Delhi High Court
Oriental Insurance Co. Ltd. vs Kaila Devi & Ors. on 18 March, 2015
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on: 18th March, 2015
+ MAC.APP. 280/2014
ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through Mr. L.K. Tyagi, Advocate
versus
KAILA DEVI & ORS. ..... Respondents
Through Mr. V.K.Vashistha, Advocate
for R-1.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. Appellant Oriental Insurance Company Limited impugns the
judgment dated 11.02.2014 passed by the Motor Accidents
Claims Tribunal (the Claims Tribunal) whereby compensation
of `7,06,608/- was awarded for the death of Chhotey @
Chhotey Lal, a bachelor who suffered fatal injuries in a motor
vehicular accident which took place on 21.11.2006 within the
jurisdiction of Police Station Sahibabad, Ghaziabad.
2. During inquiry before the Claims Tribunal, it was claimed that
the deceased was working as an auto rickshaw (TSR) driver and
was earning `7,500/- per month. It was further claimed that the
deceased used to give a sum of `6,000/- per month to his
mother, Respondent No.1 out of his earnings. It was stated that
the accident was caused on account of rash and negligent
driving of bus bearing registration No.DL-1PA-4549 by its
driver.
3. On appreciation of evidence, the Claims Tribunal found that the
accident did take place on account of rash and negligent driving
of the driver of earlier stated bus. The Claims Tribunal declined
to believe that the deceased was working as a driver and thus,
refused to accept the income of `7,500/- per month as claimed
by Respondent No.1. At the same time, the Claims Tribunal
proceeded to award compensation taking minimum wages of a
skilled worker (`3736/- per month) to compute the loss of
dependency.
4. The Claims Tribunal while relying on the judgments in Amrit
Bhanu Shali v. National Insurance Company Limited, (2012) 11
SCC 738 and M. Mansoor & Anr. v. United India Insurance
Company Limited & Anr., (2013) 15 SCC 603, adopted the
multiplier of 17 as per the age of the deceased to compute the
loss of dependency. The Claims Tribunal further awarded
certain sums towards non-pecuniary damages to award the
overall compensation of `7,06,608/-.
5. While submitting that the compensation awarded is exorbitant
and excessive, the following contentions are raised on behalf of
the Appellant Insurance Company:-
(i) Deceased Chhotey @ Chhotey Lal was a bachelor,
Respondent No.1/mother who was aged 59 years at the
time of the accident was the only dependant. The
multiplier ought to have been taken as per the age of the
Claimant. Reliance is placed on General Manager,
Kerala State Road Transport Corporation, Trivandrum v.
Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176; U.P.
SRTC v. Trilok Chandara, (1996) 4 SCC 362; New India
Assurance Company Limited v. Shanti Pathak (Smt.) &
Ors., (2007) 10 SCC 1 and Ashvinbhai Jayantilal Modi v.
Ramkaran Ramchandra Sharma & Anr., (2015)2 SCC
180; and
(ii) There was no evidence with regard to better future
prospects, therefore, addition of 50% towards future
prospects was not permissible. Reliance is placed on a
three Judge Bench decision of the Supreme Court in
Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9
SCC 65.
6. On the other hand, Learned counsel appearing for Respondent
No.1 supports the impugned judgment. He states that the recent
trend is to adopt the multiplier for computation of loss of
dependency as per the age of the deceased. Age of the Claimant
has lost significance. In support of the contention, reliance is
placed on Sarla Verma (Smt.) & Ors. v. Delhi Transport
Corporation & Anr., (2009) 6 SCC 121; P.S. Somanathan & Ors.
v. District Insurance Officer & Anr., (2011) 3 SCC 566; Amrit
Bhanu Shali v. National Insurance Company Limited, (2012) 11
SCC 738 and Reshma Kumari & Ors. v. Madan Mohan & Anr.,
(2013) 9 SCC 65.
7. I have given my thoughtful consideration to the contentions
raised on behalf of the parties.
8. The question of selection of multiplier was dealt with at great
length by me in Vijay Laxmi & Anr. v. Binod Kumar Yadav &
Ors., ILR (2012) 6 DEL 447. In that case, the learned counsel
for the Appellant had relied on the following judgments (i) Smt.
Sarla Verma & Ors. v. Delhi Transport Corporation & Anr.,
2009 (6) SCC 121; (ii) Mohd. Ameeruddin v. United India
Insurance Co. Ltd., 2010 (12) SCALE 155; (iii) P.S.
Somanathan v. District Insurance Officer, I (2011) ACC 659
(SC): (iv) Bilkish v. United India Insurance Co. Ltd. & Anr.,
2008 (4) SCALE 25; (v) National Insurance Co. Ltd. v. Azad
Singh & Ors., 2010 ACJ 2384 (SC); (vi) Oriental Insurance Co.
Ltd. v. Deo Patodi & Ors., 2009 ACJ 2359 (SC), and (vii)
Divisional Manager, New India Assurance Co. Ltd. v. T.
Chelladurai & Ors., 2010 ACJ 382 (SC).
9. I had discussed the law laid down in the earlier stated judgments
and had further referred to the judgments in General Manager,
Kerala State Road Transport Corporation, Trivandrum v.
Susamma Thomas (Mrs.) and Ors., (1994) 2 SCC 176; U.P. SRTC
v. Trilok Chandara, (1996) 4 SCC 362; Fakeerappa v.
Karanataka Cement Pipe Factory, (2004) 2 SCC 473 and New
India Assurance Company Limited v. Shanti Pathak (Smt.) &
Ors., (2007) 10 SCC 1 to hold that the multiplier has to be
selected as per the age of the deceased or the Claimant
whichever is higher.
10. Learned counsel for Respondent No.1 has submitted that in
view of the three Judge Bench decision in Reshma Kumari &
Ors. and a later judgment of the Supreme Court in M. Mansoor &
Anr., the judgment in Vijay Laxmi (supra) of this Court needs to
be revisited and the multiplier has to be as per the age of the
deceased and age of the Claimant is not at all relevant for
selection of the multiplier.
11. Section 168 of the Motor Vehicles Act, 1988 (the Act) enjoins
a Claims Tribunal to determine the amount of compensation
which is just and reasonable. It can neither be a source of profit
nor should be a pittance. In other words, it should not be
meager nor should be a windfall. In this connection, a reference
may be made to the report of the Supreme Court in State of
Haryana v. Jasbir Kaur, (2003) 7 SCC 484, which dealt with
the grant of compensation in case of injury which principles
equally apply in case of award of compensation in fatal accident
cases. In para 7, the Supreme Court held as under:
"7. It has to be kept in view that the Tribunal
constituted under the Act as provided in Section 168
is required to make an award determining the amount
of compensation which is to be in the real sense
„damages‟ which in turn appears to it to be „just and
reasonable‟. It has to be borne in mind that
compensation for loss of limbs or life can hardly be
weighed in golden scales. But at the same time it has
to be borne in mind that the compensation is not
expected to be a windfall for the victim. Statutory
provisions clearly indicate that the compensation
must be „just and it cannot be a bonanza; not a source
of profit; but the same should not be a pittance. The
courts and tribunals have a duty to weigh the various
factors and quantify the amount of compensation,
which should be just. What would be „just‟
compensation is a vexed question. There can be no
golden rule applicable to all cases for measuring the
value of human life or a limb. Measure of damages
cannot be arrived at by precise mathematical
calculations. It would depend upon the particular
facts and circumstances, and attending peculiar or
special features, if any. Every method or mode
adopted for assessing compensation has to be
considered in the background of „just‟ compensation
which is the pivotal consideration. Though by use of
the expression „which appears to it to be just‟ a wide
discretion is vested in the Tribunal, the determination
has to be rational, to be done by a judicious approach
and not the outcome of whims, wild guesses and
arbitrariness. The expression „just‟ denotes
equitability, fairness and reasonableness, and non-
arbitrary. If it is not so it cannot be just."
12. Initially, the trend of the Courts was to ascertain the life
expectancy, deduct the age of the deceased and to award the
compensation on the basis of the residual life span. The Courts
started deducting certain sums out of the sum as arrived above
on account of lump sum payment.
13. However, in General Manager, Kerala State Road Transport
Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors.,
(1994) 2 SCC 176, an attempt was made for the first time to award
just and reasonable compensation on the basis of the multiplier
method. The Supreme Court referred to the report in Gobald
Motor Service Ltd. & Anr. v. R.M.K. Veluswami & Ors., AIR 1962
SC 1 and observed that actual pecuniary loss can be ascertained
only by balancing, on one hand, the loss to the Claimant of the
future pecuniary benefits and on the other hand, any pecuniary
advantage which from whatever sources comes to them by reason
of death. Paras 8 and 9 of the report in Susamma Thomas (Mrs.)
(supra) are extracted hereunder:-
"8. The measure of damage is the pecuniary loss
suffered and is likely to be suffered by each
dependant. Thus "except where there is express
statutory direction to the contrary, the damages to be
awarded to a dependant of a deceased person under
the Fatal Accidents Acts must take into account any
pecuniary benefit accruing to that dependant in
consequence of the death of the deceased. It is the net
loss on balance which constitutes the measure of
damages." (Per Lord Macmillan
in Davies v. Powell [(1942) AC 601, 617 : (1942) 1
All ER 657 (HL)] .) Lord Wright in the same case
said, "The actual pecuniary loss of each individual
entitled to sue can only be ascertained by balancing
on the one hand the loss to him of the future
pecuniary benefit, and on the other any pecuniary
advantage which from whatever source comes to him
by reason of the death". These words of Lord Wright
were adopted as the principle applicable also under
the Indian Act in Gobald Motor Service Ltd. v. R.M.K.
Veluswami [AIR 1962 SC 1 : (1962) 1 SCR 929 :
1962 MLJ (Cri) 120] where the Supreme Court stated
that the general principle is that the actual pecuniary
loss can be ascertained only by balancing on the one
hand the loss to the claimants of the future pecuniary
benefit and on the other any pecuniary advantage
which from whatever source comes to them by reason
of the death, that is, the balance of loss and gain to a
dependant by the death, must be ascertained.
9. The assessment of damages to compensate the
dependants is beset with difficulties because from the
nature of things, it has to take into account many
imponderables, 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."
14. The Supreme Court referred to Davies v. Powell, (1942) AC 601
and Nance v. British Columbia Electric Railway Company
Limited, (1951) AC 601 and in paras 13 and 14 of the report in
Susamma Thomas (Mrs.), the Supreme Court observed as under:-
"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.
14. The considerations generally relevant in the
selection of multiplicand and multiplier were adverted
to by Lord Diplock in his speech in Mallett
case [Mallett v.McMonagle, (1970) AC 166 : (1969) 2
All ER 178 (HL)] where the deceased was aged 25
and left behind his widow of about the same age and
three minor children. On the question of selection of
multiplicand Lord Diplock observed:
"The starting point in any estimate of the amount of
the „dependency‟ is the annual value of the material
benefits provided for the dependants out of the
earnings of the deceased at the date of his death. But
... there are many factors which might have led to
variations up or down in the future. His earnings
might have increased and with them the amount
provided by him for his dependants. They might have
diminished with a recession in trade or he might have
had spells of unemployment. As his children grew up
and became independent the proportion of his
earnings spent on his dependants would have been
likely to fall. But in considering the effect to be given
in the award of damages to possible variations in the
dependency there are two factors to be borne in mind.
The first is that the more remote in the future is the
anticipated change the less confidence there can be in
the chances of its occurring and the smaller the
allowance to be made for it in the assessment. The
second is that as a matter of the arithmetic of the
calculation of present value, the later the change
takes place the less will be its effect upon the total
award of damages. Thus at interest rates of 4½ per
cent the present value of an annuity for 20 years of
which the first ten years are at £ 100 per annum and
the second ten years at £ 200 per annum, is about 12
years' purchase of the arithmetical average annuity of
£ 150 per annum, whereas if the first ten years are at
£ 200 per annum and the second ten years at £ 100
per annum the present value is about 14 years'
purchase of the arithmetical mean of £ 150 per
annum. If therefore the chances of variations in the
„dependency‟ are to be reflected in the multiplicand of
which the years' purchase is the multiplier, variations
in the dependency which are not expected to take
place until after ten years should have only a
relatively small effect in increasing or diminishing the
„dependency‟ used for the purpose of assessing the
damages.""
15. The purpose of adopting the multiplier as per the age of the
deceased or as per the age of the Claimant whichever is higher
was that if the Claimant is of much higher age, particularly in
case of death of a bachelor where the mother or for that matter
the parents may be double the age of the deceased, the
dependency is to come to an end in a much lesser period as
against the dependency of a widow or minor children of a
deceased. In any case, the deceased was not to support more
than his own life span and thus, by providing the dependency to
the Claimants, it was held that the dependency has to be as per
the age of the deceased or the Claimant whichever is higher.
16. The law laid down in Susamma Thomas (Mrs.) (supra) with
regard to adoption of multiplier method and selection of multiplier
according to the age of the deceased or the Claimant whichever is
higher was affirmed by a three Judge Bench decision in U.P.
SRTC v. Trilok Chandara, (1996) 4 SCC 362. The three Judge
Bench laid down that the multiplier cannot in all cases be solely
dependant on the age of the deceased and the age of the parents
would also be relevant in case of death of a bachelor in the choice
of multiplier. In para 18 of the report of the Supreme Court in
Trilok Chandara (supra), it was observed as under:-
"18....... Besides, the selection of multiplier cannot in
all cases be solely dependant on the age of the
deceased. For example, if the deceased, a bachelor,
dies at the age of 45 and his dependants are his
parents, age of the parents would also be relevant in
the choice of the multiplier........."
17. There was some confusion as to the selection of the multiplier
because of the multiplier table as given in the Second Schedule of
the Act under Section 163-A which was inserted w.e.f.
14.11.1994. Some of the cases had adopted the multiplier as given
in the Second Schedule. Although, the three Judge Bench in
Trilok Chandra (supra) had noticed some clerical mistakes in the
multiplier table as given in the Second Schedule, it stated that the
said table can be taken as a guide. Noticing the wide variations in
the selection of multiplier, a two Judge Bench of the Supreme
Court in Sarla Verma (Smt.) & Ors. v. Delhi Transport
Corporation & Anr., (2009) 6 SCC 121 noted the multiplier as
adopted in Susamma Thomas, Trilok Chandra and New India
Assurance Company Limited v. Charlie & Anr. (2005) 10 SCC
720 and in the Second Schedule and in para 40 of the report it
compared the same in a tabulated form which is extracted
hereunder:-
Age of the Multiplier scale Multiplier scale as Multiplier scale in Multiplier Multiplier
deceased as envisaged in adopted by Trilok Trilok specified in actually used in
Susamma Chandra [(1996) 4 Chandra4as Second Second Schedule
Thomas[(1994) SCC 362] clarified in Column in to the MV Act (as
2 SCC 176 : Charlie[(2005) 10 the Table in seen from the
1994 SCC (Cri) SCC 720 : 2005 Second quantum of
335] SCC (Cri) 1657] Schedule to compensation)
the MV Act
(1) (2) (3) (4) (5) (6)
18. The Supreme Court with a view to having a uniform multiplier
held that the multiplier as given in Column (4) of the above table
should be usually followed. In paras 41 and 42 of the report in
Sarla Verma (Smt.), the Supreme Court observed:-
"41. Tribunals/courts adopt and apply different
operative multipliers. Some follow the multiplier with
reference to Susamma Thomas [(1994) 2 SCC 176 :
1994 SCC (Cri) 335] [set out in Column (2) of the
table above]; some follow the multiplier with
reference to Trilok Chandra [(1996) 4 SCC 362] , [set
out in Column (3) of the table above]; some follow the
multiplier with reference to Charlie [(2005) 10 SCC
720 : 2005 SCC (Cri) 1657] [set out in Column (4) of
the table above]; many follow the multiplier given in
the second column of the table in the Second Schedule
of the MV Act [extracted in Column (5) of the table
above]; and some follow the multiplier actually
adopted in the Second Schedule while calculating the
quantum of compensation [set out in Column (6) of
the table above]. For example if the deceased is aged
38 years, the multiplier would be 12 as per Susamma
Thomas[(1994) 2 SCC 176 : 1994 SCC (Cri) 335] ,
14 as per Trilok Chandra [(1996) 4 SCC 362] , 15 as
per Charlie [(2005) 10 SCC 720 : 2005 SCC (Cri)
1657] , or 16 as per the multiplier given in Column
(2) of the Second Schedule to the MV Act or 15 as per
the multiplier actually adopted in the Second Schedule
to the MV Act. Some tribunals, as in this case, apply
the multiplier of 22 by taking the balance years of
service with reference to the retiring age. It is
necessary to avoid this kind of inconsistency. We are
concerned with cases falling under Section 166 and
not under Section 163-A of the MV Act. In cases
falling under Section 166 of the MV Act, Davies
method [Davies v. Powell Duffryn Associated
Collieries Ltd., 1942 AC 601 : (1942) 1 All ER 657
(HL)] is applicable.
42. We therefore hold that the multiplier to be used
should be as mentioned in Column (4) of the table
above (prepared by applying Susamma
Thomas [(1994) 2 SCC 176 : 1994 SCC (Cri) 335]
, Trilok Chandra [(1996) 4 SCC 362]
and Charlie[(2005) 10 SCC 720 : 2005 SCC (Cri)
1657] ), which starts with an operative multiplier of
18 (for the age groups of 15 to 20 and 21 to 25 years),
reduced by one unit for every five years, that is M-17
for 26 to 30 years, M-16 for 31 to 35 years, M-15 for
36 to 40 years, M-14 for 41 to 45 years, and M-13 for
46 to 50 years, then reduced by two units for every
five years, that is, M-11 for 51 to 55 years, M-9 for 56
to 60 years, M-7 for 61 to 65 years and M-5 for 66 to
70 years."
19. It may be noted that the Supreme Court had gone into the history
of adoption of multiplier method and referred to Nance v. British
Columbia Electric Railway Company Limited, (1951) AC 601
and Davies v. Powell, [(1942) AC 601.
20. Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation &
Anr., (2009) 6 SCC 121 related to the death of a Scientist who
died leaving behind his widow, three minor children, parents and
grandfather. Thus, the Supreme Court while laying down that the
multiplier has to be adopted as per Column 4 of the table as per
the age of the deceased, was generally referring to the award of
compensation in cases of death of a person who had a family
consisting of widow, children and parents. Of course, general
principles with regard to award of compensation in case of death
of a bachelor were also laid down by the Supreme Court in Sarla
Verma (Smt.), but it was not specifically laid down that even in the
case of death of a bachelor, the age of the Claimants who may be
aged parents will be totally irrelevant.
21. However, in Amrit Bhanu Shali v. National Insurance Company
Limited, (2012) 11 SCC 738, the Supreme Court stated that the
selection of the multiplier has to be as per the age of the
deceased and not on the basis of the age of the dependants. It
was a case which related to the death of a bachelor.
22. On account of divergence of opinion in the earlier cases, a
reference to a larger Bench was made by a two Judge Bench in
Reshma Kumari v. Madan Mohan & Anr., (2009) 13 SCC 422.
The question of award of compensation in relation to multiplier
and future prospects was gone into at great length by a three
Judge Bench of the Supreme Court in Reshma Kumari & Ors. v.
Madan Mohan & Anr., (2013) 9 SCC 65. The two referred
questions by Reshma Kumari v. Madan Mohan & Anr., (2009) 13
SCC 422 were:-
"1.1. Whether the multiplier specified in the Second
Schedule appended to the Motor Vehicles Act, 1988
(for short "the 1988 Act") should be scrupulously
applied in all cases" and
1.2. Whether for determination of the multiplicand,
the 1988 Act provides for any criterion, particularly
as regards determination of future prospects?"
23. While answering the points, in Para 43, the Supreme Court
observed as under:-
"43. In what we have discussed above, we sum up our
conclusions as follows:
43.1. In the applications for compensation made
under Section 166 of the 1988 Act in death cases
where the age of the deceased is 15 years and above.
43.2. In cases where the age of the deceased is up to
15 years.
43.3. As a result of the above, while considering the
claim applications made under Section 166 in death
cases where the age of the deceased is above 15
years, there is no necessity for the Claims Tribunals
to seek guidance or for placing reliance on the Second
Schedule in the 1988 Act.
43.4. The Claims Tribunals shall follow the steps and
guidelines stated in para 19 of Sarla Verma v. DTC,
(2009) 6 SCC 121 for determination of compensation
in cases of death....."
24. In Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC
65, these were general observations that the steps and guidelines
stated in para 19 of Sarla Verma (Smt.) have to be followed. In
Sarla Verma (Smt.) it was laid down that having regard to the age
of the deceased and period of active career, the active multiplier
should be selected and the multiplier should be chosen from the
table with reference to the age of the deceased. As I have
observed above, it was not the intention in Sarla Verma (Smt.) to
apply the multiplier of 18 in case of death of a bachelor aged 25
years where the dependants may only be the aged parents. Thus,
in Reshma Kumari also, it was not laid down that the multiplier
has to be according to the age of the deceased even when the
deceased is a bachelor having dependency of the parents only.
25. Of course, in M. Mansoor & Anr. v. United India Insurance
Company Limited & Anr., (2013) 15 SCC 603, the two Judge
Bench observed that the multiplier has to be as per the age of
the deceased and even in case of death of a bachelor aged 24
years, the multiplier will be 18.
26. However, there is a three Judge Bench decision of the Supreme
Court in New India Assurance Company Limited v. Shanti
Pathak (Smt.) & Ors., (2007) 10 SCC 1 wherein a bachelor aged
25 years lost his life in a motor vehicular accident which
occurred on 11.11.2002. The Claims Tribunal adopted a
multiplier of 17, as per the age of the deceased (25 years). On
appeal filed by the New India Assurance Company Limited
before the High Court, it was contented that the multiplier has
to be as per the age of the Claimants (in that case) and not as per
the age of the deceased. The Division Bench of High Court of
Uttarakhand declined to accept the contention and dismissed the
appeal. In the SLP filed by the Insurance Company, the
multiplier of 17 was reduced to '5' on the age of the mother of
the deceased being 65 years.
27. Also, in the latest judgment of the Supreme Court in Ashvinbhai
Jayantilal Modi v. Ramkaran Ramchandra Sharma & Anr.,
(2015)2 SCC 180, a two Judge Bench of the Supreme Court
dealt with the questions of multiplier and the appropriate
multiplier in case of death of a bachelor in the said case was
taken as 13, keeping in mind the age of the parents of the
deceased. Para 11 of the report is extracted hereunder:-
"11. The deceased was a diligent and outstanding
student of medicine who could have pursued his MD
after his graduation and reached greater heights.
Today, medical practice is one of the most sought
after and rewarding professions. With the tremendous
increase in demand for medical professionals, their
salaries are also on the rise. Therefore, we have no
doubt in ascertaining the future income of the
deceased at Rs 25,000 p.m. i.e. Rs 3,00,000 p.a.
Further, deducting 1/3rd of the annual income
towards personal expenses as per Oriental Insurance
Co. Ltd. v. Deo Patodi [(2009) 13 SCC 123 : (2009) 5
SCC (Civ) 29 : (2010) 1 SCC (Cri) 963] and applying
the appropriate multiplier of 13, keeping in mind the
age of the parents of the deceased, as per the
guidelines laid down in Sarla Verma case [Sarla
Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC
(Civ) 770 : (2009) 2 SCC (Cri) 1002] , we arrive at a
total loss of dependency at Rs 26,00,000 [(Rs
3,00,000 minus 1/3 × Rs 3,00,000) × 13]......."
28. Thus, right from the two Judge Bench decision in General
Manager, Kerala State Road Transport Corporation, Trivandrum
v. Susamma Thomas (Mrs.) and Ors., (1994) 2 SCC 176, which
for the first time held that the multiplier method is the best way of
awarding just compensation, which was approved in U.P. SRTC
v. Trilok Chandara, (1996) 4 SCC 362, wherein it was held that
the multiplier has to be as per the age of the deceased or the
Claimant whichever is higher, which is reiterated in New India
Assurance Company Limited v. Shanti Pathak (Smt.) & Ors.,
(2007) 10 SCC 1 by applying the multiplier as per the age of the
mother of the deceased (bachelor), the consensus of the larger
Bench decisions seems to be that the multiplier has to be
selected as per the age of the deceased or the Claimant
whichever is higher. The judgment in Vijay Laxmi & Anr. v.
Binod Kumar Yadav & Ors., ILR (2012) 6 DEL 447 has thus
correctly interpreted the law. Three Judge Bench decision in
U.P. SRTC v. Trilok Chandara, (1996) 4 SCC 362 shall be taken
as a binding precedent in the matter of selection of multiplier as
per the age of the deceased or the Claimant.
29. In the instant case, the deceased was aged 30 years on the date
of his death whereas the mother of the deceased was aged 59
years on the date of his death (as per the ration card 53 years in
the year 2000). Thus, the appropriate multiplier in the instant
case will be '9' as against '17' adopted by the Claims Tribunal.
MULTIPLICAND
30. As stated earlier, in the claim petition the claimant stated that
deceased Chhotey @ Chhotey Lal was working as an auto
rickshaw driver and was earning `7,500/- per month. In her
Affidavit Ex.PW1/A, these facts were reiterated. In cross-
examination, a bare suggestion was given that the claimant did not
possess any document with regard to deceased's income. No
suggestion was given to PW-1 that deceased Chhotey @ Chhotey
Lal was not an auto driver. In fact, the accident took place while
the deceased was driving the three-wheeler bearing no.UP-14Y-
9213. Thus, from the manner of accident and the unchallenged
testimony of PW-1 with regard to deceased's profession, it is
established that the deceased was an auto rickshaw driver by
profession. The profession having been established, an attempt
ought to have been made by the Claims Tribunal to make an
assessment of the deceased's income instead of taking the
minimum wages of a skilled worker to compute the loss of
earning. I tend to make a guess work and hold that the deceased
must at least be earning `200/- per day or in other words earning
about `6,000/- per month.
31. As far as addition of 50% towards inflation is concerned, the
question was gone into at great length by this Court in HDFC
Ergo General Insurance Co. Ltd. v. Smt. Lalta Devi and Ors.
MAC APP No. 189/ 2014 decided on 12.01.2015, wherein
relying on three Judge Bench decision of the Supreme Court in
Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC
65, it was held that addition towards future prospects is
permissible only when the deceased is in settled employment or
there is specific evidence in this regard. It was held that the
three Judge Bench decision in Reshma Kumari(supra) which
affirmed the view taken in Sarla Verma (Smt.) & Ors. v. Delhi
Transport Corporation & Anr., (2009) 6 SCC 121 shall be taken
as binding precedent. Consequently, no addition towards future
prospects is permissible.
32. Following Sarla Verma(supra) as affirmed in Reshma
Kumari(supra), loss of dependency comes to `3,24,000/-
(`6,000/- x 1/2 x 12 x 9).
33. In view of three Judge Bench decision of the Supreme Court in
Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54,
Respondent no.1 is further entitled to a sum of `1,00,000/-
towards loss of love and affection, `25,000/- towards funeral
expenses and `10,000/- towards loss to estate.
34. The overall compensation comes to `4,59,000/-.
35. Consequently, the amount of compensation is reduced from
`7,06,608/- to `4,59,000/-.
36. Excess amount of `2,47,608/- along with proportionate interest
shall be refunded to the Appellant Insurance Company.
37. The compensation held payable shall be held in Fixed Deposit,
which shall be released periodically in terms of the orders passed
by the Claims Tribunal.
38. The appeal is allowed in above terms.
39. Pending applications also stand disposed of.
40. Statutory amount, if any, deposited shall be released to the
Appellant Insurance Company.
(G.P. MITTAL)
JUDGE
MARCH 18, 2015
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