NATIONAL INSURANCE COMPANY LTD v. SHIV BALAK RAWAT
2009-01-09
DEVI PRASAD SINGH, SATISH CHANDRA
body2009
DigiLaw.ai
Heard Sri R. C. Sharma, learned counsel for the appellant and Sri Rajendra Jaiswal learned counsel for the re spondents. This appeal has been filed by the National Insurance Company under Section 173 of the Motor Vehicles Act 1988, against the judg ment and award dated 12-7-2000, passed by Motor Accident Claims Tribunal, Barabanki in Claim Petition No. 253 of 1997 awarding a sum of Rs. 1, 52, 000/-, as compensation. 2. The matrix of the case is that on 29-8-1997 at about 120 Clock Noon, the father Sri Shiv Balak was going along with her daughter deceased Shiv Kumari, aged about 15 years. As soon as they reached near Fatehganj, a Jeep registration No. U. P.- 41a-4332 was coming from Hydergarh side and hit the deceased Ms. Shiv Kumari, who died on the spot. In the post mortem report, the age of the child was deter mined as 12 years. The driver ran away with the Jeep. Later on, police case was made out and the Jeep was impounded. The driver Sri Prabhakar Singh was arrested who has ac cepted the said accident. 3. After examining the documentary as well as oral evidence, the Motor Accidents Claims Tribunal found that the vehicle was registered with the appellant, National Insur ance Company and insurance policy was valid from 15-1-1997 to 24-1-1998. The accident occurred on 29-8-1997 when the vehicle was validly insured. The owner of the Jeep was Sri Umesh Chandra Mishra, respondent No. 2. It was also observed that the driver Sri Prabhakar Singh was having a valid driving license on the date of accident. 4. In these circumstances, the Tribunal has awarded compensation as per Second Sched ule of the Motor Vehicles Act 1988 for Rs. 1, 50, 000/ -. The Tribunal has also awarded the interest @ 12% from the date of the filing of the petition. Not being satisfied, the Insurance Company has filed the present appeal. We have heard the learned counsel for the parties at length and gone through the mate rial available on record. 5. Both the parties have agreed regarding the facts of the case as mentioned in the Tribunals order. The only dispute in this ap peal is regarding the quantum of compensa tion. 6. The learned counsel for the appellants has submitted that the Second Schedule of the Motor Vehicles Act suffers ambiguities.
5. Both the parties have agreed regarding the facts of the case as mentioned in the Tribunals order. The only dispute in this ap peal is regarding the quantum of compensa tion. 6. The learned counsel for the appellants has submitted that the Second Schedule of the Motor Vehicles Act suffers ambiguities. The Courts and Tribunals cannot go by the ready reckoner, it can only be used as a guide. Se lection of multiplier cannot be solely depen dent on the age of the deceased as per the ra tio laid down in the case of U. P. S. R. T. C. and Others v. Trilok Chandra and Others (1996) 4 SCC 362 . Learned counsel for the appellant also stated that the compensation awarded by the Tribunal is meagre one. For this purpose, he relied on the ratio laid down in the case of Kaushalya Devi v. Sri Karan Arora 2007 (3) TAG 16 : ( AIR 2007 SC 1912 ); and New India Assurance Company v. Padam Singh 2007 (4) TAG 388 : (2008 (1) ALJ 7) where under the Motor Vehicles Act, the claim was increased by treating the same as the social welfare legislation. Learned counsel further relied on the case of Jeewanlal Limited and Others v. Appellate Authority 1984 (4) SCC 356 : ( AIR 1984 SC 1842 ) where it was ob served that: "the Court should adopt a beneficent rule of construction; and if a Section is capable of two constructions, that construction should be preferred which fulfills the policy of the Act, and is more beneficial to the person in whose interest the Act has been passed. When, however, the language is plain and unambigu ous, the Court must give effect to it whatever may be the consequence, for, in that case, the words, of the statute speak the intention of the legislature. When the language is explicit, its consequence are for the Legislature and not for the Courts to consider. The argument of inconvenience and hardship is a danger ous one and is only admissible in construc tion where the meaning of the statute is ob scure and there are two methods of construc tion. In their anxiety to advance beneficent purpose of legislation, the Courts must not yield to the temptation of seeking ambiguity when there is none. 7.
The argument of inconvenience and hardship is a danger ous one and is only admissible in construc tion where the meaning of the statute is ob scure and there are two methods of construc tion. In their anxiety to advance beneficent purpose of legislation, the Courts must not yield to the temptation of seeking ambiguity when there is none. 7. Further, he relied on the ratio laid down in the case of Lata Wadhwa and Others v. State of Bihar and Others 2002 (1) T. A. C. 138 : ( AIR 2001 SC 3218 ) where the claim was awarded on higher side. Lastly, he made a re quest that the compensation may be enhanced, as, demanded in the Claim Petition. 8. On the other hand, the learned counsel for the Respondent No. 3 (New India Assur ance Company, Lucknow) has submitted that the compensation was rightly awarded by the Tribunal. He also relied on the ration laid down in the case of Lata Wadhwa: ( AIR 2001 SC 3218 ) (supra ). He further submitted that the Honble Supreme Court in the case of Ori ental Insurance Company Limited v. Syed Ibrahim & Others AIR 2008 SC 103 has also discussed the similar issue. In that case, the quantum was increased by the High Court but Honble Supreme Court has reduced the com pensation and upheld the amount, which was awarded by the Tribunal. So, he made a re quest that the compensation need not be en hanced. He also relied on the ratio laid down in the case of Kaushalya Devi : ( AIR 2007 SC 1912 ) (supra) where the claim of the en hancement was rejected by following the ra tio laid down in the case of Lata Wadhwas case: ( AIR 2001 SC 3218 ) (supra ). In this case Honble Supreme Court has observed that: "in cases of young children of tender age, in view of the uncertainties around, neither their income at the time of death nor the pros pects of the future increase in their income nor chances of advancement of their career are capable of proper determination on esti mated basis. The reason is that at such an early age, the uncertainties in regard to their aca demic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty.
The reason is that at such an early age, the uncertainties in regard to their aca demic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation. " Lastly, he justified the order of the learned Tribunal. We have heard learned counsel for the par ties at length and gone through the material available on record. 9. India is one of the countries with the highest number of road accidents. Motor accidents are everyday affairs. A large number of claims for compensation for injury caused by road accidents are pending in various Mo tor Accident Claims Tribunal. In a fatal accident, the dependents of the deceased are en titled to compensation for the loss suffered by them on account of the death. The most commonly practiced method of assessing the loss suffered is to calculate the loss for a year and then to capitalize the amount by a suit able multiplier. To that is added the loss suf fered on account of loss of expectation of life and the like. The Tribunals and High Courts have adopted divergent methods to determine the suitable multiplier. Even this Court has not been uniform; may be because the prin ciple on which this method came to be evolved has been forgotten. It has, therefore, become necessary to examine the law and to state the correct principles to be adopted. 10. It is true that perfect compensation is hardly possible and money cannot renew a physique frame that has been battered and shattered, as stated by Lord Merris in West v. Shepard (1964 AC 326 ). Justice requires : that it should be equal in value, although not alike in kind. Object of providing compensation is to place claimant as far as possible in the same position financially as he was before accident. Broadly speaking, in the case of death basis of compensation is loss of pecuniary benefits to the dependants of the deceased which in cludes pecuniary loss, expenses, etc. and loss to the estate. Object is to mitigate hardship that has been caused to the legal representa tives due to sudden demise of the deceased in the accident.
Broadly speaking, in the case of death basis of compensation is loss of pecuniary benefits to the dependants of the deceased which in cludes pecuniary loss, expenses, etc. and loss to the estate. Object is to mitigate hardship that has been caused to the legal representa tives due to sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be un reasonable, excessive, nor deficient. There can be no exact uniform rule for measuring value of human life and measure of damage cannot be arrived at by precise mathematical calculation; but amount recoverable depends on broad facts and circumstances of each case. It should neither be punitive against whom claim is decreed nor it should be a source of profit of the person in whose favour it is awarded. Upjohn L. J. in Charter House Credit v. Jolly (1963) 2 CB 683) remarked, the as sessment of damages has never been an exact science; it is essentially practical. 11. The damages for vehicular accidents are in the nature of compensation in money for loss of any kind caused to any person. In case of personal injury the position is differ ent from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically non-ex istent. In Parry v. Cleaver (1969 1 All ER 555) Lord Morris stated as follows: "to compensate in money for pain and for physical consequences is invariably difficult, but. . . . . no other process can be devised than that, of making monetary assessment. " 12. The main principles of law on com pensation for injuries were worked out in 19th Century, where railways accidents were be coming common and all actions were tried by Jury. Though the cases have antiquated air it is still useful to refer to them. The neces sity that damages should be full and ad equate was stressed by the Court by Queens Bench in Fair v. London and North-Western Railway Co. ( (1869) 21 LT 326 ). The word compensation is derived from Latin word "compensare" meaning "weigh together" or "balance". In Rushton v. National Coal Board (1953) 1 All.
The neces sity that damages should be full and ad equate was stressed by the Court by Queens Bench in Fair v. London and North-Western Railway Co. ( (1869) 21 LT 326 ). The word compensation is derived from Latin word "compensare" meaning "weigh together" or "balance". In Rushton v. National Coal Board (1953) 1 All. E. R. 314 it was observed: "every member of this Court is anxious to do all he can do to ensure that the damages are adequate for the injuries suffered, so far as they can be compensated for an injury, and to help the parties and others to arrive at a fair and just figure. " 12. It has to be kept in view that the Tribu nal constituted under the Motor Vehicles Act 1988 is required to make an award determin ing the amount of compensation which ap pears to be just. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. Bodily injury is nothing but a deprivation which en titles the claimant to damages. The quantum of damages fixed should be in accordance to the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such con sequential losses. A person becomes entitled to damages for the mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life which has been curtailed because of physical handicap. The normal expectation of life is impaired. But at the same time, it has be to be borne in mind that the compensation is not expected to be a wind fall for the victim. 13. Statutory provisions clearly indicate the compensation must be "just" and it cannot be a bonanza; not a source of profit but the same should not be a pittance. The Courts and Tri bunals have a duty to weigh the various fac tors and quantify the amount of compensa tion, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be ar rived at by precise mathematical calculations.
What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be ar rived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or spe cial features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" com pensation which is the pivotal consideration. Though by use of the expression "which ap pears to it to be just" a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious ap proach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and rea sonableness, and non-arbitrary. If it is not so it cannot be just. (See Helen C. Rebello v. Maharashtra State Road Transport Corporation ( AIR 1998 SC 3191 ). 14. The Honble Supreme Court in the case of R. D. Hattangadi v. Pest Control (India) Pvt. Ltd. ( AIR 1995 SC 755 ) laying the prin ciples posited: "broadly speaking, while fixing the amount of compensation payable to a victim of an accident the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are capable of being assessed by arithmetical calculations. In order to appre ciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffer ing already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i. e. , on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i. e. , on account of injury the normal longevity of the person concerned is short ened; (iv) inconvenience, hardship, discom fort, disappointment, frustration and mental stress in life. " 15.
" 15. Regarding the compensation pertain ing to the death of child, determination of the award is very difficult task for the reason that there are some aspects of the human life which are capable of monetary measurement, but the totality of human life is like the beauty of sun rise or the splendor of the starts, beyond the reach of monetary tape-measure. The deter mination 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 pros pect to earn. The question of assessment of compensation, therefore, becomes stiffen The figure of compensation in such cases involves a good deal of guesswork. 16. However, at the same time, the inspi ration may be drawn from the observation made by the Honble Apex Court in the case of G. M. Kerala SRTC v. Susamma Thomas (1994) 2 SCC 176 : ( AIR 1994 SC 1631 ) where culled out the basic principles govern ing the assessment of compensation emerg ing from the legal authorities cited above they reiterated that the multiplier method is the sound method of assessing compensation. The Honble Court as observed 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 appropri ate 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 a 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 ulti mately the capital sum should also be consumed-up over the period for which the de pendency is expected to last. 17.
In ascertaining this, regard should also be had to the fact that ulti mately the capital sum should also be consumed-up over the period for which the de pendency is expected to last. 17. It is rightly clarified that there should be no departure from the multiplier method on the ground that Motor Vehicles Act, 1988 envisaged payment of just compensation since the multiplier method is the accepted method for determining and ensuring pay ment of just compensation and is expected to bring uniformity and certainty of the awards made all over the country. 18. In the instant case, the ratio laid down in Lata Wadhwas case : ( AIR 2001 SC 3218 ) (supra) cannot apply for the reason that in that case compensation was awarded after an enquiry report submitted pertaining to fire in a pandal. That case was not related to an accident under Motor Vehicles Act, 1988. In this case, the child was below the age of 15 years as per post-mortem report, therefore, as per Second Schedule (Section 163-A) of the Motor Vehicles Act, up to the age of 15 years, the multiplier of 15 will have to apply. The victim was not having any source of income. Being non-earning person, the notional in come will have to be taken at Rs. 15, 000/-per annum as per the Second Schedule of the Motor Vehicles Act. One third of the deemed income has to be deducted for expenses on self. Thus, for the purpose of computation of compensation, the notional income will have to be taken at Rs. 10, 000/- per annum and the same will have to multiply as per multiplier of 15. Thus, it will come to Rs. 1, 50, 000/ -. If Rs. 2000/- for funeral expenses etc. are added, the total compensation comes to Rs. 1, 52, 000/ -. No discrimination can be made out between the male and female child. To this extent, we uphold the order of the Tribunal. 19. Hence, we uphold the impugned order of the Tribunal along with the reasons men tioned hereinabove.
If Rs. 2000/- for funeral expenses etc. are added, the total compensation comes to Rs. 1, 52, 000/ -. No discrimination can be made out between the male and female child. To this extent, we uphold the order of the Tribunal. 19. Hence, we uphold the impugned order of the Tribunal along with the reasons men tioned hereinabove. However, the interest is concerned, the claimants will be entitled for the interest @9% from the date of filing of the claim petition before the Tribunal as per the observation made by this Court in a num ber of cases including the case of United In surance Company Ltd. v. Om Prakash Singh (FAFO No. 644 of 2005 ). In view of the above, the appeal is allowed in part. The impugned award stands modified accordingly. No order as to costs. Appeal partly allowed. .