Smt. Kamlesh, Widow Of Sh. Om ... vs Sh. Bhoop Singh Sehrawat S/O ...
2004 Latest Caselaw 115 Del

JUDGMENT

Madan B. Lokur, J.

1. The Appellants are the legal representatives of Om Prakash Yadav, a young man of 28 years and an employee of the Postal Department of the government of India. He succumbed to injuries in a motor accident on 2nd October 1987. The Appellants filed a claim for compensation before the learned Motor Accident Claims Tribunal (for short MACT). The claim of the Appellants was that the deceased had a monthly salary of Rs.1402.00 as a postal assistant; he earned Rs.1000.00 per month from a private job as a radio and TV engineer and Rs.2500.00 from cultivation. The total claim for compensation was for an amount of Rs.11,00,000.00.

2. The following issues were framed on 27th April 1989: --

1. Whether the petitioners are the LRs of the deceased late Om Prakash Yadav?

2. Whether the deceased suffered fatal injuries in an accident on 2.10.1987 due to rash and negligent driving of bus No. DEP 5452 on the part of Respondent No.1?

3. To what amount of compensation, if any, are the petitioners entitled and from whom?

4. Relief.

3. On 17th August 1995 an additional issue was framed to the following effect: --

3A. Whether Respondent No.3 is not liable to make payment of compensation on grounds mentioned in the WS?

4. The first issue was decided in the affirmative. As regards the second issue, the learned MACT concluded that the death of Om Prakash Yadav occurred due to the rash or negligent driving of a bus by Respondent No.1. As regards issue No.3A, the learned MACT held that Respondent No.3 (the insurance company) was liable to compensate the Appellants jointly and severally with Respondent No.1 the driver of the bus and Respondent No.2 the owner of the bus. The compensation awarded by the learned MACT was Rs.2,61,500.00. According to the Appellants, the compensation awarded is insufficient hence this appeal.

5. Officials from the Postal Department appeared in the witness box and were able to prove the date of birth of the deceased as per the official record. On this basis, the learned MACT found that on his death, the deceased was about 29 1/2 years old. Following the decisions of the Supreme Court in General Manager, Kerala State Road Transport Corporation vs. Susamma Thomas and Sarla Dixit vs. Balwant Yadav, the learned MACT was of the view that the appropriate multiplier should be 15.

6. As regards the income of the deceased, the learned MACT held that there was no proof that the deceased was qualified as a radio or TV engineer and in any case he had no official permission to work on a part-time basis. The shop in which he was said to work did not belong to him, nor did the deceased have any agricultural land in his name. Consequently, the learned MACT concluded that the only income proved on record was the salary received by the deceased from the Postal Department that is Rs.1402.00 per month. The learned MACT then adopted the formula laid down by the Supreme Court in Sarla Dixit for calculating future prospects and arrived at a figure of Rs.2103.00 as the average gross monthly income of the deceased. From this figure, the learned MACT deducted 1/3rd towards personal expenses and then calculated the loss of dependency at Rs.1400.00 per month (Rs.2100 minus Rs.700). (It may be mentioned that mathematically, the formula laid down by the Supreme Court results in the loss of monthly dependency being equal to the last drawn salary, as in this case, Rs.1400.00. In other words, the calculations required to be made are mathematically unnecessary). The monthly loss of dependency was then converted into an annual amount to arrive at the multiplicand (Rs.1400 x 12= Rs.16,800). The multiplicand was then multiplied by the multiplier (Rs.16,800 x 15 = Rs.2,52,000) to arrive at the compensation due to loss of dependency. To this figure, the learned MACT added funeral expenses, loss of estate and loss of consortium to arrive at total figure of Rs.2,61,500.00 towards compensation and damages awarded to the Appellants. This figure was held due and payable with interest at 12% per annum.

7. Learned counsel for the Appellants has raised three contentions before me. It is firstly contended that the learned MACT should have applied the multiplier of 18 and not 15. The use of the multiplier of 18 was urged on the basis of the Second Schedule to the Motor Vehicles Act, 1988 (the Act). However, in the written submissions filed by learned counsel for the Appellants, the contention is that the multiplier of 30 should have been applied. No sound basis has been given for urging a multiplier of 30. The second contention was that because of the increase in salaries of government servants due to reports of the Pay Commission, the future prospects of the deceased were not properly calculated. The final contention of learned counsel was that the deceased had a diploma in radio and TV and therefore he could be expected to earn some additional income from working as a radio or TV mechanic on a part-time basis.

8. The question of what multiplier is to be used has always been a rather vexed question, with the multiplier going as high as 24. (Hardeo Kaur vs. Rajasthan State Road Transport Corporation, ). The Supreme Court has now laid this controversy to rest by its decision in U.P. State Road Transport Corporation vs. Trilok Chandra wherein it has been held that the multiplier cannot exceed 18 years purchase factor. The contention of learned counsel for the Appellants that the multiplier should be 30 in this case must clearly be rejected.

9. The Second Schedule to the Act gives the guidelines for applying the multiplier in respect of different age groups. Although this Schedule is relatable to the provisions of Section 163-A of the Act, the Supreme Court has accepted it to be a safe guide for the purposes of determining compensation under the provisions of Section 168 of the Act also. This has been so recognized by the Supreme Court in Trilok Chandra, Kaushnuma Begum vs. New India Assurance Co Ltd. (2001) 2 SCC 9 and Abati Bezbaruah vs. Dy. Director General, Geological Survey of India & Anr., . In fact, in Abati Bezbaruah the Supreme Court said: --

"The structured formula base has been set out in the Second Schedule to the Motor Vehicles Act.

It is now a well settled principle of law that the payment of compensation on the basis of structured formula as provided for under the Second Schedule should not ordinarily be deviated from. Section 168 of the Motor Vehicles Act lays down the guidelines for determination of the amount of compensation in terms of Section 166 thereof. Deviation of the structured formula, however, as has been held by this Court, may be resorted to in exceptional cases. Furthermore, the amount of compensation should be just and fair in the facts and circumstances of each case."

10. Consequently, applying the multiplier laid down in the Second Schedule to the Act, it will be seen that for the age-group of 25 to 30 years, to which age-group the deceased belonged, the prescribed multiplier is 18. Therefore, the submission of learned counsel for the Appellants must be accepted to the effect that in the present case the applicable multiplier should have been taken by the learned MACT to be 18 and not 15.

11. The next submission of learned counsel for the Appellants is with respect to the multiplicand. The learned MACT has arrived at the multiplicand on the basis of calculations given by the Supreme Court in Sarla Dixit. No fault can be found in this regard. The fact that the report of the Pay Commission has not been taken into consideration does not advance the case of the Appellants. The reason for this is that the increase in income is a notional figure, for which the Supreme Court has laid down an acceptable formula. Presumably, this formula takes into consideration various imponderables, including increases in the salary from time to time and other relevant factors. It is not possible to go beyond the formula laid down by the Supreme Court and add other factors sought to be canvassed by learned counsel, such as the report of the Pay Commission or the rate of inflation or increases in dearness allowance etc. Firstly, the formula having been laid down by the Supreme Court, this is not permissible. Secondly, human ingenuity can create a host of other factors (life itself being full of imponderables), which will then have to be taken into consideration making any formula arbitrary and subject to criticism. The contention of learned counsel for the Appellants in this regard has to be rejected.

12. Learned counsel for the Appellants, however, submitted that on the facts of the present case, the more appropriate formula that will be applicable is the one laid down by the Supreme Court in General Manager, Kerala State Road Transport Corporation vs. Susamma Thomas, . In that case, the deceased was about 38-39 years of age and was getting a monthly salary of about Rs.1000.00. The Supreme Court considered the future prospects of the deceased in that case and held in paragraph 19 of the Report: --

"We think, having regard to the prospects of advancement in the future career, respecting which there is evidence on record, we will not be in error in making a higher estimate of monthly income at Rs 2000 as the gross income. From this has to be deducted his personal living expenses, the quantum of which again depends on various factors such as whether the style of living was spartan or bohemian. In the absence of evidence it is not unusual to deduct one-third of the gross income towards the personal living expenses and treat the balance as the amount likely to have been spent on the members of the family and the dependents."

13. I am of the view that the contention of learned counsel for the Appellants deserves to be accepted. The reason is that in Susamma Thomas the deceased was about 10 years older than the deceased in the present case. The Supreme Court thought it appropriate to take double his salary and take that figure as the gross income of the deceased over a period of time. The deceased in the present case was about 29 years of age and considering the fact that he had a long service career ahead of him, it would be reasonable to expect (as in Susamma Thomas) that his salary would not only double in due course of time but would even exceed the doubled figure so that on an average it could be said that his gross monthly income was double the amount at the time of his death. In other words, given the age of the deceased, his salary of Rs.1400.00 per month (rounded off) would have not only doubled to Rs.2800.00 per month but would have gone even beyond that figure so that over a period of time it could reasonably be said that his average monthly income would become Rs.2800.00. Needless to say, in Susamma Thomas, as in the present case, the deceased had a steady job.

14. This does not mean that the learned MACT committed any manifest error in relying upon Sarla Dixit. There can be no doubt that the formula laid down in Sarla Dixit is an acceptable formula, but given the age of the deceased in the present case, the principle laid down by the Supreme Court in Susamma Thomas is more appropriate and more acceptable. Consequently, the gross average monthly income of the deceased in this case should be taken as Rs.2800.00 per month. Out of this amount, one third is required to be deducted towards the personal expenses of the deceased. The monthly dependency (or the multiplicand) would, therefore, work out to Rs.1850.00 (rounded off).

15. Learned counsel further says that the income earned by the deceased as a radio and TV engineer and by performing agricultural operations has not been taken into consideration by the learned MACT. A perusal of the Award passed by the learned MACT shows that there was absolutely no evidence on record to show that the deceased was earning any additional income while working on a part-time basis as a radio and TV engineer or while doing some agricultural work. The mere fact that the deceased had a diploma as a radio and TV engineer does not per se mean that he was earning some income as a radio or TV engineer. There has to be some evidence for this, which was lacking.

16. Under the circumstances, the two modifications required to be made in the impugned Award are in the choice of the multiplier, which should be 18 and not 15; and in the multiplicand which should be 1850 and not 1400. Applying these figures, the total compensation due to the deceased will work out to be: 1850 x 12 x 18 = Rs.3,99,600.00 instead of Rs.2,52,000.00. The other figures regarding funeral expenses, loss of estate and loss of consortium remain unchanged. The additional compensation that is now being awarded over and above the amount awarded by the learned MACT will be payable to the Appellants with interest at 9% per annum from the date of filing of the claim petition.

17. The appeal is allowed on the above terms. There will be no order as to costs.