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1994 DIGILAW 385 (PAT)

Bulak Sao v. Ram Nath Prasad

1994-11-29

S.K.CHATTOPADHYAYA

body1994
Judgment S.K.Chattopadhyaya, J. 1. The appellant, who is the father of the deceased, has moved this court being aggrieved by the judgment and award passed by the Additional Claims Tribunal, Hazaribagh, in Misc. Case No. 7 of 1988. 2. Tribhuwan Sao, the deceased at the relevant time, was a khalasi (cleaner) of Jonga jeep bearing registration No. BRO 2455. The Jonga jeep met with an accident while going towards Barhi side with a truck bearing registration No. BHM 9545. Due to impact of the accident Tribhuwan Sao fell down on the road and was crushed under the wheel of the truck, as a result of which he died on the spot. 3. In the claim petition it was alleged that the said accident occurred due to excessive and sudden speed of the said truck bearing registration No. BHM 9545. The income of the deceased was said to be Rs. 1,000.00 per month from his service. The claimant and his family were dependent on the earnings of the deceased and at the time of death the deceased was aged about 18-19 years. 4. Being noticed, the owner of the truck bearing registration No. BHM 9545 as well as the insurance company appeared and filed their separate written statements. Plea taken by the owner was that he was not liable to pay the compensation and liability, if any, was against the insurer and the driver. The insurance company took the plea that the alleged accident took place due to rash and negligent driving of the driver of the aforesaid Jonga jeep which was overloaded and was being driven negligently. 5. On such plea being taken, the Claims Tribunal framed several issues and after considering the evidence allowed the claim and held that the appellant is entitled to get compensation of Rs. 42,000.00 with interest at the rate of 12 per cent per annum from the date of institution of the claim, i.e., 5.2.1988 from the insurance company. The claimant not being satisfied with this amount of compensation has filed the instant appeal. 6. Mr. Rajeev Kumar, learned counsel appearing on behalf of the appellant, has submitted that the amount of compensation is grossly under-assessed by the Tribunal inasmuch as the Tribunal without considering any evidence has come to a conclusion that the deceased being khalasi of the Jonga jeep could not have earned Rs. 1,000.00 per month. 6. Mr. Rajeev Kumar, learned counsel appearing on behalf of the appellant, has submitted that the amount of compensation is grossly under-assessed by the Tribunal inasmuch as the Tribunal without considering any evidence has come to a conclusion that the deceased being khalasi of the Jonga jeep could not have earned Rs. 1,000.00 per month. Secondly, it is contended that the Tribunal while granting compensation did not take into consideration the future prospects of the deceased, the nature of mental shock and agony of the dependants. It is further contended that the Tribunal erroneously has not considered the income of the deceased from the cultivation which is Rs. 500.00 per month. Lastly, it is submitted that without any basis the Tribunal has deducted 40 per cent from the total compensation. Learned counsel for the appellant has further submitted that before awarding compensation in a claim case certain factors have to be considered which, in the instant case, has not been done. He has relied for such submission on the decisions in Manjushri Raha V/s. B.L. Gupta 1977 ACJ 134 (SC), S. Chandra V/s. Pallavan Transport Corporation 1995 ACJ 1170 (SC) and Hardeo Kaur V/s. Rajasthan State Road Trans. Corporation, 1992 0 ACJ 300. 7. Mrs. Jaya Roy, the learned counsel appearing on behalf of the owner of the truck, has, on the other hand, submitted that no document was filed by the claimant to show that the earning of the deceased was Rs. 1,000.00 per month. Further, it is contended that the owner of the truck cannot be held liable for the payment of compensation in view of the fact that the insurance company is liable for compensation up to the limit of Rs. 1,50,000.00 in view of the Motor Vehicles (Amendment) Act, 1982. 8. Mr. M.Y. Eqbal, learned counsel appearing on behalf of the insurance company, on the other hand, has drawn my attention to a decision reported in General Manager, Kerala State Road Transport Corporation V/s. Susamma Thomas 1994 ACJ 1 (SC) and has submitted that after analysing the decisions of the several High Courts as well as the Supreme Court, the Apex Court has given a guideline as to how the compensation has to be assessed. He further submits that if the multiplier system is taken into account then compensation on no other head is permissible. He further submits that if the multiplier system is taken into account then compensation on no other head is permissible. In support of his contention he has relied on a Full Bench decision of the Punjab & Haryana High Court in Lachman Singh V/s. Gurmit Kaur 1979 ACJ 170 (P&H). 9. In reply to submissions made by Mr. Eqbai, Mr. Rajeev Kumar has submitted that the decision of the Supreme Court in General Manager, Kerala State Road Trans. Corporation V/s. Susamma Thomas 1994 ACJ 1 (SC), has not noticed the decision of the Supreme Court in Hardeo Kaur V/s. Rajasthan State Road Trans. Corporation 1992 ACJ 300 (SC). He has relied on a decision reported in S. Chandra V/s. Pallavan Transport Corporation 1995 ACJ 1170 (SC) and has submitted that even after the case of General Manager, Kerala State Road Trans. Corporation (supra), the Supreme Court has adopted a different multiplier method and this should, according to the learned counsel, be the appropriate method. 10. On the premises of these submissions, it has to be looked into as to what is the logically sound and legally well established method of multiplication. In the case of General Manager, Kerala State Road Trans. Corporation V/s. Susamma, Thomas 1994 ACJ 1 (SC), their Lordships have observed, inter alia, as follows: The determination of the quantum must answer what contemporary society would deem to be a fair sum such as would allow the wrongdoer to hold up his head among his neighbours and say with their approval that he has done the fair thing. The amount awarded must not be niggardly since the law values life and limb in a free society in generous scales. All this means that the sum awarded must be fair and reasonable by accepted legal standards. The amount awarded must not be niggardly since the law values life and limb in a free society in generous scales. All this means that the sum awarded must be fair and reasonable by accepted legal standards. In para 7 of the judgment their Lordships have observed as follows: The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables, 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 years purchase. Much of the calculation necessarily remains in the realm of hypothesis and in that region arithmetic is a good servant but a bad master since there are so often many 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. 11. After noticing English decisions, the Apex Court has held that the multiplier method is logically sound and legally well established. The Supreme Court has given a guideline as to how multiplier method is to be applied which is as follows: The multiplier represents the number of years purchase on which the loss of dependency is capitalised. Take, for instance, a case where annual loss of dependency is Rs. 10,000.00 . If a sum of Rs. 1,00,000.00 is invested at 10 per cent annual interest, the interest will take care of the dependency perpetually. Take, for instance, a case where annual loss of dependency is Rs. 10,000.00 . If a sum of Rs. 1,00,000.00 is invested at 10 per cent annual interest, the interest will take care of the dependency perpetually. The multiplier in this case works out to 10, If the rate of interest is 5 per cent per annum and not 10 per cent, then the multiplier needed to capitalise the loss of the annual dependency at Rs. 10,000 would be 20. Then the multiplier, i.e., the number of years purchase of 20 will yield the annual dependency perpetually. Then allowance to scale down the multiplier would have to be made taking into account the uncertainties of the future, the allowances for immediate lump sum payment, the period over which the dependency is to last being shorter and the capital feed also to be spent away over the period of dependency is to last, etc. Usually in English courts the operative multiplier rarely exceeds 16 as maximum. This will come down accordingly as the age of the deceased person (or that of the dependants, whichever is higher) goes up. 12. On the basis of the aforesaid guideline, let us examine the case in hand. Some admitted facts are that the appellant was working as a khalasi and his salary was Rs. 1,000.00 per month. He died at the age of 18-19 years. However, there is no evidence regarding his future prospects as a khalasi. Applying the multiplier method as laid down by the Supreme Court taking into consideration the monthly salary of Rs. 1,000.00 , the yearly income will be Rs. 12,000.00 . From this 1/3rd deduction can be made which the deceased might have spent for himself. After deducting this amount, expenditure on the dependants which the deceased could have met annually is Rs. 8,000.00 which comes to around Rs. 700.00 per month. If Rs. 8,000 is multiplied by 9 (the number of years purchase) the total amount would be Rs. 72,000.00 . If this amount of Rs. 72,000 is kept in a fixed deposit, monthly income of the dependants will be Rs. 700.00 per month at the rate of 10 per cent. It is not in dispute that when the claim case was filed the appellant was paid a sum of Rs. 15,000.00 by way of interim compensation. The Tribunal has awarded a sum of Rs. 72,000 is kept in a fixed deposit, monthly income of the dependants will be Rs. 700.00 per month at the rate of 10 per cent. It is not in dispute that when the claim case was filed the appellant was paid a sum of Rs. 15,000.00 by way of interim compensation. The Tribunal has awarded a sum of Rs. 57,600.00 in total and deducting the same amount of Rs. 15.000.00 , awarded net amount of Rs. 42,600.00 . The reasoning given by the Tribunal for payment of compensation of such amount is not sustainable in law. Even AW 3, who is the owner of the Jonga jeep of which the deceased was a khalasi, deposed that he used to give Rs. 1,000.00 per month as salary to the deceased besides Rs. 5.00 or Rs. 6.00 per day as diet money. AW 4, the son of the owner, has also deposed to the same line. It is unfortunate that without any basis the Tribunal has held that the deceased could not have got Rs. 1,000.00 per month as salary. Relying on the evidence of AW 3, the owner of the Jonga jeep, that his income was Rs. 300.00 per day, in my opinion, the Tribunal erred in concluding that the deceased was not getting Rs. l,000.00 per month as salary. Another finding of the court below is to be noticed in which, after awarding a sum of Rs. 96,000.00 as compensation, the Tribunal has deducted 40 per cent from the said amount towards personal expenses of the deceased. This, in my considered opinion, is totally misconceived. I have already noticed that the Supreme Court has held that in an appropriate case the deduction should be 1/3rd or /4th from the total amount towards his personal expenditure taking into consideration the style of living, i.e., whether it was Spartan or Bohemian. There was no evidence before the Tribunal in the instant case, as to whether the way of life of the deceased was Spartan or Bohemian. Under this circumstance, in my opinion, the compensation has been grossly under-assessed. 13. Coming to the submission of Mr. Rajeev Kumar, learned counsel appearing for the appellant, that there is a conflicting decision of the Supreme Court in respect of application of multiplier method, I may observe that in the case of General Manager, Kerala Road Trans. Under this circumstance, in my opinion, the compensation has been grossly under-assessed. 13. Coming to the submission of Mr. Rajeev Kumar, learned counsel appearing for the appellant, that there is a conflicting decision of the Supreme Court in respect of application of multiplier method, I may observe that in the case of General Manager, Kerala Road Trans. Corporation V/s. Susamma Thomas 1994 ACJ 1 (SC), their Lordships have taken note of different decisions and have observed as follows: 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 Sec. 110-B of the Motor Vehicles Act, 1939, in so far 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. (Emphasis added) This decision of the Apex Court, it seems, was not brought to the notice of the Bench which decided the case of 5. Chandra V/s. Pallavan Transport Corporation 1995 ACJ 1170 (SC). Moreover, the case of 5. Chandra (supra) has not, in my opinion, laid down any specific method of multiplication. 14 In the result, this appeal is allowed and the judgment and award is modified to the extent that instead of Rs. 57,600.00 awarded by the Tribunal, the appellant-claimant will be entitled to total amount of Rs. 72,000.00 plus 18 per cent interest. As observed earlier, appellant has already received Rs. 15,000.00 by way of interim compensation. 14 In the result, this appeal is allowed and the judgment and award is modified to the extent that instead of Rs. 57,600.00 awarded by the Tribunal, the appellant-claimant will be entitled to total amount of Rs. 72,000.00 plus 18 per cent interest. As observed earlier, appellant has already received Rs. 15,000.00 by way of interim compensation. Learned counsel for the appellant is not in a position to inform as to whether rest amount of Rs. 42,600.00 and odd has been received by his client or not. The appellant will be entitled to get Rs. 57,600.00 more as the net compensation has been assessed at Rs. 72,000.00 . Interest of 18 per cent per annum on this enhanced amount of Rs. 15,000.00 will be paid from today. The respondent insurance company is directed to deposit the balance amount of compensation deducting the amount already received by the appellant. There shall be no order as to costs.