compensation” and the same has to be determined on the
foundation of fairness, reasonableness and equitability on
acceptable legal standard because such determination can never
be in arithmetical exactitude. It can never be perfect. The aim is
to achieve an acceptable degree of proximity to arithmetical
precision on the basis of materials brought on record in an
individual case. The conception of “just compensation” has to be
viewed through the prism of fairness, reasonableness and nonviolation
of the principle of equitability. In a case of death, the
legal heirs of the claimants cannot expect a windfall.
Simultaneously, the compensation granted cannot be an apology
for compensation. It cannot be a pittance. Though the discretion
vested in the tribunal is quite wide, yet it is obligatory on the part
of the tribunal to be guided by the expression, that is, “just
compensation”. The determination has to be on the foundation of
evidence brought on record as regards the age and income of the
deceased and thereafter the apposite multiplier to be applied. The
formula relating to multiplier has been clearly stated in Sarla
Verma (supra) and it has been approved in Reshma Kumari
(supra). The age and income, as stated earlier, have to be
established by adducing evidence. The tribunal and the Courts
have to bear in mind that the basic principle lies in pragmatic
computation which is in proximity to reality. It is a well accepted
norm that money cannot substitute a life lost but an effort has to
be made for grant of just compensation having uniformity of
approach. There has to be a balance between the two extremes,
that is, a windfall and the pittance, a bonanza and the modicum.
In such an adjudication, the duty of the tribunal and the Courts
is difficult and hence, an endeavour has been made by this Court
for standardization which in its ambit includes addition of future
prospects on the proven income at present. As far as future
prospects are concerned, there has been standardization keeping
in view the principle of certainty, stability and consistency. We
approve the principle of “standardization” so that a specific and
certain multiplicand is determined for applying the multiplier on
the basis of age.
58. The seminal issue is the fixation of future prospects
in cases of deceased who is self-employed or on a fixed salary.
Sarla Verma (supra) has carved out an exception permitting the
claimants to bring materials on record to get the benefit of
addition of future prospects. It has not, per se, allowed any future
prospects in respect of the said category.
59. Having bestowed our anxious consideration, we are
disposed to think when we accept the principle of
standardization, there is really no rationale not to apply the said
principle to the self-employed or a person who is on a fixed
salary. To follow the doctrine of actual income at the time of
death and not to add any amount with regard to future prospects
to the income for the purpose of determination of multiplicand
would be unjust. The determination of income while computing
compensation has to include future prospects so that the method
will come within the ambit and sweep of just compensation as
postulated under Section 168 of the Act. In case of a deceased
who had held a permanent job with inbuilt grant of annual
increment, there is an acceptable certainty. But to state that the
legal representatives of a deceased who was on a fixed salary
would not be entitled to the benefit of future prospects for the
purpose of computation of compensation would be inapposite. It
is because the criterion of distinction between the two in that
event would be certainty on the one hand and staticness on the
other. One may perceive that the comparative measure is
certainty on the one hand and uncertainty on the other but such
a perception is fallacious. It is because the price rise does affect
a self-employed person; and that apart there is always an
incessant effort to enhance one’s income for sustenance. The
purchasing capacity of a salaried person on permanent job when
increases because of grant of increments and pay revision or for
some other change in service conditions, there is always a
competing attitude in the private sector to enhance the salary to
get better efficiency from the employees. Similarly, a person who
is self-employed is bound to garner his resources and raise his
charges/fees so that he can live with same facilities. To have the
perception that he is likely to remain static and his income to
remain stagnant is contrary to the fundamental concept of
human attitude which always intends to live with dynamism and
move and change with the time. Though it may seem appropriate
that there cannot be certainty in addition of future prospects to
the existing income unlike in the case of a person having a
permanent job, yet the said perception does not really deserve
acceptance. We are inclined to think that there can be some
degree of difference as regards the percentage that is meant for or
applied to in respect of the legal representatives who claim on
behalf of the deceased who had a permanent job than a person
who is self-employed or on a fixed salary. But not to apply the
principle of standardization on the foundation of perceived lack of
certainty would tantamount to remaining oblivious to the
marrows of ground reality. And, therefore, degree-test is
imperative. Unless the degree-test is applied and left to the
parties to adduce evidence to establish, it would be unfair and
inequitable. The degree-test has to have the inbuilt concept of
percentage. Taking into consideration the cumulative factors,
namely, passage of time, the changing society, escalation of price,
the change in price index, the human attitude to follow a
particular pattern of life, etc., an addition of 40% of the
established income of the deceased towards future prospects and
where the deceased was below 40 years an addition of 25% where
the deceased was between the age of 40 to 50 years would be
reasonable.
60. The controversy does not end here. The question still
remains whether there should be no addition where the age of the
deceased is more than 50 years. Sarla Verma thinks it
appropriate not to add any amount and the same has been
approved in Reshma Kumari. Judicial notice can be taken of the
fact that salary does not remain the same. When a person is in a
permanent job, there is always an enhancement due to one
reason or the other. To lay down as a thumb rule that there will
be no addition after 50 years will be an unacceptable concept.
We are disposed to think, there should be an addition of 15% if
the deceased is between the age of 50 to 60 years and there
should be no addition thereafter. Similarly, in case of selfemployed
or person on fixed salary, the addition should be 10% 47
between the age of 50 to 60 years. The aforesaid yardstick has
been fixed so that there can be consistency in the approach by
the tribunals and the courts.
61. In view of the aforesaid analysis, we proceed to record our
conclusions:-
(i) The two-Judge Bench in Santosh Devi should have been well
advised to refer the matter to a larger Bench as it was
taking a different view than what has been stated in Sarla
Verma, a judgment by a coordinate Bench. It is because a
coordinate Bench of the same strength cannot take a
contrary view than what has been held by another
coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma
Kumari, which was delivered at earlier point of time, the
decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual
salary to the income of the deceased towards future
prospects, where the deceased had a permanent job and
was below the age of 40 years, should be made. The
addition should be 30%, if the age of the deceased was 48
between 40 to 50 years. In case the deceased was between
the age of 50 to 60 years, the addition should be 15%.
Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary,
an addition of 40% of the established income should be the
warrant where the deceased was below the age of 40 years.
An addition of 25% where the deceased was between the age
of 40 to 50 years and 10% where the deceased was between
the age of 50 to 60 years should be regarded as the
necessary method of computation. The established income
means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for
personal and living expenses, the tribunals and the courts
shall be guided by paragraphs 30 to 32 of Sarla Verma
which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table
in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the
multiplier.49
(viii) Reasonable figures on conventional heads, namely, loss of
estate, loss of consortium and funeral expenses should be
Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively.
The aforesaid amounts should be enhanced at the rate of
10% in every three years.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELALTE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. 25590 OF 2014
National Insurance Company Limited V Pranay Sethi and Ors.
Hon'ble Judges/Coram:
Dipak Misra, C.J.I., A.K. Sikri, A.M. Khanwilkar, Dr. D.Y. Chandrachud and Ashok Bhushan, JJ.
Dated:October 31, 2017
Citation:2017 SCCONLINE SC 1270,AIR 2017 SC 5157,(2017) 16 SCC 680
Dipak Misra, CJI.
Perceiving cleavage of opinion between Reshma Kumari
and others v. Madan Mohan and another1 and Rajesh and
others v. Rajbir Singh and others2, both three-Judge Bench
decisions, a two-Judge Bench of this Court in National
Insurance Company Limited v. Pushpa and others3 thought it
appropriate to refer the matter to a larger Bench for an
1
(2013 ) 9 SCC 65
2
(2013) 9 SCC 54
3
(2015) 9 SCC 1663
authoritative pronouncement, and that is how the matters have
been placed before us.
2. In the course of deliberation we will be required to travel
backwards covering a span of two decades and three years and
may be slightly more and thereafter focus on the axis of the
controversy, that is, the decision in Sarla Verma and others v.
Delhi Transport Corporation and another4 wherein the twoJudge
Bench made a sanguine endeavour to simplify the
determination of claims by specifying certain parameters.
3. Before we penetrate into the past, it is necessary to note
what has been stated in Reshma Kumari (supra) and Rajesh’s
case. In Reshma Kumari the three-Judge Bench was answering
the reference made in Reshma Kumari and others v. Madan
Mohan and another5. The reference judgment noted divergence
of opinion with regard to the computation under Sections 163-A
and 166 of the Motor Vehicles Act, 1988 (for brevity, “the Act”)
and the methodology for computation of future prospects.
Dealing with determination of future prospects, the Court
referred to the decisions in Sarla Dixit v. Balwant Yadav6,
4
(2009) 6 SCC 121
5
(2009) 13 SCC 422
6
(1996) 3 SCC 1794
Abati Bezbaruah v. Dy. Director General, Geological Survey
of India7 and the principle stated by Lord Diplock in Mallett v.
McMonagle8 and further referring to the statement of law in
Wells v. Wells9 observed:-
“46. In the Indian context several other factors
should be taken into consideration including
education of the dependants and the nature of job.
In the wake of changed societal conditions and
global scenario, future prospects may have to be
taken into consideration not only having regard to
the status of the employee, his educational
qualification; his past performance but also other
relevant factors, namely, the higher salaries and
perks which are being offered by the private
companies these days. In fact while determining the
multiplicand this Court in Oriental Insurance Co.
Ltd. v. Jashuben 10 held that even dearness
allowance and perks with regard thereto from which
the family would have derived monthly benefit,
must be taken into consideration.
47. One of the incidental issues which has also to
be taken into consideration is inflation. Is the
practice of taking inflation into consideration wholly
incorrect? Unfortunately, unlike other developed
countries in India there has been no scientific
study. It is expected that with the rising inflation
the rate of interest would go up. In India it does not
happen. It, therefore, may be a relevant factor which
may be taken into consideration for determining the
actual ground reality. No hard-and-fast rule,
however, can be laid down therefor.
7
(2003) 3 SCC 148
8
1970 AC 166: (1969) 2 WLR 767
9
(1999) 1 AC 345
10 (2008) 4 SCC 1625
48. A large number of English decisions have been
placed before us by Mr Nanda to contend that
inflation may not be taken into consideration at all.
While the reasonings adopted by the English courts
and its decisions may not be of much dispute, we
cannot blindly follow the same ignoring ground
realities.
49. We have noticed the precedents operating in the
field as also the rival contentions raised before us
by the learned counsel for the parties with a view to
show that law is required to be laid down in clearer
terms.”
4. In the said case, the Court considered the common
questions that arose for consideration. They are:-
“(1) Whether the multiplier specified in the Second
Schedule appended to the Act should be
scrupulously applied in all the cases?
(2) Whether for determination of the multiplicand,
the Act provides for any criterion, particularly as
regards determination of future prospects?”
5. Analyzing further the rationale in determining the laws
under Sections 163-A and 166, the Court had stated thus:-
“58. We are not unmindful of the Statement of
Objects and Reasons to Act 54 of 1994 for
introducing Section 163-A so as to provide for a new
predetermined formula for payment of
compensation to road accident victims on the basis
of age/income, which is more liberal and rational.
That may be so, but it defies logic as to why in a
similar situation, the injured claimant or his
heirs/legal representatives, in the case of death, on
proof of negligence on the part of the driver of a
motor vehicle would get a lesser amount than the 6
one specified in the Second Schedule. The courts, in
our opinion, should also bear that factor in mind.”
6. Noticing the divergence of opinion and absence of any
clarification from Parliament despite the recommendations by
this Court, it was thought appropriate that the controversy
should be decided by the larger Bench and accordingly it directed
to place the matter before Hon’ble the Chief Justice of India for
appropriate orders for constituting a larger Bench.
7. The three-Judge Bench answering the reference referred to
the Scheme under Sections 163-A and 166 of the Act and took
note of the view expressed by this Court in U.P. State Road
Transport Corporation and others v. Trilok Chandra and
others11, wherein the Court had stated:-
“17. The situation has now undergone a change
with the enactment of the Motor Vehicles Act, 1988,
as amended by Amendment Act 54 of 1994. The
most important change introduced by the
amendment insofar as it relates to determination of
compensation is the insertion of Sections 163-A and
163-B in Chapter XI entitled ‘Insurance of motor
vehicles against third-party risks’. Section 163-A
begins with a non obstante clause and provides for
payment of compensation, as indicated in the
Second Schedule, to the legal representatives of the
deceased or injured, as the case may be. Now if we
turn to the Second Schedule, we find a Table fixing
the mode of calculation of compensation for thirdparty
accident injury claims arising out of fatal
11 (1996) 4 SCC 3627
accidents. The first column gives the age group of
the victims of accident, the second column indicates
the multiplier and the subsequent horizontal figures
indicate the quantum of compensation in thousand
payable to the heirs of the deceased victim.
According to this Table the multiplier varies from 5
to 18 depending on the age group to which the
victim belonged. Thus, under this Schedule the
maximum multiplier can be up to 18 and not 16 as
was held in Susamma Thomas12 case.
18. We must at once point out that the calculation
of compensation and the amount worked out in the
Schedule suffer from several defects. For example,
in Item 1 for a victim aged 15 years, the multiplier
is shown to be 15 years and the multiplicand is
shown to be Rs 3000. The total should be 3000 × 15
= 45,000 but the same is worked out at Rs 60,000.
Similarly, in the second item the multiplier is 16
and the annual income is Rs 9000; the total should
have been Rs 1,44,000 but is shown to be Rs
1,71,000. To put it briefly, the Table abounds in
such mistakes. Neither the tribunals nor the courts
can go by the ready reckoner. It can only be used as
a guide. Besides, the selection of multiplier cannot
in all cases be solely dependent on the age of the
deceased. For example, if the deceased, a bachelor,
dies at the age of 45 and his dependants are his
parents, age of the parents would also be relevant in
the choice of the multiplier. But these mistakes are
limited to actual calculations only and not in
respect of other items. What we propose to
emphasise is that the multiplier cannot exceed 18
years’ purchase factor. This is the improvement over
the earlier position that ordinarily it should not
exceed 16. We thought it necessary to state the
correct legal position as courts and tribunals are
using higher multiplier as in the present case where
the Tribunal used the multiplier of 24 which the
High Court raised to 34, thereby showing lack of
12 (1994) 2 SCC 1768
awareness of the background of the multiplier
system in Davies case.”
[Underlining is ours]
8. The Court also referred to Supe Dei v. National Insurance
Company Limited13 wherein it has been opined that the position
is well settled that the Second Schedule under Section 163-A to
the Act which gives the amount of compensation to be
determined for the purpose of claim under the section can be
taken as a guideline while determining the compensation under
Section 166 of the Act.
9. After so observing, the Court also noted the authorities in
United India Insurance Co. Ltd v. Patricia Jean Mahajan14,
Deepal Girishbhai Soni v. United India Insurance Co. Ltd.
15,
and Jashuben (supra). It is perceivable from the pronouncement
by the three-Judge Bench that it has referred to Sarla Verma and
observed that the said decision reiterated what had been stated
in earlier decisions that the principles relating to determination of
liability and quantum of compensation were different for claims
made under Section 163-A and claims made under Section 166.
It was further observed that Section 163-A and the Second
Schedule in terms did not apply to determination of
13 (2009) 4 SCC 513
14 (2002) 6 SCC 281
15 (2004) 5 SCC 3859
compensation in applications under Section 166. In Sarla
Verma (supra), as has been noticed further in Reshma Kumari
(supra), the Court found discrepancies/errors in the multiplier
scale given in the Second Schedule Table and also observed that
application of Table may result in incongruities.
10. The three-Judge Bench further apprised itself that in Sarla
Verma (supra) the Court had undertaken the exercise of
comparing the multiplier indicated in Susamma Thomas
(supra), Trilok Chandra (supra), and New India Assurance Co.
Ltd v. Charlie and another16 for claims under Section 166 of
the Act with the multiplier mentioned in the Second Schedule for
claims under Section 163-A and compared the formula and held
that the multiplier shall be used in a given case in the following
manner:-
“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.”
16 (2005) 10 SCC 72010
11. After elaborately analyzing what has been stated in Sarla
Verma (supra), the three-Judge Bench referred to the language
employed in Section 168 of the Act which uses the expression
“just”. Elucidating the said term, the Court held that it conveys
that the amount so determined is fair, reasonable and equitable
by accepted legal standard and not on forensic lottery. The Court
observed “just compensation” does not mean “perfect” or
“absolute compensation” and the concept of just compensation
principle requires examination of the particular situation
obtaining uniquely in an individual case. In that context, it
referred to Taff Vale Railway Co. v. Jenkins17 and held:-
“36. In Sarla Verma, this Court has endeavoured to
simplify the otherwise complex exercise of
assessment of loss of dependency and
determination of compensation in a claim made
under Section 166. It has been rightly stated in
Sarla Verma that the claimants in case of death
claim for the purposes of compensation must
establish (a) age of the deceased; (b) income of the
deceased; and (c) the number of dependants. To
arrive at the loss of dependency, the Tribunal must
consider (i) additions/deductions to be made for
arriving at the income; (ii) the deductions to be
made towards the personal living expenses of the
deceased; and (iii) the multiplier to be applied with
reference to the age of the deceased. We do not
think it is necessary for us to revisit the law on the
point as we are in full agreement with the view in
Sarla Verma.”
[Emphasis is added]
17 1913 AC 1 : (1911-13) All ER Rep 160 (HL)11
12. And further:-
“It is high time that we move to a standard method
of selection of multiplier, income for future
prospects and deduction for personal and living
expenses. The courts in some of the overseas
jurisdictions have made this advance. It is for these
reasons, we think we must approve the Table in
Sarla Verma for the selection of multiplier in claim
applications made under Section 166 in the cases of
death. We do accordingly. If for the selection of
multiplier, Column (4) of the Table in Sarla Verma is
followed, there is no likelihood of the claimants who
have chosen to apply under Section 166 being
awarded lesser amount on proof of negligence on
the part of the driver of the motor vehicle than those
who prefer to apply under Section 163-A. As regards
the cases where the age of the victim happens to be
up to 15 years, we are of the considered opinion
that in such cases irrespective of Section 163-A or
Section 166 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 should be followed. This is
to ensure that the claimants in such cases are not
awarded lesser amount when the application is
made under Section 166 of the 1988 Act. In all
other cases of death where the application has been
made under Section 166, the multiplier as indicated
in Column (4) of the Table in Sarla Verma should be
followed.”
This is how the first question the Court had posed stood
answered.12
13. With regard to the addition of income for future prospects,
this Court in Reshma Kumari (supra) adverted to Para 24 of the
Sarla Verma’s case and held:-
“39. The standardisation of addition to income for
future prospects shall help in achieving certainty in
arriving at appropriate compensation. We approve
the method that an addition of 50% of actual salary
be made to the actual salary income of the deceased
towards future prospects where the deceased had a
permanent job and was below 40 years and the
addition should be only 30% if the age of the
deceased was 40 to 50 years and no addition should
be made where the age of the deceased is more than
50 years. Where the annual income is in the taxable
range, the actual salary shall mean actual salary
less tax. In the cases where the deceased was selfemployed
or was on a fixed salary without provision
for annual increments, the actual income at the
time of death without any addition to income for
future prospects will be appropriate. A departure
from the above principle can only be justified in
extraordinary circumstances and very exceptional
cases.”
The aforesaid analysis vividly exposits that standardization
of addition to income for future prospects is helpful in achieving
certainty in arriving at appropriate compensation. Thus, the
larger Bench has concurred with the view expressed by Sarla
Verma (supra) as per the determination of future income.
14. It is interesting to note here that while the reference was
pending, the judgment in Santosh Devi v. National Insurance 13
Company Limited and others18 was delivered by a two-Judge
Bench which commented on the principle stated in Sarla Verma.
It said:-
“14. We find it extremely difficult to fathom any
rationale for the observation made in para 24 of the
judgment in Sarla Verma case that where the
deceased was self-employed or was on a fixed salary
without provision for annual increment, etc. the
courts will usually take only the actual income at
the time of death and a departure from this rule
should be made only in rare and exceptional cases
involving special circumstances. In our view, it will
be naïve to say that the wages or total
emoluments/income of a person who is selfemployed
or who is employed on a fixed salary
without provision for annual increment, etc. would
remain the same throughout his life.
15. The rise in the cost of living affects everyone
across the board. It does not make any distinction
between rich and poor. As a matter of fact, the effect
of rise in prices which directly impacts the cost of
living is minimal on the rich and maximum on those
who are self-employed or who get fixed
income/emoluments. They are the worst affected
people. Therefore, they put in extra efforts to
generate additional income necessary for sustaining
their families.
16. The salaries of those employed under the
Central and State Governments and their
agencies/instrumentalities have been revised from
time to time to provide a cushion against the rising
prices and provisions have been made for providing
security to the families of the deceased employees.
The salaries of those employed in private sectors
have also increased manifold. Till about two
decades ago, nobody could have imagined that
18 (2012) 6 SCC 42114
salary of Class IV employee of the Government
would be in five figures and total emoluments of
those in higher echelons of service will cross the
figure of rupees one lakh.
17. Although the wages/income of those employed
in unorganised sectors has not registered a
corresponding increase and has not kept pace with
the increase in the salaries of the government
employees and those employed in private sectors,
but it cannot be denied that there has been
incremental enhancement in the income of those
who are self-employed and even those engaged on
daily basis, monthly basis or even seasonal basis.
We can take judicial notice of the fact that with a
view to meet the challenges posed by high cost of
living, the persons falling in the latter category
periodically increase the cost of their labour. In this
context, it may be useful to give an example of a
tailor who earns his livelihood by stitching clothes.
If the cost of living increases and the prices of
essentials go up, it is but natural for him to
increase the cost of his labour. So will be the cases
of ordinary skilled and unskilled labour like barber,
blacksmith, cobbler, mason, etc.
18. Therefore, we do not think that while making
the observations in the last three lines of para 24 of
Sarla Verma judgment, the Court had intended to
lay down an absolute rule that there will be no
addition in the income of a person who is selfemployed
or who is paid fixed wages. Rather, it
would be reasonable to say that a person who is
self-employed or is engaged on fixed wages will also
get 30% increase in his total income over a period of
time and if he/she becomes victim of an accident
then the same formula deserves to be applied for
calculating the amount of compensation.”
15. The aforesaid analysis in Santosh Devi (supra) may prima
facie show that the two-Judge Bench has distinguished the 15
observation made in Sarla Verma’s case but on a studied
scrutiny, it becomes clear that it has really expressed a different
view than what has been laid down in Sarla Verma (supra). If
we permit ourselves to say so, the different view has been
expressed in a distinctive tone, for the two-Judge Bench had
stated that it was extremely difficult to fathom any rationale for
the observations made in para 24 of the judgment in Sarla
Verma’s case in respect of self-employed or a person on fixed
salary without provision for annual increment, etc. This is a
clear disagreement with the earlier view, and we have no
hesitation in saying that it is absolutely impermissible keeping in
view the concept of binding precedents.
16. Presently, we may refer to certain decisions which deal with
the concept of binding precedent.
17. In State of Bihar v. Kalika Kuer alias Kalika Singh and
others19, it has been held:-
“10. … an earlier decision may seem to be incorrect
to a Bench of a coordinate jurisdiction considering
the question later, on the ground that a possible
aspect of the matter was not considered or not
raised before the court or more aspects should have
been gone into by the court deciding the matter
earlier but it would not be a reason to say that the
19 (2003) 5 SCC 44816
decision was rendered per incuriam and liable to be
ignored. The earlier judgment may seem to be not
correct yet it will have the binding effect on the later
Bench of coordinate jurisdiction. …”
The Court has further ruled:-
“10. … Easy course of saying that earlier decision
was rendered per incuriam is not permissible and
the matter will have to be resolved only in two ways
— either to follow the earlier decision or refer the
matter to a larger Bench to examine the issue, in
case it is felt that earlier decision is not correct on
merits.”
18. In G.L. Batra v. State of Haryana and others20, the Court
has accepted the said principle on the basis of judgments of this
Court rendered in Union of India v. Godfrey Philips India
Ltd. 21 , Sundarjas Kanyalal Bhatija v. Collector, Thane,
Maharashtra22 and Tribhovandas Purshottamdas Thakkar v.
Ratilal Motilal Patel 23 . It may be noted here that the
Constitution Bench in Madras Bar Association v. Union of
India and another 24 has clearly stated that the prior
Constitution Bench judgment in Union of India v. Madras Bar
Association25 is a binding precedent. Be it clarified, the issues
20 (2014) 13 SCC 759
21 (1985) 4 SCC 369
22 (1989) 3 SCC 396
23 AIR 1968 SC 372
24 (2015) 8 SCC 583
25 (2010) 11 SCC 117
that were put to rest in the earlier Constitution Bench judgment
were treated as precedents by latter Constitution Bench.
19. In this regard, we may refer to a passage from Jaisri Sahu
v. Rajdewan Dubey26:-
“11. Law will be bereft of all its utility if it should be
thrown into a state of uncertainty by reason of
conflicting decisions, and it is therefore desirable
that in case of difference of opinion, the question
should be authoritatively settled. It sometimes
happens that an earlier decision given by a Bench is
not brought to the notice of a Bench hearing the
same question, and a contrary decision is given
without reference to the earlier decision. The
question has also been discussed as to the correct
procedure to be followed when two such conflicting
decisions are placed before a later Bench. The
practice in the Patna High Court appears to be that
in those cases, the earlier decision is followed and
not the later. In England the practice is, as noticed
in the judgment in Seshamma v. Venkata
Narasimharao that the decision of a court of appeal
is considered as a general rule to be binding on it.
There are exceptions to it, and one of them is thus
stated in Halsbury’s Laws of England, 3rd Edn., Vol.
22, para 1687, pp. 799-800:
“The court is not bound to follow a decision of
its own if given per incuriam. A decision is given
per incuriam when the court has acted in
ignorance of a previous decision of its own or of
a Court of a co-ordinate jurisdiction which
covered the case before it, or when it has acted
in ignorance of a decision of the House of Lords.
In the former case it must decide which decision
to follow, and in the latter it is bound by the
decision of the House of Lords.”
26 AIR 1962 SC 8318
In Virayya v. Venkata Subbayya it has been held by
the Andhra High Court that under the
circumstances aforesaid the Bench is free to adopt
that view which is in accordance with justice and
legal principles after taking into consideration the
views expressed in the two conflicting Benches, vide
also the decision of the Nagpur High Court in
Bilimoria v. Central Bank of India. The better course
would be for the Bench hearing the case to refer the
matter to a Full Bench in view of the conflicting
authorities without taking upon itself to decide
whether it should follow the one Bench decision or
the other. We have no doubt that when such
situations arise, the Bench hearing cases would
refer the matter for the decision of a Full Court.”
20. Though the aforesaid was articulated in the context of the
High Court, yet this Court has been following the same as is
revealed from the aforestated pronouncements including that of
the Constitution Bench and, therefore, we entirely agree with the
said view because it is the precise warrant of respecting a
precedent which is the fundamental norm of judicial discipline.
21. In the context, we may fruitfully note what has been stated
in Pradip Chandra Parija and others v. Pramod Chandra
Patnaik and others27. In the said case, the Constitution Bench
was dealing with a situation where the two-Judge Bench
disagreeing with the three-Judge Bench decision directed the
27 (2002) 1 SCC 119
matter to be placed before a larger Bench of five Judges of this
Court. In that scenario, the Constitution Bench stated:-
“6. … In our view, judicial discipline and propriety
demands that a Bench of two learned Judges should
follow a decision of a Bench of three learned Judges.
But if a Bench of two learned Judges concludes that
an earlier judgment of three learned Judges is so very
incorrect that in no circumstances can it be followed,
the proper course for it to adopt is to refer the matter
before it to a Bench of three learned Judges setting
out, as has been done here, the reasons why it could
not agree with the earlier judgment. …”
22. In Chandra Prakash and others v. State of U.P. and
another28, another Constitution Bench dealing with the concept
of precedents stated thus:-
“22. … The doctrine of binding precedent is of utmost
importance in the administration of our judicial
system. It promotes certainty and consistency in
judicial decisions. Judicial consistency promotes
confidence in the system, therefore, there is this need
for consistency in the enunciation of legal principles in
the decisions of this Court. It is in the above context,
this Court in the case of Raghubir Singh29 held that a
pronouncement of law by a Division Bench of this
Court is binding on a Division Bench of the same or
smaller number of Judges. …”
23. Be it noted, Chandra Prakash concurred with the view
expressed in Raghubir Singh and Pradip Chandra Parija.
28 (2002) 4 SCC 234
29 (1989) 2 SCC 75420
24. In Sandhya Educational Society and another v. Union
of India and others 30 , it has been observed that judicial
decorum and discipline is paramount and, therefore, a coordinate
Bench has to respect the judgments and orders passed by
another coordinate Bench. In Rattiram and others v. State of
Madhya Pradesh31, the Court dwelt upon the issue what would
be the consequent effect of the latter decision which had been
rendered without noticing the earlier decisions. The Court noted
the observations in Raghubir Singh (supra) and reproduced a
passage from Indian Oil Corporation Ltd. v. Municipal
Corporation32 which is to the following effect:-
“8. … The Division Bench of the High Court in
Municipal Corpn., Indore v. Ratnaprabha Dhanda
was clearly in error in taking the view that the
decision of this Court in Ratnaprabha was not
binding on it. In doing so, the Division Bench of the
High Court did something which even a later coequal
Bench of this Court did not and could not
do. …”
25. It also stated what has been expressed in Raghubir Singh
(supra) by R.S. Pathak, C.J. It is as follows:-
“28. We are of opinion that a pronouncement of law
by a Division Bench of this Court is binding on a
Division Bench of the same or a smaller number of
Judges, and in order that such decision be binding,
30 (2014) 7 SCC 701
31 (2012) 4 SCC 516
32 (1995) 4 SCC 9621
it is not necessary that it should be a decision
rendered by the Full Court or a Constitution Bench
of the Court. …”
26. In Rajesh (supra) the three-Judge Bench had delivered the
judgment on 12.04.2013. The purpose of stating the date is that
it has been delivered after the pronouncement made in Reshma
Kumari’s case. On a perusal of the decision in Rajesh (supra),
we find that an attempt has been made to explain what the twoJudge
Bench had stated in Santosh Devi (supra). The relevant
passages read as follows:-
“8. Since, the Court in Santosh Devi case actually
intended to follow the principle in the case of
salaried persons as laid down in Sarla Verma case
and to make it applicable also to the self-employed
and persons on fixed wages, it is clarified that the
increase in the case of those groups is not 30%
always; it will also have a reference to the age. In
other words, in the case of self-employed or persons
with fixed wages, in case, the deceased victim was
below 40 years, there must be an addition of 50% to
the actual income of the deceased while computing
future prospects. Needless to say that the actual
income should be income after paying the tax, if
any. Addition should be 30% in case the deceased
was in the age group of 40 to 50 years.
9. In Sarla Verma case, it has been stated that in
the case of those above 50 years, there shall be no
addition. Having regard to the fact that in the case
of those self-employed or on fixed wages, where
there is normally no age of superannuation, we are
of the view that it will only be just and equitable to
provide an addition of 15% in the case where the
victim is between the age group of 50 to 60 years so 22
as to make the compensation just, equitable, fair
and reasonable. There shall normally be no addition
thereafter.”
27. At this juncture, it is necessitous to advert to another threeJudge
Bench decision in Munna Lal Jain and another v. Vipin
Kumar Sharma and others33 . In the said case, the three-Judge
Bench commenting on the judgments stated thus:-
“2. In the absence of any statutory and a
straitjacket formula, there are bound to be grey
areas despite several attempts made by this Court
to lay down the guidelines. Compensation would
basically depend on the evidence available in a case
and the formulas shown by the courts are only
guidelines for the computation of the compensation.
That precisely is the reason the courts lodge a
caveat stating “ordinarily”, “normally”, “exceptional
circumstances”, etc., while suggesting the formula.”
28. After so stating, the Court followed the principle stated in
Rajesh. We think it appropriate to reproduce what has been
stated by the three-Judge Bench:-
“10. As far as future prospects are concerned, in
Rajesh v. Rajbir Singh, a three-Judge Bench of this
Court held that in case of self-employed persons
also, if the deceased victim is below 40 years, there
must be addition of 50% to the actual income of the
deceased while computing future prospects.”
29. We are compelled to state here that in Munna Lal Jain
(supra), the three-Judge Bench should have been guided by the
33 (2015) 6 SCC 34723
principle stated in Reshma Kumari which has concurred with the
view expressed in Sarla Devi or in case of disagreement, it should
have been well advised to refer the case to a larger Bench. We
say so, as we have already expressed the opinion that the dicta
laid down in Reshma Kumari being earlier in point of time would
be a binding precedent and not the decision in Rajesh.
30. In this context, we may also refer to Sundeep Kumar
Bafna v. State of Maharashtra and another34 which correctly
lays down the principle that discipline demanded by a precedent
or the disqualification or diminution of a decision on the
application of the per incuriam rule is of great importance, since
without it, certainty of law, consistency of rulings and comity of
courts would become a costly casualty. A decision or judgment
can be per incuriam any provision in a statute, rule or regulation,
which was not brought to the notice of the court. A decision or
judgment can also be per incuriam if it is not possible to reconcile
its ratio with that of a previously pronounced judgment of a coequal
or larger Bench. There can be no scintilla of doubt that an
earlier decision of co-equal Bench binds the Bench of same
strength. Though the judgment in Rajesh’s case was delivered on
a later date, it had not apprised itself of the law stated in
34 (2014) 16 SCC 62324
Reshma Kumari (supra) but had been guided by Santosh Devi
(supra). We have no hesitation that it is not a binding precedent
on the co-equal Bench.
31. At this stage, a detailed analysis of Sarla Verma (supra) is
necessary. In the said case, the Court recapitulated the relevant
principles relating to assessment of compensation in case of
death and also took note of the fact that there had been
considerable variation and inconsistency in the decision for
Courts and Tribunals on account of adopting the method stated
in Nance v. British Columbia Electric Railway Co. Ltd.
35 and
the method in Davies v. Powell Duffryn Associated Collieries
Ltd.
36. It also analysed the difference between the considerations
of the two different methods by this Court in Susamma Thomas
(supra) wherein preference was given to Davies method to the
Nance method. Various paragraphs from Susamma Thomas
(supra) and Trilok Chandra (supra) have been reproduced and
thereafter it has been observed that lack of uniformity and
consistency in awarding the compensation has been a matter of
grave concern. It has stated that when different tribunals
35 1951 SC 601 : (1951) 2 All ER 448 (PC)
36 1942 AC 601 : (1942) 1 All ER 657 (HL)25
calculate compensation differently on the same facts, the
claimant, the litigant and the common man are bound to be
confused, perplexed and bewildered. It adverted to the
observations made in Trilok Chandra (supra) which are to the
following effect:-
“15. We thought it necessary to reiterate the method
of working out ‘just’ compensation because, of late,
we have noticed from the awards made by tribunals
and courts that the principle on which the
multiplier method was developed has been lost sight
of and once again a hybrid method based on the
subjectivity of the Tribunal/court has surfaced,
introducing uncertainty and lack of reasonable
uniformity in the matter of determination of
compensation. It must be realised that the
Tribunal/court has to determine a fair amount of
compensation awardable to the victim of an
accident which must be proportionate to the injury
caused. …”
32. While adverting to the addition of income for future
prospects, it stated thus:-
“24. In Susamma Thomas this Court increased the
income by nearly 100%, in Sarla Dixit the income
was increased only by 50% and in Abati Bezbaruah
the income was increased by a mere 7%. In view of
the imponderables and uncertainties, we are in
favour of adopting as a rule of thumb, an addition of
50% of actual salary to the actual salary income of
the deceased towards future prospects, where the
deceased had a permanent job and was below 40
years. (Where the annual income is in the taxable
range, the words “actual salary” should be read as
“actual salary less tax”). The addition should be 26
only 30% if the age of the deceased was 40 to 50
years. There should be no addition, where the age of
the deceased is more than 50 years. Though the
evidence may indicate a different percentage of
increase, it is necessary to standardise the addition
to avoid different yardsticks being applied or
different methods of calculation being adopted.
Where the deceased was self-employed or was on a
fixed salary (without provision for annual
increments, etc.), the courts will usually take only
the actual income at the time of death. A departure
therefrom should be made only in rare and
exceptional cases involving special circumstances.”
33. Though we have devoted some space in analyzing the
precedential value of the judgments, that is not the thrust of the
controversy. We are required to keenly dwell upon the heart of
the issue that emerges for consideration. The seminal
controversy before us relates to the issue where the deceased was
self-employed or was a person on fixed salary without provision
for annual increment, etc., what should be the addition as
regards the future prospects. In Sarla Verma, the Court has
made it as a rule that 50% of actual salary could be added if the
deceased had a permanent job and if the age of the deceased is
between 40 – 50 years and no addition to be made if the deceased
was more than 50 years. It is further ruled that where deceased
was self-employed or had a fixed salary (without provision for
annual increment, etc.) the Courts will usually take only the
actual income at the time of death and the departure is 27
permissible only in rare and exceptional cases involving special
circumstances.
34. First, we shall deal with the reasoning of straitjacket
demarcation between the permanent employed persons within
the taxable range and the other category where deceased was
self-employed or employed on fixed salary sans annual
increments, etc.
35. The submission, as has been advanced on behalf of the
insurers, is that the distinction between the stable jobs at one
end of the spectrum and self-employed at the other end of the
spectrum with the benefit of future prospects being extended to
the legal representatives of the deceased having a permanent job
is not difficult to visualize, for a comparison between the two
categories is a necessary ground reality. It is contended that
guaranteed/definite income every month has to be treated with a
different parameter than the person who is self-employed
inasmuch as the income does not remain constant and is likely
to oscillate from time to time. Emphasis has been laid on the date
of expected superannuation and certainty in permanent job in
contradistinction to the uncertainty on the part of a selfemployed
person. Additionally, it is contended that the 28
permanent jobs are generally stable and for an assessment the
entity or the establishment where the deceased worked is
identifiable since they do not suffer from the inconsistencies and
vagaries of self-employed persons. It is canvassed that it may not
be possible to introduce an element of standardization as
submitted by the claimants because there are many a category in
which a person can be self-employed and it is extremely difficult
to assimilate entire range of self-employed categories or
professionals in one compartment. It is also asserted that in
certain professions addition of future prospects to the income as
a part of multiplicand would be totally an unacceptable concept.
Examples are cited in respect of categories of professionals who
are surgeons, sports persons, masons and carpenters, etc. It is
also highlighted that the range of self-employed persons can
include unskilled labourer to a skilled person and hence, they
cannot be put in a holistic whole. That apart, it is propounded
that experience of certain professionals brings in disparity in
income and, therefore, the view expressed in Sarla Verma
(supra) that has been concurred with Reshma Kumari (supra)
should not be disturbed. 29
36. Quite apart from the above, it is contended that the
principle of standardization that has been evolved in Sarla
Verma (supra) has been criticized on the ground that it grants
compensation without any nexus to the actual loss. It is also
urged that even if it is conceded that the said view is correct,
extension of the said principle to some of the self-employed
persons will be absolutely unjustified and untenable. Learned
counsel for the insurers further contended that the view
expressed in Rajesh (supra) being not a precedent has to be
overruled and the methodology stood in Sarla Verma (supra)
should be accepted.
37. On behalf of the claimants, emphasis is laid on the concept
of “just compensation” and what should be included within the
ambit of “just compensation”. Learned counsel have emphasized
on Davies method and urged that the grant of pecuniary
advantage is bound to be included in the future pecuniary
benefit. It has also been put forth that in right to receive just
compensation under the statute, when the method of
standardization has been conceived and applied, there cannot be
any discrimination between the person salaried or self-employed.
It is highlighted that if evidence is not required to be adduced in 30
one category of cases, there is no necessity to compel the other
category to adduce evidence to establish the foundation for
addition of future prospects.
38. Stress is laid on reasonable expectation of pecuniary
benefits relying on the decisions in Tafe Vale Railway Co.
(supra) and the judgment of Singapore High Court in Nirumalan
V Kanapathi Pillay v. Teo Eng Chuan37. Lastly, it is urged that
the standardization formula for awarding future income should
be applied to self-employed persons and that would be a
justifiable measure for computation of loss of dependency.
39. Before we proceed to analyse the principle for addition of
future prospects, we think it seemly to clear the maze which is
vividly reflectible from Sarla Verma, Reshma Kumari, Rajesh
and Munna Lal Jain. Three aspects need to be clarified. The
first one pertains to deduction towards personal and living
expenses. In paragraphs 30, 31 and 32, Sarla Verma lays
down:-
“30. Though in some cases the deduction to be made
towards personal and living expenses is calculated on
the basis of units indicated in Trilok Chandra4, the
general practice is to apply standardised deductions.
Having considered several subsequent decisions of this
37 (2003) 3 SLR (R) 60131
Court, we are of the view that where the deceased was
married, the deduction towards personal and living
expenses of the deceased, should be one-third (1/3rd)
where the number of dependent family members is 2
to 3, one-fourth (1/4th) where the number of
dependent family members is 4 to 6, and one-fifth
(1/5th) where the number of dependent family
members exceeds six.
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 his 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 will either be independent
and earning, or married, or be dependent on the
father.
32. Thus even if the deceased is survived by parents
and siblings, only the mother would be considered to
be a dependant, and 50% would be treated as the
personal and living expenses of the bachelor and 50%
as the contribution to the family. However, where the
family of the bachelor is large and dependent on the
income of the deceased, as in a case where he has a
widowed mother and large number of younger nonearning
sisters or brothers, his personal and living
expenses may be restricted to one-third and
contribution to the family will be taken as two-third.”
40. In Reshma Kumari, the three-Judge Bench agreed with the
multiplier determined in Sarla Verma and eventually held that 32
the advantage of the Table prepared in Sarla Verma is that
uniformity and consistency in selection of multiplier can be
achieved. It has observed:-
“35. … The assessment of extent of dependency
depends on examination of the unique situation of the
individual case. Valuing the dependency or the
multiplicand is to some extent an arithmetical
exercise. The multiplicand is normally based on the
net annual value of the dependency on the date of the
deceased’s death. Once the net annual loss
(multiplicand) is assessed, taking into account the age
of the deceased, such amount is to be multiplied by a
“multiplier” to arrive at the loss of dependency.”
41. In Reshma Kumari, the three-Judge Bench, reproduced
paragraphs 30, 31 and 32 of Sarla Verma and approved the
same by stating thus:-
“41. The above does provide guidance for the
appropriate deduction for personal and living
expenses. One must bear in mind that the proportion
of a man’s net earnings that he saves or spends
exclusively for the maintenance of others does not
form part of his living expenses but what he spends
exclusively on himself does. The percentage of
deduction on account of personal and living expenses
may vary with reference to the number of dependent
members in the family and the personal living
expenses of the deceased need not exactly correspond
to the number of dependants.
42. In our view, the standards fixed by this Court in
Sarla Verma on the aspect of deduction for personal
living expenses in paras 30, 31 and 32 must ordinarily
be followed unless a case for departure in the 33
circumstances noted in the preceding paragraph is
made out.”
42. The conclusions that have been summed up in Reshma
Kumari are as follows:-
“43.1. 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.
43.2. In cases where the age of the deceased is up to
15 years, irrespective of Section 166 or Section 163-A
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 should be followed.
43.3. 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.
43.4. The Claims Tribunals shall follow the steps and
guidelines stated in para 19 of Sarla Verma for
determination of compensation in cases of death.
43.5. While making addition to income for future
prospects, the Tribunals shall follow para 24 of the
judgment in Sarla Verma.
43.6. Insofar as deduction for personal and living
expenses is concerned, it is directed that the Tribunals
shall ordinarily follow the standards prescribed in
paras 30, 31 and 32 of the judgment in Sarla Verma34
subject to the observations made by us in para 41
above.”
43. On a perusal of the analysis made in Sarla Verma which has
been reconsidered in Reshma Kumari, we think it appropriate to
state that as far as the guidance provided for appropriate
deduction for personal and living expenses is concerned, the
tribunals and courts should be guided by conclusion 43.6 of
Reshma Kumari. We concur with the same as we have no
hesitation in approving the method provided therein.
44. As far as the multiplier is concerned, the claims tribunal
and the Courts shall be guided by Step 2 that finds place in
paragraph 19 of Sarla Verma read with paragraph 42 of the said
judgment. For the sake of completeness, paragraph 42 is
extracted below :-
“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.”35
45. In Reshma Kumari, the aforesaid has been approved by
stating, thus:-
“It is high time that we move to a standard method
of selection of multiplier, income for future
prospects and deduction for personal and living
expenses. The courts in some of the overseas
jurisdictions have made this advance. It is for these
reasons, we think we must approve the Table in
Sarla Verma for the selection of multiplier in claim
applications made under Section 166 in the cases of
death. We do accordingly. If for the selection of
multiplier, Column (4) of the Table in Sarla Verma is
followed, there is no likelihood of the claimants who
have chosen to apply under Section 166 being
awarded lesser amount on proof of negligence on
the part of the driver of the motor vehicle than those
who prefer to apply under Section 163-A. As regards
the cases where the age of the victim happens to be
up to 15 years, we are of the considered opinion
that in such cases irrespective of Section 163-A or
Section 166 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 should be followed. This is
to ensure that the claimants in such cases are not
awarded lesser amount when the application is
made under Section 166 of the 1988 Act. In all
other cases of death where the application has been
made under Section 166, the multiplier as indicated
in Column (4) of the Table in Sarla Verma should be
followed.”
46. At this stage, we must immediately say that insofar as the
aforesaid multiplicand/multiplier is concerned, it has to be
accepted on the basis of income established by the legal
representatives of the deceased. Future prospects are to be 36
added to the sum on the percentage basis and “income” means
actual income less than the tax paid. The multiplier has already
been fixed in Sarla Verma which has been approved in Reshma
Kumari with which we concur.
47. In our considered opinion, if the same is followed, it shall
subserve the cause of justice and the unnecessary contest before
the tribunals and the courts would be avoided.
48. Another aspect which has created confusion pertains to
grant of loss of estate, loss of consortium and funeral expenses.
In Santosh Devi (supra), the two-Judge Bench followed the
traditional method and granted Rs. 5,000/- for transportation of
the body, Rs. 10,000/- as funeral expenses and Rs. 10,000/- as
regards the loss of consortium. In Sarla Verma, the Court granted
Rs. 5,000/- under the head of loss of estate, Rs. 5,000/- towards
funeral expenses and Rs. 10,000/- towards loss of Consortium.
In Rajesh, the Court granted Rs. 1,00,000/- towards loss of
consortium and Rs. 25,000/- towards funeral expenses. It also
granted Rs. 1,00,000/- towards loss of care and guidance for
minor children. The Court enhanced the same on the principle
that a formula framed to achieve uniformity and consistency on a
socio-economic issue has to be contrasted from a legal principle 37
and ought to be periodically revisited as has been held in Santosh
Devi (supra). On the principle of revisit, it fixed different amount
on conventional heads. What weighed with the Court is factum
of inflation and the price index. It has also been moved by the
concept of loss of consortium. We are inclined to think so, for
what it states in that regard. We quote:-
“17. … In legal parlance, “consortium” is the right of
the spouse to the company, care, help, comfort,
guidance, society, solace, affection and sexual
relations with his or her mate. That non-pecuniary
head of damages has not been properly understood by
our courts. The loss of companionship, love, care and
protection, etc., the spouse is entitled to get, has to be
compensated appropriately. The concept of nonpecuniary
damage for loss of consortium is one of the
major heads of award of compensation in other parts
of the world more particularly in the United States of
America, Australia, etc. English courts have also
recognised the right of a spouse to get compensation
even during the period of temporary disablement. By
loss of consortium, the courts have made an attempt
to compensate the loss of spouse’s affection, comfort,
solace, companionship, society, assistance, protection,
care and sexual relations during the future years.
Unlike the compensation awarded in other countries
and other jurisdictions, since the legal heirs are
otherwise adequately compensated for the pecuniary
loss, it would not be proper to award a major amount
under this head. Hence, we are of the view that it
would only be just and reasonable that the courts
award at least rupees one lakh for loss of consortium.”38
49. Be it noted, Munna Lal Jain (supra) did not deal with the
same as the notice was confined to the issue of application of
correct multiplier and deduction of the amount.
50. This aspect needs to be clarified and appositely stated. The
conventional sum has been provided in the Second Schedule of
the Act. The said Schedule has been found to be defective as
stated by the Court in Trilok Chandra (supra). Recently in
Puttamma and others v. K.L. Narayana Reddy and another38
it has been reiterated by stating:-
“… we hold that the Second Schedule as was
enacted in 1994 has now become redundant,
irrational and unworkable due to changed scenario
including the present cost of living and current rate
of inflation and increased life expectancy.”
51. As far as multiplier or multiplicand is concerned, the same
has been put to rest by the judgments of this Court. Para 3 of
the Second Schedule also provides for General Damages in case
of death. It is as follows:-
“3. General Damages (in case of death):
The following General Damages shall be payable in
addition to compensation outlined above:-
(i) Funeral expenses - Rs. 2,000/-
(ii) Loss of Consortium, if beneficiary is the
spouse – Rs. 5,000/-
38 (2013) 15 SCC 4539
(iii) Loss of Estate - Rs. 2,500/-
(iv) Medical Expenses – actual expenses incurred
before death supported by bills/vouchers but not
exceeding – Rs. 15,000/-”
52. On a perusal of various decisions of this Court, it is
manifest that the Second Schedule has not been followed starting
from the decision in Trilok Chandra (supra) and there has been
no amendment to the same. The conventional damage amount
needs to be appositely determined. As we notice, in different
cases different amounts have been granted. A sum of Rs.
1,00,000/- was granted towards consortium in Rajesh. The
justification for grant of consortium, as we find from Rajesh, is
founded on the observation as we have reproduced hereinbefore.
53. On the aforesaid basis, the Court has revisited the practice
of awarding compensation under conventional heads.
54. As far as the conventional heads are concerned, we find it
difficult to agree with the view expressed in Rajesh. It has granted
Rs. 25,000/- towards funeral expenses, Rs. 1,00,000/- loss of
consortium and Rs. 1,00,000/- towards loss of care and guidance
for minor children. The head relating to loss of care and minor
children does not exist. Though Rajesh refers to Santosh Devi,
it does not seem to follow the same. The conventional and 40
traditional heads, needless to say, cannot be determined on
percentage basis because that would not be an acceptable
criterion. Unlike determination of income, the said heads have to
be quantified. Any quantification must have a reasonable
foundation. There can be no dispute over the fact that price
index, fall in bank interest, escalation of rates in many a field
have to be noticed. The court cannot remain oblivious to the
same. There has been a thumb rule in this aspect. Otherwise,
there will be extreme difficulty in determination of the same and
unless the thumb rule is applied, there will be immense variation
lacking any kind of consistency as a consequence of which, the
orders passed by the tribunals and courts are likely to be
unguided. Therefore, we think it seemly to fix reasonable sums.
It seems to us that reasonable figures on conventional heads,
namely, loss of estate, loss of consortium and funeral expenses
should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/-
respectively. The principle of revisiting the said heads is an
acceptable principle. But the revisit should not be fact-centric or
quantum-centric. We think that it would be condign that the
amount that we have quantified should be enhanced on
percentage basis in every three years and the enhancement
should be at the rate of 10% in a span of three years. We are 41
disposed to hold so because that will bring in consistency in
respect of those heads.
55. Presently, we come to the issue of addition of future
prospects to determine the multiplicand.
56. In Santosh Devi the Court has not accepted as a principle
that a self-employed person remains on a fixed salary throughout
his life. It has taken note of the rise in the cost of living which
affects everyone without making any distinction between the rich
and the poor. Emphasis has been laid on the extra efforts made
by this category of persons to generate additional income. That
apart, judicial notice has been taken of the fact that the salaries
of those who are employed in private sectors also with the
passage of time increase manifold. In Rajesh’s case, the Court
had added 15% in the case where the victim is between the age
group of 15 to 60 years so as to make the compensation just,
equitable, fair and reasonable. This addition has been made in
respect of self-employed or engaged on fixed wages.
57. Section 168 of the Act deals with the concept of “just
compensation” and the same has to be determined on the
foundation of fairness, reasonableness and equitability on
acceptable legal standard because such determination can never
be in arithmetical exactitude. It can never be perfect. The aim is
to achieve an acceptable degree of proximity to arithmetical
precision on the basis of materials brought on record in an
individual case. The conception of “just compensation” has to be
viewed through the prism of fairness, reasonableness and nonviolation
of the principle of equitability. In a case of death, the
legal heirs of the claimants cannot expect a windfall.
Simultaneously, the compensation granted cannot be an apology
for compensation. It cannot be a pittance. Though the discretion
vested in the tribunal is quite wide, yet it is obligatory on the part
of the tribunal to be guided by the expression, that is, “just
compensation”. The determination has to be on the foundation of
evidence brought on record as regards the age and income of the
deceased and thereafter the apposite multiplier to be applied. The
formula relating to multiplier has been clearly stated in Sarla
Verma (supra) and it has been approved in Reshma Kumari
(supra). The age and income, as stated earlier, have to be
established by adducing evidence. The tribunal and the Courts
have to bear in mind that the basic principle lies in pragmatic
computation which is in proximity to reality. It is a well accepted
norm that money cannot substitute a life lost but an effort has to
be made for grant of just compensation having uniformity of
approach. There has to be a balance between the two extremes,
that is, a windfall and the pittance, a bonanza and the modicum.
In such an adjudication, the duty of the tribunal and the Courts
is difficult and hence, an endeavour has been made by this Court
for standardization which in its ambit includes addition of future
prospects on the proven income at present. As far as future
prospects are concerned, there has been standardization keeping
in view the principle of certainty, stability and consistency. We
approve the principle of “standardization” so that a specific and
certain multiplicand is determined for applying the multiplier on
the basis of age.
58. The seminal issue is the fixation of future prospects
in cases of deceased who is self-employed or on a fixed salary.
Sarla Verma (supra) has carved out an exception permitting the
claimants to bring materials on record to get the benefit of
addition of future prospects. It has not, per se, allowed any future
prospects in respect of the said category.
59. Having bestowed our anxious consideration, we are
disposed to think when we accept the principle of
standardization, there is really no rationale not to apply the said
principle to the self-employed or a person who is on a fixed
salary. To follow the doctrine of actual income at the time of
death and not to add any amount with regard to future prospects
to the income for the purpose of determination of multiplicand
would be unjust. The determination of income while computing
compensation has to include future prospects so that the method
will come within the ambit and sweep of just compensation as
postulated under Section 168 of the Act. In case of a deceased
who had held a permanent job with inbuilt grant of annual
increment, there is an acceptable certainty. But to state that the
legal representatives of a deceased who was on a fixed salary
would not be entitled to the benefit of future prospects for the
purpose of computation of compensation would be inapposite. It
is because the criterion of distinction between the two in that
event would be certainty on the one hand and staticness on the
other. One may perceive that the comparative measure is
certainty on the one hand and uncertainty on the other but such
a perception is fallacious. It is because the price rise does affect
a self-employed person; and that apart there is always an
incessant effort to enhance one’s income for sustenance. The
purchasing capacity of a salaried person on permanent job when
increases because of grant of increments and pay revision or for
some other change in service conditions, there is always a
competing attitude in the private sector to enhance the salary to
get better efficiency from the employees. Similarly, a person who
is self-employed is bound to garner his resources and raise his
charges/fees so that he can live with same facilities. To have the
perception that he is likely to remain static and his income to
remain stagnant is contrary to the fundamental concept of
human attitude which always intends to live with dynamism and
move and change with the time. Though it may seem appropriate
that there cannot be certainty in addition of future prospects to
the existing income unlike in the case of a person having a
permanent job, yet the said perception does not really deserve
acceptance. We are inclined to think that there can be some
degree of difference as regards the percentage that is meant for or
applied to in respect of the legal representatives who claim on
behalf of the deceased who had a permanent job than a person
who is self-employed or on a fixed salary. But not to apply the
principle of standardization on the foundation of perceived lack of
certainty would tantamount to remaining oblivious to the
marrows of ground reality. And, therefore, degree-test is
imperative. Unless the degree-test is applied and left to the
parties to adduce evidence to establish, it would be unfair and
inequitable. The degree-test has to have the inbuilt concept of
percentage. Taking into consideration the cumulative factors,
namely, passage of time, the changing society, escalation of price,
the change in price index, the human attitude to follow a
particular pattern of life, etc., an addition of 40% of the
established income of the deceased towards future prospects and
where the deceased was below 40 years an addition of 25% where
the deceased was between the age of 40 to 50 years would be
reasonable.
60. The controversy does not end here. The question still
remains whether there should be no addition where the age of the
deceased is more than 50 years. Sarla Verma thinks it
appropriate not to add any amount and the same has been
approved in Reshma Kumari. Judicial notice can be taken of the
fact that salary does not remain the same. When a person is in a
permanent job, there is always an enhancement due to one
reason or the other. To lay down as a thumb rule that there will
be no addition after 50 years will be an unacceptable concept.
We are disposed to think, there should be an addition of 15% if
the deceased is between the age of 50 to 60 years and there
should be no addition thereafter. Similarly, in case of selfemployed
or person on fixed salary, the addition should be 10% 47
between the age of 50 to 60 years. The aforesaid yardstick has
been fixed so that there can be consistency in the approach by
the tribunals and the courts.
61. In view of the aforesaid analysis, we proceed to record our
conclusions:-
(i) The two-Judge Bench in Santosh Devi should have been well
advised to refer the matter to a larger Bench as it was
taking a different view than what has been stated in Sarla
Verma, a judgment by a coordinate Bench. It is because a
coordinate Bench of the same strength cannot take a
contrary view than what has been held by another
coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma
Kumari, which was delivered at earlier point of time, the
decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual
salary to the income of the deceased towards future
prospects, where the deceased had a permanent job and
was below the age of 40 years, should be made. The
addition should be 30%, if the age of the deceased was 48
between 40 to 50 years. In case the deceased was between
the age of 50 to 60 years, the addition should be 15%.
Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary,
an addition of 40% of the established income should be the
warrant where the deceased was below the age of 40 years.
An addition of 25% where the deceased was between the age
of 40 to 50 years and 10% where the deceased was between
the age of 50 to 60 years should be regarded as the
necessary method of computation. The established income
means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for
personal and living expenses, the tribunals and the courts
shall be guided by paragraphs 30 to 32 of Sarla Verma
which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table
in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the
multiplier.49
(viii) Reasonable figures on conventional heads, namely, loss of
estate, loss of consortium and funeral expenses should be
Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively.
The aforesaid amounts should be enhanced at the rate of
10% in every three years.
62. The reference is answered accordingly. Matters be placed
before the appropriate Bench.
…………………………….CJI.
(Dipak Misra )
…………………………………J.
(A.K. Sikri )
…………………………………J.
(A.M. Khanwilkar )
…………………………………J.
(Dr. D.Y. Chandrachud )
…………………………………J.
(Ashok Bhushan )
New Delhi;
October 31, 2017
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