Delhi High Court
New India Assurance Co. Ltd. vs William S.J. Mair & Ors. on 5 January, 2018
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 05th January, 2018
+ MAC.APP. 852/2012
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. Sameer Nandwani, Advocate
versus
WILLIAM S.J. MAIR & ORS. ..... Respondents
Through: Mr. Anand Jha, Advocate for
respondents No.1 and 2
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT (ORAL)
1. The appellant has challenged the award dated 16 th February, 2012,
whereby compensation of Rs.60 lakh has been awarded to respondents No.1
and 2.
2. On 16th February, 2002 at about 10:00 A.M., William Stark
Johnstone Mair with his wife, Catherine Anne Mair and daughter Catriona
Elispeth Mair, aged about 10 years were travelling in Maruti Suzuki Esteem
car bearing No.DL-1Z-1123 from Jaipur to Delhi. When the car reached
near Pucca Pani Piyau, P.S. Shahpura on NH-8, Jaipur, the car was hit by
Mahindra Jeep bearing No.RJ-14-P-9808 which resulted in the death of their
minor daughter, Catriona and injuries to Catherine Mair. Catriona Mair was
aged about 10 years at the time of the accident and was survived by her
parents who filed an application for compensation before the Claims
Tribunal.
3. The deceased was a British national. Respondent No.1 is a surgeon
whereas his wife is helping him as a secretary/book keeper. The Claims
Tribunal computed the compensation by taking the GDP of British citizens
for the year 2002 as 17,200 UK Pound Sterling per capita. The Claims
Tribunal took 50% of the GDP of 17,200 UK Pound Sterling per annum as
the notional income of the child which was converted to Indian rupees i.e.
Rs.6,02,000/- (8600 x 70). The Claims Tribunal deducted 1/3rd of the income
towards personal expenses of the child and applied the multiplier of 10 to
compute the loss of dependency as Rs.40,13,330/- by applying the principles
laid down in United India Insurance Co. Ltd. V. Patricia Jean Mahajan
(2002) 6 SCC 281. The Claims Tribunal deducted 4,000 UK Pound Sterling
received by the claimants on account of compensation for the death of their
daughter and the net loss of dependency was taken as Rs.37,33,330/-. The
Claims Tribunal awarded Rs.20 lakh towards future prospects, Rs.70,000/-
towards loss of love and affection and Rs.1,60,216/- towards funeral
expenses. The total compensation was computed as Rs.59,63,330/- rounded
as Rs.60 lakh. The computation of the compensation done by the Claims
Tribunal is reproduced hereunder: -
"QUANTUM OF COMPENSATION :
LOSS OF DEPENDENCY
62. This petition has been filed by the parents of the child
Catriona, aged about 10 years, who had died in the accident in
which the parents had also sustained injuries. It has been
frequently remarked that while a person may be compensated
for the pecuniary loss that may have been suffered on account of
injuries sustained in an accident but the crucial trauma arises
for determining the compensation to be paid for loss of
expectation of life as was observed in the case of "R.K. Malik &
Anr. (Supra)". An injury inflicted by the deprivation of a life of
a child is extremely difficult to quantify. In view of the
uncertainties and contingencies of human life what would be an
adequate determination is difficult to quantify. The Court,
therefore, determines the compensation in terms of "standard
compensation" and "conventional amount/sum" to get over the
difficulty that arises in quantify a figure as the same ensures
consistency and uniformity in awarding compensation.
63. For calculating the pecuniary loss or loss of dependency,
the Supreme Court has repeatedly held that it is a multiplier
method which should be applied. This method is based upon the
principle that the claimant must be paid a just compensation,
which could yield sufficient interest to provide material benefits
of the same standards as the deceased would have provided for
the dependents, if the deceased had lived and earned. Uniform
application of the multiplier method forms consistency and
certainty and prevents different amounts being awarded in
different cases.
64. In "R.K. Malik's case (supra)" it was noted that the
calculating the yearly loss of dependency the starting point is
the wages being earned by the deceased, less his personal and
living expenses. Thereafter, effect is given to future prospects of
the deceased, inflation and general price rise that erodes value
and the purchasing power of money. To the multiplicand so
calculated, multiplier is to be applied. The Second Schedule
which is applicable to the petitions filed u/s 163-A Motor
Vehicle Act is generally considered as a guide for calculating
compensations.
65. The Second Schedule in case of children less than 15 years
has prescribed that the notional income of such children may be
taken as Rs.15,000/- per annum, from which 1/3rd may be
deducted towards their personal expenses. The difficulty which
arises in the present case is that the child Catriona was a
British national. It cannot be over looked that there is much
disparity in the economic conditions and affluence of two
countries i.e. the place to which the victim belongs i.e. U.K. and
the place where the compensation is to be paid i.e. India. In
such cases it was observed in the case of "Patrica Jean
Mahajan (supra)" that the golden balance must be stuck
somewhere to arrive at a reasonable and fair amount.
66. The question which, thus, arises is what is the notional
income which should be taken of the child Catriona, a British
national. The GDP of British citizens in the year 2002 was
Sterling pound 17,200 per capita. This was the income per
capita for an United Kingdom citizen and the same can be taken
to be half in case of a child. The notional income of the child
can, thus, be taken as Sterling pound 8,600 per annum or
Sterling pound 8,600 x Rs.70 = Rs.6,02,000/- per annum (as per
prevailing conversion rate). From the said amount 1/3rd is liable
to be deducted towards the personal expenses of the child,
which comes to Rs.6,02,000 - Rs.2,00,667 = Rs.4,01,333/- per
annum.
67. The multiplier has to be now determined keeping in mind
the age of the child as well as the parents.
68. The claimants are the parents of the deceased. As per the
record the father William Stark Johnstone Mair was around 57
years old at the time of accident, while the mother Catherine
was about 51 years at the time of the accident.
69. In the case of "Patrica Jean Mahajan (supra)" similar
situation had arisen in regard to the death of foreign national in
India. It was observed that while prescribing the multiplier, the
legislature had maximum income of Rs.40,000/- in mind but in
cases where gap of income is so wide, in that case it was held
that some reduction in the multiplier would be permissible.
Therefore, the multiplier of 10 instead of 15 was applied.
70. Applying the similar principle in the present case and
having regard to the age of the claimants, a multiplier of 10
would be reasonable to provide a fair compensation. The net
compensation payable on account of loss of dependency, thus,
come to Rs.4,01,333 x 10 = Rs.40,13,330/-.
41. It is also relevant to mention her that PW1 William Stark
Johnstone Mair, father of the deceased has admitted that they
had received Sterling pound 4,000 as death compensation for
the child. As already discussed any compensation received on
account of compensation for death in an accident is liable to be
deducted. The sum of (Sterling pound 4,000 x Rs.70)
Rs.2,80,000/- is, therefore, liable to be deducted from the
calculated amount and the loss of dependency, thus comes to
Rs.40,13,330- 2,80,000 = Rs.37,33,330/- .
FUNERAL EXPENSES
72. The petitioner PW1 William Stark Johnstone Mair has
further deposed hat they had incurred expenses on the funeral
and on installing the memorial stone for the child, the bills of
which are collectively Ex.PW1/E have been placed on record.
As per these bills a sum of Sterling pound 1475 had been given
as funeral charges and Sterling pound 813.55 were given for
fixing the stone in the Churchyard. The total expenses incurred
for funeral of the child thus comes to Sterling pound 1475.25 +
Sterling pound 813.55 = Sterling pound 2288.8 or Sterling
pound 2288.8 x Rs.70 = Rs.1,60,216/-.
FUTURE PROSPECTS
73. In addition, it was observed in the case of "R.K. Malik
(supra)" that the compensation has to be awarded towards the
future prospects of the child for which child performing in
school, the reputation of the school might be taken into
consideration. In the present case, the petitioner has deposed
that his child was a brilliant student and was receiving
scholarship for her studies. The certificates of the school have
also been placed on record which are Ex.PW1/C, which show
that the child was a brilliant child and had good future
prospects. However, there cannot be any yardstick to measure
the loss of future prospects for children but in the light of
observation made in "R.K. Malik's case (supra)"
Rs.20,00,000/- is considered to be appropriate for future
prospects of the child.
74. In the present case Rs.20,00,000/- is awarded as
compensation for future prospects.
LOSS OF LOVE & AFFECTION :
75. The petitioners are also entitled to compensation on
account of loss of love and affection on account of death of their
child. A further sum of Sterling pound 1000 or Sterling pound
1000 x Rs.70 = Rs.70,000/- is awarded towards love and
affection.
76. In view of the foregoing discussion petitioners are entitled
for the following amount of compensation :-
1. Compensation on account
of loss of dependency : Rs.37,33,330/-
2. Compensation on account
of funeral expenses : Rs. 1,60,000/-
3. Compensation on account of
future prospects : Rs.20,00,000/-
4. Compensation on account of
loss of love & affection : Rs. 70,000/-
Total : Rs.59,63,330/-
77. The total compensation is, thus, calculated as
Rs.59,63,330/- (rounded off to Rs.60,00,000/-).
APPORTIONMENT OF COMPENSATION:-
78. In view of the findings above, a compensation in the sum of
Rs.60,00,000/- is awarded to the petitioners in equal
proportion."
4. Learned counsel for the appellant urged at the time of the hearing that
the compensation awarded by the Claims Tribunal is on a higher side.
Learned counsel for the appellant submits that the deceased was aged 10
years and was not earning at the time of the accident. It is further submitted
that the personal expenses of the deceased be increased from 1/3 rd to1/2. It
is further submitted that the addition of Rs.20 lakh towards future prospects
is not warranted. It is further submitted that the compensation towards the
loss of love and affection and funeral expenses is also on a higher side.
5. Learned counsel for the respondent submits that the compensation
awarded by the Claims Tribunal is fair and reasonable. It is further
submitted that the computation of compensation on the basis of GDP is fair
and reasonable. It is further submitted that the addition towards future
prospects and deduction towards the personal expenses is also justified. It is
further submitted that the Claims Tribunal has applied the multiplier of 10
whereas the proper multiplier according to the age of the deceased is 15. It is
further submitted that the Claims Tribunal has not awarded compensation
for the loss of estate. Ld. Counsel for the claimants seeks enhancement of
the rate of interest from 7% to 9% per annum.
6. This Court is of the view that it would be appropriate to take the
minimum wages in UK at the relevant time to compute the compensation.
As per website www.gov.uk/national-minimum-wage, the minimum wages in
UK as on the date of the accident were 4.10 UK Pound Sterling. Applying
the exchange rate of Rs.70/- per UK Pound Sterling as on the date of the
accident, the monthly income is taken as Rs.50,820/-. The Claims Tribunal
has deducted 1/3rd towards the personal expenses whereas the appropriate
deduction towards the personal expenses should be one-half. The Claims
Tribunal has applied the multiplier of 10 whereas the appropriate multiplier
according to the age of the deceased is 15. Taking the income of
Rs.50,820/- per month, deducting one-half towards personal expenses and
applying the multiplier of 15, the loss of dependency is computed as
Rs.45,73,800/-. In the present case, the deceased was aged 10 years at the
time of the accident and she was studying in School. The deceased was a
brilliant student and had good future prospects. The Claims Tribunal has
awarded Rs.20 lakh towards future prospects which is on a higher side. In
R.K. Malik vs Kiral Pal, AIR 2009 SC 2506, the Supreme Court awarded
future prospects of Rs.75,000/- to each of the claimants in respect of
compensation in the range of 2,00,000/- to 3,00,000/-. Applying the
principle laid down in RK Malik (supra), the future prospects of
Rs.20,00,000/- awarded by the claims tribunal are reduced to Rs.2,50,000/-.
The compensation of Rs.70,000/- awarded towards loss of love and affection
is upheld. The compensation of Rs.1,60,216/- under the head of funeral
expenses is upheld. The Claims Tribunal has not awarded any compensation
for loss of estate. Rs.15,000/- is awarded towards loss of estate. The
claimants have received 4,000 UK Pound Sterling (Rs.2,80,000/-) as a
compensation for the death of their daughter which is deducted from the
total compensation amount. The respondents are entitled to a compensation
of Rs.47,89,016/- (45,73,800/- + 2,50,000/- + 70,000/- + 1,60,216/- +
15,000/- - 2,80,000/-). The Claims Tribunal has awarded interest @ 7% per
annum which is on a lower side. The Supreme Court as well as this Court
are consistently awarding interest @ 9% per annum. The interest awarded on
the compensation amount is enhanced from 7% per annum to 9% per annum.
7. The appeal is partially allowed. The compensation amount is reduced
from Rs.60,00,000/- to Rs.47,89,016/- along with interest @9% per annum
from the date of filing of the claim petition i.e. 06th July, 2004 till realisation.
8. The appellant has deposited Rs.61,96,998/- with this Court in terms of
the order dated 07th August, 2012 out of which 40% amount has already
been released to respondents No.1 and 2. The Registrar General is directed
to release the balance amount to respondent No.2 by instructing UCO Bank,
Delhi High Court Branch to transfer the said amount to her international
savings bank account No.B33MIDL40192071159534 with HSBC Bank,
Branch Harry Weston Road Binley Coventry CV32SH, U.K. (Branch
identifier code : MIDLGB2111E).
9. The appellant is directed to deposit the balance award amount along
with upto date interest with the Registrar General of this Court within six
weeks from today. The computation of interest be placed on record on
affidavit within one week of the deposit. Upon deposit of the balance
amount, the Registrar General shall transfer the same to the aforesaid
savings bank account of respondent No.2.
10. List for reporting compliance on 16th March, 2018.
11. Copy of this judgment be given dasti to counsels for the parties under
signatures of the Court Master.
JANUARY 05, 2018 J.R. MIDHA, J.
ak
