gross income towards the personal living expenses and treat the balance as the amount likely to have been spent on the members of the family and the dependents. 'This loss of dependency should capitalize with the appropriate multiplier. In the present case we can take about Rs. 1,400/ - per month or Rs. 17,000/- per year as the loss of I dependency and if capitalized on a multiplier of 12, which is appropriate to the age of the deceased, the compensation would work out to (Rs. 17,000/- x 12 --2,04,0001 1 - rupees) to which is added the usual award for loss of consortium and loss of the estate each in the conventional sum of Rs. 15,000/-"
Subsequently, in several decisions, the Supreme Court had the occasions to consider the question of stable service of the victim and the future prospect and in all the decisions, the Apex Court accepted the position that while fixing the multiplicand before applying the appropriate multiplier, the Court should not treat the income of the victim at the time of death as the appropriate multiplicand but add to it a suitable figure by taking into consideration the future income the deceased could have earned if he had not died prematurely. All those decisions have been taken note of in a recent decision of the Supreme Court in the case of Oriental Insurance Company Ltd vs. Jashuben and others reported in AIR 2008 SC 1734 where the Supreme Court for the purpose of assessing compensation in case of a victim aged 35 years, an assistant in Oil and Natural Gas Commission, doubled the basic salary and the Dearness Allowance payable to him at the time of accident and further added the child education allowances and Child bus fare for two children payable to the employee in fixing the multiplicand and then applied the multiplier of 13 to the two-third of such multiplicand.
By applying the principles laid down by the Supreme Court in the aforesaid decisions discussed in the case of Jashuben and others (supra), we are of the view that in order to arrive at the figure of just compensation for the widow and the daughter, the multiplicand in this case should be fixed by making the net income at least double after deduction of the one-third therefrom and thus, the multiplicand should be Rs. 72,654 X 2 = Rs.1,45,308/-. For the purpose of assessing compensation payable to the mother of the victim who was about 50 years old, such multiplicand should be fixed by adding 50% of the net income of the victim to the income of the victim at the time of death and then deducting one-third therefrom because the mother may not be alive to get the benefit of the victim's balance period of service for the next 30 years. Therefore, for the purpose of assessing compensation to the mother, the multiplicand should be Rs. 72,654 + Rs. 36, 327 = Rs.1,08,981/- which we make a round figure of Rs. 1,09,000/-.
As regards the choice of multiplier, we find that there are three heirs and legal representatives of the victim of different ages each having one-third share in the estate of the victim according to the provisions of the Hindu Succession Act. The mother is aged about 50 years; the wife is aged 22 years and the daughter about 2 years at the time of accident. According to the decision of the Apex Court while choosing the multiplier, the ages of the victim and the claimant, both should be taken into consideration and the higher in age should be finally taken into consideration.
Therefore, while calculating the compensation payable to the mother, we should, on the basis of the age of the mother, select the multiplier and in our opinion, the same should be 8 in the facts of the present case. On that basis, the amount comes to Rs.1,09,000 x 8 =Rs.8,72,000/-. But as the mother has one- third share in the estate left by the victim, the actual amount payable to her should be assessed by dividing the said amount by 3 and thus, the amount comes to Rs. 2,90,666/- which we make it a round figure of Rs. 2,90,00/-.
As regards the daughter is concerned, the age of the victim should be taken into account. We should take into consideration her additional educational expenses and the fact that a lump sum amount would be spent at the time of her marriage. We, therefore, find that it is a fit case of applying the multiplier of 14. On that basis and after taking into consideration the fact that she has one-third share in the estate, the amount would be Rs.1,45,308 x 14/3 = 6,78,104/- which we make a round figure of Rs. 6,78,000/-.
So far the widow is concerned, the age of the victim is to be taken into consideration and accordingly, we propose to apply the multiplier of 13 and on that basis, the amount of compensation should be Rs. 1,45, 308 X 13/3 = 6,29,668/- which we make a round figure of Rs.6,30,000/-. Therefore, the total amount payable by the Insurance Company would be Rs.2,90,000 + Rs.6,78,000 + Rs.6,30,000= 15,98,000/-.
We are conscious that the appellants in the Tribunal below limited their claim to Rs.15 lakh. In this appeal, the claimants have filed an application being CAN No.1766 of 2009 for amendment of the claim application by enhancing the claim to Rs.25 lakh and such application has been heard along with the appeal. In view of the decision of the Supreme Court in the case of Nagappa vs. Gurudayal Singh and others reported in AIR 2003 SC 674, even without filing a formal application, the claimant can get the excess amount if such amount is found to be just amount of compensation from the materials on record. In this connection, the following observations of the Supreme Court are quoted below:
"For the reasons discussed above, in our view, under the M.V. Act, there is no restriction that Tribunal/Court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/Court is to award 'Just' compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under sub-section (4) to Section 166, even report submitted to the Claims Tribunal under sub-section (6) of Section 158 can be treated as an application for compensation under the M.V. Act. If required, in appropriate cases, Court may permit amendment to the Claim Petition."
In this case, the appellants having formally filed an application for amendment of the claim by raising the claim to Rs. 25 lakh, we allow such application although even without allowing such application, we can grant the aforesaid amount which exceeds Rs.15 Lakh, the original amount claimed in the application before the Tribunal, once we find that the said amount is the just one.
We now propose to deal with the decisions cited by Mr. Pal.
The case of General Manager, Kerala State Road Transport Corporation, Trivandrum v. Mrs. Susamma Thomas and others (Supra), has been dealt with us in details and we have not only quoted the relevant portions but also fully relied upon the said decision in arriving at our conclusion. The said decision, in this case, in no way supports the Insurance Company. No further discussion of that case is thus necessary.
In the case of Divisional Controller, KSRTC (Supra), the Supreme Court was dealing with a case of compensation for the injury in a proceeding under Section 166 of the Act where the Tribunal awarded a sum of Rs.2.2 Lakh with interest. On appeal by the claimant, the High Court enhanced the amount to Rs.6.5 lakh. The matter then came up before the Apex Court. In such an appeal, the Apex Court reduced the amount to Rs. 4.5 lakh with interest. While dealing with such an appeal, the Apex Court made the following observations regarding the role of a court dealing with an application under Section 166 in the light of Section 168 of the Act:
"It has to be kept in view that the Tribunal constituted under the Act as provided in S. 168 is required to make an award determining the amount of compensation which to it appears to be 'just'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. Bodily injury is nothing but a deprivation which entitles the claimant to damages. The quantum of damages fixed should be in accordance to the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to damages for the mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life which has been curtailed because of physical handicap. The normal expectation of life is impaired. But at the same time it has be to be borne in mind that the compensation is not expected to be a wind fall for the victim. Statutory provisions clearly indicate the compensation must be "just" and it cannot be a bonanza; not a source of profit but the same should not be a pittance. The Courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non arbitrary. If it is not so it cannot be just. (See Helen C. Rebello v. Maharashtra State Road Transport Corporation (AIR 1998 SC 3191)." (The portion emphasised was specifically pressed by Mr. Pal).
We have in assessing the amount of compensation followed the said principles bearing in mind, that the widow of the victim had read only up to class VIII and that by this amount she is not only required to make her both ends meet for the whole life but also to educate her daughter befittingly (the victim was an M.Sc. in Zoology with Honours at the Graduation level) and make arrangement for her marriage after more than twenty years in this unstable state of economy where at the interval of every ten years, the Pay Commission constituted by the Government finds no other alternative but to enhance the scale of pay by 30% to 40% of the existing scale of pay. We, therefore, find that the said decision does not help the Insurance Company in anyway.
In the case of the Managing Director, TNTSC Limited (supra), the victim was aged 34, an Upper Division Clerk, and the High Court while assessing compensation applied the multiplier of 17. It was contended, inter alia, that there was no loss of dependency as the widow got a job on compassionate ground. The Apex Court, however, did not deal with the question of getting job on compassionate ground but after relying upon the principles laid down by various earlier decisions came to the conclusion that the appropriate multiplier should be 13 and on that basis calculated the compensation. In the case before us, the widow has stated in her evidence that except a sum of Rs.30, 000/- she got no benefit from the school. We have already pointed out that the widow read up to class-VIII. Therefore, the fact of the said case was totally different from the present one and in that case, no argument was made as regards the future prospect of the victim. In this case, fixation of multiplier of 8 for the mother, 13 for the wife and 14 for the daughter is thus in no way conflict with the principles laid down in the said decision. It is now settled law that a decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent. (See: State of Orissa v. Sudhansu Sekhar Misra and Ors. (AIR 1968 SC 647). Therefore, the said decision is of no assistance to Mr. Pal's client.
In the case of Bijoy Kumar Dugar (supra), it was contended that the victim, aged 24 years, was a Science Graduate and a law-student and at the same time, he was earning Rs.4,000/- per month as a constituted attorney of the owner of a petrol pump. According to the learned counsel for the appellant, the victim would have earned minimum Rs.8,000/- to 10,000/- per month, if not more, if he had not died in the accident and thus, the future prospect of the victim should also be considered. Such argument did not find favour in the said case before the Apex Court as would appear from the following observations:
"In the present case, the earning of the deceased and consequently the amount which he was spending over the members of his family, i.e. dependency is to be worked out on the basis of the earnings of the deceased at the time of the accident. The mere assertion of the claimants that the deceased would have earned more than Rs. 8,000/- to Rs.10,000/- per month in the span of his lifetime cannot be accepted as legitimate income unless all the relevant facts are proved by leading cogent and reliable evidence before the MACT. The claimants have to prove that the deceased was in a trade where he would have earned more from time to time or that he had special merits or qualifications or opportunities which would have led to an improvement in his income. There is no evidence produced on record by the claimants regarding future prospects of increase of income in the course of employment or business or profession, as the case may be."
In the case before us, it is proved by documentary evidence that the victim was a permanent teacher of Government Sponsored School and his salary was found to be Rs.10000/- approximately. He was a qualified teacher having a Master's degree in Zoology with Honours at the Graduation level. In the absence of any evidence showing that he had a different plan in his life, we shall presume that he would retire as teacher and that he would not even become the Head Master. Even on the basis of the scale of a school teacher having Master's degree, in our opinion, the Court can legitimately conclude that his salary after 30 years of service would be more than triple the present salary, if not, quadruple, and in such situation, the multiplier we have applied, by following the principles of future prospect laid down in so many cases of the Supreme Court and lastly, in the case of Jeshuben and others (supra), cannot be said to be unreasonable. In the case of Bijoy Kumar Dugar(supra), the victim was a law student and had not yet started his professional life and was acting for the time being as constituted attorney of the owner of a petrol pump. Thus, the said decision does not help Mr. Pal in anyway in this case.
The case of Oriental Insurance Company Ltd and others vs. Jashuben and others (Supra), is one which has been followed by us in this case as indicated earlier and thus, we do not dilate on the same any further.
Similarly, we have in this case followed the principles laid down by the Division Bench of this Court in the case of Subhamoy Nag (supra), delivered by one of us where the said Division Bench specifically held that the Second Schedule of the Motor Vehicles Act in terms does not apply to the proceedings under Section 166 of the Act and for that reason we have not accepted the submission of Mr. Maity that the Tribunal below ought to have applied the multiplier of 17.
In the case of Syeed Basir Ahmed (supra), the Apex Court held that the structural formula mentioned in the second schedule of the Act may be a guiding factor but does not apply in terms to the proceedings under Section 166 of the Act. We have in this case followed the said principle. It was further held therein that for a bachelor victim the deduction for personal expenses should be half from the annual income whereas for the married ones, the same should be one- third. We have also followed the said principle by deducting one-third from the multiplicand fixed by us. Therefore, the said decision is otherwise not relevant.
We thus find that the decisions cited by Mr. Pal are in no way conflict with the present one.
Mr. Pal ultimately made a desperate submission that we should consider the chance of remarriage of the widow of the victim and thus, reduce the amount payable to her. We are afraid such submission is not tenable in the eye of Indian law.
We are quite alive to the fact in the case of U.P. State Road Transport Corporation vs. Trilok Chandra reported in (1996) 4 SCC 362, the Supreme Court referred to the English case of Nance v. British Columbia Electric Rly. Company Ltd reported in 1951 A.C 60, where Viscount Simon took into consideration the question of remarriage of the widow of the victim as a relevant factor in the background of the English family custom. The Supreme Court in that case also took note of the famous decision of Lord Wright in the case of Davies v. Powell Duffryn Associated Collieries Ltd. reported in (1942) 1 All ER 657 but ultimately did not arrive at any conclusion as to whether in accordance with the Indian Law, the remarriage of the widow of the victim should be a relevant consideration. In that case, however, no argument was advanced on the question of remarriage nor does it appear from the judgement as to whether the victim in that case who was aged 26 years was at all married or not. In that case, the question was whether the multiplier of 36 was correctly applied. The Court held that the maximum multiplier should not generally exceed 16, but even after holding as such, the Supreme Court did not interfere with the final award because of the fact that a low multiplicand was fixed by the Courts below in that case. Therefore, the said decision cannot be said to be a precedent on the question whether chance of remarriage of the widow of the victim should be a relevant factor in assessing compensation under Section 166 of the Act. (See: State of Orissa v. Sudhansu Sekhar Misra and Ors. (AIR 1968 SC 647)) We, therefore, proceed to answer the said question by taking support from the other relevant decisions of the Supreme Court and the statutory provision which would sustain the view we propose to take in the following way:
In the case of Manjuri Bera vs. Oriental Insurance Company Ltd reported in (2007) 10 SCC 543, the Supreme Court had the occasion to consider whether a person who is the heir and the legal representative of the victim but was not financially dependent upon the victim can maintain an application under Section 140 of the Act. In that context, the Apex Court held that having regard to the fact that a fixed amount is payable under the said provision, the said amount becomes part of the estate of the deceased and, therefore, any of the heir or legal representatives of the victim can maintain such application even if he is not financially dependent upon the victim.
In a subsequent case of Hafizun Begum vs. Mohammad Ikram reported in (2007) 10 SCC 715, the question was whether a proceeding under Section 166 of the Act was maintainable at the instance of an heir who was not financially dependent. The Tribunal and the High Court answered the question in negative. The Apex Court set aside such order and sent the matter back to the High Court for decision as the basic question was not elaborately discussed by the High Court. Thus, the Apex Court did not answer the said question leaving it to the High Court to decide the same by taking note of the decision in the case of Manjuri Bera (supra).
In our opinion, Section 306 of the Indian Succession Act, 1925 is the direct answer to the said question. In order to appreciate the same, it will be profitable to refer to the said provision which is quoted below:
"Demands and rights of action of, or against deceased survive to and against executor or administrator.--All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory."
(Emphasis Supplied).
In the case of Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair, reported in AIR 1986 SC 411, the Supreme Court had the occasion to consider the scope of the aforesaid Section 306 of the Indian Succession Act and in that context it made the following observations:
"Section 306 further speaks only of executors and administrators but on principle the same position must necessarily prevail in the case of other legal representatives" for such legal representatives cannot in law be in better or worse position than executors and administrators and what applies to executors and administrators will apply to other legal representatives also."
(Emphasis Supplied) Therefore, in this country, for an action of tort resulting in the death of a person, the right to claim compensation for such death devolves upon his heirs and legal representatives and the compensation ultimately payable becomes part of the estate of the victim. But the cause of action for other personal injuries not resulting in death does not survive upon the legal representatives of the sufferer and thus, action for damages arising out of those tortious acts not resulting in death can only be maintained by the person who suffered and on his death, even if any such suit for damages was initiated by the injured person, such suit cannot be continued by his heirs. It is, however, needless to mention that if such a suit filed by the sufferer culminates into decree during his lifetime, the same becomes part of the estate of the plaintiff although the cause of action for such suit was not the part of his estate and an appeal preferred against such decree would continue against the heirs and the legal representatives of the decree holder. (See Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair (supra)).
Be that as it may, the present case being one for compensation for the death, Section 306 of the Indian Succession Act gives right to the heirs and legal representatives of the victim to claim compensation for the death though yet to be determined by the Court. Such right is inheritable by the heirs of the victim and it becomes the part of the estate of the deceased and the question of claimant's "financially dependence upon the deceased" is of no importance for maintaining such a proceeding. However, if a person, although intended to make a claim of compensation for the "disablement" suffered by him due to accident and before filing such proceeding, died for any other reason not resulting from such accident, his heirs and legal representatives will not be entitled to maintain such proceeding; similarly if he dies during the pendency of any such proceeding already filed, the same would abate on his death provided the proceeding has not reached the appellate stage after being culminated in to a decree or an award for an ascertained sum because even the causes of action which do not survive on the death, merge into a "right" after the action succeeds and consequently, such right is inheritable although the cause of action was not.
Therefore, a proceeding under Section 166 of the Act for the death of a victim is maintainable at the instance of the heirs and the legal representatives of the victim who are not even financially dependent upon the victim in the same way the one under Section 140 of the Act was found to be maintainable by the Apex Court in the case of Manjuri Bera (supra). It is now settled law that those causes of action which do not extinguish on the death of the plaintiff can be availed of by his legal representatives as if they are the original plaintiff in whose favour cause of action arose and such right to get compensation becomes part of the estate of the deceased. In the same way, if a person commits any wrong towards another giving inheritable cause of action for damages in favour of the latter, the latter can, on the death of the former, commence or proceed with the action for damages and if such action succeeds, the decree passed thereon will be a liability on the estate of the former and will be binding upon the legal representatives to the extent they inherit from his estate.
The moment we hold that the right to get compensation payable on the death resulting from accident is the part of the estate of the deceased, for assessing such amount, the question of remarriage of the widow is immaterial. Even if she remarries, her right to claim the compensation remains intact. According to the law of succession in this country, the widow is not divested of the estate left by her husband on remarriage. Even under Section 168 of the Act, the Court should decide what should be the just compensation payable to the heirs after taking inference from the circumstances that existed on the date of death. If we accept the contention of Mr. Pal that subsequent event of "chance of remarriage" of the widow is to be taken into consideration, the situation would be disastrous. For instance, if a person dies in an accident leaving his wife and son who are both self-sufficient, the compensation would be only be a nominal figure for the mental pain and sufferings and not the loss, the estate of the victim suffered. Similarly, if after the death of the victim and during the pendency of the proceedings for compensation, one of the heirs gets a lottery or acquires huge amount from other sources or gets a good job, the amount of compensation payable to such heir would vary. Such is not the law of the land. The right to get compensation arising out of death being part of the estate of the victim, the Court would assess the amount the estate represented by the claimants suffered for the untimely death of the victim after deducting the amount which the victim himself would have spent for himself if he had not died. The proceedings under Section 166 of the Act is basically an action for tort and in the absence of negligence of the respondent, the owner of the vehicle or his driver, the proceeding should fail. Since, the compensation arising out of such death cannot be determined with mathematical precision and depends on various factors including numerous events of uncertainties, the Courts, while assessing the probable loss likely to suffer by the claimants for the death, take into consideration the factors of dependency, ages of the claimants, their costs of education, expenditure for their marriage, the future prospect of the victim etc. so that it can arrive at a just and reasonable figure which the victim, if alive, would have in normal circumstance reasonably spent for the benefit of the claimants. But that does not mean that if one of the heirs was not at all financially dependent upon the victim, he would not get any compensation while his twin brother who was dependent upon his father would get his share by excluding him or that the defendant would not be required to pay the compensation payable to the solvent heir.
We thus find no substance even in the last submission of Mr. Pal that chance of remarriage is a factor to be taken into account in assessing the amount of compensation. If remarriage itself does not debar a widow from inheriting the estate of the husband, the mere chance of remarriage can in no case be a relevant factor.
We, therefore, allow the appeal by setting aside the award and enhance the award by awarding a total amount of Rs. 15, 98,000/- with interest at the rate of 8% per annum from the date of filing the application till the actual payment. The mother of the victim will be entitled to Rs.2,90,000/-, the widow will get Rs.6,30,000/- and the daughter will get Rs.6,78,000/-. The amount payable to the daughter would be kept in fixed deposit till she attains majority. However, her mother as a natural guardian will be entitled to withdraw the interest accruing there from which would be spent for the benefit of the minor. It is needless to mention here that the running of interest on the amount already paid by the Insurance Company has stopped from the date of such payment. The Insurance Company is directed to pay the balance amount within a month from today by depositing in the Tribunal below.
Let the lower Court records be sent down immediately.
In the facts and circumstances, there will be, however, no orders as to costs.
(Bhaskar Bhattacharya, J.) I agree.
(Tapan Kumar Dutt, J.)