Jasbir Kaur And Ors. vs S. Sampuran Singh And Ors.
1993 Latest Caselaw 538 Del

JUDGMENT

Jaspal Singh, J.

(1) Nostradamus says that world will lend in 1997.For39 years old Harbhajan Singh, an electrician employed with the Statesman on a monthly salary of Rs. 738.80 p., it came to an end on May 3, 1981. On that day he died in a road accident leaving behind seven destitutes - a widow, a mother and five minor children.

(2) On a petition under section 110 A of the Motor Vehicles Act, the Tribunal awarded a sum of Rs. 1,08,000.00 as compensation Along with interest at the rate of 9% p.a. from the date of the petition till realisation. For arriving at the amount awarded the Tribunal presumed that out of his salary the deceased was contributing Rs.500.00 per month towards his family and spending the balance amount on himself. Thus '.he annual dependency was taken as Rs.6000.00 which, for reasons not disclosed, was multiplied with 18 bringing the total to Rs.1,08,000.00 .

(3) Aggrieved by the said award the claimants have preferred this appeal.

(4) The learned counsel for the appellants was brief but incisive. With seven mouths to feed, argued the learned counsel for the appellants, how could the deceased be presumed to have been eating away a major slice of his meagre income? His contention, in other words, was that the presumption raised that the deceased must have been spending Rs.238.80 p. on himself out of an income of Rs.738.80p. was most uncharitable. His next contention was that the Tribunal went wrong even in applying the multiplier of 18.

(5) On the other hand, the learned counsel for the insurance company found no fault with the Award under appeal and rather lent it his whole-hearted support. In support, he drew my attention to a judgment of the Himachal Pradesh High Court in Smt.Krishna Chadha & others vs. National Carriers and others 1 (1990) Acc 184. By this judgment the learned single Judge had disposed of three F.A.O.s, namely F.A.O. 135/82 (Krishna Chadha and others vs. National Carriers and others) P.A..O. 136/82 (Smt.M.J.Stone and others vs. M/s. National Carriers and others) and F.A.O. 137/82 (Krishna and another vs. M/s. National Carriers and others). All these F.A.O.s arose out of the same accident and a common Award.

(6) Professor Dworkin* and those who share his view** believe that each legal problem has one lawful solution. According to this approach law is a closed system that contains a solution to every difficult problem and that leaves no room for judicial discretion.*** One wonders, how far this view would hold the sway when one peeps into the judgment relied upon by the learned counsel for the respondent and the judgment under appeal. They provide examples of exercise of judicial discretion, though I must confess, by going through them I have found my self in a veritable dilemma.Let me explain the how and why.

(7) In F.A.0.135/82, (Smt.Krishna Chadha vs. National Carriers & others) at the time of his death the deceased was 41 years of age. The court applied the multiplier of 15 years. In Fao 136/82 (Smt. M.J. Stone & others vs. National Carriers & others) the age of the deceased at the time of his death was 46 years. The multiplier of 12 years was held to be "appropriate". However in F.A.0.137/82 (Smt.Krishna & another vs. National Carriers & others) where the age of the deceased was only 26 years, the court applied the multiplier of 18 years. Thus in one single judgment three different multipliers have been applied and, with respect, without any reason or explanation, leaving me, as already noticed above, in a state of veritable dilemma. Even in the Award under appeal the learned Tribunal while applying a multiplier of 18 has neither advanced any reason nor given any explanation for the same adding to my discomfiture, and reminding me of the following extracted from a poem of Vikram Seth entitled: "The Comfortable Classes At Work and Play",* which, though written in a different context, nevertheless depicts my state of despair too. "IN the long sunlit closed verandah The mother takes a volume in half-calf From off the wall, and wrestles with a judgments Of Justice Krishna Iyer of the Supreme Court. He must mean something, but what does he mean? "The endless pathology of factious scrimmage" - and now "Crypto-coercion". She knits her forehead And asks for another cup of ginger tea."

* See Dworkin, "Judicial Discretion", 6, J. of Phil. 624 (1963); Dworkin, 'Taking Rights Seriously" 81 (1977); * Dworkin, "No Right Answer?" 53 N.Y. U.L. Rev. 1 (1978) ** See. Sartorius; The Justification of the Judicial Decisions 78 Ethics 171 (1968) *** See Dworkin, "Law's Ambitions for Itself" 71 Va L.Rev. 173 (1985) **** See Vikram Seth:'Humble Administrator's Garden' 33,34

(8) The light of the day, however, comes from a judgment of the Supreme Court in Hardeo Kaur and others vs. Rajasthan State Road Transport Corporation & another 1992 Acj 300. Relying upon its earlier judgments in Jyotsna Dey and others v. State of Assam and others 1987 Acj 172 (SC) it was observed by the Supreme Court that the life span should be taken to be 70 years and on its basis should be applied multiplier, moreso, if the deceased was a healthy person and disciplined to live an active and energetic life. In the case before me also, the deceased is shown to have enjoyed very good health and having led sober disciplined life. His father had lived up to the ripe age of 85 years and he himself had left,behind a wailing mother in her eighties. The family thus had been enjoying a long span of life. Thus there was no justification for applying a multiplier of 18. My grievance is that the Tribunal while exercising discretion neither gave any reason or explanation for applying that multiplier nor thought it Fit to justify the conclusion that the deceased must have been spending Rs. 238.80 p. on his personal needs. Justice Landau* reminds us "JUDGING through the' use of discretion must not become arbitrary judging. There is no better tested way of avoiding this danger than the full explanation of the judgment. This kind of explanation trains the judge to think clearly and to raise his reasons including his intuitive thoughts to which Pound referred- above his sub-conscious to the light of day in order that they should stand the test of criticism by the appeals court, by professionals and by the general public."

(9) Anyhow, in view of the judgment of the Supreme Court referred to above I feel in the present case taxing the life span as 70 years multiplier of 31 years ought to have been applied. I may mention here that the Division Bench of this Court in Surinder Kumar and another vs. Tajinder Kaur and others 1992 Acj 583 had also followed the same principle.

(10) Coming to the finding that the deceased must be presumed to have been spending Rs.238.80 p. on himself, there was no justification or basis for the Tribunal to have reached that conclusion. It was specifically claimed by the widow of the deceased in her statement as PW-3 that the deceased had been Handing over the entire salary to bring up and feed the family. That statement was not challenged in cross-examination. However, I do agree that the deceased must have been spending at least some amount on himself. How much is a man placed in his position with -seven more mouths to feed and with a meagre salary of Rs. 738.80 p. expected to spend on himself? I do not think it can be more thanRs. 100.00 per month. Moreso, when the person is shown to have simple habits with no vices proved or even suggested.

(11) No deduction has been allowed out of the assessed compensation on account of lumpsum payment and rightly so since this view finds support from the judgment of the Supreme Court in Hardeo Kaur's case. Leaning, with respect, entirely on the said judgment of the Supreme Court, I hold the claimants to be entitled to a total sum of Rs.2,37,633.60 p. (638.80x12x31).

(12) The matter is not yet finished. The dispute with regard to award of interest is yet to be sorted out. The Tribunal has awarded interest at therateof9%p.a. The appellants want it to be enhanced to 12%p.a. The Insurance Company, however, finds the claim towards enhancement of rate of interest totally unacceptable and my attention has been drawn to a judgment of this court in Anugrah Sharma vs. Balbir Singh and others 1992 Acj 284 in which the learned single Judge granted interest at the rate of 6% p.a. on the ground that it was "an old case". A perusal of that judgment would go to show that the accident had occured on 19th March, 1977 and the appeal was decided by the learned single Judge on 3rd December, 1991. However, with respect, I am not inclined to agree with the reasoning of that judgment for the simple reason that it goes against the rations decidendi of Supreme Court's judgment in Hardeo Kaur's case (supra). In the case before the Supreme Court the fatal accident had taken place on July 30, 1977 and the Supreme Court had decided the matter on March 13, 1992. Thus, that way, the Supreme Court too was faced with an "old case" and the court held the appellant to be entitled to interest at the rate of 12% p.a. instead of 6% p.a. awarded by the Tribunal. I, therefore, hold that the appellants would be entitled to interest at the rate of 12% p.a. on the amount awarded. I am informed that the respondent - Insurance Company has already paid the entire amount awarded by the Tribunal. It shall, therefore, be liable to pay interest on the amount originally amount. On the balance amount which becomes payable by the Insurance Company on account of this judgment interest at the rate of l2% p.a. shall be payable from the date of the institution of the petition till payment. The enhanced amount shall be payable to the individual claimants in the same ratio as adopted by the Tribunal. S

(13) No order is made as to costs.