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Madhya Pradesh High Court · body

2010 DIGILAW 117 (MP)

MOHANLAL MISHRA v. CHIEF MEDICAL and HEALTH OFFICER

2010-01-28

SANJAY YADAV

body2010
Judgment Sanjay Yadav, J. ( 1. ) This order shall govern the disposal of M.A. No. 918/ 2005 and M.A. 1494/2005 as both these appeals arise out of an award dated 7.2.2005 passed by First Motor Accident Claims Tribunal in Claim Case No. 23/2004. ( 2. ) M.A. No. 918/2005 is at the instance of the Claimants who are dissatisfied with the quantum of compensaion in lieu of death of Praveen Kumar, alias Pintu, aged 16 years who was run over on 7.11.2003 by the Ambulance bearing registration No. MKE-T5961; consequent whereof he succumbed to the injuries received. The ambulance was driven by respondent No. 3. The Claims Tribunal against the claim of Rs.10,52,000/- awarded the compensation of Rs.54,500/- by taking into consideration the notional annual income of Rs.15,000/- deducted 2/3rd and by applying the multiplier of 10 on the age of mother, who was 45 years, held the loss of dependency at Rs.50,000/- and by adding Rs.4500/- towards conventional head awarded the compensation of Rs.54,000/-. ( 3. ) M.A. 1494/2005 is at the instance of driver who was driving the ambulance when accident took place on 7.11.2003. The grievance is against the finding arrived at by the tribunal that on the fateful day the appellant was not having the valid driving licence, thereby holding him personally liable for the compensation. ( 4. ) Thus, the issue for determination in MA 918/2005 is the quantum of compensation whereas in M.A. No. 1494/2005 it is as to whether the Claims Tribunal was justified in holding that the appellant personally liable for not having valid driving license on 7.11.2003 when the accident took place while he was driving the offending vehicle. ( 5. ) In respect of quantum the tribunal did not err in taking into consideration the notional income of Rs. 15,000/- per annum by treating the deceased as a non- earning member. However, the Claims Tribunal faltered by deducting 2/3rd towards personal expenses and by applying multiplier of 10. ( 6. ) In State of Haryana v. Jasbir Kaur [ (2003) 7 SCC 484 it was observed by their Lordships: "8. It is clear on a bare reading of the Tribunals decision as affirmed by the High Court that no material was placed before the former to prove as to what was the income. ( 6. ) In State of Haryana v. Jasbir Kaur [ (2003) 7 SCC 484 it was observed by their Lordships: "8. It is clear on a bare reading of the Tribunals decision as affirmed by the High Court that no material was placed before the former to prove as to what was the income. As rightly contended by learned counsel for the appellants, there was not even any material adduced to show type of land which the deceased possessed. The matter can be approached from a different angle. The land possessed by the deceased still remains with the claimants as his legal heirs. There is however a possibility that the claimants may be required to engage persons to look after agriculture. Therefore, the normal rule about the deprivation of income is not strictly applicable to cases where agricultural income is the source. Attendant circumstances have to be considered. Furthermorej there was no material before the Tribunal to arrive at the figure of Rs. 4500 per month. No reason has been indicated to arrive at this figure. In the light of what has been discussed above about "just compensation" the income cannot be estimated without any material to justify the estimation. In the normal course, we would have remitted the matter back to the Tribunal for fresh consideration. But considering the fact that one young person lost his life,, and the matter was pending before the Tribunal and the High Court for some years, we feel it appropriate to take all relevant factors into consideration, and decide the matter. Gauzing the relevant aspects, noted above, the monthly income is fixed at Rs. 3000/- per month, and after deducting Rs. 1,000/- for personal expenses, financial contribution so far as the claimants are concerned is fixed, at Rs. 2,000/- per month. Worked out on the basis of multiplier of 18, the compensation is fixed at Rs. 4,32,000/-. The amount of Rs. 2,000/- awarded by the Tribunal for funeral expenses is not interfered with and thus the total compensation comes to Rs. 4,34,000/-. The rate of interest i.e. 9% per annum as fixed by the Tribunal and affirmed by the High Court is appropriate, and does not need any alteration. 4,32,000/-. The amount of Rs. 2,000/- awarded by the Tribunal for funeral expenses is not interfered with and thus the total compensation comes to Rs. 4,34,000/-. The rate of interest i.e. 9% per annum as fixed by the Tribunal and affirmed by the High Court is appropriate, and does not need any alteration. After adjusting the sum which was deposited pursuant to the order of this court dated 14-12- 2001, the balance amount along with interest shall be deposited within three months from today before the Tribunal. On the deposit being made along with the amount already deposited, a sum of Rs. 3 lakhs shall be kept in the fixed deposit in the name of the claimants and a sum of Rs. 50,000/- shall be kept in fixed deposit in the name of Smt. Baldev Kaur, mother of the deceased. They shall be entitled to draw interest on the deposit, which shall be redeposited for further terms of five years. In case of urgent need, it shall be open to the claimants to move Tribunal for release of any part of the amount in deposit. The Tribunal shall consider the request for withdrawal and shall direct withdrawal in case of an urgent need and not otherwise of such sum as would meet the need. It shall be specifically indicated to the Bank where the deposits are to be made that no advance or withdrawal of any kind shall be permitted without the order of the Tribunal. It shall be open to the claimants to approach the Tribunal for variance of the order relating to deposit in fixed deposit, if any other scheme would fetch better returns and also would provide regular and permanent income." ( 7. ) In New India Assurance Co. Ltd. v. Satender (2006) 13 SCC 60 it was held: 7. In Mallett v. McMonagle 1970 (AC) 166, Lord Diplock analysed in detail the uncertainties which arise at various stages in making a rational estimate and practical ways of dealing with them. In Davies v. Taylor (1974) AC 207, 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 slight and remote. In Davies v. Taylor (1974) AC 207, 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 slight and remote. Any method of calculation is subordinate to the necessity for compensating the real loss. But a practical approach to the calculation of the damages has been stated by Lord Wright in Davies v. Powell Duffryn Associated Colleries Ltd. (1942) 1 All ER 657, in the following words: "The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required to be spent for his own personal and living 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." ( 8. ) In State of Haryana and Anr. v. Jasbir Kaur and Ors. 2003 7 SCC 484 it was held as under : (SCC p.487, para 7) "7. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is to be in the real sense "damages" which in turn appears to it to be "just and reasonable". It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that 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 tribunals have a duty to weigh the various factors and quantify the amount of compensation, 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 arrived 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 arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression just" denotes equitability, fairness and reasonableness, and non arbitrary. If it is not so it cannot be just. (See Helen C. Rebello v. Maharashtra SRTC ( 1999(1) SCC 90 )" ( 9. ) 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 splendour 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. ( 10. ) In case of the death of an infant, there may have been no actual pecuniary benefit derived by its parents during the childs lifetime. But this will not necessarily bar the parents 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. 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 1 think, be drawn from circumstances other than and different from them." (See Lata Wadhwa and Ors. v. State of Bihar and Ors, ( 2001 (8)SCC 197 ). ( 11. ) This Court in Lata Wadhwas case [ (2001) 8 SCC 197 ] while computing compensation made distinction between deceased children falling within the age group of 5 to 10 years and age group of 10 to 15 years. ( 12. ) In cases of young children of tender age, in view of uncertainties abound, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic 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." 8. In Manju Devi and another Vs. Musafir Paswan and another (supra) their lordships were pleased to observe: "2. In the case of U.P. State Road Trans. Corpn. V. Trilok Chandra, 1996 ACJ 831 (SC), it has been held by this Court that there should be no departure from the multiplier method on the ground that payment being made is just compensation. Musafir Paswan and another (supra) their lordships were pleased to observe: "2. In the case of U.P. State Road Trans. Corpn. V. Trilok Chandra, 1996 ACJ 831 (SC), it has been held by this Court that there should be no departure from the multiplier method on the ground that payment being made is just compensation. It has been held that the multiplier method must be accepted method for determining and ensuring payment of just compensation as it is the method which brings uniformity and certainty to awards made all over the country. In view of this authority, it will have to be held that the award of compensation had to be made by the multiplier method. 3. As set out in the Second Schedule to the Motor Vehicles Act, 1988, for a boy of 13 years of age, a multiplier of 15 would have to be applied. As per the Second Schedule, he being a non-earning person, a sum of Rs. 15,000/-must be taken as the income. Thus, the compensation comes to Rs.2,25,000/-. 4. We accordingly modify the award to be in a sum of Rs.2,25,000 with interest as awarded. The appeal stands disposed of accordingly. No order as to costs." 9. Recently, in Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another (2009) 6 SCC 121, it has been observed by their Lordships: "19 To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by the following well- settled steps: Step 1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependant family, constitutes the multiplicand. Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and the period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers, with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased. Having regard to several imponderables in life and economic factors, a table of multipliers, with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased. Step 3 (Actual calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the "loss of dependency" to the family. Thereafter, a conventional amount in the range of Rs.5000/- to Rs. 10,000/- may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5000 to 10,000 should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased. The funeral expenses, cost of transportation of the body (if incurred) should also be added. Furthermore in respect of question regarding deduction for personal and living expenses their Lordships were pleased to observe "31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of bis getting married in a short time, in which event the contribution to the parent (s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they wil either be independent and earning, or married, or be dependent on the father." Regarding multiplier it has been held "41. Tribunals/courts adopt and apply different operative multipliers. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they wil either be independent and earning, or married, or be dependent on the father." Regarding multiplier it has been held "41. Tribunals/courts adopt and apply different operative multipliers. Some follow the multiplier with reference to Susamma Thomas set out in Column (2) of the table above; some follow the multiplier with reference to Trilok Chandra set out in Column (3) of the table above; some follow the multiplier with reference to Charlie set out in Column (4) of the table above; many follow the multiplier given in the second column of the table in the Second Schedule of the MV Act (extracted in Column (5) of the table above; and some follow the multiplier actually adopted in the Second Schedule while calculating the quantum of compensation set out in Column (6) of the table above. For example if the deceased is aged 38 years, the multiplier would be 12 as per Susamma Thomas, 14 as per Trilok Chandra, 15 as per Charlie, or 16 as per the multiplier given in Column (2) of the Second Schedule to the MV Act or 15 as per the multiplier actually adopted in the Second Schedule to the MV Act. Some tribunals, as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under Section 166 and not under Section 163-A of the MV Act. In cases falling under Section 166 of the MV Act, Davies method is applicable. 42. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under Section 166 and not under Section 163-A of the MV Act. In cases falling under Section 166 of the MV Act, Davies method is applicable. 42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie, which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M- 17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years." Thus, keeping in view the law above and the facts of present case the deceased being 16 years of age and unmarried, therefore, by taking into consideration 50% of the notional income to be the loss of annual dependency and by applying multiplier of 18 the loss of total dependency comes to Rs.7500 x 18 = 1,35,000 and by adding Rs. 10,000/- towards conventional head the total compensation comes to Rs.1,35,000 + Rs.10,000/- = Rs.1,45,000/-. The Claims Tribunal awarded Rs.54,000/- by deducting the same, the compensation in lieu of death of Praveen Kumar alias Pintu is enhanced by Rs.91,000/-. The appellant would be entitled for interest @ 6% per annum from the date of present appeal. 10. Next question is whether the Claims Tribunal is justified in concluding that the driver appellant in M.A. No. 1494/2005 was not having valid driving license on the date of accident, i.e., 2.12.2003 and, therefore, is personally liable for compensation or that the State whose employee he was and accident occurred during course of the employment, the vicarious liability would be of State. 11. The Claims Tribunal in paragraph 13 observed: 12. 11. The Claims Tribunal in paragraph 13 observed: 12. When the aforesaid observation is examined on the touchstone of the facts on record it is clear that except filing a Xerox Copy of driving license the appellant did not take any step to bring on record the original driving license to substantiate his claim that he was having a valid driving license when the accident occurred on 7.11.2003, The appellant despite of being given opportunity by the Claims Tribunal did not avail the same and, therefore, the presumption drawn by the Claims Tribunal under Section 114 (g) Evidence Act cannot be found fault with. The provision stipulates that: "114. Court may presume existence of certain facts. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to be common course of natural events, human conduct and public and private-business, in their relation to the facts of the particular case. (g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;" ( 13. ) The question still remains as to whether the appellant in M.A. 1494/2005 who was driving a government vehicle and was on an official duty when the accident occurred on 7.11.2003 would personally be held liable for compensation or the State of Madhya Pradesh /Chief Medical and Health Officer who would be vicariously liable to compensate the death of praveen Kumar @ Pintu. ( 14. ) The question whether the State is vicariously liable for negligence of its servants in discharge of their official duties was answered affirmatively by the Supreme Court in N.Nagendra Rao V. State of AP: (1994) 6 SCC 205 wherein it was observed by their Lordships: "33.............Public Policy requires the Court to exercise the power is private law to compensate the owner where the damage or loss is suffered by negligence of officers of the State in respect of cause of action for which suits are maintainable in civil Court." In State of Maharashtra and others V. Kamachanwala Vijay Singh Shirke: (1995) 5 SCC 659 the question that an employer though guilty of no fault himself, is liable for the damage done by the fault or negligence of his servant acting in the Course of his employment, was answered in the following way: "18. So far the facts of the present case are concerned, the High Court has rightly come to the conclusion, on basis of the pleadings and evidence on record, that it was the year ending day i.e. 31-3- 1980, and the clerks and officers were required to work during night time. This direction had been given by the appellant No. 2 who was in charge of the office. It further appears that after normal working hours of the office, the employees had gone to their homes and were required to come back after taking dinner. The jeep was used for bringing such employees to the office. In this background, there is no escape from conclusion that jeep was being used in connection with the affairs of the State and for official purpose. The High Court has also found that respondent who was the clerk in the office of appellant No. 2 was driving the vehicle under the authority of the driver who was in-charge of the said vehicle and as the driver had consumed more liquor on that day he permitted respondent to drive the vehicle that night. The facts of the present case disclose and demonstrate that an authorised act was being done in an unauthorised manner. The accident took place when the act authorised was being performed in a mode which may not be proper but nonetheless it was directly connected with "in the course of employment - it was not an independent act for a purpose or business which had no nexus or connection with the business of the State Government so as to absolve the appellant- State from the liability. 19. The crucial test is whether the initial act of the employee was expressly authorised and lawful. The employer, as in the present case the State Government, shall nevertheless be responsible for the manner in which the employee, that is, the driver and the respondent executed the authority. This is necessary to ensure so that the injuries caused to third parties who are not directly involved or concerned with the nature of authority vested by the master to his servant are not deprived from getting compensation. This is necessary to ensure so that the injuries caused to third parties who are not directly involved or concerned with the nature of authority vested by the master to his servant are not deprived from getting compensation. If the dispute revolves around the mode or manner of execution of the authority of the master by the servant, the master cannot escape the liability so far third parties are concerned on the ground that he had not actually authorised the particular manner in which the act was done. In the present case, it has been established beyond doubt that the driver of the vehicle had been fully authorised to drive the jeep for a purpose connected with the affairs of the State and the dispute is only in respect of the manner and the mode in which the said driver performed his duties by allowing another employee of the State Government, who was also going on an official duty, to drive the jeep, when the accident took place. Once it is established that negligent act of the driver and respondent was in the course of employment, the appellant-State shall be liable for the same." ( 15. ) In the case at hand the driver, appellant in M.A.No. 1494/2005 in course of his employment on 7.11.2003 caused an accident when the ambulance which he was driving carrying vaccine from office of Chief Medical Officer to Community Health Centre Chitrangi dashed at Praveen Kumar @ Pintu who succumbed to the injuries, will not exonerate the State from its vicarious liability to pay compensation in lieu of the victim. ( 16. ) In view whereof, the appeals are allowed to the extent above. However no costs. Appeal allowed.