IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No.177 of 2010 alongwith FAO Nos.174, 175, 176, 178, 179, 180, 181 and 182 of 2010 Date of decision: 2.12.2011 1. FAO No.177 of 2010. 1. Himachal Road Transport Corporation, through its Managing Director, Shimla-171 001. 2. The Regional Manager Himachal Road Transport Corporation, Regional Office, Rampur Bushahr, HP (Owner of bus No.HP-06A-7522). … … …Appellants Versus 1. Smt.Shanta Devi wife of late Shri Chanan Singh, 2. Shri Pinku son of late Shri Chanan Singh, 3. Shri Yog Raj son of late Shri Chanan Singh, All residents of village Khanewali, Post Office Dev Nagar, Tehsil Rampur Bushahr, District Shimla, HP. … …Respondents-Claimants 4. Shri Kewal Ram son of Shri Dev Mani, C/o Regional Manager, HRTC Rampur Bushahr, District Shimla, HP (Driver of bus No.HP-06A-7522). … … …Respondent 2. FAO No.174 of 2010. 1. Himachal Road Transport Corporation, through its Managing Director, Shimla-171 001. 2. The Regional Manager Himachal Road Transport Corporation, Regional Office, Rampur Bushahr, HP (Owner of bus No.HP-06A-7522). … … …Appellants Versus 1. Shri Diwan Chand son of Shri Uttam Ram, 2. Smt.Asha Devi wife of Shri Diwan Chand, Both residents of village Khanewali, Post Office Dev Nagar, Tehsil Rampur Bushahr, District Shimla, HP. … …Respondents-Claimants 3. Shri Kewal Ram Driver of bus No.HP-06A-7522, C/O Regional Manager, HRTC, Region Rampur Bushahr, District Shimla. … … …Respondent 2 3. FAO No.175 of 2010. 1. Himachal Road Transport Corporation, through its Managing Director, Shimla-171 001. 2. The Regional Manager Himachal Road Transport Corporation, Regional Office, Rampur Bushahr, HP (Owner of bus No.HP-06A-7522). … … …Appellants Versus 1. Smt.Sevti Devi wife of late Shri Chetu (Mushu Ram), resident of village Masarna, PO Bharawali, Tehsil Rampur, District Shimla, H.P. 2. Smt.Usha Devi wife of Shri Kailash Chand, resident of village Shelly, PO Bahli, Tehsil Rampur District Shimla. 3. Smt.Shanta Devi wife of Shri Tara Chand, resident of village Masarna, PO Bharawali, Tehsil Rampur District Shimla, HP. 4. Kumari Babita (minor) daughter of Shri Ram Singh, resident of village Masarna, PO Bharawali, Tehsil Rampur, District Shimla, HP. 5. Kumari Divya (minor) daughter of Shri Ram Singh, resident of village Masarna, PO Bharawali, Tehsil Rampur, District Shimla, HP. (Respondents No.4 and 5 being minors through respondent No.1, who is the legal guardian). … …Respondents-Claimants 6. Shri Kewal Ram son of Shri Dev Mani, C/o Regional Manager, HRTC Rampur Bushahr, District Shimla, HP (Driver of bus No.HP-06A-7522). … … …Respondent 4. FAO No.176 of 2010. 1. Himachal Road Transport Corporation, through its Managing Director, Shimla-171 001. 2. The Regional Manager Himachal Road Transport Corporation, Regional Office, Rampur Bushahr, HP (Owner of bus No.HP-06A-7522). … … …Appellants Versus 1. Shri Govind Singh Mehta son of Shri Amar Singh; 2. Smt.Saroj Mehta wife of Shri Govind Singh Mehta, 3. Kumari Akshita Mehta daughter of Shri Govind Singh Mehta (minor) through her father Shri Govind Singh Mehta, respondent No.1. All residents of village Khanewali, Post Office Dev Nagar, Tehsil Rampur Bushahr, District Shimla, HP. … …Respondents-Claimants 3 4. Shri Kewal Ram son of Shri Dev Mani, resident of village Malahar, Post Office Somokothi, Tehsil Karsog, District Mandi, (Driver of bus No.HP-06A- 7522). … … …Respondent 5. FAO No.178 of 2010. 1. Himachal Road Transport Corporation, through its Managing Director, Shimla-171 001. 2. The Regional Manager Himachal Road Transport Corporation, Regional Office, Rampur Bushahr, HP (Owner of bus No.HP-06A-7522). … … …Appellants Versus 1. Shri Diwan Chand son of Shri Uttam Ram, 2. Smt.Asha Devi wife of Shri Diwan Chand, Both residents of village Khanewali, Post Office, Dev Nagar, Tehsil Rampur Bushahr, District Shimla, HP. … …Respondents-Claimants 3. Shri Kewal Ram Driver of bus No.HP-06A-7522, C/O Regional Manager, HRTC, Region Rampur Bushahr, District Shimla. … … …Respondent 6. FAO No.179 of 2010. 1. Himachal Road Transport Corporation, through its Managing Director, Shimla-171 001. 2. The Regional Manager Himachal Road Transport Corporation, Regional Office, Rampur Bushahr, HP (Owner of bus No.HP-06A-7522). … … …Appellants Versus 1. Shri Ram Kumar son of late Shri Prem Bahadur (Prem Singh), 2. Smt.Jagmo Devi wife of late Shri Prem Bahadur (Prem Singh), 3. Shri Divan Singh son of late Shri Prem Bahadur (Prem Singh) 4. Sushila Devi daughter of late Shri Prem Bahadur (Prem Singh), All residents of village and Post Office Sungra, Tehsil Nichar, District Mandi, HP. … …Respondents-Claimants 5. Shri Kewal Ram son of Shri Dev Mani, C/o Regional Manager, HRTC, Rampur Bushahr, District Shimla (Driver of bus No.HP-06A-7522). … … …Respondent 7. FAO No.180 of 2010. 1. Himachal Road Transport Corporation, through its Managing Director, Shimla-171 001. 4 2. The Regional Manager Himachal Road Transport Corporation, Regional Office, Rampur Bushahr, HP (Owner of bus No.HP-06A-7522). … … …Appellants Versus 1. Shri Ashok Kumar son of Shri Nobhu Ram, 2. Munish Kumar (minor) son of Shri Nobhu Ram, 3. Shri Nobhu Ram son of late Shri Ram Dayal, All residents of village Khanewali, Post Office Dev Nagar, Tehsil Rampur Bushahr, District Shimla, HP. Minor respondent No.2 through his father Nobhu Ram, respondent No.3. … …Respondents-Claimants 4. Shri Kewal Ram son of Shri Dev Mani, C/O Regional Manager, HRTC Rampur Bushahr, District Shimla, HP (Driver of bus No.HP-06A-7522) … … …Respondent 8. FAO No.181 of 2010. 1. Himachal Road Transport Corporation, through its Managing Director, Shimla-171 001. 2. The Regional Manager Himachal Road Transport Corporation, Regional Office, Rampur Bushahr, HP (Owner of bus No.HP-06A-7522). … … …Appellants Versus 1. Smt.Satya Devi widow of late Shri Damodar Dass Sharma, 2. Kumari Menka Devi daughter of late Shri Damodar Dass Sharma, 3. Kumari Sonika Devi daughter of late Shri Damodar Dass Sharma, 4. Kumari Sunaina Devi daughter of late Shri Damodar Dass Sharma, 5. Kumari Sangeeta Devi daughter of late Shri Damodar Dass Sharma (minor) aged 13 years, 6. Master Bal Krishan son of late Shri Damodar Dass Sharma (minor) aged 11 years, Both minor respondents No.5 and 6 through their next friend and mothr Smt.Satya Devi, respondent No.1. 7. Smt.Dhani Devi wife of Chura, All residents of village Nehra Post Office Bahli, Tehsil Rampur Bushahr, District Mandi, HP. … …Respondents-Claimants 8. Shri Kewal Ram son of Shri Dev Mani, C/O Regional Manager, HRTC Rampur Bushahr, District Shimla, HP (Driver of bus No.HP-06A-7522). … … …Respondent 9. FAO No.182 of 2010. 1. Himachal Road Transport Corporation, through its Managing Director, Shimla-171 001. 5 2. The Regional Manager Himachal Road Transport Corporation, Regional Office, Rampur Bushahr, HP (Owner of bus No.HP-06A-7522). … … …Appellants Versus 1. Smt.Shanta Devi wife of late Shri Chanan Singh, 2. Shri Pinku son of late Shri Chanan Singh, 3. Shri Yog Raj son of late Shri Chanan Singh, All residents of village Khanewali, Post Office Dev Nagar, Tehsil Rampur Bushahr, District Shimla, HP. … …Respondents-Claimants 4. Shri Kewal Ram son of Shri Dev Mani, C/O Regional Manager, HRTC Rampur Bushahr, District Shimla, HP (Driver of bus No.HP-06A-7522) … … …Respondent Appeal(s) under Section 173 of the Motor Vehicles Act. Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Appellant(s): Mr.Jagdish Thakur, Advocate vice Mr.N.K. Thakur, Advocate. For Respondents-Claimants: Mr.B.N. Sharma, Advocate, in FAO Nos.175, 177, 179, 180 and 182 of 2010, Mr.M.L. Brakta, Advocate in FAO No.176 of 2010, Mr.R.R. Rahi, Advocate, in FAO No.174 of 2010 and None for respondents-claimants in FAO Nos.178 and 181 of 2010. For the Respondent-Driver: None. Dev Darshan Sud,J. All these appeals are being disposed of by a common judgment as they arise from the same accident involving the bus of the appellant Himachal Road Transport Corporation (hereinafter referred to as `HRTC’). 2. The brief facts of the case are that on 15.6.2008 HRTC bus No.HP-06A-7522 was travelling from Khanewali to Rampur and met with an accident near Bhadras. The pleading is that the accident was the 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 6 result of the rash and negligent driving of the driver Shri Kewal Ram, respondent, resulting in a number of casualties. FIR No.83 dated 15.6.2008 was filed with the Police Station, Rampur. The accident was denied as being the result of rash and negligent acts of the driver. Mechanical failure was urged as the ground resulting in the accident. The bus had rolled down the road resulting in number of fatalities. 3. On the settled issues, the learned Tribunal, on the evidence on record, found that the plea of mechanical failure was not established on the record and on this account the petition(s) was/were held in favour of the claimants in each of the petitions. 4. The HRTC is now in appeal challenging the legality of the judgment on a number of grounds. At this juncture, I note that the evidence in each of the petition with respect to the question of negligence is identical. A number of grounds have been urged in these appeals. It is urged that the judgment is based on conjectures and surmises and that in these circumstances the award requires to be set aside. I am unable to accept this submission. As the cause of accident, as pleaded by the respondent-driver as one of mechanical failure, has not been proved, the learned Tribunal was right in accepting the claims. 5. On the question of quantum, learned counsel appearing for the appellant has urged that it is 7 against law and the compensation is excessive. I will advert to each of the cases individually. FAO No.177 of 2010, (HRTC & Others vs.Shanta Devi and Others). 6. In this case, it was urged that the age of the deceased Chanan Singh was 48 years. According to the Parivar Register Mark-B, his date of birth is mentioned in the year 1958 and according to the postmortem report Ex.PW-1/A, his age has been shown as 51 years. The learned Tribunal has taken the age as 50 years and adopted the multiplier of 14. The income has been assessed at Rs.4000/- per month from agriculture pursuits, out of which 1/3rd has been deducted for his personal expenses. The claimants are the widow and the sons of the deceased. I do not find any error in the datum figure of Rs.4000/- per month as the amount which he was contributing to his family and deducting 1/3rd i.e. Rs.1000/- for his personal expenses. On the question of multiplier, as per the decision of the Supreme Court in Sarla Verma (Smt.) and Others vs. Delhi Transport Corporation and Another, (2009)6 SCC 121, multiplier of 13 has to be adopted and it is directed accordingly. 7. Learned counsel for the petitioner then submits that a conventional amount of Rs.50,000/- including funeral expenses has been awarded which is not permissible in law. He adverts to the decision of Sarla Verma’s case where the Court holds that:- 8 “19. … … … … … … … … … … … … … … … … … … … 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.” (p.133) 8. At the outset, I may observe that it is difficult to maintain an account of funeral expenses. They can at best be awarded by a rough assessment and prevailing costs which is applicable depending upon the community to which a person belongs, expenditure varies according to the ceremonies/custom etc.. It is not possible to obtain receipts for actual expenditure of the material used for cremation/burial etc. as also the amounts paid to the person performing the funeral rites. In the present case, a conventional sum of Rs.50,000/- cannot be sustained. A sum of Rs.10,000/- 9 is awarded as conventional expenses, Rs.10,000/- for loss of consortium and another sum of Rs.10,000/- for a rough assessment of funeral expenses. In all a sum of Rs.30,000/- is awarded. The award passed by the learned Tribunal is accordingly modified. FAO No.174 of 2010, (HRTC & Another.vs.Diwan Chand and Others). 9. In this case the claimants are the parents of the deceased who, according to the evidence on record, was aged 15 years which was proved by the middle standard examination certificate mark-A and copy of Parivar Register Ex.PW-1/D. The learned Tribunal in this case has awarded a sum of Rs.4,10,000/- which learned counsel submitted is excessive and cannot be awarded. 10. In Lata Wadhwa and Others vs. State of Bihar and Others, (2001)8 SCC 197, while considering the case of the children, the Court considered the cases in age group of 5-10 and 10-15 years. Adverting to the method of determining the compensation in such case, the Court holds:- “11. So far as the award of compensation in case of children is concerned, Shri Justice Chandrachud, has divided them into two groups, first group between the age group of 5 to 10 years and the second group between the age group of 10 to 15 years. In case of children between the age group of 5 to 10 years, a uniform sum of Rs.50,000 has been held to be payable by way of compensation, to which the 10 conventional figure of Rs.25,000 has been added and as such to the heirs of the 14 children, a consolidated sum of Rs.75,000 each, has been awarded. So far as the children in the age group of 10 to 15 years, there are 10 such children, who died on the fateful day and having found their contribution to the family at Rs.12,000 per annum, 11 multiplier has been applied, particularly, depending upon the age of the father and then the conventional compensation of Rs.25,000 has been added to each case and consequently, the heirs of each of the deceased above 10 years of age, have been granted compensation to the tune of Rs.1,57,000 each. In case of the death of an infant, there may have been no actual pecuniary benefit derived by its parents during the child's life-time. But this will not necessarily bar the parents' claim and prospective loss will found a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived. This principle was laid down by the House of Lords in the famous of Taff Vale Rly. v. Jenkins, 1913 AC 1, and Lord Atikinson said thus : "...All that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact - there must be a basis of fact from which the inference can reasonably be drawn; but I wish to express my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first, that the deceased earned money in the past, and, second, that he or she contributed to the support 11 of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inference can I think be drawn from circumstances other than and different from them." At the same time, it must be held that a mere speculative possibility of benefit is not sufficient. Question whether there exists a reasonable expectation of pecuniary advantage is always a mixed question of fact and law. There are several decided cases on this point, providing the guidelines for determination of compensation in such cases but we do not think it necessary for us to advert, as the claimants had not adduced any materials on the reasonable expectation of pecuniary benefits, which the parents expected. In case of a bright and healthy boy, his performance in the school, it would be easier for the authority to arrive at the compensation amount, which may be different from another sickly, unhealthy, rickety child and bad student, but as has been stated earlier, not an iota of material was produced before Shri Justice Chandrachud to enable him to arrive at just compensation in such cases and, therefore, he has determined the same on an approximation. Mr.Nariman, appearing for the TISCO on his own, submitted that the compensation determined for the children of all age groups could be doubled, as in his view also, the determination made is grossly inadequate. Loss of a child to the parents is irrecoupable, and no amount of money could compensate the parents. Having regard to the environment from which these children were brought, their parents being 12 reasonably well placed officials of the Tata Iron and Steel Company and on considering the submission of Mr.Nariman, we would direct that the compensation amount for the children between the age group of 5 to 10 years should be three times. In other words, it should be Rs.1.5 lakhs, to which the conventional figure of Rs.50,000 should be added and thus the total amount in each case would be Rs.2.00 lakhs. So far as the children between the age group of 10 to 15 years, they are all students of Class VI to Class X and are children of employees of TISCO. TISCO itself has a tradition that every employee can get one of his children employed in the company. Having regard to these facts, in their case, the contribution of Rs.12,000 per annum appears to us to be on the lower side and in our considered opinion, the contribution should be Rs.24,000 and instead of 11 multiplier, the appropriate multiplier would be 15. Therefore, the compensation, so calculated on the aforesaid basis should be worked out to Rs.3.60 lakhs, to which an additional sum of Rs.50,000 has to be added, thus making the total amount payable at Rs.4.10 lakhs for each of the claimants of the aforesaid deceased children.” (pp.210-212) 11. This was later reaffirmed by the Supreme Court in National Insurance Company Limited vs. Kusuma and Another, (2011)13 SCC 306, holding:- “12. It is quite true, as observed in New India Assurance Co.Ltd. v. Satender, 13 (2006)13 SCC 60, that the question of assessment of compensation in a case where the deceased is an infant involves a good deal of guesswork but in our view it cannot be a wild guesswork. As aforesaid, some material has to be adduced by the claimants to prove that they entertained a reasonable expectation of pecuniary advantage from the deceased. There are quite a few precedents providing guidelines for determination of compensation in such cases but because of the nature of the order we propose to pass on facts in hand, we deem it unnecessary to burden the judgment by making a reference to all these cases, except to note that in Lata Wadhwa v. State of Bihar, (2001)8 SCC 197 as also in M.S. Grewal v. Deep Chand Sood, (2001)8 SCC 151 wherein a large number of young school-going children had lost their lives, respectively in fire and by drowning, multiplier method was adopted and applied for assigning value of future dependency to determine the quantum of compensation.” (p-310) FAO No.175 of 2010,(HRTC & Anr. vs. Smt.Sevti Devi and Others). 12. In this case, the deceased Chetru @ Mushu Ram died in the accident. At that time, he was aged 60 years and a multiplier of 10 has been applied. This, according to Sarla Verma’s case should be 9 and it is ordered accordingly. The conventional sum of 14 Rs.50,000/- has been awarded. Since the deceased is survived by his widow, daughters and grand daughters, the amount is reduced to Rs.30,000/-. 13. A sum of Rs.10,000/- is awarded as conventional expenses, Rs.10,000/- for loss of consortium and another sum of Rs.10,000/- for a rough assessment of funeral expenses. In all a sum of Rs.30,000/- is awarded. The award passed by the learned Tribunal is accordingly modified. FAO No.176 of 2010, (HRTC & Anothr vs.Govind Singh Mehta and Others). 14. In this case, the deceased was a student aged about 13 years. A sum of Rs.4,10,000/-, including Rs.50,000/- conventional expenses, was awarded. 15. Learned counsel relies upon the decision in R.K. Malik and Another vs. Kiran Pal and Others, (2009)14 SCC 1. The Court again reaffirmed these principles holding:- “27. In of Lata Wadhwa vs.State of Bihar, (2001)8 SCC 197, wherein several persons including children lost their lives in a fire accident, the Court awarded substantial amount as compensation. No doubt, the Court noticed that the children who lost their lives were studying in an expensive school, had bright prospects and belonged to upper middle class, yet it cannot be said that higher compensation awarded was for deprivation of life and the pain 15 and suffering undergone on loss of life due to financial status. 28. The term "conventional compensation" used in Lata Wadhwa case has been used for non pecuniary compensation payable on account of pain and suffering as a result of death. The Court in the said case referred to Rs.50,000/- as conventional figure. The reason was loss of expectancy of life and pain and suffering on that account which was common and uniform to all regardless of the status. Unless there is a specific case departing from the conventional formula, non-pecuniary compensation should not be fixed on basis of economic wealth and background. 29. In Lata Wadhawa case, wherein the accident took place on 03.03.1989, the multiplier method was referred to and adopted with approval. In cases of children between 5 to 10 years of age, compensation of Rs.1.50 lakhs was awarded towards pecuniary compensation and in addition a sum of Rs.50,000/- was awarded towards “conventional compensation". In the case of children between 10 to 18 years compensation of Rs.4.10 lakhs was awarded including "conventional compensation". While doing so the Supreme Court held that contribution of each child towards family should be taken as Rs.24,000/- per annum instead of Rs.12,000/- per annum as recommended by Justice Y.V. Chandrachud Committee. This was in view of the fact that the company in 16 question had an un-written rule that every employee can get one of his children employed in the said company. 30. In M.S.Grewal v. Deep Chand Sood, (2001 8 SCC 151, wherein 14 students of a public school got drowned in a river due to negligence of the teachers, on the question of quantum of compensation, this Court accepted that the multiplier method was normally to be adopted as a method for assigning value of future annual dependency. It was emphasized that the Court must ensure that a just compensation was awarded. 31. In M.S.Grewal case compensation of Rs.5 lakhs was awarded to the claimants and the same was held to be justified. Learned Counsel for the respondent 3, however, pointed out that in the said case the Supreme Court had noticed that the students belonged to an affluent school as was apparent from the fee structure and therefore the compensation of Rs.5 lakhs as awarded by the High Court was not found to be excessive. It is no doubt true that the Supreme Court in the said case noticed that the students belonged to an upper middle class background but the basis and the principle on which the compensation was awarded in that case would equally apply to the present case. 32. A forceful submission has been made by the learned counsels appearing 17 for the claimants-appellants that both the Tribunal as well as the High Court failed to consider the claims of the appellants with regard to the future prospects of the children. It has been submitted that the evidence with regard to the same has been ignored by the Courts below.”