V.B. Gupta, J.@mdashUnited India Insurance Co. Ltd., the appellant in this case, has filed the present appeal u/s 173 of Motor Vehicles Act, 1988 (for short as the Act'') challenging the award dated 10.9.2007 passed by Mr. Chandra Shekhar, Judge, M.A.C.T., Delhi (for short as the Tribunal'').
2. The facts of the present case in brief are that on 13.6.2006 at about 4.15 p.m., deceased Dinesh along with his wife Reeta Devi was going to Vaishno Mata Mandir, Gulabi Bagh, Delhi. At the time of crossing the road, i.e., Kali Dass Marg, Vaishno Mata Mandir, Gulabi Bagh, Delhi, a speeding TSR No. DL 1R-E 4701 came from the side of Chowki No. 2 in a rash and negligent manner and hit the deceased Dinesh resulting in injuries. Deceased was taken to Hindu Rao Hospital, Delhi but during the daytime he expired.
3. The vehicle was being driven by Subhash Chander, respondent No. 3, who is also the owner of the offending vehicle. Later on respondent No. 3 did not appear and vide order dated 14.5.2007 passed by the Tribunal, he was proceeded against ex parte.
4. The respondent No. 3 in his written statement stated that neither he nor the vehicle in question was ever involved in the accident. This respondent rendered the helping hand at the spot and even called the police and since the answering respondent could not tell about the offending vehicle, for that reason alone, the claimants falsely implicated him. It is denied that TSR in question was involved in the accident.
5. The appellant insurance company in its written statement has admitted that the offending vehicle was insured with it at the time of accident. Further, it is stated that the offending vehicle was being driven in contravention of the terms and conditions of the insurance policy and as such the appellant is not liable to pay any compensation.
6. Vide the impugned judgment, the Claims Tribunal awarded a compensation of Rs. 14,00,000 to the claimants along with 7 per cent interest per annum from the date of institution till the date of award.
7. It has been contended by the learned Counsel for the appellant that income of the deceased comes to Rs. 6,086 per month after deducting for personal expenses and thus, the Tribunal has erred by doubling the income of deceased as Rs. 6,751 per month, without making any deduction for personal expenses. The Tribunal wrongly applied the multiplier of 17 for the age of 33 years, which is on very higher side.
8. Further, the Tribunal has taken the future prospects of the deceased whereas, the deceased was not eligible or qualified for the promotion.
9. Moreover, the widow is entitled to family pension and other benefits and, therefore, the award is to be reduced.
10. Lastly, it is contended that it is unjustified that the bank interest on the FDR on the principal award amount of Rs. 14,00,000 should fetch more interest than the income of the deceased and the principal amount shall remain intact as it is forever.
11. On the other hand, learned Counsel for the claimants has contended that the judgment of the Tribunal is well reasoned and compensation awarded by the Tribunal is just and sufficient and there is nothing wrong with the findings of the Tribunal.
12. Reeta Devi, PW 2, in her evidence by affidavit has stated that the deceased was employed in MCD as mali and was earning about Rs. 7,000 per month and has bright future prospects and his income would have increased manifold with the passage of time and experience.
13. Claimants have examined Sharafat Khan, bill clerk, MCD, PW 1, who has clearly stated that deceased Dinesh was a permanent employee in MCD working as mali on a gross salary of Rs. 6,751 and was entitled for next increment which was to be made available on 1.4.2007 and his date of retirement was 28.2.2033 and has proved salary certificate, Exh. PW1/1.
14. In the absence of any other evidence, income of the deceased has to be taken at Rs. 6,751 per month at the time of accident according to the salary certificate, Exh.PWl/1.
15. As regards the age of the deceased, Reeta Devi, PW 2, in her evidence has stated that at the time of accident deceased was 33 years old.
16. This evidence is duly corroborated by the photocopy of high school certificate, according to which date of birth of deceased is 1.3.1973. 17. Thus, the Tribunal rightly held the age of the deceased as 33 years.
18. The object of payment of compensation under the Motor Vehicles Act is to compensate the dependants of the deceased for the loss of dependency due to the death of the earning member. The court has to assess the quantum of compensation payable to the dependants which is just, proper and reasonable. The amount of compensation is to be fixed in such a manner so that it does not amount to undue enrichment of the dependants since the court is to determine the amount of compensation ''which it appears to it to be just''. Some amount of guesswork is always allowable in fixing the monthly income as well as the loss of dependency and consequently the quantum of compensation.
19. In
(6) Certain principles were highlighted by this Court in the case of
The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or a basic figure which will generally be turned into a lump sum by taking a certain number of years'' purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance, that widow might have again married and thus ceased to be dependent and other like matters of speculation and doubt.
(7) There were two methods adopted to determine and for calculation of compensation in fatal accident actions, the first the multiplier mentioned in Davies case (1942) AC 601 and the second in Nance v. British Columbia Electric Railway Co. Ltd. 1951 (2) All ER 448.
(8) 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 dependency is expected to last.
Further, the court held that:
(10) In regard to the choice of multiplicand, Halsbury''s Laws of England in Vol. 34, para 98, states the principle thus:
(98) Assessment of damages under the Fatal Accidents Act, 1976.--The courts have evolved a method for calculating the amount of pecuniary benefit that the dependants could reasonably expect to have received from the deceased in future. First the annual value to the dependants of those benefits (the multiplicand) is assessed. In the ordinary case of the death of a wage-earner that figure is arrived at by deducting from the wages the estimated amount of his own personal and living expenses. The assessment is split into two parts. The first part comprises damages for the period between death and trial. The multiplicand is multiplied by the number of years which have elapsed between those two dates. Interest at one-half the short term investment rate is also awarded on that multiplicand. The second part is damages for the period from the trial onwards. For that period, the number of years which have based on the number of years that the life expectancy would probably have lasted; central to that calculation is the probable length of the deceased''s working life at the date of death.''
As to the multiplier, Halsbury states:
However, the multiplier is a figure considerably less than the number of years taken as the duration of the expectancy. Since the dependants can invest their damages, the lump sum award in respect of future loss must be discounted to reflect their receipt of interest on the invested funds, the intention being that dependants will each year draw interest and some capital (the interest element decreasing and the capital drawings increasing with the passage of years), so that they are compensated each year for their annual loss, and the fund will be exhausted at the age which the court assesses to be the correct age, having regard to all contingencies. The contingencies of life such as illness, disability and unemployment have to be taken into account. Actuarial evidence is admissible, but the courts do not encourage such evidence. The calculation depends on selecting an assumed rate of interest. In practice about 4 or 5 per cent is selected, and inflation is disregarded. It is assumed that the return on fixed interest bearing securities is so much higher than 4 to 5 per cent that rough and ready allowance for inflation is thereby made. The multiplier may be increased where the plaintiff is a high taxpayer. The multiplicand is based on the rate of wages at the date of trial. No. interest is allowed on the total figure.
20. In
(6) .So far as the adoption of the proper multiplier is concerned, it was observed that the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand. While the chance (sic choice) of the multiplier is determined by two factors, namely, the rate of interest appropriate to a stable economy and the age of the deceased or of the claimant, whichever is higher, the ascertainment of the multiplicand is a more difficult exercise....
21. Thus, the Supreme Court applied a multiplier of 15 only when the deceased was 27 years old.
22. In
23. In
24. In the present case, the Tribunal has applied the multiplier of 17 as per Second Schedule to the Act, which is on the higher side in view of the above decisions.
25. Applying the above said principles, the monthly income of the deceased comes to Rs. 10,126, that is by doubling the income of the deceased and dividing it by 2 [(Rs. 6,751 + Rs. 13,502) + 2]. After deducting ''/3rd on account of personal expenses, the total loss of monthly income comes to Rs. 6,751. Thus, the total loss of annual income comes to Rs. 81,012 and after adopting the multiplier of 12, the total loss of dependency comes to Rs. 9,72,144.
26. Learned Tribunal has also awarded Rs. 22,796 on account of loss of consortium, love and affection and funeral expenses. The total compensation comes to Rs. 9,94,940 which is rounded off to Rs. 10,00,000. Accordingly, the compensation awarded by the Tribunal is modified to that extent.
27. One of the plea of the appellant is that bank interest on the FDR of principal amount shall fetch more interest than the income of the deceased.
28. Section 168 of the Act reads as under:
168. Award of the Claims Tribunal.--
(1) On receipt of an application for compensation made u/s 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of Section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be:
Provided that where such application makes a claim for compensation u/s 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X.
(2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.
(3) When an award is made under this Section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct.
29. Section 168 of the Motor Vehicles Act lays down that on receipt of application for compensation u/s 166, the Claims Tribunal shall after giving the parties an opportunity of being heard, hold an inquiry into the claim and will make an award determining the amount of compensation which appears to it to be just and specify the person or persons to whom compensation is to be paid by the insurer or owner or driver of the vehicle involved in the accident, or by all or any of them, as the case may be. It will, thus, be seen that the amount of compensation, payable to the claimant in respect of an accident involving the death of or bodily injury to persons arising out of the use of motor vehicles or damages to any property is discretion of the Claims Tribunal. Accordingly, the Claims Tribunal has to, on some sound and rational basis, depending upon peculiar circumstances of each case, determine fair compensation payable to the claimants. It would thus appear that the Claims Tribunal has a very wide discretion in the matter of award of compensation.
30. Further, the Claims Tribunal is expected to fix such compensation which may appear to it to be just. ''Just'' compensation would mean ''reasonable'' compensation for the injury caused in an accident resulted due to negligence of a motorist, including the driver of the bus. So, ''just'' would mean appropriate, equitable, or proper. It signifies that the compensation amount should be so assessed as to make provision for the legal representatives of the deceased to receive or earn such pecuniary benefits as they could have obtained from the deceased if he had lived his normal life. The grant of compensation amount, which would enable the legal rep- resentatives of the deceased to earn more pecuniary benefit than one that had been available to them from the deceased during his lifetime, would not be proper and grant of compensation amount which would not enable such legal representatives to earn as much pecuniary benefit as was available to them from the deceased during his lifetime, would not be equitable. Therefore, compensation to be assessed which can be termed ''just'', as contemplated by Section 168 of the Motor Vehicles Act, should be such as would, if the same is prudently invested in some scheduled bank, earn interest, which would-be equal to the pecuniary benefit, which had been available to the legal representatives from the deceased if he had not died due to accident which resulted from the negligent user of the motor vehicle. Earning capacity of the deceased, normal expectancy of his life, status of his family and estimate of the financial assistance, which he could be expected to give to his legal representatives, if he had lived his normal age, are some of the relevant factors which can render assistance in the determination of a fair or just compensation. Determination being dependent on several imponderables, in assessment of compensation, there is likely to be some margin or error. But, compensation must be reasonably assessed with moderation. The word ''compensation'' is of wide importance and legal texts, like Corpus Juris Secundum and Words and Phrases, have devoted pages to the explanation of the meaning of this word. According to Black''s Law Dictionary, ''compensation'' implies indemnification, making amends or balancing of loss and gains, reparation and so on.
31. In
(4)It cannot also be forgotten that provision for payment of compensation was introduced in the Motor Vehicles Act primarily to safeguard interests of the dependants of the deceased. Therefore, it is the duty of the Tribunal to see that the dependants do not fall prey to machinations or be subjected to deceit or fraud. Provision for payment of compensation is part of a social security scheme and the dependants cannot be permitted to be robbed by antisocial elements. This is more so, because many times dependants are from lower strata of society, are illiterate and ignorant of their rights and had No. chance in life to see or handle such a big amount. Therefore, they are not able to understand what is in their best interest. In such circumstances, it is the duty of the Tribunal to assist and guide them. Section 110-B has used the expression ''compensation'' and not damages. It empowers the Tribunal to determine ''just compensation'' and specify a person or persons to whom compensation shall be paid. This determination is known as award. Loss of life cannot be measured in terms of money nor the loss of life of main bread-earner can fully be compensated. However, while determining just compensation, the loss to the claimant of future pecuniary benefit is relevant. Therefore, while determining the compensation, sometimes it is taken into consideration as how much interest will be earned on the lump sum awarded. The reason for this is obvious. A prudent man receiving a lump sum amount, so as to make good his loss over a period, is expected to invest it and to use it gradually. The word ''just'' used in Section 110-B has wider import. Therefore, in our view the use of expressions like ''just compensation'' and ''award'' is indicative of the intention of the legislature. It is implicit in these expressions that the Tribunal is duty-bound to act in a just and reasonable manner so that the fruits of the award will reach the dependants. Since the Act has conferred jurisdiction upon Motor Accidents Claims Tribunal to determine just compensation and specify the person or persons to whom it shall be paid, it impliedly also grants the power of doing such acts, or employing such means as are essentially necessary to achieve the said purpose. Jurisdiction and power conferred upon the Tribunal to award just compensation, are coupled with a duty. While passing an award for compensation, Tribunal is duty-bound to guard the interest of the dependants for whose benefit it is made. The Tribunal cannot act as an onlooker, but is duty-bound to pass consequential orders to protect the dependants from exploitation, malpractices and misapplication of compensation money....
32. In
(8) In its anxiety to alleviate the suffering of those who are suddenly struck by the bolt of misfortune, the legislature provided a cheap and summary remedy before the Tribunals. The contribution of the Tribunals and the courts should be to ensure that the benefits reach the hapless persons. Complaints are rife that benefits received ultimately by claimants are only nominal and the anxiety of the legislature and the exercise by the Tribunals and courts are all in vain. The fruits of the beneficial measures do not reach the real beneficiaries. Large slices of the amounts are snatched by persons lurking around the corner and the unfortunate minors, widows, aged parents and the injured look helplessly on. The Tribunals and the courts, to be effective delivery agents, having regard to the salutary object, should ensure that the benefits are real and lasting and not empty and ephemeral. A mode has to be devised so that the amounts awarded as damages are not frittered away or snatched by the person assisting in the litigation. Where minors are involved, the responsibility is greater. They have lost their dear one. The law intervenes with a view to substituting the pecuniary loss in terms of damages. But the intervention would not be effective and real if such minors and others are not assured that the pecuniary benefits which they would have otherwise enjoyed, if the accident had not taken place, are to be had in future too. It is proper in equity that the Tribunal and courts extend that assurance. The way lies in devising a mode for enjoyment. In the litigation some amount may have been spent and other expenses may have been incurred. The Tribunals could, having regard to facts and circumstances direct the payment of a portion of the amount outright and investment of the balance, so that the corpus remaining intact, the return therefrom would continue to contribute to the welfare of the dependants. I may in this connection refer to a pregnant observation of the Supreme Court in
...In most cases it is seen that a lump sum payment is not to the advantage of the dependants as large part of it is frittered away during litigation and by payment to persons assisting in the litigation''...
33. In
(35)...In our view, in this country, there would not be a legal hitch in paying compensation by periodical instalments because Section 110-B (as it was) of the Motor Vehicles Act, 1939 and Section 168 of the Motor Vehicles Act, 1988, specifically empower the Claims Tribunal to award just compensation. The phrase ''just compensation'' would include payment of compensation by periodical instalments.
(36) This question is also considered by the Supreme Court in the case of
The insurance companies are now nationalised and the necessity for awarding lump sum payment to secure the interest of the dependants is No. longer there. Regular monthly payments could be made through one of the nationalised banks nearest to the place of residence of the dependants. Payment of monthly instalments and avoidance of lump sum payment would reduce substantially the burden on the insurer and consequently of the insured. Ordinarily in arriving at the lump sum payable, the court takes the figure at about 12 years'' payment. Thus in the case of monthly compensation of Rs. 250 payable, the lump sum arrived at would be between Rs. 30,000 and Rs. 35,000. Regular monthly payment of Rs. 250 can be made from the interest of the lump sum alone and the payment will be restricted only for the period of dependency of the several dependants. In most cases it is seen that a lump sum payment is not to the advantage of the dependants as large part of it is frittered away during litigation and by payment to persons assisting in the litigation. It may also be provided that if the dependants are not satisfied with the minimum compensation payable they will be at liberty to pursue their remedies before the Motor Accidents Claims Tribunal.
The court further observed:
(39) In view of the aforesaid discussion and the views expressed by the Apex Court in the case of
(i) the major part of the compensation amount reaches the victims or their dependants;
(ii) large part of compensation amount is not frittered away;
(iii) victims or their dependants are not again left at the mercy of the society; and
(iv) the amount, which is paid by the nationalised insurance companies, serves its purpose and the socio-economic object of the legislation is not defeated.
34. So, keeping in view the principles laid down in the above decisions, it would be just and reasonable if provision is made for each of the dependants as per their ages by way of monthly payment and also secure the interest of the claimants till they would have remained dependent upon the earnings of the deceased.
35. Since the deceased was earning Rs. 6,751 per month and was contributing about Rs. 4,500 p.m. towards his family members who are the present claimants, the share of each claimant under these circumstances, is assessed as under:
(1) Reeta Devi--Rs. 3,000 p.m.
(2) Ravinder--Rs. 1,500 p.m. 36.
36. The present claim petition was filed on 12.7.2006. Now, the appeal is being decided in November 2008 and by December 2008, about 30 months would have passed. So, for these 30 months, claimants are entitled to compensation at the rate of Rs. 4,500 p.m. and accordingly for this period, the amount of compensation comes to Rs. 4,500 x 30 = Rs. 1,35,000. Out of Rs. 1,35,000, Rs. 1,00,000 be paid to Reeta Devi, widow of the deceased, respondent No. 1, while Rs. 35,000 be paid to Ravinder, minor son of the deceased, respondent No. 2.
37. As far as compensation for future period is concerned, i.e., from 1.1.2009 onwards, respondent No. 1 shall be paid Rs. 3,000 p.m. till her death or her remarriage, whichever is earlier.
38. Ravinder, respondent No. 2, will be paid monthly payment of Rs. 1,500 till he attains the age of 25 years or till his marriage, whichever is earlier.
39. Both claimants shall have to furnish ''life certificate'' to United India Insurance Co. Ltd. once in a year, i.e., in the month of January every year. However, Reeta Devi shall have to furnish a certificate to this effect also that she has not remarried. These certificates are to be submitted to the insurance company in January 2009 and thereafter every year.
40. Further, keeping in view the runaway inflation and the price rise and the fact that the deceased''s salary would have increased with the passage of time, the claimants shall be entitled to increase in compensation by 25 per cent after every 5 years on their monthly compensation, i.e., the claimants shall get 25 per cent increase in the monthly compensation w.e.f. January 2014 and second increase w.e.f. 2019 and so on, subject to the above said limitation in respect of attaining the age of 25 years by Ravinder, respondent No. 2 and subject to remarriage of Reeta Devi, respondent No. 1.
41. Since Ravinder is minor, respondent No. 2, his share of monthly compensation shall be paid to his mother Reeta Devi, respondent No. 1, till the minor attains age of majority. After respondent No. 2 attains age of majority, thereafter, the monthly payment shall be made to him in his name by accounts payee cheque only.
42. The appellant United India Insurance Co. Ltd. shall send the respective share of monthly payment to the claimants by way of crossed cheques by the 10th of every month at the addresses mentioned in the memo of the parties or at any other address to be furnished by the claimants to the insurance company directly.
43. In case, there is any default on the part of the insurance company in making payment in time, the claimants shall be entitled to interest at the rate of 10 per cent per annum for the delayed payment.
44. As far as compensation from the date of filing of the claim petition, i.e., from 12.1.2006 till December 2008 is concerned, this amount of compensation, i.e., Rs. 1,35,000 as already stated above, shall be deposited by appellant within a period of two months from today failing which appellant shall be liable to pay interest at the rate of 10 per cent per annum from the date of this judgment till realization.
45. Out of this, Rs. 1,00,000 being the share of respondent No. 1 be paid to her by way of ''accounts payee'' cheque in her name.
46. As far as Rs. 35,000 being the share of respondent No. 2 is concerned, his share be deposited in a bank in a fixed deposit a/c for the period till the minor claimant attains his age of majority and, thereafter, it be paid to him along with the interest as per the bank''s rules.
47. Minor shall furnish attested copy of the birth certificate or the school leaving certificate to United India Insurance Co. Ltd. for calculating his age of majority.
48. In the present case, Rs. 50,000 has already been awarded as interim compensation. However, this amount of interim compensation shall not be deductible from the amount which is being awarded to the claimants now.
49. Vide order dated 17.1.2008 passed by this court, the appellant was directed to deposit Rs. 10,00,000 within a period of two weeks and operation of the impugned award was stayed.
50. This amount of Rs. 10,00,000 along with interest, if any, lying in deposit, shall be paid to the appellant only after the appellant comply with the directions passed hereinabove by this court, with regard to payment of Rs. 1,35,000 and first instalment of monthly payment to the claimants.
51. The present appeal is disposed of accordingly.
52. No. order as to costs.
53. Copy of this judgment be sent to all the Claims Tribunals for information and compliance. 54. Trial court record be sent back.
