Sh. Krishan Kumar Jain and Another vs Sh. Nathu Lal and Others

Kailash Gambhir, J.—The present appeal arises out of the award dated 30.9.1997 of the Motor Accident Claims Tribunal whereby the Tribunal awarded a lump sum amount of Rs. 20,000/- along with interest @ 12% per annum to the claimants.

The brief conspectus of the facts is as follows:

On 11.12.1980, deceased Vinay Jain was travelling in a DTC bus bearing registration No. DHP-2845 plying on route No. 153 from Rajinder Nagar to Subzi mandi Chowk. When the bus reached Roshanara Road, the deceased was standing on the foot board of the bus as he wanted to get down at Subzi Mandi Chowk. In the meanwhile, truck bearing registration No. RJX-1352 was suddenly reversed by R-1, Nathu Lal without blowing any horn or warning or without there being anybody at the backside of the truck to guide R1 or to warn him about the traffic moving on the road. As the bus was passing on the road, the back portion of the truck struck the deceased. As a result, the deceased fell down on the road and received fatal injuries and he succumbed to those injuries later on.

A claim petition was filed on 28.4.1981 and an award was made on 30.9.1997. Aggrieved with the said award enhancement is claimed by way of the present appeal.

Sh. O.P. Goyal, Counsel for the appellants contended that the tribunal erred in holding the deceased to be negligent to the extent of 30% and stated that Ld. Tribunal ought to have held R1, Nathu Lal wholly responsible for the accident. The Counsel submitted that travelling on foot-board by itself does not constitute negligence and in this connection, he has referred to the case decided by Hon''ble Delhi High Court reported as Municipal Corporation of Delhi Vs. Kuldip Lal Bhandari and Others, . It is further urged that the fall in the value of money has not been noticed by the Ld. Judge while fixing the quantum of compensation payable to the appellants for the death of their son. The Counsel also raised the contention that the rate of interest allowed by the tribunal is on the lower side and the tribunal should have allowed simple interest @ 15% per annum from the date of filing of the petition till payment in place of only 12% per annum, in view of the Supreme Court Judgment reported as Rukmani Devi and Others Vs. Om Prakash and Others, . It was further submitted that the directions of Ld. Tribunal directing the amount of interest payable to be kept in FD in the name of appellants for a period of two years is unwarranted and untenable in law and same should be modified.

Per Contra Mr. Pankaj Seth, Counsel for respondent

insurance company submitted that there is no illegality in the impugned award. Counsel further contended that award passed by Tribunal is absolutely fair, just and reasonable and no fault can be found with the same warranting interference by this court.

I have heard the learned Counsel for the parties and perused the record.

The assessment of damages to compensate the dependants is beset with difficulties because while doing so, many imponderables have to be taken in to account, e.g., 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 estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income altogether. 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 himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalised by multiplying it by a figure representing the proper number of year''s purchase. In this relation, the Apex Court has held in plethora of judgments that the multiplier method is the best method.

In this regard in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, the Hon''ble Apex Court observed as under:

There were two methods adopted for determination and for calculation of compensation in fatal accident 3 actions, the first the multiplier mentioned in Davies case and the second in Nance v. British Columbia Electric Railway Co. Ltd.

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 the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also 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.

It is necessary to reiterate that the multiplier method is logically sound and legally well-established. There are some cases which have proceeded to determine the compensation on the basis of aggregating the entire future earnings for over the period the life expectancy was lost, deducted a percentage therefrom towards uncertainties of future life and award the resulting sum as compensation. This is clearly unscientific. For instance, if the deceased was, say 25 years of age at the time of death and the life expectancy is 70 years, this method would multiply the loss of dependency for 45 years - virtually adopting a multiplier of 45 - and even if one-third or one-fourth is deducted therefrom towards the uncertainties of future life and for immediate lump sum payment, the effective multiplier would be between 30 and 34. This is wholly impermissible. We are, aware that some decisions of the High Courts and of this Court as well have arrived at compensation on some such basis. These decisions cannot be said to have laid down a settled principle. They are merely instances of particular awards in individual cases. The proper method of computation is the multiplier-method. Any departure, except in exceptional and extraordinary cases, would introduce inconsistency of principle, lack of uniformity and an element of unpredictability for the assessment of compensation. Some judgments of the High Courts have justified a departure from the multiplier method on the ground that Section 110-B of the Motor Vehicles Act, 1939 insofar as it envisages the compensation to be ''just'', the statutory determination of a ''just'' compensation would unshackle the exercise from any rigid formula. It must be borne in mind that the multiplier method is the accepted method of ensuring a ''just'' compensation which will make for uniformity and certainty of the awards. We disapprove these decisions of the High Courts which have taken a contrary view. We indicate that the multiplier method is the appropriate method, a departure from which can only be justified in rare and extraordinary circumstances and very exceptional cases.

Thus, the tribunal erred in awarding a lumpsum amount to the appellants.

PW5 Subhash Singh had proved on record that the deceased was of 17 years of age at the time of his death and was studying in class X at the time of the accident. There are some aspects of human life which are capable of monetary measurement, but the totality of human life is like the beauty of sunrise or the splendor of the stars, beyond the reach of monetary tape-measure. The determination of damages for loss of human life is an extremely difficult task and it becomes all the more baffling when the deceased is a child and/or a non-earning person. The future of a child is uncertain. Where the deceased was a child, he was earning nothing but had a prospect to earn. The question of assessment of compensation, therefore, becomes stiffer. The figure of compensation in such cases involves a good deal of guesswork. In cases, where parents are claimants, relevant factor would be age of parents. 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 parent''s claim and prospective loss will find 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 case of Taff Vale Rly. v. Jenkins (1913) AC 1, 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 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 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. See Lata Wadhwa and Others Vs. State of Bihar and Others, .

But considering that nothing has come on record as regards the future prospects of the deceased and considering that it is no more res integra that mere bald assertions regarding the future prospects of the deceased are of no help to the claimants in the absence of any reliable evidence being brought on record. But taking into consideration the decision in the Lata Wadhwa and Others Vs. State of Bihar and Others, , wherein while computing compensation, the Apex Court made distinction between deceased children falling within the age group of 5 to 10 years and age group of 10 to 15 years. In the said case, the Apex Court had awarded Rs. 1,50,000/- as pecuniary damages and Rs. 50,000/- towards non-pecuniary damages to the claimants of the deceased children falling within the age group of 5 to 10 years and in case of the children falling within the age group of 10 to 15 years, the Court decided that the multiplier method should be applied and the contribution of the children to the family was taken to be at Rs. 24,000/-pa and then a multiplier of 15 was applied over and above the conventional compensation of Rs. 50,000/- had been added to it, making the total compensation as Rs. 3,60,000/-.

In view of the above discussion, I feel that income as provided in IInd Schedule for no-earning member can be taken, which to my mind would be just and proper.

Also considering that the petition is filed by the parents of the deceased I feel that 1/3 deduction in the facts of the case should be made towards personal expenses. With regard to the multiplier it is proved on record that the deceased was of 17 years of age at the time of the accident and his parents were of 50 years and 46 years of age. This case pertains to the year 1980 and at that time II schedule to the Motor Vehicles Act was not brought on the statute books. The said schedule came on the statute book in the year 1994 and prior to 1994 the law of the land was as laid down by the Hon''ble Apex Court in 1994 SCC (Cri) 335 G.M., Kerala SRTC v. Susamma Thomas. In the said judgment it was observed by the Court that maximum multiplier of 16 could be applied by the Courts, which after coming in to force of the II schedule has risen to 18. In the facts of the present case I am of the view that after looking at the age of the claimants and the deceased and after taking a balanced view considering the multiplier applicable as per the II Schedule to the MV Act, the multiplier of 11 should have been applied.

As regards the issue of interest that the rate of interest of 12% p.a. awarded by the tribunal is on the lower side and the same should be enhanced to 15% p.a., I feel that the rate of interest awarded by the tribunal is just and fair and requires no interference. No rate of interest is fixed u/s 171 of the Motor Vehicles Act, 1988. The Interest is compensation for forbearance or detention of money and that interest is awarded to a party only for being kept out of the money, which ought to have been paid to him. Time and again the Hon''ble Supreme Court has held that the rate of interest to be awarded should be just and fair depending upon the facts and circumstances of the case and taking in to consideration relevant factors including inflation, policy being adopted by Reserve Bank of India from time to time and other economic factors. In the facts and circumstances of the case, I do not find any infirmity in the award regarding award of interest @ 12% pa by the tribunal and the same is not interfered with.

Furthermore, compensation towards loss of love and affection is awarded at Rs. 20,000/-; compensation towards funeral expenses is awarded at Rs. 10,000/- and compensation towards loss of estate is awarded at Rs. 10,000/-.

On the basis of the discussion, the income of the deceased would come to Rs. 10,000/- after making 1/3rd deductions. The annual loss of dependency comes to Rs. 10,000/- after applying multiplier of 11 it comes to Rs. 1,10,000/-. Thus, the total loss of dependency comes to Rs. 1,10,000/-. After considering Rs. 40,000/-, which is granted towards non pecuniary damages, the total compensation comes out as Rs. 1,50,000/-.

As regards the issue of contributory negligence of the deceased, I feel that the tribunal committed no error. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act. Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party, by exercise of reasonable care, could have avoided the consequence of the other''s negligence. Whichever party could have avoided the consequence of the other''s negligence would be liable for the accident. If a person''s negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. It is now well settled that in the case of contributory negligence, courts have the power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damage is reduced to such an extent as the court thinks just and equitable having regard to the claim shared in the responsibility for the damage. In this regard, it has come on record in the depositions of PW3 Sh. Sardari Lal Jain and PW4 Sh. Subhash Chand, both were eyewitnesses to the accident, that the deceased was standing on the foot board of the rear door of the bus It is a well known fact that the rear door of the bus is meant for the entry of the passengers boarding the bus and the passengers must get down from the front door of the bus. Thus, clearly had the deceased not stood on the foot board of the bus, he would not have met with the accident, therefore, he had clearly contributed to the accident. It has also come in the testimony of Pw3 and Pw 4 that the bus had moved ahead and the truck driver without the guidance of his helper who could tell whether there is traffic and whether he should reverse the truck and without blowing any horn reversed the said truck and hit the deceased who was standing on the footboard of the rear door of the bus. No doubt he was negligent and rash. Furthermore, the tribunal considering the fact that the deceased was standing on the foot board and was not asked by the conductor or the bus driver to stand inside the bus and get down from the front door of the bus also held them liable for contributory negligence.

From the above discussion, it is manifest that no doubt mainly the truck driver was negligent but the deceased and the conductor and driver of the bus also contributed to the said accident which led to the death of the deceased. Thus, clearly the deceased was 30% liable for negligence and I do not find any infirmity as regards the tribunal imputing liability on the deceased. Therefore, no interference is made in the award on this count. Hence, after making 30% deduction towards contributory negligence of the deceased, the total compensation comes to Rs. 1,05,000/-.

In view of the above discussion, the total compensation is enhanced to Rs. 1,05,000/- from Rs. 20,000/- with interest @ 7.5% per annum on the enhanced compensation from the date of filing of the present petition in this Court till final realisation and the same should be paid to the appellants, in equal proportion, by the respondent Nos. 1 to 3 to the extent of 50% and further by the respondent Nos. 4 to 6 to the extent of 50%.

With the above directions, the present appeal is disposed of.