Calcutta High Court (Appellete Side)
National Insurance Company Limited vs Smt. Pratima Barick & Anr on 3 March, 2017
Author: Dipankar Datta
Bench: Sahidullah Munshi, Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT : Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Sahidullah Munshi
FMA 1064 of 2015
National Insurance Company Limited
v.
Smt. Pratima Barick & anr.
With
COT 38 of 2014
Smt. Pratima Barick
v.
National Insurance Company Limited & anr.
For the appellant/ Mr. Rajesh Singh
cross respondent no.1
For the respondent no.1/cross Mr. Uday Sankar Chattopadhyay
objector Mr. Santanu Maji
Mr. Souvik Dutta
Heard on : January 24, 2017
Judgment on : March 3, 2017
DIPANKAR DATTA, J. :
1. A claim petition under section 166 of the Motor Vehicles Act, 1988 (hereafter the Act) was presented on February 25, 2011 before the Motor Accident Claims Tribunal, Burdwan by Smt. Pratima Barick, giving rise to M.A.C. Case No. 12/41 of 2011. The case pleaded therein reveals that on November 6, 2010, at about 01.00 hours, the claimant's son, Nil Ratan Barick (hereafter the victim) was returning home along with his friends after witnessing Kali Puja and while they reached near Sialdanga More at G.T. Road, suddenly a vehicle driven at very high speed and in a rash and negligent manner dashed the victim and his friend, Sayantan Chakraborty, as a result whereof the victim fell down and sustained severe bleeding injuries all over his body and died at the spot. At Sl. No. 15 of the relevant form for filing claim petition, the claimant had mentioned the registration number of the offending vehicle, i.e. WB-42B/0859 (Fiat Car). According to her, it was owned by a Yakub Mallick, the respondent no. 1. The insurer of the vehicle, National Insurance Company Limited, was impleaded as respondent no. 2. It is also revealed that the victim, 28 years of age, was an assistant teacher in a school whose monthly income was Rs.24,184/-. The claimant being the mother of the victim, accordingly, prayed for Rs. 29,00,000/- (Rupees twenty nine lakh) on account of compensation.
2. The respondent no. 1 did not contest the claim petition by filing written statement despite service of notice. The respondent no. 2, obtaining leave to contest the claim petition, filed written statement denying the material allegations levelled in the claim petition. Delayed registration of FIR was raised as the first point in defence for persuading the tribunal not to accept the claim as genuine and bona fide. It was also alleged that no want of due care and caution could be attributed against the driver of the vehicle and that there was no fault or negligence on his part. Finally, it was urged that the alleged incident was caused due to contributory negligence on the part of the victim himself. It was, accordingly, pleaded that the claim ought to fail.
3. To prove the claim, the claimant examined herself as PW-1. The Headmaster of the school where the victim was employed as teacher was examined as PW-2 to prove the employment of the victim as well as proof of certificate dated November 23, 2010 (Ext. 10) issued by him (PW-2), wherefrom it would reveal that the gross pay of the victim, as on November 23, 2010, was Rs.24,184/- and net pay Rs.19,014/-, after deduction of Rs.5,170/- [on account of GPF - Rs.5000/-, G.S.L.I. - Rs.40/- and Professional Tax Rs.130/-]. An eye-witness to the accident, Pulak Das, was examined as PW-3. He deposed that the victim was dashed by a vehicle bearing registration no. WB-42B/0859; that, it was being driven rashly and negligently by the driver thereof; and that, the said vehicle or its driver was responsible for the death of the victim.
4. In course of cross-examination, the version of PW-3 could not be demolished by the respondent no. 2. It is also noted that no evidence was led by the respondent no. 2 to prove contributory negligence of the victim resulting in his death, as had been pleaded in the written statement. The driver of the vehicle was also not produced as a witness by the respondent no.2 to support the defence case that there was no want of due care and caution on his (driver) part and that he was neither at fault nor negligent while driving the "Fiat Car" in question. After all, none else other than the driver could have said so having regard to section 106 of the Evidence Act.
5. Be that as it may, having heard the learned advocates appearing for the claimant and the respondent no. 2 and on consideration of the materials on record, the tribunal passed an award dated May 8, 2013. Issues 1 to 3, which were framed in view of objections raised by the respondent no. 2 in the written statement regarding maintainability of the claim petition in the present form, cause of action for filing the claim petition and the claim petition being bad for defect of parties, were answered in favour of the claimant. The case pleaded in the claim petition that the victim died due to rash and negligent driving of the driver of the vehicle bearing no. WB- 42B/0859 was accepted and issue no. 4 was, accordingly, answered in favour of the claimant. Issues 5 and 6 regarding entitlement of the claimant to compensation due to the death of her son and the quantum of compensation as well as the liability of the respondent no. 2 to pay compensation were discussed together by the tribunal. Accepting Ext. 10 as reflecting the gross salary of the victim and that the victim was required by law to pay professional tax, compensation payable to the claimant was determined reckoning Rs.24,000/- as the monthly salary. Considering the age of the claimant, who was 42 years old, the multiplier of 15 was applied by the tribunal for quantifying compensation. Since the victim was a bachelor on the date of his death, 50% of his income was deducted for personal expenses and the claimant was held entitled to compensation to the tune of Rs.21,60,000/- together with Rs.2,000/- on account of funeral expenses of the victim. On further consideration of the insurance policy (Ext. 8), the tribunal also held that the respondent no.2 was liable to indemnify the liability of the respondent no.1. Bearing in mind the fact that the respondent no.2 had not unduly delayed disposal of the claim petition, compensation was awarded without any interest, to be released by 30 days failing which the claimant was made entitled to interest @ 6% p.a. from the date of the award.
6. Aggrieved by the determination made by the tribunal, the respondent no. 2 has carried the award in appeal before us under section 173 of the Act. The claimant has also filed a cross-objection.
7. On behalf of the appellant, Mr. Singh, learned advocate has contended that the vehicle bearing no. WB-42B/0859 was not involved in the accident. According to him, although the accident occurred on November 6, 2010, the police was informed two weeks later on November 21, 2010, without there being any explanation for the delay. It was next contended that Chinmay Barick, the younger son of the claimant, was present at the hospital when the dead body of the victim was being handed over but he did not say that the vehicle bearing no. WB-42B/0859 was involved in the accident. The number of the vehicle, Mr. Singh argued, was subsequently planted with ulterior motive to extract compensation from the appellant. He also contended that in terms of section 134 of the Act, it was the duty of the driver of the offending vehicle as well as its owner to inform the appellant of the accident but since no such information was received, it is impossible for the appellant to accept that the vehicle insured by it was, in fact, involved in the accident.
8. Mr. Singh relied on the decision reported in 2007 (4) T.A.C. 17 (SC) [New India Assurance Co. Ltd. V. Smt. Shanti Pathak & ors.] to contend that the tribunal did not commit any error in quantifying compensation considering the age of the claimant. Reliance was also placed on the decision reported in 2006 (3) T.A.C. 3 (S.C.) [U.P. State Road Transport Corporation v. Krishna Bala & ors.] for the proposition that compensation payable as a result of death arising out of a road accident must not be excessive and that the well-settled principles ought to be borne in mind in course of determination thereof.
9. Reliance was also placed by Mr. Singh on a decision reported in 2004 (2) T.A.C. 1 (SC) [National Insurance Co. Ltd. V. Keshab Bahadur & ors.] for the proposition that once the discretion has been exercised by the tribunal to award simple interest on the amount of compensation to be awarded at a particular rate and from a particular date, there is no scope for retrospective enhancement for default in payment of compensation; and no express or implied power in this regard can be culled out from section 171 of the Act.
10. Mr. Chattopadhyay, learned advocate for the claimant i.e. the cross objector and the first respondent in the appeal, has contended that no ground has been set up in the appeal for interfering with the finding of the tribunal that vehicle no. WB-42B/0859 was being driven rashly and negligently resulting in the premature and tragic death of the victim. He has also contended that although the tribunal arrived at a correct finding in regard to the unfortunate circumstances leading to the death of the victim, it committed gross error in not determining just compensation payable to the claimant in accordance with law.
11. Our attention has been drawn to grounds II, V, VI, VII and VIII of the cross-objection for interference with the determination made by the tribunal while answering issue no. 5 framed by it.
12. Strong reliance has been placed by Mr. Chattopadhyay on the decisions of the Supreme Court reported in (2009) 6 SCC 121 [Sarla Verma (Smt.) & ors. v. Delhi Transport Corporation & anr.] and (2013) 9 SCC 65 = (2013) 3 WBLR (SC) 382 [Reshma Kumari & ors. v. Madan Mohan & anr.] (hereafter the second Reshma Kumari decision) and it has been urged to set things right by determining appropriate compensation that the claimant is entitled to on account of her son's untimely death.
13. Having heard learned advocates for the parties, we propose to dispose of the appeal and the cross-objection thereto by this common judgment and order.
14. The contentious issues emerging for decision on the basis of the rival contentions are these:
(1) Whether belated registration of the FIR is sufficient ground for disbelieving the version of the claimant?
(2) Whether the tribunal was right in returning a finding that vehicle no. WB-
42B/0859 was being driven rashly and negligently leading to the victim's death? (3) Whether determination of compensation payable to the claimant by the tribunal is in accordance with law or not?
(4) If not, what would be just compensation for the claimant? Issue No.1
15. The accident that took away the life of the victim, as found by the tribunal, occurred in the very early hours of November 6, 2010. Burdwan P.S. U.D. Case No. 1286/10 dated November 6, 2010 was registered, which is revealed from the post mortem report dated November 6, 2010 (at page 30 of the paper book). Chinmay Barick, younger brother of the victim, lodged a written complaint dated November 21, 2010 before the Inspector-in-Charge, Burdwan P.S. (at page 27 of the paper book). In such complaint, it was alleged that a "Fiat Car" bearing no. WB-42B/0859 being driven rashly and negligently dashed the victim on November 6, 2010 at 1.00 am as a result whereof the victim died on the spot and the said Sayantan Chakraborty suffered vital injuries for which he had to be shifted to AMRI Hospital, Gariahat Road, Kolkata. According to the complainant, the driver of the vehicle was entirely responsible for the victim's death in connection wherewith which the unnatural death case, referred to above, had been registered on November 6, 2010 itself. It is also revealed therefrom that because of the time taken for performing the last rites of the victim and the shock and trauma arising out of the victim's untimely death, there was some delay in lodging the complaint.
16. On the basis of the written complaint, Burdwan P.S. FIR No. 810 dated November 11, 2010 was registered under sections 279/304A/338, Indian Penal Code. The FIR was duly investigated whereafter police report (charge-sheet) under section 173(2), Code of Criminal Procedure was submitted in G.R. Case No. 2140 of 2010 on the file of the Chief Judicial Magistrate, Burdwan.
17. In its decision reported in (2011) 4 SCC 693 [Ravi v. Badrinarayan], the Supreme Court had the occasion to deal with the aspect as to whether mere delay in registration of an FIR could be a sufficient ground to doubt the claimant's case. It was observed as follows:
"17. It is well settled that delay in lodging the FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the police station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the police station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim.
18. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so the contents of the FIR should also be scrutinised more carefully. If the court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences.
19. Lodging of FIR certainly proves the factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be a variety of reasons in genuine cases for delayed lodgement of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquillity of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons."
18. On facts, we find that the complainant, the younger brother of the victim, had duly explained the delay in lodging the written complaint giving rise to the FIR. According to him, such delay was caused due to agony and trauma suffered by the members of the bereaved family as well as the time taken for completion of the last rites of the victim.
19. Having considered such explanation, we are of the view that a fortnight's delay in registration of the FIR per se cannot defeat the claim of the claimant and we are unable to hold that the case pleaded in the claim petition, because of the belated registration of the FIR, was doubtful and therefore unreliable.
20. The plea raised by the appellant is frivolous and, accordingly, issue no.1 stands answered against it.
Issue No.2
21. The certificate of insurance issued in connection with the policy bought by the owner of the vehicle (at page 29 of the paper book) was an exhibit before the tribunal. The "make" of the vehicle, covered by the insurance policy, is mentioned in such exhibit as "PREMIER PADMINI".
22. We take judicial notice of a well-known fact of public life, albeit of not too distant an origin, at this stage. Premier Padmini cars, which were used on Indian roads during the fifties to the eighties of the last century quite extensively, were commonly known as Fiats. Fiats were second only to AMBASSADOR cars, which ruled the Indian roads. In West Bengal, numbers of Premier Padmini cars (Fiats) were few and far between in comparison to AMBASSADOR cars. With the advent of cars manufactured by Maruti Suzuki in the early eighties of the last century and cars manufactured by other companies, manufacture of Premier Padmini cars took a downslide and were actually stopped resulting in the same being phased out. In the late nineties of the last century and in the early part of this century, very few Premier Padmini cars were on view on the city roads of West Bengal, and in the suburbs it could hardly be seen.
23. It is quite but natural that there may not have been too many Premier Padmini cars plying on roads in the suburbs at or about the time the unfortunate accident occurred. It is noteworthy that instead of identifying the offending vehicle as Premier Padmini in the FIR, the complainant identified it as a "Fiat Car". Not only that, PW-3 (the eye-witness) also testified that the offending vehicle bore registration no. WB- 42B/0859, and in cross-examination it was his clear version that the accident was caused by a "Fiat Car". In view of such unimpeachable evidence, the plea taken by the appellant that the offending vehicle has been planted by the claimant subsequently to extract compensation is unsound and does not commend acceptance at all.
24. The other submission of Mr. Singh that there was no information lodged with the appellant as required by section 134 of the Act and, therefore, one ought to proceed on the premise that the vehicle was not involved in the accident, has been urged to be rejected. We can again take judicial notice of the fact that once a vehicle is involved in an accident causing fatal injury, the tendency of the driver of the offending vehicle and/or its owner is to suppress and withhold information of involvement of such vehicle in an accident, as far as possible. Merely because information under section 134 of the Act was not furnished, either by the driver or the owner of the offending vehicle, would not be sufficient to persuade us to hold that since no information was furnished, no accident took place involving the "Fiat Car"
or to defeat the claim of the claimant only on such ground.
25. Issue 2 is also answered against the appellant.
Issue No. 3
26. The specific grounds in the cross-objection, which have been urged before us, have been noted above.
27. First, it has been urged that deduction by the tribunal of 50% of the possible income that the victim could earn is improper and that the tribunal ought to have deducted one-third thereof. Secondly, it has been urged that the correct multiplier has not been applied by the tribunal. The third ground urged is that the tribunal failed to award compensation by not taking note of future prospects of the victim. Finally, referring to section 171 of the Act, Mr. Chattopadhyay urged that the tribunal did not exercise discretion judiciously in refusing interest from the date of presentation of the claim petition and contended that even for refusal on its part to exercise discretion, some reason ought to have been assigned by the tribunal which unfortunately is conspicuous by its absence.
28. We propose to express our views on the first ground immediately after the second ground is dealt with hereunder.
29. We find force in the contention of Mr. Chattopadhyay that the appropriate multiplier was not correctly selected. The tribunal appears to have proceeded to quantify compensation keeping in mind the age of the claimant. Such approach has been sought to be justified by Mr. Singh by referring to the decision in Shanti Pathak (supra).
30. We are also not unmindful of the decisions of the Supreme Court reported in (2011) 7 SCC 65 (National Insurance Company Limited v. Shyam Singh), (2010) 14 SCC 575 (Shakti Devi v. New India Insurance Company Limited), (2005) 10 SCC 720 (New India Assurance Company Limited v. Charlie) and (1996) 4 SCC 362 (U.P. State Road Transport Corporation v. Trilok Chandra). In Shyam Singh (supra), the Court approved application of multiplier of 8 by taking average age of the parents of the deceased following the decision reported in (2008) 2 SCC 667 (Ramesh Singh v. Satbir Singh). Shakti Devi (supra) held the argument advanced on behalf of the appellant that multiplier of 18 should have been applied keeping in view the age of the deceased and not 8, bearing in mind the age of the claimant, to be devoid of any substance. It was held that where the age of the claimant is higher than the age of the deceased, the former age has to be taken into account for capitalization of the lost dependency, because the choice of multiplier is determined by the age of the deceased or that of the claimant, whichever is higher. In Trilok Chandra (supra), the Court held that the selection of multiplier cannot in all cases be solely dependent on the age of the deceased. If a young man is killed in the accident leaving behind 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 life expectancy of the claimants. Ramesh Singh (supra), applied the law laid down in Charlie (supra) in holding that the Courts below had struck the right balance.
31. In the decision reported in (2009) 13 SCC 422 [Reshma Kumari v. Madan Mohan] (hereafter the first Reshma Kumari decision), the Supreme Court noticed application of a lower multiplier in cases involving section 166 of the Act having been advocated in Shanti Pathak (supra) but it was held that no legal principles were laid down therein. Ultimately, the first Reshma Kumari decision (supra) referred the question for decision by a larger Bench as to whether multiplier specified in the Second Schedule should be taken to be a guide for calculation of the amount of compensation payable in a case falling under section 166 of the Act. It is such reference that was decided by a three-Judge Bench in the second Reshma Kumari decision (supra).
32. Although the Supreme Court in the decisions referred to in paragraph 30 above proceeded to apply a multiplier bearing in mind either the age of the claimant, being a parent of the deceased, or the average age of the parents i.e. the joint claimants, a different approach appears to have been taken in Sarla Verma (supra). In paragraphs 18 and 19 of its decision, the Court laid down what was essentially required to be borne in mind for arriving at just compensation to be awarded, in the following words:
"18. Basically only three facts need to be established by the claimants for assessing compensation in the case of death:
(a) age of the deceased;
(b) income of the deceased; and
(c) the number of dependants.
The issues to be determined by the Tribunal to arrive at the loss of dependency are:
(i) additions/deductions to be made for arriving at the income;
(ii) the deduction 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.
If these determinants are standardised, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay.
19. To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by the following well-settled steps:
Step 1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependant family, constitutes the multiplicand.
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.
Step 3 (Actual calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the 'loss of dependency' to the family. Thereafter, a conventional amount in the range of Rs 5000 to Rs 10,000 may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5000 to 10,000 should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death (if incurred) should also be added."
33. It was thereafter held in paragraphs 30 to 32 as follows:
"30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.
31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.
32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third."
(underlining for emphasis)
34. Such approach finds imprimatur in the second Reshma Kumari decision (supra).
Noticing Shanti Pathak (supra), it was observed therein that a very brief order was passed applying multiplier of 8 for a claim of compensation in respect of the deceased who was 25 years at the time of his death. Rather than approving Shanti Pathak (supra), the second Reshma Kumari decision (supra) approved Sarla Verma (supra) by observing as follows:
"35. We have already noticed the Table prepared in Sarla Verma for the selection of multiplier. The Table has been prepared in Sarla Verm having regard to the three decisions of this Court, namely, Susamma Thomas, Trilok Chandra and Charlie for the claims made under Section 166 of the 1988 Act. The Court said that multiplier shown in Column (4) of the Table must be used having regard to the age of the deceased. Perhaps the biggest advantage by employing the Table prepared in Sarla Verma is that the uniformity and consistency in selection of the multiplier can be achieved. The assessment of extent of dependency depends on examination of the unique situation of the individual case. Valuing the dependency or the multiplicand is to some extent an arithmetical exercise. The multiplicand is normally based on the net annual value of the dependency on the date of the deceased's death. Once the net annual loss (multiplicand) is assessed, taking into account the age of the deceased, such amount is to be multiplied by a 'multiplier' to arrive at the loss of dependency.
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.
41. The above does provide guidance for the appropriate deduction for personal and living expenses. One must bear in mind that the proportion of a man's net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependent members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependants.
42. In our view, the standards fixed by this Court in Sarla Verma on the aspect of deduction for personal living expenses in paras 30, 31 and 32 must ordinarily be followed unless a case for departure in the circumstances noted in the preceding paragraph is made out.
43. In what we have discussed above, we sum up our conclusions as follows:
*** 43.4. The Claims Tribunals shall follow the steps and guidelines stated in para 19 of Sarla Verma for determination of compensation in cases of death. 43.5. While making addition to income for future prospects, the Tribunals shall follow para 24 of the judgment in Sarla Verma.
43.6. Insofar as deduction for personal and living expenses is concerned, it is directed that the Tribunals shall ordinarily follow the standards prescribed in paras 30, 31 and 32 of the judgment in Sarla Verma subject to the observations made by us in para 41 above.
43.7. The above propositions mutatis mutandis shall apply to all pending matters where above aspects are under consideration."
35. It is settled law that the judgment of a superior court ought not to be read as a statute; however, it is equally well-settled that where the statute is either silent on a particular aspect or does not provide adequate guidance in dealing with a particular situation and taking note of the same the Supreme Court lays down the law, and also says that the same shall apply to all pending matters, the same has to be respected in view of Article 141 of the Constitution as the law of the land on the point.
36. True it is that correctness of the decisions in Trilok Chandra (supra), Charlie (supra), Shyam Singh (supra) and Shakti Devi (supra) laying down the law on the point of application of an appropriate multiplier in a case where the deceased is a bachelor leaving behind old parents was not directly referred by the first Reshma Kumari decision to the larger Bench, yet, the effect of the second Reshma Kumari decision (supra) decision is approval of the decision in Sarla Verma (supra) qua selection of the appropriate multiplier bearing in mind the age of the deceased and not the earlier decisions, where the age of the claimant, happening to be the mother/father of the deceased, became decisive for selecting the appropriate multiplier.
37. The conflicting opinions on the question of selection of the appropriate multiplier in a case where the casualty of a motor accident is a bachelor, now seems to have been put to rest by the Hon'ble Supreme Court in a very recent decision. In its decision reported in (2015) 6 SCC 347 [Munna Lal Jain v. Vipin Kumar Sharma], this is what the Court said :
"11. The remaining question is only on multiplier. The High Court following Santosh Devi, (2012) 6 SCC 421, 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 three-Judge Bench decision in Reshma Kumari, (2013) 9 SCC 65. It was held that the multiplier is to be used with reference to the age of the deceased.***"
(underlining for emphasis)
38. We, therefore, hold that the tribunal committed error in not applying the appropriate multiplier in this case. Having regard to the age of the victim at the time of his death i.e. 28 years, the applicable multiplier in terms of Sarla Verma (supra) would be 17.
39. Turning our focus on the first ground in the cross-objection, we have no doubt in our mind that it has been urged to be rejected. As noticed in course of discussion hereinabove, in the decision in Sarla Verma (supra), the Supreme Court has observed that one-half of the income towards personal and living expenses may be deducted, if the deceased happens to be a bachelor. In that view of the matter, the tribunal did not commit any error in deducting one-half of the possible income.
40. Regarding the third ground, we find that the point of addition to income for future prospects was also dealt with in the decision in Sarla Verma (supra) in paragraphs 20 to 24 thereof. Upon consideration of previous decisions, it was, inter alia, held as follows:
"24. *********In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary" should be read as "actual salary less tax"). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."
41. Since the victim was below 40 years of age, an addition of 50% of actual salary towards future prospects is permissible which the tribunal failed to add while quantifying compensation. The compensation payable has to be worked out accordingly.
42. We also agree with Mr. Chattopadhyay that no reason at all has been assigned by the tribunal why it was not in favour of exercising discretion enabled by section 171 of the Act. We, accordingly, hold that the tribunal did not quantify compensation in accordance with law.
Issue No. 4
43. What would constitute just compensation on facts and in the circumstances is the last issue that we need to answer. The tribunal reckoned Rs.24,000/- as the monthly salary of the victim as on date of his death. If the victim, but for his accidental death, had survived till he attained superannuation, his salary would have increased manifold. It can safely be concluded that his salary, at least, would have doubled. We shall proceed to compute the multiplicand on the basis of Rs.24,000/- as his last pay. Considering that 50% can be added to the actual salary by taking note of future prospects, we, therefore, determine notional monthly income as Rs.36,000/- (being the average of Rs.24,000/- and Rs.48,000/-). Having regard to the multiplier identified in paragraph 40 of the decision in Sarla Verma (supra), 17 would be the operative multiplier; therefore, the total loss of dependency would be Rs.36,000 x 12 x 17 = Rs.73,44,000/-. We are of the further view that interest of justice would be sufficiently served if deduction of 50% on account of personal and living expenses of the victim is made from such sum. Therefore, the total loss of dependency would be Rs.36,72,000/-. In addition thereto, the claimant would be entitled to Rs.25,000/- towards funeral expenses. The claimant would also be entitled to Rs.1,00,000/- for loss of love, care and affection of her son. Thus, the total compensation works out at Rs.37,97,000/-. Since the sum awarded by the tribunal i.e. Rs.21,62,000/- has been deposited with the Registrar General, the balance sum of Rs.16,35,000/- together with 9% interest from the date of filing of the claim petition to the claimant shall be paid by the appellant. An account payee cheque drawn in favour of the claimant shall be submitted before the Registrar General of this Court by the insurer for the balance sum of Rs.16,35,000/- together with interest within two months from date, whereupon the claimant shall be entitled to seek delivery thereof as well as the sum already deposited with accrued interest from the Registrar General.
44. Needless to observe, the Registrar General shall ensure that the claimant receives the amount due, in terms of this order, without any delay. If any query is raised by the appellant the Registrar General shall respond immediately.
45. In the result, the award of the tribunal is set aside. The appeal filed by the appellant/insurer stands dismissed while the cross-objection filed by the claimant is allowed. The parties shall, however, bear their own costs.
46. Photocopy of this judgment and order, duly counter-signed by the Assistant Court Officer, shall be retained with the records of COT 38 of 2014. Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.) SAHIDULLAH MUNSHI, J. :
I agree.
(SAHIDULLAH MUNSHI, J.)