Sh. Krishan Kumar Jain & Anr. vs Sh. Nathu Lal & Ors.
2009 Latest Caselaw 1180 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     FAO No. 194/1998

                            Judgment reserved on: 09.04.2008
%                           Judgment delivered on: 6.4.2009


Sh. Krishan Kumar Jain & Anr.                         ......... Appellant
                            Through: Mr. O.P. Goyal, Adv.

               versus


Sh. Nathu Lal & Ors.                              ..... Respondents
                            Through: Mr. Pankaj Seth, Adv.



CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.       Whether the Reporters of local papers may
         be allowed to see the judgment?                              No

2.       To be referred to Reporter or not?                           No

3.       Whether the judgment should be reported
         in the Digest?                                               No


KAILASH GAMBHIR, J.

1. The present appeal arises out of the award dated 30.9.1997

of the Motor Accident Claims Tribunal whereby the Tribunal

awarded a lump sum amount of Rs.20,000/- along with interest @

12% per annum to the claimants.

2. The brief conspectus of the facts is as follows:

3. On 11.12.1980, deceased Vinay Jain was travelling in a DTC

bus bearing registration no. DHP-2845 plying on route no. 153

from Rajinder Nagar to Subzi mandi Chowk. When the bus

reached Roshanara Road, the deceased was standing on the foot

board of the bus as he wanted to get down at Subzi Mandi

Chowk. In the meanwhile, truck bearing registration no. RJX-1352

was suddenly reversed by R-1 , Nathu Lal without blowing any

horn or warning or without there being anybody at the backside

of the truck to guide R1 or to warn him about the traffic moving

on the road. As the bus was passing on the road, the back

portion of the truck struck the deceased. As a result, the

deceased fell down on the road and received fatal injuries and he

succumbed to those injuries later on.

4. A claim petition was filed on 28.4.1981 and an award was

made on 30.9.1997. Aggrieved with the said award enhancement

is claimed by way of the present appeal.

5. Sh. O.P. Goyal, counsel for the appellants contended that

the tribunal erred in holding the deceased to be negligent to the

extent of 30% and stated that Ld. Tribunal ought to have held R1,

Nathu Lal wholly responsible for the accident. The counsel

submitted that travelling on foot-board by itself does not

constitute negligence and in this connection, he has referred to

the case decided by Hon'ble Delhi High Court reported as MCD

vs. Kuldip Lal Bhandari, 1971 ACJ Page 131. It is further

urged that the fall in the value of money has not been noticed by

the Ld. Judge while fixing the quantum of compensation payable

to the appellants for the death of their son. The counsel also

raised the contention that the rate of interest allowed by the

tribunal is on the lower side and the tribunal should have allowed

simple interest @ 15% per annum from the date of filing of the

petition till payment in place of only 12% per annum, in view of

the Supreme Court Judgment reported as 1991 ACJ page 3. It

was further submitted that the directions of Ld. Tribunal directing

the amount of interest payable to be kept in FD in the name of

appellants for a period of two years is unwarranted and

untenable in law and same should be modified.

6. Per Contra Mr. Pankaj Seth, counsel for respondent

insurance company submitted that there is no illegality in the

impugned award. Counsel further contended that award passed

by Tribunal is absolutely fair, just and reasonable and no fault can

be found with the same warranting interference by this court.

7. I have heard the learned counsel for the parties and

perused the record.

8. The assessment of damages to compensate the dependants

is beset with difficulties because while doing so, many

imponderables have to be taken in to account, e.g., the life

expectancy of the deceased and the dependants, the amount

that the deceased would have earned during the remainder of his

life, the amount that he would have contributed to the

dependants during that period, the chances that the deceased

may not have lived or the dependants may not live up to the

estimated remaining period of their life expectancy, the chances

that the deceased might have got better employment or income

or might have lost his employment or income altogether. The

manner of arriving at the damages is to ascertain the net income

of the deceased available for the support of himself and his

dependants, and to deduct therefrom such part of his income as

the deceased was accustomed to spend upon himself, as regards

both self-maintenance and pleasure, and to ascertain what part

of his net income the deceased was accustomed to spend for the

benefit of the dependants. Then that should be capitalised by

multiplying it by a figure representing the proper number of

year's purchase. In this relation, the Apex Court has held in

plethora of judgments that the multiplier method is the best

method.

9. In this regard in G.M., Kerala SRTC v. Susamma

Thomas, (1994) 2 SCC 176 the Hon'ble Apex Court observed

as under:

"12. There were two methods adopted for determination and for calculation of compensation in fatal accident actions, the first the multiplier mentioned in Davies case3 and the second in Nance v. British Columbia Electric Railway Co. Ltd.

13. The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last.

16. It is necessary to reiterate that the multiplier method is logically sound and legally well-established. There are some cases which have proceeded to determine the compensation on the basis of aggregating the entire future earnings for over the period the life expectancy was lost, deducted a percentage therefrom towards uncertainties of future life and award the resulting sum as compensation. This is clearly unscientific. For instance, if the deceased was, say 25 years of age at the time of death and the life expectancy is 70 years, this method would multiply the loss of dependency for 45 years -- virtually adopting a multiplier of 45 -- and even if one- third or one-fourth is deducted therefrom towards the uncertainties of future life and for immediate lump sum

payment, the effective multiplier would be between 30 and 34. This is wholly impermissible. We are, aware that some decisions of the High Courts and of this Court as well have arrived at compensation on some such basis. These decisions cannot be said to have laid down a settled principle. They are merely instances of particular awards in individual cases. The proper method of computation is the multiplier-method. Any departure, except in exceptional and extraordinary cases, would introduce inconsistency of principle, lack of uniformity and an element of unpredictability for the assessment of compensation. Some judgments of the High Courts have justified a departure from the multiplier method on the ground that Section 110-B of the Motor Vehicles Act, 1939 insofar as it envisages the compensation to be 'just', the statutory determination of a 'just' compensation would unshackle the exercise from any rigid formula. It must be borne in mind that the multiplier method is the accepted method of ensuring a 'just' compensation which will make for uniformity and certainty of the awards. We disapprove these decisions of the High Courts which have taken a contrary view. We indicate that the multiplier method is the appropriate method, a departure from which can only be justified in rare and extraordinary circumstances and very exceptional cases."

10. Thus, the tribunal erred in awarding a lumpsum amount to

the appellants.

11. PW5 Subhash Singh had proved on record that the

deceased was of 17 years of age at the time of his death and was

studying in class X at the time of the accident. There are some

aspects of human life which are capable of monetary

measurement, but the totality of human life is like the beauty of

sunrise or the splendor of the stars, beyond the reach of

monetary tape-measure. The determination of damages for loss

of human life is an extremely difficult task and it becomes all the

more baffling when the deceased is a child and/or a non-earning

person. The future of a child is uncertain. Where the deceased

was a child, he was earning nothing but had a prospect to earn.

The question of assessment of compensation, therefore, becomes

stiffer. The figure of compensation in such cases involves a good

deal of guesswork. In cases, where parents are claimants,

relevant factor would be age of parents. . In case of the death of

an infant, there may have been no actual pecuniary benefit

derived by its parents during the child's life-time. But this will not

necessarily bar the parent's claim and prospective loss will find a

valid claim provided that the parents' establish that they had a

reasonable expectation of pecuniary benefit if the child had lived.

This principle was laid down by the House of Lords in the famous

case of Taff Vale Rly. v. Jenkins (1913) AC 1, and Lord Atkinson

said thus:

...all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact - there must be a basis of fact from which the inference can reasonably be drawn; but I wish to express my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first that the deceased earned money in the past, and, second, that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inference can I

think, be drawn from circumstances other than and different from them." (See Lata Wadhwa and Ors. v. State of Bihar and Ors. MANU/SC/0456/2001)

12. But considering that nothing has come on record as regards

the future prospects of the deceased and considering that It is no

more res integra that mere bald assertions regarding the future

prospects of the deceased are of no help to the claimants in the

absence of any reliable evidence being brought on record. But

taking into consideration the decision in the Lata Wadhwa and

Ors. v. State of Bihar and Ors. - (2001) 8 SCC 197, wherein

while computing compensation, the Apex Court made distinction

between deceased children falling within the age group of 5 to 10

years and age group of 10 to 15 years. In the said case, the Apex

Court had awarded Rs. 1,50,000/- as pecuniary damages and Rs.

50,000/- towards non-pecuniary damages to the claimants of the

deceased children falling within the age group of 5 to 10 years

and in case of the children falling within the age group of 10 to 15

years, the Court decided that the multiplier method should be

applied and the contribution of the children to the family was

taken to be at Rs. 24,000/-pa and then a multiplier of 15 was

applied over and above the conventional compensation of

Rs.50,000/- had been added to it, making the total compensation

as Rs. 3,60,000/-.

13. In view of the above discussion, I feel that income as provided in

IInd Schedule for no-earning member can be taken, which to my mind

would be just and proper.

14. Also considering that the petition is filed by the parents of the

deceased I feel that 1/3 deduction in the facts of the case should be

made towards personal expenses. With regard to the multiplier it is

proved on record that the deceased was of 17 years of age at the time

of the accident and his parents were of 50 years and 46 years of age.

This case pertains to the year 1980 and at that time II schedule to

the Motor Vehicles Act was not brought on the statute books. The

said schedule came on the statute book in the year 1994 and

prior to 1994 the law of the land was as laid down by the Hon'ble

Apex Court in 1994 SCC (Cri) 335, G.M., Kerala SRTC v.

Susamma Thomas. In the said judgment it was observed by the

Court that maximum multiplier of 16 could be applied by the

Courts, which after coming in to force of the II schedule has risen

to 18. In the facts of the present case I am of the view that after

looking at the age of the claimants and the deceased and after

taking a balanced view considering the multiplier applicable as

per the II Schedule to the MV Act, the multiplier of 11 should have

been applied.

15. As regards the issue of interest that the rate of interest of

12% p.a. awarded by the tribunal is on the lower side and the

same should be enhanced to 15% p.a., I feel that the rate of

interest awarded by the tribunal is just and fair and requires no

interference. No rate of interest is fixed under Section 171 of the

Motor Vehicles Act, 1988. The Interest is compensation for

forbearance or detention of money and that interest is awarded

to a party only for being kept out of the money, which ought to

have been paid to him. Time and again the Hon'ble Supreme

Court has held that the rate of interest to be awarded should be

just and fair depending upon the facts and circumstances of the

case and taking in to consideration relevant factors including

inflation, policy being adopted by Reserve Bank of India from

time to time and other economic factors. In the facts and

circumstances of the case, I do not find any infirmity in the award

regarding award of interest @ 12% pa by the tribunal and the

same is not interfered with.

16. Furthermore, compensation towards loss of love and

affection is awarded at Rs. 20,000/-; compensation towards

funeral expenses is awarded at Rs. 10,000/- and compensation

towards loss of estate is awarded at Rs. 10,000/-.

17. On the basis of the discussion, the income of the deceased

would come to Rs. 10,000/- after making 1/3rd deductions. The

annual loss of dependency comes to Rs. 10,000/- after applying

multiplier of 11 it comes to Rs. 1,10,000/-. Thus, the total loss of

dependency comes to Rs.1,10,000/-. After considering Rs.

40,000/-, which is granted towards non pecuniary damages, the

total compensation comes out as Rs.1,50,000/-.

18. As regards the issue of contributory negligence of the

deceased, I feel that the tribunal committed no error. The

omission to do what the law obligates or even the failure to do

anything in a manner, mode or method envisaged by law would

equally and per se constitute negligence on the part of such

person. If the answer is in the affirmative, it is a negligent act.

Where an accident is due to negligence of both parties,

substantially there would be contributory negligence and both

would be blamed. In a case of contributory negligence, the crucial

question on which liability depends would be whether either

party, by exercise of reasonable care, could have avoided the

consequence of the other's negligence. Whichever party could

have avoided the consequence of the other's negligence would

be liable for the accident. If a person's negligent act or omission

was the proximate and immediate cause of death, the fact that

the person suffering injury was himself negligent and also

contributed to the accident or other circumstances by which the

injury was caused would not afford a defence to the other.

Contributory negligence is applicable solely to the conduct of a

plaintiff. It means that there has been an act or omission on the

part of the plaintiff which has materially contributed to the

damage, the act or omission being of such a nature that it may

properly be described as negligence, although negligence is not

given its usual meaning. It is now well settled that in the case of

contributory negligence, courts have the power to apportion the

loss between the parties as seems just and equitable.

Apportionment in that context means that damage is reduced to

such an extent as the court thinks just and equitable having

regard to the claim shared in the responsibility for the damage. In

this regard, it has come on record in the depositions of PW3 Sh.

Sardari Lal Jain and PW4 Sh. Subhash Chand, both were eye-

witnesses to the accident, that the deceased was standing on the

foot board of the rear door of the bus It is a well known fact that

the rear door of the bus is meant for the entry of the passengers

boarding the bus and the passengers must get down from the

front door of the bus. Thus, clearly had the deceased not stood on

the foot board of the bus, he would not have met with the

accident, therefore, he had clearly contributed to the accident. It

has also come in the testimony of Pw3 and Pw 4 that the bus had

moved ahead and the truck driver without the guidance of his

helper who could tell whether there is traffic and whether he

should reverse the truck and without blowing any horn reversed

the said truck and hit the deceased who was standing on the

footboard of the rear door of the bus. No doubt he was negligent

and rash. Furthermore, the tribunal considering the fact that the

deceased was standing on the foot board and was not asked by

the conductor or the bus driver to stand inside the bus and get

down from the front door of the bus also held them liable for

contributory negligence.

19. From the above discussion, it is manifest that no doubt

mainly the truck driver was negligent but the deceased and the

conductor and driver of the bus also contributed to the said

accident which led to the death of the deceased. Thus, clearly the

deceased was 30% liable for negligence and I do not find any

infirmity as regards the tribunal imputing liability on the

deceased. Therefore, no interference is made in the award on this

count. Hence, after making 30% deduction towards contributory

negligence of the deceased, the total compensation comes to Rs.

1,05,000/-.

20. In view of the above discussion, the total compensation is

enhanced to Rs. 1,05,000/- from Rs. 20,000/- with interest @

7.5% per annum on the enhanced compensation from the date of

filing of the present petition in this Court till final realisation and

the same should be paid to the appellants, in equal proportion, by

the respondent nos. 1 to 3 to the extent of 50% and further by

the respondent nos. 4 to 6 to the extent of 50%.

21. With the above directions, the present appeal is disposed

of.

6.4.2009                                 KAILASH GAMBHIR, J.