"We therefore reject the contention that the revisions in pay scale subsequent to the death and before the final hearing should be taken note of for the purpose of determining the income for calculating the compensation."
In view of the legal proposition, the contention of the learned counsel for the appellant is rejected.
ALLAHABAD HIGH COURT
Case :- FIRST APPEAL FROM ORDER No. - 3857 of 2010
Appellant :- Smt. Jai Kumari Devi & Others
Respondent :- Smt. Pushpa Gupta & Another
Hon'ble Krishna Murari,J.
Hon'ble Pratyush Kumar,J.
Citation;2016(1) ALLMR(JOURNAL)1ALLAHABAD
The claimants/appellants (hereinafter referred as the 'appellants') have filed the present appeal against the judgment and award dated 11th October, 2010 passed by Sri S.S.Upadhyay, Additional District Judge, Court No.4, /Motor Accident Claims Tribunal, Fatehpur in M.A.C.P. No.35 of 2007 (Smt.Jai Kumari Devi & others Vs. Smt. Pushpa Gupta & another) whereby the quantum of compensation awarded by the tribunal has been challenged on several grounds.
Though the controversy relates only to the quantum of compensation but in order to appreciate the questions involved in the present appeal, we think it proper to briefly noticed the facts.
Shorn of unnecessary facts, the claim petition was filed by appellant no.1, mother, appellant no.2 father, appellant no.3 sister and appellant no.4 brother of the deceased Km.Vibha with the averments that the deceased was aged about 25 years. She was a teacher and earning about Rs.8, 560/- per month by way of salary, Rs.3,000/- from tuition and Rs.2,000/- from sewing work. Thus, her total income was Rs.14,840/-?. On 31st October, 2006, the deceased was going with her brother, respondent no.4, to bus station Pakka Talab in order to board the bus to her school. They were walking on the left patri of the road. When they crossed Belahi Bazar, they met their father and started talking. At about 9.00 a.m. Truck No.U.P.78 B 4689 came there driven very rashly and negligently and hit the deceased and appellant no.4 on the wrong side. The deceased died at the spot and appellant no.4 sustained grievous injuries. F.I.R. was lodged at the police station on the same day. Post-mortem of the dead body of the deceased was conducted. Respondent No.1 is the owner of the offending vehicle. Respondent No.2 is the insurance company. The deceased had a very bright future. She was officiating as head mistress of the school. She was looking after the education of the appellants nos.3 and 4. Appellants are her legal representatives. On various heads Rs.28.59,240/- was claimed as compensation.
Both the respondents contested the claim petition. Respondent no.1 had admitted the accident, lodging of the F.I.R, and registration number of the offending truck, its ownership and fact of the truck being insured. In the additional pleas, it has been stated that at the time of accident, truck was driven by experienced and skilled driver at moderate speed. The accident is the result of negligence of the deceased. Papers of the offending vehicle were valid at the time of accident. Since the vehicle is insured with the respondent no.2, if any compensation is to be paid, it will be paid by the Insurance Company.
The Insurance Company has denied the averments of the claim petition. It has been stated in the additional pleas that claim petition has been filed with collusion with the respondent no.1. The claimants are required to prove the accident had occurred due to negligent driving of the offending vehicle. The answering respondent is entitled to avoid the liability on the grounds prescribed in section 149(2) of the Motor Vehicles Act, 1988. The claim petition is not in proper proforma and deserves to be rejected.
On the basis of the pleadings of the parties, four issues were framed. Both the parties had filed documentary evidence and examined the witnesses during the oral evidence. On issue no.1- negligence of the driver, the tribunal has returned the finding that the accident had taken place due to rash and negligent driving by the driver of the offending truck. In the accident, the deceased and respondent no.4 were injured. The deceased died at the spot.
On Issue nos. 2 and 3- findings have been recorded that at the time of the accident, the driver had a valid and operative driving license. All papers of the offending vehicle were valid and operative. The offending vehicle was insured with the respondent no.2.
On Issue no.4- the tribunal has disbelieved the oral evidence of the appellants regarding income of the deceased from tuition and sewing work. The tribunal has further held that the deceased was a teacher. During October 2006, she had drawn gross salary Rs.8,560/-. Out of this amount, Rs.83/- were deducted for insurance. Her annual income was held Rs.1,02,720/-.One third income was deducted towards her personal expenses and Rs.68,480/- were held to be annual loss of dependency of the appellants. The learned tribunal has further observed that the deceased was unmarried.Loss of dependency was multiplied by multiplier of age (chosen on the basis of the age of the appellant nos.1 & 2).Thus, Rs.5,47,840/- were held as compensation for loss of dependency, Rs.2,500/- were awarded towards loss of estate and Rs.2,000/- were awarded as funeral expenses.
Aggrieved with the amount of compensation, the present appeal has been preferred.
Learned counsel for the appellants has challenged the findings recorded by the learned tribunal on issue no.4 on various points. According to the learned counsel for the appellants, income from tuition and sewing has been wrongly disbelieved, no addition to the income of the deceased for future prospects has been made. He submits that from 1.1.2006 pay-scales were revised but income of the deceased was determined on the basis of pay drawn for the month of October 2006 under the old pay-scale. Instead of 1/3rd, 1/5th part of the income should have been reduced towards personal expenses. Amount for funeral expenses and as compensation for loss of estate, is very inadequate. Rate of interest is also low.
On behalf of the contesting respondent, the arguments have been replied extensively. We have also been taken through the evidence led before the learned tribunal.
First point to be examined relates to the finding recorded by the learned Tribunal in respect of income of the deceased alleged to be by way of tuition and sewing work. The learned tribunal has indicated that on this point there is a sole testimony Smt.Jai Kumari Devi, P.W.-1. During cross examination, she could not furnish any document to support her statement. No other evidence has been adduced on this point. For these reasons, the learned tribunal has concluded that the appellants had failed to prove income of the deceased by way of tuition and sewing work.
We are in agreement with the reasons given by the learned tribunal and on this point there appears no ground for any interference by us.
The second point relates to grant of future prospects. The learned tribunal has not added any amount on this head. Though the deceased was salaried teacher, who was aged about 26 years. Addition of amount on the basis of future prospects as laid down in Smt.Sarla Verma and others Vs. Delhi Transport Corporation and another, 2009 (3) AWC, 2138 (SC) is permissible, rather a necessary factor to assess fair compensation. The Hon'ble Apex Court in this case has approved hypothetical increase of 50% keeping in view the future prospects of the deceased. Para 23 of the judgment is being quoted below:-
"23. Learned counsel for the appellants contended that when actual figures as to what would be the income in future, are available it is not proper to take a nominal hypothetical increase of only 50% for calculating the income. He submitted that though the deceased was receiving Rs.4,004 per month at the time of death, as per the certificates issued by the employer (produced before High Court), on the basis of pay revisions and increases, his salary would have been Rs.32,678 in the year 2005 and there is no reason why the said amount should not be considered as the income at the time of retirement. It was contended that the income which is to form the basis for calculation should not therefore be the average of Rs.4,004 and Rs.8,008, but the average of Rs.4,004 and Rs.32,678."
In view of the legal proposition, we are of the opinion that tribunal has omitted to grant future prospects at the rate of 50% of the annual income. To this extent, the award requires to be modified.
Third point is revision of pay-scale. The deceased was appointed in December 2005. She died on 31st October, 2006. On behalf of the appellants, evidence has been led to show that salary of the deceased for the month of October 2006 was Rs.8,560/-. From 1.1.2006, old pay-scales were revised though in the year 2008. Learned counsel for the appellants insists that revised pay for the month of October, 2006 i.e. Rs.18,900/- be taken as income of the deceased at the time of death. The learned tribunal has determined the income of deceased on the basis of the pay drawn by her at the time of accident. In para 24, the Hon'ble Apex Court in the case of Smt.Sarla Verma (supra) has expressed the opinion that revision in pay-scale subsequent to the death should not be taken note of. The relevant part of the observation is quoted hereinunder:-
"We therefore reject the contention that the revisions in pay scale subsequent to the death and before the final hearing should be taken note of for the purpose of determining the income for calculating the compensation."
In view of the legal proposition, the contention of the learned counsel for the appellant is rejected.
The next ground is that instead of deducted 1/3rd of the income of the deceased towards his personal expenses, the learned tribunal should have deducted 1/5th of the income of the deceased. In para nos. 12 and 13 of Smt.Sarla Verma's case (supra), Hon'ble the Apex Court has observed that, in case, the deceased was unmarried, generally half of the income should be deducted towards the personal expenses but such percentage of deduction is not an inflexible rule and in view of the principle laid down in Susamma Thomas Vs. General Manager, Kerala SRTC, 1994 (2) SCC, 176, 1/3rd deduction is also permissible. Keeping in view of the said observation, we are inclined to hold that ground taken by the appellant is without substance and on this account, no fault can be found with the judgement and award.
Next ground is amount of funeral expenses and awarded a loss of estate. On these heads sum quantified in money has been indicated in the II Schedule of the Motor Vehicles Act, 1988. Though while deciding claim petition filed under section 166 of the Motor Vehicles Act, II Schedule is a mere guiding factor and not determinative but for departing from the legislative intention some justification in the form of facts established by cogent evidence is required. On behalf of the appellants, no evidence has been adduced to show that more money was spent in funeral ceremony or the deceased's death resulted loss of estate to a greater degree than the sum awarded under the head. For these reasons we find no justification to interfere with the findings recorded by the learned tribunal in the same.
The last ground is the rate of interest. The learned tribunal has awarded 6% interest from the date of the decision. U.P. Motor Vehicles 11th Amendment Rules 2011, Rule 220 A (6) provides rate of interest to be 7% awardable from the date of application. Though the award was passed prior to enactment of these rules but on pending proceedings these rules have been made applicable, therefore, award requires to be also modified to this extent that on the awarded amount, simple interest at the rate of 7% per annum from the date of institution of the claim petition will be payable to the appellant.
Now the last ground is use of multiplier. In the memo of appeal, this ground has not been raised. During the argument with the permission of the court, this ground has been raised and the following cases have been referred by the learned counsel for the appellants in support of the argument that age of the deceased i.e. 26 years should be made basis of multiplier i.e. 17 instead of age of the parents and multiplier of the age based on their age.
(1) M.Mansoor and another Vs.United India Insurance Company Ltd. and another, 2014 (1) AICC, 214, decided on 3rd October, 2013.
In this case, the deceased was bachelor but the Hon'ble Apex Court has approved the principle that the selection of multiplier should be based on the age of the deceased not on the basis of dependent. Para 15 of the judgement is explicit on this point which is quoted as below:-
"15. The selection of multiplier is based on the age of the deceased and not on the basis of the age of the dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of the dependents has no nexus with the computation of compensation."
(2) Reshma Kumari and others Vs. Madan Mohan and another, 2013 (2) AICC 1539, the Division Bench of three Hon'ble Judges of the Hon'ble Apex Court has approved the use of multiplier as prescribed in Smt.Sarla Verma's case (supra). Hon'ble the Apex Court has concluded its opinion in para 25 of the judgment, which is quoted below:-
"25. While referring to the decisions of this court in New India Assurance Company Ltd. v. Charlie and another, 2005(10) SCC 720: 2005 (2) TAC 297=2005 AICC 371 (SC); T.N.State Road Transport Corporation v. S.Rajapriya and others, 2005 (6) SCC 236: 2005 (2) TAC 305=2005 AICC 339 (SC) and U.P. State Road Transport Corporation v. Krishna Bala and others, 2006 (6) SCC 249=2006 AICC 531 (SC), this court in Sarla Verma in paragraph 39 (pg. 138) of the Report observed as follows:
"39. In New India Assurance Company Ltd. v. Charlie, this Court noticed that in respect of claims under Section 166 of the M.V.Act, the highest multiplier applicable was 18 and that the said multiplier should be applied to the age group of 21 to 25 years (commencement of normal productive years) and the lowest multiplier would be in respect of persons in the age group of 60 to 70 years (normal retiring age). This was reiterated in T.N.State Transport Corporation Ltd. v.S.Rajapriya and U.P. SRTC v. Krishna Bala (supra)."
In New India Insurance Company Ltd. Vs. Gulab Singh and two others, the Division Bench of this Court in FAFO No.156 of 2015 vide judgment dated 21st January, 2015, after discussing all the judgments of the Hon'ble Apex Court, approved the use of multiplier to be selected on the basis of the age of the deceased and observed the following:-
"The facts of the case in M. Mansoor (supra) are also similar to the facts of the present case. The deceased was a bachelor aged 24 years and survived by his parents who were the claimants. The Tribunal had applied the multiplier of 17 taking the age of the deceased to be applicable. On appeal by the Insurance Company the High Court held that multiplier of 12 was applicable taking into consideration the age of the claimants. Both the Tribunal and High Court had deducted 1/3rd as expenses of the deceased. On appeal by the claimants the Apex Court following the ratio laid down in the case of Amrit Bhanu Shali (supra) applied the multiplier of 18 taking into consideration the age of the deceased, but it directed for deduction of 50% as personal expenses of the deceased relying upon the judgment in the case of Sarla Verma (supra). The application of multiplier in computation of compensation in cases of death and objection filed under Section 166 or 163 A of Motor Vehicles Act 1988 was also considered by Apex Court in Reshma Kumari (supra) and after considering the relevant cases General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Susamma Thomas, State Road Transport Corporation Vs. Trilok Chandra, New Delhi India Assurance Co. Vs. Shanti Pathak, Sarla Verma (supra) and New India Insurance Company Ltd. Vs. Charli and others. The Apex Court summarised its conclusion as follows:
(i) In the applications for compensation made under Section 166 of the 1988 Act in death cases where the age of the deceased is 15 years and above, the Claims Tribunals shall select the multiplier as indicated in Column (4) of the table prepared in Sarla Verma read with para 42 of that judgment.
(ii) In cases where the age of the deceased is upto 15 years, irrespective of the Section 166 or Section 163A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the table in Sarla Verma 17 should be followed.
(iii) As a result of the above, while considering the claim applications made under Section 166 in death cases where the age of the deceased is above 15 years, there is no necessity for the Claims Tribunals to seek guidance or for placing reliance on the Second Schedule in the 1988 Act.
(iv) The Claims Tribunals shall follow the steps and guidelines stated in para 19 of Sarla Verma17 for determination of compensation in cases of death.
The judgments relied upon by the appellants are not applicable in the facts of the present case. They are of no help to the appellant. Even otherwise they are earlier in point of time. Further the judgments relied upon by the Tribunal and also placed before us by the learned counsel for the respondent are subsequent in point of time, involving similar facts as that in the present case and lay down the law deciding the issue."
On behalf of the respondents, following cases have been referred to substantiate that in case of bachelor, multiplier should be selected on the basis of the age of the claimants.
(1) UPSRTC & others Vs. Trilok Chandra and others 1996(4) SCC, 362
(2) New India Assurance Company Ltd. Vs. Smt.Shanti Pathak and others, 2007 (4) T.A.C, 17 (SC).
(3) Amrit Bhanu Shali and others Vs. National Insurance Company Ltd. and others, 2012 (4) AWC, 4163 (SC)
(4) New India Assurance Company Ltd. Vs. Smt.Durgesh Kumari and others, 2013 (3) T.A.C 131 (All.)
(5) National Insurance Company Limited Vs. Nikhil Mondal and others, 2015 (1) T.A.C 721 (Cal.).
As mentioned hereinabove, for both the contentions, there are number of authoritative pronouncements. On behalf of the appellants, the last case referred is of this Court wherein all the previous judgments of the Hon'ble Apex Court have been examined and opined that multiplier shall be selected on the basis of the age of the deceased. This Court has noticed the cases referred by the respondent and followed the law propounded by the decisions subsequent in point of time whereas the Calcutta High Court has accepted the view advanced by the respondents. The Calcutta High Court has preferred to follow the view expressed in the decisions of the Hon'ble Apex Court which were prior in time.
With respect we would like to clarify that determination of amount of compensation by use of multipliers is not an arithmetical exercise. The tribunal and courts try to assess the loss and work out fair and just compensation to minimise the losses suffered by the legal representatives of the victim.
From the judgement in the case of UPSRTC and others Vs. Trilok Chandra (supra), we find that the Hon'ble Apex Court was not satisfied with the system of multiplier as envisaged in II Schedule of Motor Vehicles Act, 1988. In para 18 of the judgment, the Hon'ble Apex Court emphasized the need to prescribe that multiplier cannot exceed 18 years' purchase factor.
In view of above, we find that the basis of selection of multiplier in case of death of a bachelor, as adopted by the Division Bench of this Court, appears to be more conducive for achieving objects for which the Motor Vehicles Act, 1988 have been enacted. Therefore, we reject the argument advanced by the respondents and come to the conclusion that in the present case, on the basis of the age of the deceased i.e. 26 years, multiplier of 17 will be applicable and the learned tribunal has erred in using multiplier of age based on the age of parents of the deceased.
Now we come to the actual computation of compensation.
(1) Income of the deceased Rs.8,560/- multiplied by 12 = Rs.1,02,720/-.
(2) Addition of future prospects i.e. Rs.1,02,720 + 51,360 (50%of Rs.1,02,720)= Rs.1,54,080/-
(3) Loss of dependency after reduction of (Rs.1,54,080-Rs.51,360 amount deducted towards personal expenses of the deceased) Rs.1,54,080- Rs.51,360 = annual loss for dependency comes to Rs.1,02,720/-.
Thus, the total compensation of amount on loss of dependency comes to Rs.1,02,720 x 17 = Rs.17,46,240+ Rs.5,000/- (Funeral Expenses) + Rs.5,000 (Loss of
Estate). Total compensation comes to Rs.17,56,240/-. The rate of interest is specified as 7% simple interest per annum from the date of application.
The last question remains apportionment. The appellant no.3 is unmarried sister of the deceased and appellant no.4 is unmarried brother of the deceased. They are entitled to get some portion of compensation as legal representatives of the deceased. There is no dispute that appellant no.1 being mother and appellant no.2 being father are entitled to be compensated.
There are large number of decisions on this point. Hon'ble the Apex Court in reference to Section 110 A of Old Motor Vehicles Act, 1939 has held that brother of the deceased is entitled to file a claim petition being legal representatives of the deceased as held in Gujarat State Road Transport Corporation Vs. Ramanbhai Prabhatbhai & another, A.I.R. 1987 S.C. 1690.
A Division Bench of this Court in Syeed Ahmad Alias Mausam and others Vs. Ajai Kumar Singh and another, 2013 (2) AICC, 1067 has held in a case of bachelor where brother aged about 21 years and sister aged about 16 years, had claimed compensation for death of their deceased brother. They were also to be awarded fair amount of compensation.
Andhra Pradesh High Court in the case of G.Nookarutnam Vs. United India Fire and General Insurance Company (1988) 1 AccCC, 403 and Punjab and Haryana High Court in Gram Panchayat, Mehngrowal Vs. Auditya Rai, A.I.R. 1988, Punjab and Haryana, 145 have held that where the deceased was the sole bread earner of the family comprising unmarried sisters and brother, they were entitled to get compensation.
Before parting we will also like to refer a recent judgment of the Hon'ble Apex Court in Montford Borthers of St.Gabriel &.... Vs. United India Insurance & Ors. in Civil Appeal No.3269-3270 of 2007 decided on 28.1.2014. In para 11 of the judgment, Hon'ble The Apex Court has approved the observation made by it in Gujarat State Road Transport Corporation's case (supra).
In the present case, appellant nos. 3 and 4 were unmarried, they were living with the deceased alongwith their parents. It is not on record that the deceased was the sole bread earner of the family but we are of the opinion that dependency is not confined to material things. Brothers and sisters all unmarried living under the same roof not only have emotional attachment but emotional dependence also. Those who are unemployed expects something from their kith and kin to provide them things in material form though they may not be necessary for maintaining only their animal existence but useful for them to improve their quality of life. The contribution made by the deceased may include presents on festive occasions, eatable items, wearing apparels etc. In this way they are dependents of the deceased. In this factual background, we come to the conclusion that in the present case, appellant nos. 3 and 4 come within the category of legal representatives and they are entitled to be compensated.
Parents are entitled for greater amount of compensation to take care of their old age whereas brothers and sisters are entitled to get fair amount as compensation. Rs.1,00,000/- to each appellant nos. 3 and 4 would suffice the purpose. Rest of the amount will be shared by appellant nos. 1 and 2 equally. On the awarded amount, the appellants will be entitled to get 7% simple interest per annum from the date of the institution of claim petition. The awarded amount and the interest shall be payable by the respondent nos.1 and 2 jointly and severally. The respondent no.2, the Insurance Company is directed to pay the awarded amount within 30 days from the date of the order. The appellant nos. 3 and 4 will be entitled to withdraw the amount of their share whenever it is deposited. The amount awarded to the appellant nos. 1 and 2 will be divided in two parts equally, half amount of their share will be paid whenever deposited and half of their share will be deposited in fixed deposit scheme in a nationalized bank for a period of five years with the stipulation that they will be paid accrued interest either at yearly or half yearly intervals, as prescribed by the rules of the bank, after five years rest of the amount will be disbursed or invested as the Motor Accident Claims Tribunal, Fatehpur thinks fit, without reference to this Court.
The appeal stands allowed to this extent and impugned judgment and award accordingly are modified.
Order Date :- May 8 , 2015
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