Sushila Goel And Ors. vs United India Insurance Co. Ltd. ...
1991 Latest Caselaw 365 Del

JUDGMENT

P.N. Nag, J.

(1) This appeal under Section 110 of the Motor Vehicles Act, 1939 has been filed against the order dated 28th February. 1987 passed by Shri H.P. Sharma, Judge, Motor Accident Claims Tribunal No. 1 whereby the Tribunal has passed an award of Rs. 86.400.00 with costs in favor of the petitioners-appellants and against the respondents,

(2) The relevant facts giving rise to this appeal are that late Shri P.C. Goel, the deceased, who was holding the rank of Under-Secretary in Rajya Sabha Secretariat, on 17th July, 1974 at about 7.45 P.M., while going towards Lodhi Colony on left hand side of the road leading from Khan Market to Lodhi Colony, opposite to block No. 20, a bus bearing registration No. Dlp 5597. driven by respondent No. 1. came from behind at a very fast speed and banged into the scooter driven by the deceased. Since the bus was being driven rashly and negligently, the deceased fell down and sustained serious injuries as a result of which he succumbed to death in the hospital At the time of his death, he was 50 years and drawing a monthly salary of Rs. 1600.00 . Had the deceased continued in service, but for death, he was likely to be promoted to the post of Deputy Secretary in the month of August, 1974 and he had further chances of promotion to the post of Joint Secretary/Additional Secretary. The deceased had left behind him his widow, petitioner-appellant No. 1 and chidren petitioners-appellants 2 to 5, as legal representatives. One married daughter of the deceased has not been made a party in the case.

(3) According the petitioners, the driver of the vehicle, respondent No. 1, owner of the vehicle, respondent No. 2, and the insurer, respondent No. 3, are all jointly and severally liable to them. The petitioners-appellants had demanded a sum of Rs. 10,00,000.00 as compensation. Respondents 1 & 2 did not appear before the Tribunal despite service of notice. Respondent No. 3, United India Insurance Co. Ltd., contested the petition and denied the factum of accident further they had denied that the accident was caused because of rash and negligent driving of the bus by respondent No. 1. Further they had denied that the petitioner had any promotional chances, in case respondent No. 3 is held liable to pay compensation, it could only be limited to a sum of Rs. 50.000.00 .

(4) Out of the pleadings of the parties, the following issues were framed by the learned Tribunal : "ISSUES: I. Whether deceased Prem Gopal received fatal injuries in the accident on 17.7.74 as alleged inpara23 of the petition due to rash and negligence driving of bus No. DLP-5597 by respondent No. 1 ? 2. Whether the accident was caused due to rash and negligence driving of the scooter by the deceased as alleged in para 22 of the W.S. of respondent No. 3 ? 3. Whether the petitioners are legal representatives of the deceased ? 4. Whether the bus No. Dlp 5597 stood insured with Respondent No. 3 on the date of accident, if so ? 5. Whether the Insurance Co. is absolved of its liability for reasons given in additional picas ? 6. To what amount of compensation are the petitioners entitled and from whom ? 7. Relief."

After protracted trial, the learned Tribunal decided Issue Nos. 1 & 2 against the respondents and held that the deceased P.C. Goel suffered fatal injuries in 1974 due to rash and negligent driving of bus No. DLP-5597 by respondent No. I, driver.

(5) Further it has been held by the Tribunal that the petitioners are legal representatives of the deceased, P.C Goel, and that bus No. DLP-5597 was insured with the insurance company, respondent No. 3, and the insurance company has not absolved its liability and that the liability cannot be restricted to a sum of Rs 50,000.00 only. Further the Tribunal awarded compensation of Rs. 86,400/ against all the three respondents who have been held liable to pay the same jointly and severally.

(6) Being aggrieved against the quantum of compensation determined by the Tribunal, the petitioners-appellan have filed this appeal against the aforermentioned order of the Tribunal.

(7) It may be noticed here that whle admitting this appeal, the learned Judge of this Court restricted the admission of the appeal only on the question as to whether six or the eight should the proper multiplier and whether the appellants were entitled to interest accoring to Section 110-CC. Therefore the controversy involved in the appeal is confined only to the extent what should be the multiplier as to whether it. is should be six or eight and the entitlement of the interest under Section 110 CC.

(8) In view of the admission order, the controversy only now confines whether the multiplier evolved by the Tribunal for determining the amount of compensation is just and proper in the facts and circumstances of the case and that the appellants-petitioners are entitled to interest under Section 110-CC. Mr. Malhotra, learned counsel for the petitioner attempted to re-open the question of monthly dependency of the petitioner, but this question cannot be permitted to be raised in view of the admission order.

(9) While awarding quantum of compensation, the Tribunal has adopted the multiplier method. The multiplier method is usually followed in England and has proved successful there. Two leading English cases which are often referred in this connection are Mallett v. McMemonagle, (1970) A.C. 166, and Taylor v. O'Connor, (1971) A.C. 115. As observed by Lord Diplock in Mallet's case : "Since the essential arithmetical character of this assessment is the calculation of the present value of an annuity it has become usual both in England and in Northern Ireland to arrive at the total award by multiplying a figure assessed as the amount of the annual "dependency" by a number of "years' purchase".

(10) The method of multiplier is recognised by Supreme Court in its various decisions. Suffice it to refer to one of the decisions of the Supreme Court reported as Madhya Pradesh State- Road Transport Corporation, Bairagarh Bhopal v. Sudhakar and others (supra) where it has been held that a method of assessing damages usually followed in England, as appears from Malett v. Me Monagle , Ac 166 (supra) is to calculate the net pecuniary loss upon an annual basis and to "arrive at the total award by multiplying the figure assessed as the amount of the annual dependency" by a number of year's purchase", (p. 178) that Is, the number .of years the benefit was expected to last taking into consideration the imponderable factors in fixing either the multiplier of the multiplicant.

(11) A Full Bench of Punjab &Haryana High Court in Lachhman Singh and others v. Gwmit Kaur and others (AIR 1979 P&H 51) while relying upon the aforementioned judgment of the Supreme Court has expressed a similar view.

(12) In Himachal Road Transport Corporation v. Jai Ram etc. [1979 2nd (H.P.) 267] the Division Bench of Himachal Pradesh High Court has pointed out as to how the suitable multiplier should be chosen. The 'multiplier' is to be chosen having regard to the peculiar facts of each case. For instance if it is found that the deceased prematurely died at a very young age and if it is further revealed that the longevity in his family was more, then it would be safe to take a higher multiplier with a view to arrive at the figure of total compensation. Having regard to the individual facts of each case, the Courts have applied different multipliers in each case. In our country, the Supreme Court has applied different multipliers, but in a recent decision given in Madhya Pradesh State Road Transport Corporation v. Sudhakar (Supra), 20 years multiplier is taken keeping in view the fact that the deceased had before her yet thirty years of service to be performed. The choice of multiplier is to be made by the Court using its own experience and having due regard to the peculiar facts of each case, because the ultimate goal is not to adhere to any rigid formula, but to award a compensation which is just. In this approach the Courts have to remain sympathatic and realistic in their considerations because every acsessment of compensation of this type rests more or less on conjectures of a fallible human being who is not able to know the ways of Provindence. Under the circumstances, what is required to be assessed is only a reasonable probability as it appaals to a reasonable person.

(13) In the present case, the Tribunal has found and taken the monthly salary of the deceased P.C. Goel as Rs. 1600.00 and the monthly dependency of the heirs at Rs. 1200.00 having regard to overall circumstances of the case. In other words, the annual dependency of the heirs/petitioners-appellants amounts to Rs. 14,400.00 . This figure for determination of compensation for monthly and yearly dependency is not the subject matter of controveny in the present appeal in view of the admission order of this Court. The dispute is in respect of the evolving of the multiplier, whether it should be '6' or '&'. In order to determine the multiplier the deceased was a Government servant and there was no dispute that normally he would have retired at the ago of 58 years and since he died at the age of 50 years, he was still to serve for eight years more in normal coarse. I have no doubt in mind that he would have normally lived at least till his retirement and even subsequently as Public Witness 8, Sanjiv Goel, the son of the deceased, has deposed that his father had no vices and was having robust . physique. His grand father died at the age of 80 years and his grand mother died at the age of 72 years. There is no cross examination of the witness on this point and no evidence to the contrary has been produced by the respondents. Therefore, it can safely be assumed that because of the family history of the longevity of life the deceased normally would have lived up to 70 years.

(14) It is well known that the life expectancy is longer now. Average life expectancy in India can - be taken as 70 or 75 years. Although no satisfactory evidence had been produced that the deceased wanted to work and had plans to work after retirement bat it could be assumed that with the pension he would have earned after retirement, it would not have been sufficient enough for him to support his family and the dependents and he would have made efforts to augment his income. No doubt he could not have worked for the whole life but it could safely be assumed having regard to his good health that he would have been active enough to work for a fairly long period even after 58 years. At any rate, he would have normally worked up to the age of 58 years, i.e., up to retirement. There is nothing to show that the petitioners- appellants who were the dependents on the deceased would have chased to be the dependents upon (he deceased after 8 years or so, due to happening of certain contingencies.

(15) In these facts and circumstances, in order to arrive at just and fair compensation, in my opinion, the Tribunal has erroneously fixed '.six' as the multiplier end the muliptier should have been on a higher side. However, since the order of admission of appeal dated 8th September, 1987 has restricted the determination of the question of 'multiplier' either 'eight' or 'six', I am of the opinion that the Tribunal at least should have fixed 'eight' as the multiplier, if not more, instead of 'six' as has been done in the present. Having found this the total compensation payable should be Rs. 14,400.00 x8==Rs. l,15,200.00 . In other words the compensation is required to be enhanced by Rs. 28800. Therefore, I hereby enhance the compensation from Rs. 86,400 to Rs. .l,15,200.00 and the petitioners-aprellants shall be entitled to this compensation from all the three respondents who are liable to pay the same jointly and severally.

(16) The next question that arises for consideration is whether the appellants are entitled to interest according to Section 110-CC.

(17) The trial Court has disallowed the interest from the date of the filing of the application for compensation on the ground that (he case was dismissed in default twice and, according to the learned Court, it was not only the respondents but the petitioners as well who were responsible for the delay in disposing of the petition. I am afraid the trial Court could not have dis- allowed the interest to the petitioners "or the entire period from the date of the application for compensation till payment merely on the ground that the case was dismissed twice in default and then restored.

(18) The petition was dismissed in default under Order 9 Rule 9 of the Code of Civil Procedure, 1908 on 17.2.1978 at 4.00 P.M. for not taking steps in the matter and then restored on the basis of an affidavit filed by the clerk of counsel for fie petitioners, which stood unrebutted and according to the trial Court, the absence of the petitioners was bonafide. Therefore, the first dismissal of the petition on 17.2.1978 cannot be attributed to any lapse on the part of the petitioners.

(19) No doubt the petition was again dismissed for non-prosecution on 22.12.1979 and restored on 9.12.198U. What has weighed in the mind of the trial Court for the restoration of the petition seems to be that nobody should be condemned unheard and it wiil be aggravating the misery of the widow and children of the deceased and would be tentamount to denial of justice. Here there is no finding by the trial Court whether the absence on 22.12.1979 of the petitioners or their counsel was bonafide or unintentional. Therefore for the period 22.12.1979 to 9.12.1980, the negligence and lapse can be atributed on the part of the petitioners for causing delay ill the disposal of the petition. Therefore, in my opinion, for this period, ie., from 22.12.1979 till 9.12.1980, the petitioners cannot be awarded interest. However, for the entire period from' the date of tie application turn compensation till payment, except the period from 22.12.1979 to 9.12.1980, the petitioners are entitled to interest under Sec tion 10-CC.

(20) In this connection, reference may be made to Smt. Chameli Wati and another v. Delhi Municipal Corporation of Delhi and others . In that case, while setting aside the judgment of the Delhi High Court, the Supreme Court awarded the interest on the amount of compensation finally determined by way of enhancement at the rate of 12% p.a. from the date of the application for compensation till realisation.

(21) In Jagbir Singh and others v. M Manager, Punjab Roadways and others , the Supreme Court awarded interest at the rate of 12% from the date of the application for compensation to the date of payment.

(22) In view of the law laid down by the Supreme Court, it will be just and Fair, in the present facts and circumstances of the case, to award interest to the appellants at the rate of 22% pa. on the amount of compensation awarded from the date of the application for compensation to the date of payment, except the period from 22.12.1979 to 9.12.1980.

(23) In the result, I set aside the judgment of the Motor Accident Claims Tribunal and pass an award in favor of the appellants and against the respondents for a total amount of compensation of Rs. l,15,200.00 and thereby enhance the amount of compensation by a sum of Rs. 28.800.00 . The appellants will also be entitled to interest at the rate of 12% p.a. on the amount of compensation awarded from the date of the application for compensation to the date of payment, except the period from 22.12.1979 to 9.12.1980. However respondents will of course get credit for the amounts already paid by them to the appellants, if any. from time to time and interest shall be calculated taking into account such payments. The amount directed to be paid to the appellants under this order shall bs paid within two months from todiy. The amount so awarded shall be payable by the respondents jointly and severally. The respondents will pay the costs of the appellants quantified at Rs. 1,000.00 .