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I.M .QU&bUSIA HQN'BLE MR.NAVVAL ICISHORE AGA&W^^Sl. M.^_N(Ll099/1001 National Insurance Co. l,..l'd, Shri Ram Kishan bubey A other's .,<* A/(,r. Shcea Kuinar Agarwal, Sr. Advocate with Mr. '' Advo'cialiB for- the appellant. J.A. |-.bhani, JU&6MENT (Qcall (28th August, 2010) J; J. Wl'jian the matter is called, none appears an behalf of the ffi&pondents. Even in the secund call, none aj:)pedr'd on behqlf of: the respondents nnd fherefore, the matt'er is decided ek- pqrte. S,,T|'ie appellant-Insur'ance Company has filed this cipp6al agoinst the award dated 31.7.2003 passed in Claim Cuse No.7&/20Q2 whereby the learned Motor Accident C'lqims Tribundl, Di.it''g(C(3) has allowed the claim petition filed by •t'hfc clqimants fliiei awarded a sum qf Rs.3,39,564/- to the pqrents of fHe ' cleceased, who died at the age of 19years in a road accident. 3. pri?'f facts of the case are that n 16.4.2002 gt aboul 6-7 pi.in. Jh the evening the deceased Sopal Dubey, who. was son.af re.gponde.nt Nos.l A 2 herein, was going on hls scooter to tih|e Rnflway Station, Bhilai-3 to pick-up his father, however, | n fhe way a bus, bearing registration, number MK21-W-&969 coming from the opposite side, driven in rash ancl negligertt nldtiner-'by the driver, dashed the scooter of said 6opa| as a r'esult of which sustainecl injuries and diecl on the spot. Th6 cliifmants, on account of death of their son, have filecl a claim pe;|ltion claiming an aiTlount of Rs.73,55,000/- on. varjq|us ,^.^-:-'?:^^, ^s^. ~~°% 1'il -^ " „:.. 1-u.- I'tends as compensation, The claitnants in supporl of the tnpnthly income of the deceased, hove filed a cerl'lflcate of tlia deceased Gopal Dubey as Ex.P-6 which showa thcit 'l'l'le dbcfeased had passed the DTP (2 months exarnindtlon) held by I'T Bhiiai Computer Academy In the month of Deceitiber', 2001 In fiecond division. The claimants have also flled other ' loeuments in support of their claim. 4 Tlle. tr'ibunal below after' hear'ing 1'he pcrtles In 'lhe mpttei' and considering evidence avpilable dn repord, all@U/ed the c|ijlm petition of the claimants and awar'ded a , stitTi df J^s.3,29,564/- under various heads, The cldln'lis 'lr'lbLinfll fi.]r"|'her held that the non-applicants to the cldii'n petition shall be liable to satisfy the award jointly or|sevel"(i|ly, Hsnte this appeal by the appellant insurance company. 8 We have heard learned counsel for the par'tles urtd perused tlic. impugned award qs also the record of the clatms Tr'jburial bBlt)W. fe: The appellant-insurance company has filed the insitant dppeal ori the question of quantum only relying on t'he Judg|Tient| of ' the Hon'ble Apex Court in the matter bf Murtlcilp.al fiorporation of ©reater Bombay Vs. Laxrnari lyer urid UKofher reported in(2003) 8 SCC 731 in whlch the 1-lon'ble Apex Court has held thot in cases where the deceased wds at}(id about 18 years at the time of his deafh arid was un- Warried, the multiplier cannot be mor'e than 1.0. In •I'l'Kat case, .tl'ie parents were having their separate eqrnjngs bejlig ; Bl'hployed and . educated. So far as the quanturn ;pf cginpensation is concerned, the Hon'ble Apex potirt hqs hel;d ,-|hc)t it isnot th'e age.of the cfeceased alone but the age ^of the Claimants is relevant ih deter'minatlon of appropirtiqte rnultiplier-. "u';. lt>i ;' /• 7; tlie judgment deliver'ec) by the three. Members Bench df the Hart'ble Apex Court In the matter of Latn Waclhwa and uthers Vs. State of Bl'har and others reporfed In AIR 2001 ,dfc 3218 is definitely a guidlng factor in the matter of award , oif cornpensation wherein children died due to ah Unfortundte a.ccldent. Paras-SA 11 of the said judgment are. It'able to be pftr'used and therefore, the same are quoted as under:- . 8. So far as the determlnation of cbmpehiitcKori in death cases is concerned, apart frorri the thrpe decisions of the /\ndhra Pradesh High Cour't, which Had been mentioned in the order af this Coul"f datecj 18-12- 1993, this Court in the case of ii?./M.//fe^/o SRI'Cv. Susainma Z'Ao/no^ exhaustively dealt with the iqueslto,n. It hgs been held in the. afor'esaid cfise 'l'hat.for ' assessment of damoges to compensate the'deprindtirits, it has to take into accounf many imponderable.9, iis to the life expectancy of the deceased ancl the dependants, the amount that the deceased would have earned during the remainder of his lif?, tlle amount that he would have contributed to the dependants during that period, the chances that the decenSed may not hqve lived or the dependants may hot llve up to the estimated remaining period of their Ijfe expectgncy, the chances that the dec.eased might have got be'lter einployment or fncome or rnight liave last his , employment or income altogether. The Court furl'her observed that themanner of arrivjng aT the damages js to ascertain the net income of the deceas.ed avii]ilab|e ' for thesupport of himself and his depen^an+s, and to deduct therefrom such part of hisincoma as the fleceased was accustomed to spendupon himse.lf', ds regards both self-maintenance dnd platisure, and to ascertain what partof hisnet income thedeceased was acctistomed to spend for the benefit of the dependunts and, thereafter, i't' should becapitalised by multlplylrlg jt by a figure representing 1he proper' nuinber of years' purchase. It- was also stated that much of the calculation necessarily remains in 'l'he realm of . hypothesis and in that region, arithme+ic is a-gbod servant but a bad master.since there are so often mciny imponderables. 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 thfe acceptability of the multiplier methad, the Court observed: :ci1'"^ :i "^"' - • ^ ^' •-1 .^'^- .^ s^ "The multiplier method is logically Souncl upd legally well-established method of ensurlng a 'just' compensation which will make 'for uniformi'ty and certalnty of ths awwds. A departure from this rnethod cqn only be justified in rare and ex'tr'aord cir'cumstances and very exceptiondl caSes." The Court also further observed that the pl'dper method of computation is the multiplier rnrithocl and any depoirture, except In exceptional and extraordlhary pases, would introduce inconsistency of princlple, lack Of uniformity and an eleme.nt of uhpreclictabilll'y Inthe assessment of compensafion. The Court disapproved the.CQntrary views taken by some of the High Courts and explained oway the earller view of the Supreirne (^ourt on the point. After consldering a .ser'ies pf Engllsh decisions, it uvas held that 'l'he mijll'jplier method involves the ascertalriment of the loris of dependency or the multjplicand having r'ei.iard I'o this clrcumstances of the £ase and capitqlizirK) the rnultiplicand by an appropriate multiplier'. The chqlce of the multiplier is determined by the age of the deceased (or that of the clalmants, whicheyer' is higher) and by the calculatlon as to what capitul sum, if Invested at a rate of interest apjiropriate to a stable economy, would yield the iTiultiplicand by wdy of annual interest. In ascertaining this, regar-d sh.ould ajso be had to the fact that ultimately the capitalsurri should alsq be consumed up over the period fof which the dependency Is expected to last. In vieuv of the aforesaid authoritative pronouncement pf 'lhly Court and having regard to the deterinination rnacje in the fteport by Shri Justice Chundrachud, on the basls of the aforesaid multiplfer method, It is cfifflcuil fOr us to accept the coritentionof Ms Rani Jethtnalcini that the settled principle for determlnution of compensation has nof been follow^d in the present, case. The further submission of the learned counsel that fhe determination mdde is arbitr'ary, (s devold of any, substance, qs Shri Justice ChandrachiJcl hag correctly applied the multiRlier, oh consideraliqn of all the relevant factors. Damages are qwurdecl on'the basis of financial loss and the findncial loss Is dsaessed In the same way as prospective loss of earnings. The, basic figure, insteadof belng the net earnings, Is the Met cOntribution to the support of the dependtirits. which would hove been derived from the futur'e Incbjiie: of the deceased. When the basic figure Is fixad, 1-hen ;'' ~^.( . \ !:n w'^'- an estimate has to be made of the probable length of time for which the earnings or cohtribution woi|ld have continued and then a suitable multiple hari to be determined (a number of years' purchase), whlch will reduce the total loss to Its preSent value, tnkfng into a.ccount the prpved rlsks of rise or- fall In thfc locome. Iri the case of Mdllett v. McMonagle Lord Diplock gave a full analysis of the uncer'tainties, which arjsfe at various stages In the estimate and the practleal ways of dealing with them. In the case of Davi^sv. Tayldr \'\ was held that the Court, ifi looking at future [incertain events, does not decide whether on balance one,th(ng is more likely to happen than another, but merely pu+s a value on the chances. A possibility may be Ignared if it is slight and rempte. Any method of calculqtiuri is Subordinate to the necessity for compensating the redl loss. But a practical approdch to the catoul(it|bn of the damages has been stated by Lord Wright, in a passage which is frequently quoted, in Ciavies v. Powell l~>tiffryn Associated Collieries Ltd.9..'\Q-\\\e. followirig effect; (All ER p. 665 A-B) "The starting point Is the amount of woges which the deceased was eal'ning, I'hfe ascertainment of which to some sxtent rnqy depend on the r'egularity of his ernploymei'it. Then there Is an eStimdte of howtmlich was required or expended for his own per'sonal and living expenses. Th? balance will give a cluturn or basic figure whlch 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 cuse of .Ghildren is concerned, Shri Justice ChandracliLid hos divided them into two groups, the first group between the.age group of 5 to 10 years and the secphd group between the gge group of 10 to 15 yeiars. In case of chtldren between ths age group of 5 •I'a 1(.) year$, a (jtiiform sum of Rs.50,000 has been held to be pdyable by way of compensation, to which the cdnventioridl figureof 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 fqr as the children in the age gr'oup of 10 to 15 yedr's, there are 10 such children who died on the fateful dayahd havinEj found their contribution to the fqmily al' Rs.12,000 per annum, 11 multiplier has been* applied, par'Mcljlarly, depending upon the age of the father' nnd 11'ieri the conventionalcompensation of Rs.25,000 hds been udded -ui^t) tfUMi^^-rw -€>^ r- •i c-'•-'.^. to each case and consequently, the heirs af each of the deceased above 10 years of age, have been grunted compensation to the 1'une ofRs.1,57,000 each. IH case of the death of aninfant, ther'e may have baen no actual peeuniary benefit derived by its parents dyrihg th? child's lifetime. But this will not necessai-'lly bal" the ()arents' claim and prospective loss will tourid a valid claim provided that the parents establish that they had a reasonable expectation of pecunlary beneflt if the child had lived. This principle was laid dowfi by the House of Lords In the famous case of 7'cr/"/' |4»/e Rly. v. J'enhins and Lor'd Atklnson saiid thug: ...all thaf is necessory is that a reasonable expectation of pecuniary beneflt shoiild be entertained by the person who sues. It is quite true that the existence of this expecl-atipn Is dn inference of fact — there must be a basis of ftict frorn which the Inference can r'easonably be dr'dwn; but I wish to expr'ess my emphatic dlssent from the proposition that it is necessar'y thatjtwo of fhe facts without which the inference cannot be drawn are, first, that the deceosed earned moheyin the past, and, second, 1'hat he or she contributecl to the support of the plaintiff. These are, no doubt, pregnant piecesof evidence. but they are only pleces of evidence; and the necessary iriferetice cqn, I think, be drauvn from circumstances o+her than and different fram them." At the same time, it rnust be held 'lhat a mere speculative ppssibility of benefit is not sufficieht. Question whether there exists a r'teasonable pxpectation of pecunlary advantage is always u mlxed question of fact and law. There are Several declded cases on this point, pr'oviding the guiclelines for determination of com(3ensntion in such cases but we do not think it necessary for us to advert, as the claimants had not adduced any mater'ials on I'he regsonable expectation of pecunlqry beneflt^, lohlch the parents expected. In cdse of a bright and healthy boy, his performances in the school,it would be eosler for the authority to arr'ive at the cpmpensotion omount, which may be dlfferent from another sickly, unhealthy, rickety child und bdd student, bu'l as has been stated earlier, not an fota of matei^lal wdS produced before Shri Justlce Chandrachudto enable him to arrive at ajustcompensation in S|jch eases and, therefore, he has determined the same on an approximation. Mr Nariman, appearing for TISCO on his ^' i. i i \ own, submitted that the compensation determinecf for the children of all age groups could be doubled, usin his views also, the determination made Is grossly inadequate. Loss of a child to the par'ents is irr'ecoupable, and no amount of money could cortipfensqte the parents. Having regard to the envir'anment frorn ,tohich these childr'en we.re br'ought, thel'r par^nts being . reasonably well-placed offlcials of Tata Ir'on arld Steel Company, and on considerlng the subinlssion of AAr'. Ndriman, we would direct that the compensal'ion aniouht ; , for the children between the age group of @ to 10 / ^ years'should be three times. In other woFols, i'l' should be Rs.1.5 lakhs, to which the conventiorial figure of Rs.50,000 should be added and thus the total amount ili each case would be Rs.Z.OQ lakhs. So far as fhe chlldreh between the age group 6f 10 to 19 years, they are a]l students of Class VI to Class X and are children of employees of TISCO. TISCO itself has a •I'rddltlqn that every employee can get one of his ehildren employed in the Campany. Having r'egarcl tg th6se fiacf'S, in their case, the contributlon of Rs.12,000 per' dnrium appears to us to be on the lower slde and in our considered opinlon, the contribution should be Rs.24,000 and instead of 11 multiplier, the apprppr'fate : • multiplier would be 15. Therefore, the compensatlort, so calculated on the afor'esaid basis should be uvorked out to Rs.3.60 lakhs, to which an additional slim of Rs.50,000 has to be added, thus making the I'otql amount payable at Rs.4.10 lakhs for each of the claimants of the aforesaid deceased children." ff.Tha above judgments were of the period when the 2 Schedule, which came into force w.e.f. 1.4.11,1994,, djd hot pXlst, but in the second schedule the multipller' has be6h i^lven agew/ise and deduction was given us 1/3 ijn c.Onsideration of the expenses which the victim wpulcj have, Incdrred towards maintaining himself had he been ulive 9, The Hon'ble Supreme Court in a recent declsion repor'ted in Sar/a yerma (Smt.) and others -vs- Delhi Tpansport ^Qrporation and another (2009) SCC 121 hnslaid dpwh vicje Par'a 40 that the rnultiplier scale according I'b Column (4) In tl'ie given table will be applicable. Besidesthis, the Hon'bile upreme Court further held that in a tase |Afh,ere tHe ..,j>..:i;..*i4.i^i , dEiceased was bachelor and the parents are clnitYiants: I'lormally 50% is deductejd as personal and |iv|ng expensfes b.fficause it is assumed that u bachelor would terld to sperid mtire on him as self maintenance. Similar vi&w has been expressed by the Hon'ble Supreme Court in Sy6d ^ashe/sr Ahamed and others -vs- Mohammed Jameel and another, (S009) 2 SCC 225 (Para 28). 10. Th^ Selection of multiplier cannot in all cusei) be siolely c|(Spendent on the age of the deceased and the dge of the clnllnants is also relevant. The Hon'ble Supreme Cour't- '\n Sar/a yerma's case fsupra}, r&ferring to the decision jn ffener'dl Manager, Kerla S.R. T.C. -vs- Susamma Thomds, (1994} 2 SCC 176, has reiter'ated that the multiplier;methad Involves the ascertainment of the loss of dependency or the iniiltiplicand having regard ta the circumstances of 1'he case and capitalizing the rtiultiplicand by an approprlate mi.lltiplier. Tl'i6 choice of multiplier' is determined by the age of the cleceased or that of the claimants whichever is' hUjhdr' fsee para 13). It has been also beensaid vide Para 17 that usuolly ll'l English Courts the operative multi'plier rar'e\y exc&e.ds 16 q9 maximum and fhis will come down accordingly aa the age pf the deceased person (or thato.f the dependants whlchever js higher) goes up. 1.1,. In the'instant case, the learned Claims Tribljnal consiclerinc) the age of the deceased, an un-marrled boy, to be 19 years applied the multiplier of 16 accordjng to the secorid ^chedUle alid calculated the compensation at Rs.3,20,064/-, Besi|cl|es thls, a sum of Rs.5,000/- towards loss of |ove & ctffection, Rs.2,000/- towards funeral expenses and Rs.2,500/- towcir.ds of loss of estate were also 'awarded. 1?. CanSidering the facts and circumstances df The case, we are of the opinion that the learned claims tribunql CQ|ite;rned h:as -^' ~).'^ ntit consldered the law lajd down by the Hon'ble Apex Court |n the'. matters of Municipal Corporation of fyfsate.F Bombay (sypra) and Lata Wadhwa (supr'a) and therefare, we are of the vjew that the matter requires reconsideratlon. J.,3. Apcordingly, we allow this appeal in part and set aslple th6 ,llTlpugned awarddated 31.7.2003 and remit the mattei' to the leiurned Motor Accident Claims Tribunal, t5urg (CO) for declding thesame afresh after affording opporti.inity'1'o the parties to adduce additional evidence in supporl' of their' pespective cases. It is mad<s clear that whatever findings hctye been given in the impugned oward shall nbt bis taken into consideration and without being influenced by thase tindings, •Ihe decision shall be taken by the clallTisi 1'rlbiirtal Itldependently. 14, I't is further directed that since the claimahts ar'e not (Jl'esent despite service of surrimons, if they do not turn in the pr'oceedings before the claims tribunpl concer'ned, it will be dpen fo'r the tribunal to decide the clgim pet'itiorl iri absfence of the claimants on merits bused on the evidence. already dn re.cord or adduced by the party pr-esent. The cldirns triburiul I'nay also consider' the fu'l'ure prospectus of the iricome of 't'he clEfceased. 18. Registry is directed to transmit record of the clall'ns iTibunal cdhcer'ned without further delay. Cer'tlfied copy as per rules. Sd/- I.M.Quddusi Judge Sd/- N.K. Agrawal Judge ._Li^..lilAll --®'