Gujarat High Court
Sulochanaben Rameshchandra Shah vs Rameshchandra Chimanlal Shah on 23 February, 2021
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/324/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 324 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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SULOCHANABEN RAMESHCHANDRA SHAH
Versus
RAMESHCHANDRA CHIMANLAL SHAH & 1 other(s)
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Appearance:
MR MEHUL S SHAH(772) for the Appellant(s) No. 1
MR HEMANT S SHAH(756) for the Defendant(s) No. 2
NOTICE SERVED(4) for the Defendant(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
Date : 23/02/2021
ORAL JUDGMENT
1. Being aggrieved and dissatisfied by the judgment and award dated 23.06.2009 passed by the Motor Accident Claims Tribunal, Kachchh in Motor Accident Claims Petition No. 292 of 2009, the original claimant has preferred this appeal Page 1 of 15 Downloaded on : Thu Jan 13 02:02:39 IST 2022 C/FA/324/2010 JUDGMENT under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").
2. The following facts emerge from the record of the appeal 2.1 That the accident occurred on 19.11.1997. The record indicates that deceased Darshan Rameshchandra Shah was travelling in his Maruti car bearing registration No. GJ12T 9487 at about 18.30 Hrs. The record further indicates that when the car reached ST stand of village Gada, a truck bearing registration No. GJ12T5977 came from the opposite direction being driven in rash and negligent manner from the wrong side and dashed with the Maruti car. The deceased sustained fatal injuries and succumbed to the same on the spot. The appellantoriginal claimants preferred claim petition under Section 163A of the Act. It was the case of the appellant that the deceased was 22 years old. As the facts indicate, initially the claim petition was allowed by award dated 05.07.2000, whereby the learned Tribunal was pleased to pass an award for a sum of Rs. 21,64,500/. The respondent Insurance Company filed an appeal before this Court being First Appeal No. 480 of 2001, which came to be disposed of vide order dated 17.07.2007, whereby this Court was pleased to quash and set aside the judgment and award dated 05.07.2000 and remanded back Page 2 of 15 Downloaded on : Thu Jan 13 02:02:39 IST 2022 C/FA/324/2010 JUDGMENT the proceedings to the Tribunal. The record indicates that the respondentsclaimants filed an application below exhibit 47 before the Tribunal inter alia praying that the income of the deceased be determined at Rs. 40,000/ p.a. Suffice it to note that as recorded by the learned Tribunal in para 15 of the present judgment, the claimant as well as the insurance company agreed that the income of the deceased Darshan be considered and determined at Rs. 40,000/ p.a. The learned Tribunal by partly allowing the claim petition, awarded a sum of Rs. 4,80,000/ by considering the age of the claimant to be 49 years and income of the deceased at Rs. 40,000/ per annum and applied multiplier based upon the age of the mother and deducted 1/3rd from the said amount. The Tribunal was further pleased to award compensation of Rs. 50,000/ for future income and love and affection and Rs. 2,000/ towards loss of estate and Rs. 2,500/ as loss of estate, thereby awarding a total sum of Rs. 3,74,500/ as compensation. Being aggrieved by the said judgment and award, the original claimant has preferred this appeal.
3. Heard Mr. Jenil Shah, learned advocate for the appellant and Mr. Hemant Shah, learned advocate for the insurance company. Though served, no one appears for the respondent no.1.
Page 3 of 15 Downloaded on : Thu Jan 13 02:02:39 IST 2022C/FA/324/2010 JUDGMENT
4. Mr. Jenil Shah, learned advocate appearing for the appellant has contended that the Tribunal has committed an obvious error in applying the multiplier based on the age of the claimant, the mother of the deceased. Mr. Shah submitted that as per the Act, while calculating the compensation as per the structured formula, the age of the deceased is to be taken into consideration On that ground, Mr. Shah contended that the Award be modified by allowing the appeal. Mr. Jenil Shah, learned advocate for the appellant has relied upon the following judgments to buttress his arguments
1) Munna Lal Jain and Anr. Vs. Vipin Kumar Sharma and Ors. reported in (2015) 6 SCC 347
2) Mohammed Siddique and Anr Vs. National Insurance Company Ltd. and Ors. reported in (2020) 3 SCC 57
3) Sube Singh and Anr. Vs. Shyam Singh & Ors. reported in (2018) 3 SCC 18
4) Joseph Philip C.J. And Anr. Vs. Judies and Ors. reported in (2018) 11 SCC 638
5. Per contra Mr. Hemant Shah, learned advocate for the insurance company has supported the impugned award and contended that the Tribunal has committed no error. Mr. Shah submitted that that on the contrary, the Tribunal has awarded Page 4 of 15 Downloaded on : Thu Jan 13 02:02:39 IST 2022 C/FA/324/2010 JUDGMENT additional amount of Rs.50,000/ under the head of love and affection which is beyond the scope and ambit of the structure formula as provided under section 163A of the Act. Mr. Shah therefore submitted that the appeal is meritless and the same deserves to be dismissed. Mr. Hemant Shah, learned advocate for the respondent no.2 Insurance Company has relied upon the judgment of the Apex Court in the case of Maharashtra State Road Transport Corporation Vs. Lalnipuii reported in (2006) 13 SCC 226 and contended that the Tribunal has committed no error.
6. No other or further submissions or grounds have been raised by the learned counsel appearing for the parties.
7. The issue which therefore arises for consideration of this Court in this appeal is that while calculating the compensation, the multiplier would depend on the age of the deceased or the age of the dependentclaimant. In the case of Maharashtra State Road Transport Corporation (supra) relied upon by Mr. Hemant Shah, it was held by the Apex Court that the age of the deceased is not relevant and it is the age of the claimant which is to be relied upon. However, in the later judgment in the case of Munna Lal Jain (supra), the Hon'ble Apex Court has observed thus Page 5 of 15 Downloaded on : Thu Jan 13 02:02:39 IST 2022 C/FA/324/2010 JUDGMENT "11. The remaining question is only on multiplier. The High Court following Santosh Devi (supra), has taken 13 as the multiplier. Whether the multiplier should depend on the age of the dependants or that of the deceased, has been hanging fire for sometime; but that has been given a quietus by another threeJudge Bench decision in Reshma Kumari (supra). It was held that the multiplier is to be used with reference to the age of the deceased. One reason appears to be that there is certainty with regard to the age of the deceased but as far as that of dependants is concerned, there will always be room for dispute as to whether the age of the eldest or youngest or even the average, etc., is to be taken. To quote (Reshma Kumari case, SCC p.88, para 36):
"36. In Sarla Verma, this Court has endeavoured to simplify the otherwise complex exercise of assessment of loss of dependency and determination of compensation in a claim made under Section 166. It has been rightly stated in Sarla Verma that the claimants in case of death claim for the purposes of compensation must establish (a) age of the deceased; (b) income of the deceased; and (c) the number of dependants. To arrive at the loss of dependency, the Tribunal must consider
(i) additions/deductions to be made for arriving at the income; (ii) the deductions to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. We do not think it is necessary for us to revisit the law on the point as we are in full agreement with the view in Sarla Verma."
12. In Sarla Verma (supra), at paragraph 19, a twoJudge Bench dealt with this aspect in Step 2. To quote (SCC p.133.):
Page 6 of 15 Downloaded on : Thu Jan 13 02:02:39 IST 2022C/FA/324/2010 JUDGMENT "19. xxx xxx xxx Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased."
8. In the case of Sube Singh and Anr. (supra), following the judgment in the case of Sarla Verma (2009) 6 SCC 121 and Munna Lal Jain (supra) as well as the judgment in the case of Pranay Sethi (2017) 16 SCC 680, it has been reiterated that the multiplier should depend on the age of the deceased and not on the age of the dependent wherein the Hon'ble Apex Court has observed thus "4. On the basis of the finding recorded by the Tribunal and affirmed by the High Court, it is evident that the deceased was 23 years of age on the date of accident i.e. 2292009. He was unmarried and his parents who filed the petition for compensation were in the age group of 40 to 45 years. The High Court, relying on the decision in Ashvinbhai Jayantilal Modi held that multiplier 14 will be applicable in the present case, keeping in mind the age of the parents of the deceased. The legal position, however, is no more res integra. In Munna Lal Jain decided by a threeJudge Page 7 of 15 Downloaded on : Thu Jan 13 02:02:39 IST 2022 C/FA/324/2010 JUDGMENT Bench of this Court, it is held that multiplier should depend on the age of the deceased and not on the age of the dependants. We may usefully refer to the exposition in paras 11 and 12 of the reported decision, which read thus: (Munna Lal Jain case', SCC pp. 35152) "11. The remaining question is only on multiplier. The High Court5 following Santosh Devi® has taken 13 as the multiplier. Whether the multiplier should depend on the age of the dependants or that of the deceased, has been hanging fire for some time; but that has been given & quietus by another threeJudge Bench decision in Reshma Kumari. It was held that the multiplier is to be used with reference to the age of the deceased. One reason appears to be that there is certainty with regard to the age of the deceased but as far as that of dependants is concerned, there will always be room for dispute as to whether the age of the eldest or youngest or even the average, etc., is to be taken. To quote: (Reshma Kumari case, SCC p. 88, para 36) '36. In Sarla Verma, this Court has endeavoured to simplify the otherwise complex exercise of assessment of loss of dependency and determination of compensation in a claim made under Section 166. It has been rightly stated in Sarla Verma that the claimants in case of death claim for the purposes of compensation must establish (a) age of the deceased (b) income of the deceased; and (c) the number of dependants. To arrive at the loss of dependency, the Tribunal must consider
(i) additions/deductions to be made for arriving at the income; (ii) the deductions to be made towards the personal living expenses of the deceased; and (iii) the multiplier to Page 8 of 15 Downloaded on : Thu Jan 13 02:02:39 IST 2022 C/FA/324/2010 JUDGMENT be applied with reference to the age of the deceased. We do not think it is necessary for us to revisit the law on the point as we are in full agreement with the view in Sarla Verma.'
12. In Sarla Verma at para 19 a two Judge Bench dealt with this aspect in Step 2. To quote: (SCC p. 133) '19. ... Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the ace of the deceased.'"
9. In the case of Joseph Philip C.J. (supra), the Hon'ble Apex Court has observed thus "7. In Amrit Bhanu Shali and Ors. vs. National Insurance Co. Ltd. and Ors. (2012)11 SCC 738, and in Munna Lal Jain & Anr. v. Vipin Kumar Sharma & Ors. (2015) 6 SCC 347, this Court has held that even if the deceased is a bachelor, his age has to be taken into account for adopting a multiplier. In the instant case, the High Court has taken the age of the mother of the deceased into consideration while applying the multiplier. Since the age of the deceased was 24 years, the High Court should have given the benefit of multiplier of 18."Page 9 of 15 Downloaded on : Thu Jan 13 02:02:39 IST 2022
C/FA/324/2010 JUDGMENT
10. Same view is again reiterated by the
Hon'ble Apex Court in the case of Mohammed
Siddique (supra), as under
"18. Coming to the last issue relating to the multiplier, the Tribunal applied the multiplier of 18, on the basis of the age of the deceased at the time of the accident. But the High Court applied a multiplier of 14 on the ground that the choice of the multiplier should depend either upon the age of the victim or upon the age of the claimants, whichever is higher. According to the High court, this was the ratio laid down in General Manager, Kerala SRTC Vs Susamma Thomas , and that the same was also approved by a three Member Bench of this Court in UPSRTC Vs. Trilok Chandra (supra).
19. The High Court also noted that the choice of the multiplier with reference to the age of the deceased alone, approved in Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. 3, was found acceptance in two subsequent decisions namely (1) Reshmi Kumari & Ors. Vs. Madan Mohan & Anr.4 and (2) Munna Lal Jain Vs. Vipin Kumar Sharma5. But the High court thought that the decisions in Susamma Thomas and Trilok Chandra were directly on the point in relation to the choice of the multiplier and that the issue as envisaged in those 2 decisions was neither raised nor considered nor adjudicated upon in Sarla Verma.
According to the High court, the impact of the age of the claimants, in cases where it is found to be higher than that of the deceased, did not come up for consideration in Reshma Kumari and Munnal Lal Jain. Therefore, the High court thought that it was obliged to follow the ratio laid down in Trilok Chandra.
20. But unfortunately the High Court failed Page 10 of 15 Downloaded on : Thu Jan 13 02:02:39 IST 2022 C/FA/324/2010 JUDGMENT to note that the decision in Susamma Thomas was delivered on 06011993, before the insertion of the Second Schedule under Act 54 of 1994. Moreover what the Court was concerned in Susamma Thomas was whether the multiplier method involving the ascertainment of the loss of dependency propounded in Davies v. Powell (1942) AC 601 or the alternative method evolved in Nance v. British Columbia Electric Supply Co. ltd (1951) AC 601 should be followed.
21. Trilok Chandra merely affirmed the principle laid down in Susamma Thomas that the multiplier method is the sound method of assessing compensation and that there should be no departure from the multiplier method on the basis of section 110B of the 1939 Act. Trilok Chandra also noted that the Act stood amended in 1994 with the introduction of Section 163A and the second schedule. Though it was indicated in Trilok Chandra (in the penultimate paragraph) that the selection of the multiplier cannot in all cases be solely dependent on the age of the deceased, the question of choice between the age of the deceased and the age of the claimant was not the issue that arose directly for consideration in that case.
22. But Sarla Verma, though of a two member Bench, took note of Susamma as well as Trilok Chandra and thereafter held in paragraphs 41 and 42 as follows:
"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 reference to Trilok Chandra, [set out in Column (3) of the above]; some follow the multiplier with reference to Charlie [set out in Column (4) of the table above]; many follow the multiplier given in the second column of the Page 11 of 15 Downloaded on : Thu Jan 13 02:02:39 IST 2022 C/FA/324/2010 JUDGMENT 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 16 and not under section 163A of the MV Act. in cases falling under section 166 of the MV Act Davies methods 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 5 years, that is M17 for 26 to 30 years, M16 to 31 to 35 years, M15 for 36 to 40 years, M14 for 41 to 45 years and M13 for 46 to 50 years, then reduced by 2 units for every 5 years, i.e., M11 for 51 to 55 years, M9 for 56 to 60 years, M7 for 61 to 65 years, M5 for 66 to 70 years."
23. What was ultimately recommended in Sarla Verma, as seen from para 40 of the judgment, was a multiplier, arrived at by juxtaposing Susamma Thomas, Trilok Chandra Page 12 of 15 Downloaded on : Thu Jan 13 02:02:39 IST 2022 C/FA/324/2010 JUDGMENT and Charlie6 with the multiplier mentioned in the Second Schedule.
24. However when Reshma Kumari v. Madan Mohan came up for hearing before a two member Bench, the Bench thought that the question whether the multiplier specified in the second schedule should be taken to be a guide for calculation of the amount of compensation in a case falling under section 166, needed to be decided by a larger bench, especially in the light of the defects pointed out in Trilok Chandra in the Second Schedule. The three member Bench extensively considered Trilok Chandra and the subsequent decisions and approved the Table provided in Sarla Verma. It was held in para 37 of the report in Reshma Kumari that the wide variations in the selection of multiplier in fatal accident cases can be avoided if Sarla Verma is followed.
25. In Munna Lal Jain, which is also by a bench of three Hon'ble judges, the Court observed in para 11 as follows:
" Whether the multiplier should depend on the age of the dependents or that of the deceased has been hanging fire for sometime: but that has been given a quietus by another three judge bench in Reshma Kumari. It was held that the multiplier is to be used with reference to the age of the deceased. One reason appears to be that there is certainty with regard to the age of the deceased, but as far as that of dependents is concerned, there will always be room for dispute as to whether the age of the eldest or youngest or even the average etc is to be taken."
26. In the light of the above observations, there was no room for any confusion and the High Court appears to have imagined a conflict between Trilok Chandra on the one Page 13 of 15 Downloaded on : Thu Jan 13 02:02:39 IST 2022 C/FA/324/2010 JUDGMENT hand and the subsequent decisions on the other hand.
27. It may be true that an accident victim may leave a 90 year old mother as the only dependent. It is in such cases that one may possibly attempt to resurrect the principle raised in Trilok Chandra. But as on date, Munna Lal Jain, which is of a larger Bench, binds us especially in a case of this nature."
11. Following the judgment of the Hon'ble Apex Court in the case of Munna Lal Jain (supra), even in this case, the Tribunal has committed an error in applying multiplier of the mother, who was the claimant instead of the deceased. Hence, we hold that while calculating the compensation as per the structured formula, the multiplier of the deceased would be applicable.
12. As observed hereinabove, the parties have agreed that the income of the deceased to be treated as Rs.40,000/ and therefore, no further consideration on the aspect of income is required by this Court in this appeal. However, while granting compensation under section 163A of the Act, the Court has to follow the structured formula and therefore, the Tribunal has wrongly awarded a sum of Rs. 50,000/ towards future income and love and affection. In light of the aforesaid, the entitlement of compensation therefore deserves to be re calculated as per the structured formula as provided under section 163A of the Act read with the said schedule and considering the same, the Page 14 of 15 Downloaded on : Thu Jan 13 02:02:39 IST 2022 C/FA/324/2010 JUDGMENT appellant would be entitled to compensation as under Rs. 40,000/ (income) X 17 (appropriate multiplier = Rs.6,80,000/ Rs.2,26,667/ (1/3rd towards personal expenses) + Rs.4,500/ under conventional heads = Rs.4,57,833/
13. Thus, the appellant would be entitled to total compensation of Rs.4,57,833/. As the Tribunal has awarded a sum of Rs. 3,74,500/ with 9% interest, the appellant would be entitled to additional compensation of Rs. 83,333/ with 9% interest p.a. from the date of the filing of the claim petition till its realisation. The appeal is thus partly allowed. The impugned judgment and award stands modified to the aforesaid extent. The insurance company shall deposit the additional amount with proportionate interest and cost as awarded by this Court within a period of three months from the receipt of judgment and order of this Court. However, there shall be no order as to costs. Record and proceedings be transmitted back to the Tribunal forthwith.
(R.M.CHHAYA, J) BIJOY B. PILLAI Page 15 of 15 Downloaded on : Thu Jan 13 02:02:39 IST 2022