Gc^ ^l IN THE HONBLE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.(Q N0. / ^ ^ / 2010 (D.B.) ^••\ Appellant (Insurer) Versus Respondents : (No.l to 4 claimants) ^\^y ^y-:'."^y'.. ....>'^'^ •:'^;^ z. w .^' ^ •^^fy fs^ (Driver) (Owner) "T7 National Insurance Company Ltd., B-l Taha Compex, Priyadarshini Nagar, Bilaspur-(C.G.) ^ 2-« 3.(; 4.^ l<U<n)oil RSIAAA. ! Gangaram Kurre, S/o Kurre, Aged about 46 years, Ram bai, W/o Ganga Ram Kurre, Aged about 42 years, Ku.Anita, D/o Gangaram Kurre, Aged about 20 years Ku.Sunita, D/o Ganga Ram Kurre, Aged about 18 years, Claimants No.l to 4 are R/o Village Godhikala, P.S. 85 Tah. Pathalgaon, Dist. Jashpur at present R/o Village Dodrhki Navapara P.S. 85 Tah. Sakti, Distt. Janjgir-Champa (C.G.) Vijay Kumar, S/o Sushil Prasad Yadav, Aged about 32 years, R/o Village 85 Post Usha, Police Station Asansol, Distt.Vardhman, at present R/o Village Paterapali, press road Bargarh-(Orissa). M/s Expresswage I.C.Kalekar Street Kolkatta-07 W.B. \,. MISC. APPEAL U/S 173 OF THE MOTOR VEHICLES ACT 1988 ^MAA, .^2{ft SW^^i^ii ^f^^^ry^i%!?tii§St%i%ii; HIGH COURT OF CHHATTISGARH AT B1LASPUR DIVISION BENCH: HQN'BLE MR. I.M.QUDDUSI & HON'BLE MR.NAWAL KiSHORE AGARWAL. JJ. Appellant Respondents M.A. Fc1 No.196/2010 National Insurance Co. Ltd. Vs Gangaram Kurre & others \; Present: Mr. Raj Awasthi, Advocate, Advocate for the appellant. Mr. Deepak Kumar Singh, Advocate for the respondents No.1 to 4. iSWWIINNfe^ ORDER (Oral) (31st August, 2010) i.lVI. Quddusi. J; 1. Heard. 2. Since this appeal has been filed questioning the quantum of the award passed in favour of the claimants, there is no need to send notice to respondents No.5 & 6 who are driver & owner of the vehicle in question respectively. 3. The appellant-Insurance Company has filed this appeal agajnst the award dated 24.11.2009 passed in Claim Case No.36/2008, whereby the learned Additionai Motor Accident Claims Tribunal, Sakti, District Janjgjr-Champa (CG) has allowed the claim petition fiied by the claimants and awarded a sum of Rs.4,99,000/- to the claimants. 4. Brief facts of the case are that on 24.4.2008 about 10.00 p.m. the deceased Anjuram, who was driving the jeep bearing registration number CG14-1056, at the relevant point of time, has met with an accident near Canai Bridge of Village Masniyakala, Sakti with the truck, bearing registration number NL04-G-2009, and died on the spot. Report of the incident was also registered in the Police Station Sakti on which Crime No. 158/2008 was registered against the non- applicant No.1 and after completion of jnvestigation, charge sheet was filed in the court of the learned Judjcial Magistrate 1st CIass concerned. The claimants, on account of death of Anjuram, have fifed a claim petition claiming an amount of ^ ^^ ^^ Rs.28,10.000/- on various heads as compensation on the ground that the deceased, who was earning Rs.6,000/- per month, was the only earning member in the family and the claimants were dependent on him and becavse of his untimety death, financial loss has been occasioned to them. 5. The tnbunal below after hearing the parties in the matter and considering evidence availabJe on record, allowed the clalm petition of the clalmants and awarded a sum of Rs.4,99,000/- under various heads and slnce the vehicle in question was insured with the appellant herein, therefore, directed the appellant herein to sattsfy the award wlthin a period of two months. Hence thls appeal by the appeilant insurance company. 6. We have heard learned counset for the parties and perused the impugned award as also the record of the claims tribunal. 7. The appellant-insurance company has ftled the instant appeal on the question of quantum only retying on the judgment of the Hon'ble Apex Court in the iTtatter of Municjpal Corporatjon of Greater Bombay Vs. Laxman lyer and another reported in (2003) 8 SCC 731 in which the Hon'ble Apex Court has held that in cases where th® deceased was aged about 18 y@ars at the tfme of his death and was un-married. the multiplier cannot be more than 10. In that case, the parents were having their sepsrate earnings being employed and educated. So far as the quantum of compensation is cQncerned, the Hon'ble Apex Court has heJQ' that jt is not the age of the deceased alone but the age of the ciaimants is relevant in determination of appropriate multiplier. 8. The judgment cielivered by the three Members Bench of the Hon'ble Apex Court in the matter of Lata Wadhwa and others Vs. State of Bihar and others reported in AtR 2001 SC 3218 is definttely a guiding factor in the matter of award of compensation wherein children died due to an unfortunate accident. Paras-8 & 11 of the said judgment ^^—•^ \.- t! ^&i^^ 1 "^.^^^ " ^^ K' 7 .f ^....."^.^" are liabte to be perused and therefore, the sam® are quoted as under:- "8. So far as the determination of compensatjon jn death cases is concerned, apart from the three decisions of the Andhra Pradesh High Court, which had been mentioned in the order of thls Court dated 15-12-1993, this Court ln the case of G.M., Kerala SRTC v. Susarfsma Thoms^. exhaustively dealt with the question. It has be©n held in the aforesaid case that for assessr»i®ntof damages to compensate the dependants, it has to take into account many Imponderables, as to the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the esttfflated remaining period of their tife expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income altogether. The Court further observed that the manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon htmself, as regards both self-maintenance and pteasure. and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants and, thereafter, it should be capitalised by multiptying it by a figure representing the proper number of years' purchase. It was also stated that mueh of the calculation necessarily remains in the realm of hypothesis and in that region, arithmetic is a good servant but a bad master, sinee there are so often many imponderabtes. In every case, "it is the overall picture that matters", and the court must try to assess as best as it can, the loss suffered. On the acceptabidty of the multJpHer method, the Court observed: "The multjplier method is logically sound ancf legally well-establjshed method of ensuring a 'just' compensation which will make for uniformity and certainty of the awards. A departure from ^iis method can only be justified in rare and extraordinary circumstances and yery exGeptional cases." The Court also further observed that th®proper method of computation is the multipljer method anct any departure, except in exceptional and extraordinary cases. would introduce ^fc 0~ jnconsistency of principle. lack of uniformlty and an element of unpredictabitity in the assessment of compensation. The Court ctisapproved the contrary views taken by some of the Hiflh Courts and explained away the earlier view of the Supreme Coyrt on the point. After considering a series of English decisions, it was held that the muJtiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capjtalizing the multiplicand by an appropriate multjpljer. The choice of the multipljer is determinedby the age of the deceased (or that of the claimants, whichever js higher) and by the calculation as to what capital sum, if jnvested at a rate of interest appropriate to a stable economy, woutd yietd the multiplicand by way of annual interest. In ascertaining this, regard shouldalso be had to the fact that ultimately the capital sum should also be consumed up over the period for which the dependency is expected to last. In view of the aforesald authoritative pronouncement of this Court and having regard to the determination made in the Report by Shri Justice Chandrachud. on the basis of the aforesaid multiplier method, it js difficult for us to accept the contention of Ms Rani Jethmalani that the settled prlnciple for determinatjon of compensation has not been followed in the present case. The further submission of the tearned counsel that the determination made is arbitrary, is devoidof any substance, as Shri Justice Chandrachud has correctly applied the multiplier, on consideration of all the relevant factors. Damages are awarded on the basis of financial loss and the finanGial loss is assessed in the same way as prospective loss of earnings. The basic figure, instead of being the net earnings, is the net contributton to the support of the dependants, which would have been derived from the future income of the deceased. When the basic flgure is fixed, then an estimate has to be made of the probable length of time for which the earnings or contribution would have continued and then a suitable muttipte has to be determined (a number of years'purchase), which will reduce the totai loss to its present value, taking into account the proved risks of rise or fall in the income. In the case of Maifett v. McMonagle Lord Diplock gave a full analysis of the uncertainties, which arise at various stages In the estimate and the practjcal ways of dealing with them. In the case of Davies v. Taylor it was held that the Court, in looking at future uncertain events, does not decide whether on balance one thing is more likely to happen than another, but merely puts a value on the chances. A possibility may be ignored if it is sdght and remote. Any method of calcutation is subordinate to the necessity for compensating the real loss. But a ife^llS^il^ltt^l^^^%llijjlSliSS^^ w^ practicat approach to the calculation ofthe damages has been stated by Lord Wright, »n a passage which rs frequently quoted, in Davies v. Powef! Duffryn Associated Collierief Ltd.S. to the following effect: (All ER p. 665 A-B) "The starting point ts the amount of wages whjch the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his empJoyment. Then there is anestimate of how much was required or expended for his own personal and tiving expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years' purchase." 11. So far as the award of compensation in case of chiidren is concerned, Shri Justice Chandrachud has divided them into two groups, the first group between the age group of 5 to 10 years and the second group between the age group pf 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 conventionaj figure of Rs 25,000 has been added and as such to the heirs of the 14 chjldren, 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 atRs. 12,000 per annum, T1 multtplier has been applied, particularly, depending upon the age of the father and then the conveRtional 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 actuai pecuniary benefit derjved by its parents during the child's lifetime. But this will not necessarily bar the parents' claim and prospective losswill 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 taid down by the House of Lords in the famous case of Taff Vale Rly. v. Jenkins and Lord Atkinson 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 expectatSon is an inference of fact — there must be a basis of fact from which the inference can reasonably be drawn; but 1 wish to express my emphatic dissent from the proposition that it is < c •?'*?"' f?^ t ?'\,.^^ necessary that two of the facts without which the inference cannot be drawn are, fjrst, tbat the deceased earned money in the pasi, and. second, that he or she contrtbuted to the support of the piaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence: and the necessary jnference can, 1 think, be drawn from circumstances other than and different from them." At the same time, jt must be held that a mere speculatjve possibiiity of benefit is not sufficient. Question whether there exists a reasonabl® expectation of pecunjary advantage is atways a mixed question of fact and law. There are several decided cases on this point, providing the guidetines 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 heatthy boy, his performances in the school, it wpuld be easier for the authority to arrive at the compensation amount. which may be djfferent 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 a just compensation in such cases and, therefore, he has determined the same on an approxjmafion. Mr Nariman, appearing for TtSCO on his own, submitted that the compensation determined for the children of all age groups could b@ doubled, as in his views 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 chitdren were brought, their parents being reasonably wetl- placed officials of Tata Iron and Steel Company, and on considering the submission of Mr. Nariman, we would direct that the compensation amount for the chitdren 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 conventionat 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 chiidren between the age group of 10 to 15 years, they are all students of Class VI to Ctass X and are children of employees of TISCO. TiSCO itsetf has a tradition that every employee ean get one of his children employed Jn the Company. Havlng regard to these facts, in their case, the contributjon of Rs.12,000 per annum appears to us to be on the tower sjde and in our considered opinion, the contfibutton should be Rs.24,000 and instead of 11 muitipljer, the appropriate multiplier would be 15. Therefore, ^ \c; the compensation, so calculated on the aforesaid basis should be worked out to Rs.3.60 lakhs, to which an additionai sum of Rs.50,000 has to be added, thus making the total amount payable at Rs.4.10 lakhs for ©achof th© claimants of the aforesaid deceased chiidren." 9. The abov@ judgments w@re of the period when th@ 2n Schedule, which came into force w.e.f. 14.11.1994, did not exist, but in the second schedule the multipljer has been given agewise and deduction was given as 1/3rd in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. 10. The Supreme Court in a recent decision reported in Sar/a Verma (Smt.) and others -vs- Delhi Transport Corporation and another (2009) SCO 121 has iaid down vide Para 40 that the multiplier scale according to Column (4) in the given table will be applicable. Besides this, the Apex Court further held that in a case where the deceased was bachelor and the parents are claimants; normally 50% is deductedas personal and living expenses because it is assumed that a bachelor would tend to spend more on him as seif maintenance. Similar view has been expressed by the Supreme Court in Syed Basheer Ahamed and others -vs- Mohammed Jameel and another, (2009) 2 SCC 225 (Para 28). 11. The selection of multiplier cannot, in all cases, be solely dependent on the age of the deceased and the age of the claimants is also relevant. The Supreme Court in Sarla Verma's case (supra), referring to the decision in General Manager, KerSa S.R.T.C. -vs- Susamma Thomas, (1994) 2 SCC 176, has reiterated that the multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of multjplier is determined by the age of the deceased or that of the claimants whichever is higher (see para 13). It has been also been said (vide Para 17) that usually in English Courts the operative multiplier rarely exceeds 16 as maximum and this will come down accordingly as the age of the deceased person (or that of the dependants whichever is higher) goes up, <? 12. In the instant case, the iearned Claims Tribunal considering the age of the deceased, an un-married boy, as also the age of the parents of the deceased, applied the multiplier of 15 accordjng to the second schedule and calculated the compensation at Rs.4,99,000/- including a sum of Rs.5,000/- each (total Rs.20,000/-) towards loss of love & affection and Rs.2,000/- towards funeral expenses were also awarded. 13. Considering the facts and circumstances of the case, we are of the opinion that the learned claims tribunal concerned has not considered the law laid down by the Hon'ble Apex Court in the matters of Municipal Corporation of Greater Bombay (supra) and Lata Wadhwa (supra) and therefore, we are of the view that the matter requires reconsideration. 14. Accordingly, we allow this appeal in part and set aside the impugned award dated 24.11.2009 and remit the matter to the learned Motor Accident Claims Tribunal, Sakti, District Janjgir-Champa (CG) for deciding the same afresh after affording opportunity to the parties to adduce additional evidence in support of their respective cases. It is made clear that whatever findings have been given in the impugned award shall not be taken into consideration and without being jnfl'uenced by those findings, the decision shali be taken by the ciaims tribunas independently. The.ciaims tribunal may also consider the future prospectus of the income of the deceased. 15. it is also directed that the amount, which has already been deposited, shalt not be refunded to the appellant and shail be disbursed subject to the result of the claim petition. 16. Registry is directed to transmit record of the claims tribunal concerned without further delay. 17. Certified copy as per rules. Roshan/- Sd/- I.M.Quddusi Judge Sd/- N.K. Agarwal Judge