Sh. Daya Arora And Ors. vs Sh. Kapur Singh And Anr.
2005 Latest Caselaw 1246 Del

JUDGMENT

Pradeep Nandrajog, J.

1. On 21.12.1985 at about 7.40 P.M., deceased Dinesh Arora was traveling in his car No. DBT-70. He was accompanied by his mother Daya Arora, appellant No. 1 and his wife Renu Arora, appellant No. 2. When the car reached the flyover at Lawrence Road, bus No. DLP-6277, driven rashly and negligently first hit a scooter No. DEH 4461 and thereafter the car. Dinesh died at the spot. His wife and mother were injured.

2. In the present appeal I am only concerned with the claim for compensation made by the appellants who are the parents and wife of the deceased for enhancement and therefore would be taking note of such facts as are relevant for determining the compensation to be paid to them.

3. Needless to state, claim petition filed by the appellants for compensation consequent to the death of Dinesh Kumar before the learned MACT resulted in findings in their favor that the offending bus was driven rashly and negligently and also that appellants were entitled to a reasonable compensation.

4. To appreciate the facts, the following preliminary data would be relevant:-

(a) Deceased was aged 30 years when he died;

(b) He was employed in the irrigation department, Govt. of Haryana;

(c) He was getting a salary of Rs. 2311.80 P.M. when he died;

(d) He was supporting his wife and his aged parents;

(e) Appellant No. 2, Renu Arora got re-married in January 1988. Since deceased died on 21.12.1985, her entitlement has to be for 2 years and 1 month;

(f) As per the award, Renu Arora has been awarded compensation in sum of Rs. 36,000/-.

(g) Parents of the deceased have been awarded Rs. 3,85,200/-.

5. In arriving at the compensation aforesaid, the learned MACT has taken into account the age of the mother and father of the deceased at 52 years and 58 years respectively. That mother of the deceased was employed as a teacher, getting salary of Rs. 2450/- p.m. That in view of the fact that the mother was earning it could be expected that the deceased was spending more on himself and his wife. That the estimated gross income of the deceased would have gone up as his service would have continued. Thaaverage mean income per month could reasonably be taken to Rs. 4,000/- p.m. That keeping in view the family, 1/3rd could be a reasonable presumption of the amount being spent on self.

6. Accordingly loss of dependency was taken at Rs. 2,700x12x13 = 4,21,200/-. As noted above, out of this Rs. 36,000/- was given to the widow since she got re-married in January, 1988. Remaining went to the parents.

7. Sh. S.C. Dhanda, learned counsel appearing for the appellants fairly conceded at the bar that the Tribunal rightly awarded a lesser sum to appellant No. 2 since it was found that she had re-married during trial. Counsel, however, urged that the award suffers from the following infirmities.

(i) Keeping in view the age of the deceased, multiplier of 13 was inadequate;(ii)Recommendations of the Fourth Pay Commission implemented by the State of Haryana effective from 1.1.1986 were ignored by the Tribunal. This impacted the estimated monthly income of the deceased. Counsel urged that this court should take into account the corresponding replacement scales adopted by the State of Haryana effective from 1.1.1986 and accordingly re-assessed the estimated monthly income of the deceased. Consequently, loss of dependency be increased;(iii) No amount has been awarded to the appellants No. 1 and 3 being the parents of the deceased on account of pain and suffering as also loss of company of a son;

8. On the issue of multiplier, after the second schedule has been inserted in the Motor Vehicle Act, 1988, legislative guidance is available to the courts. In the instant case, death took place when second schedule was not to be found on the Statute Book

9. Multiplier is determined by the age of the deceased as also that of the claimants, whichever is higher (See G.M. Kerala State Road Transport v. Sushma Thomas).

10. Taking into account that the wife of the deceased had got married by the time award was pronounced and taking into consideration the age of the parents being, father 58 years and mother 52 years, when the deceased died, I do not find the multiplier adopted (13) as unreasonable or unjust.

11. Learned counsel for the appellants, Sh.S.C. Dhanda, Advocate urged that the reality of life is that even as of August, 2005, parents of the deceased are alive. Counsel urged that appellants have lived for more than 20 years after the unfortunate demise of their son. It was urged that this reality stares the court in its eyes and is no longer in the realm of speculation.

12. Law has to determine compensation taking into account the facts before the court as they exist when claim is filed. But for docket explosion in courts, it would normally be expected that MACT claims get decided within 2 to 3 years. Would it be open to a party to seek review on ground of subsequent facts after the claim has been decided by bringing to the notice of the court after 20 years that the claimants have survived beyond what was estimated by the court when award was pronounced? After an award is pronounced and compensation disbursed, claimants die an unexpected death. Would it be open to the insurance company to seek a review by bringing to the notice of the court that the claimants died an unexpected death after receiving the compensation and therefore recovery be effected from their estate?

13. The answer to the questions is an emphatic "No". Law requires a fair and a just compensation to be worked out in favor of the claimants. The assessment of compensation is bound to be be set with defects because of the very nature of the enquiry.

The enquiry has to take into account many imponderables like the life expectancy of the deceased and the dependence. The amount he would have earned if the deceased did not die in the accident. The amount he would have contributed to the dependents. The chance that the deceased or the dependents may not live to the estimated remaining period of their expected life. The chance that the deceased may have got a better employment or might have lost his employment altogether. Inherently, calculations have to remain in the realm of hypothesis.

14. I cannot, therefore, take into account and re-determine the compensation because of the fact that the parents of the deceased still are in the world of living.

15. From the evidence led before the Tribunal, I do not find that the appellants have led any evidence pertaining to the recommendations of the Fourth Pay Commission. Neither in the present appeal has any material been filed to show as to what part of the recommendations of the Fouth Pay Commission were accepted and implemented by the State of Haryana. Unfortunately, evidence shows the gross salary of the deceased when he died. There is no evidence of the scale in which the deceased was being paid his salary. Consequently, I do not have before me the replacement scales.

16. Assuming that the deceased would have earned more than what was anticipated by the Tribunal when the award was passed, I find that it would be a futile exercise for me to speculate on the increased estimated monthly salary for the reason I find that while awarding the compensation, learned MACT has ignored that had the deceased lived, in all probability he would have had his own children and in such eventuality he would have had less to spend on his parents. Further, while apportioning the compensation assessed more than 90% thereof has gone to the parents.

17. Under normal circumstances, the learned MACT, while recompensing the parents of the deceased had not to benefit them the fortuitous circumstance of their widowed daughter in law getting remarried. Had the widowed daughter-in-law not got re-married, parents of the deceased would have got a lesser sum.

18. What I mean to convey is that the learned Tribunal has not effected any deduction on account of the deceased possibly having children in future and on said account having less and less to spare for his parents.

19. However, the award does suffer from one infirmity. The infirmity being the 3rd pointed out by the learned counsel for the appellants.

20. There has been no compensation awarded to the parents on account of pain and suffering suffered by the next kin of the injured (deceased) on account of the accident.

21. Conventionally, courts have been awarding compensation on account of the loss of love and affection to the parents as a consequence of the death of their child. A learned Single Judge of this court, A.K. Sikri, J. in the decision reported as 1 (2003)ACC 70 Swarn Kanta Sethi v. Vijay Aggarwal held that the courts have recognized the principles of awarding compensation for pain and suffering suffered by the next kin of the injured as a result of an accident. Taking note of the fact that the accident took place in the year 1977, the next kin was awarded a sum of Rs. 1 lakh on this count.

22. In the instant case, the accident took place in the year 1985. I likewise grant a sum of Rs. 1 lakh to the appellants No. 1 and 3 on account of pains and sufferings suffered by them on account of the death of their son resulting from the fatal accident

23. Appeal accordingly stands disposed of enhancing compensation, but payable only to appellants No. 1 and 3 by modifying the award by enhancing the compensation assessed by Rs. 1 lakh. Enhanced compensation shall be paid to appellant Nos.1 and 3 equally Along with interest @ 9% per annum from the date of filing of the claim petition till date of realization.

24. No costs.