G.P. Mittal, J.@mdashThese two appeals arise out of judgment dated 18.09.2013 passed by the Motor Accident Claims Tribunal (the Claims Tribunal) whereby compensation of Rs. 19,92,368/- was awarded in favour of Smt. Sunita Arora and Shri Harish Arora, parents of deceased Amit Arora, who suffered fatal injuries in a motor vehicular accident which occurred on 18.07.2011.
2. On appreciation of evidence, the Claims Tribunal found that the accident was caused on account of rash and negligent driving of Uttar Pradesh State Road Transport Corporation (UPSRTC) bus no. UP-11T- 4042 driven by Respondent Mehen Pal. The Claims Tribunal further found that the deceased was getting a gross salary of Rs. 19,450/- per month. The Claims Tribunal made an addition of 50% towards future prospects and adopted a multiplier of 13 as per the age of the mother of the deceased to compute the loss of dependency as Rs. 18,92,368/-. The Claims Tribunal further added a sum of Rs. 1,00,000/- towards non- pecuniary damages to award the overall compensation of Rs. 19,92,368/-
3. For the sake of convenience, the Appellant in MAC.APP.1075/2013 shall be referred to as the U.P. State Road Transport Corporation (UPSRTC), whereas the Appellants in cross-appeal MAC APP. No. 343/2015 shall be referred to as the Claimants.
4. The following contentions are raised on behalf of UPSRTC:-
(i) The accident was caused on account of rash and negligent driving of the two wheeler bearing registration no. UP-14BH- 8662 driven by deceased Amit Arora himself. Therefore, the Appellant UPSRTC ought not to have been made liable to pay the compensation;
(ii) The gross salary of deceased Amit Arora was Rs. 1,95,654/- per annum. All the allowances were not part of the salary. The entire income ought not to have been taken into consideration to calculate the loss of dependency;
(iii) Deceased Amit Arora was not in Government service. Addition of 50% towards future prospects was not permissible; and
(iv) The compensation awarded towards non-pecuniary damages is on the higher side.
5. On the other hand, the learned counsel for the Claimants submits that the Claims Tribunal applied the multiplier of 13 as per the age of the deceased''s mother. In fact, the multiplier ought to have been 18 on the basis of the age of the deceased. Reliance is placed on
NEGLIGENCE
6. It is urged by learned counsel for UPSRTC that the Claims Tribunal erred in relying on the statement of PW-2 Pratesh Kumar and discarding the testimony of RW1 Mehen Pal, driver of the UPSRTC bus.
7. I have the Trial Court Record before me. PW-2 Pratesh Kumar gave a vivid account of the accident. He deposed that the motorcyclist was proceeding towards Shahdara in front of Dilshad Garden Metro Station. UPSRTC bus bearing registration no. UP-11T-4042 driven at a very high speed in a rash and negligent manner came from behind and struck against the motorcyclist. Nothing could be elicited in the cross-examination of this witness to discard his presence at the spot at the time of the accident. On the other hand, the version given by the UPSRTC bus driver is that the driver of the two wheeler came from the right side of the bus and while taking turn, he lost his balance, slipped and fell down on the road. Thus, he completely denied the involvement of the bus. A perusal of the site plan filed in criminal case arising out of FIR No. 281/2011 discloses that the UPSRTC bus with registration no. UP-11T-4042 hit the motorcyclist at Point A and his blood was lying at Point B. The site plan clearly supports PW-2''s version.
8. In my view, the statement made by Mehen Pal, driver of the UPSRTC bus was only a self-serving statement. If the driver of the UPSRTC bus bearing registration no. UP-11T-4042 was not at fault, either he or the Appellant could have summoned any passenger from the bus to support the driver''s version. It may be noted that in a Claim Petition under Section 166 of the Motor Vehicles Act, 1988 (the Act), negligence is required to be proved only on the touchstone of preponderance of probability, which has been sufficiently done in this case. I do not find any error in the finding of negligence reached by the Claims Tribunal, which I hereby affirm.
COMPENSATION
9. In order to prove deceased Amit Arora''s income, the Claimants examined PW-3 Bunty Parwani, Manager (HR) of Genpact India, Delhi-110053. He proved the appointment letter with salary package as Ex.PW-3/A, salary certificate for the month of July, 2011 as Ex.PW3/B, Attendance record from May, 2011 to 18.07.2011 as Ex.PW-3/C, Promotion Record as Ex.PW-3/D, Educational Certificates as Ex.PW-3/E collectively and Nomination as Ex.PW-3/F. The witness testified that deceased Amit Arora was entitled to an annual salary of Rs. 1,92,400/- and in addition, performance based increment. He also stated that as per the record, performance of the deceased was good and his next increment was due on 11.08.2011. Deceased Amit Arora had joint Genpact just a little less than one year before the date whereon he suffered fatal injuries. He was also allotted Employment Provident Fund Number. There is nothing suspicious about the appointment letter proved on record though deceased''s employer. A perusal of the compensation details part of the appointment letter reveals that the deceased was to get a total salary of Rs. 1,92,400/- per annum if he was a low performer, Rs. 2,17,400/- per annum if he was an average performer and Rs. 2,47,400/- per annum if he was the best performer. PW-3''s testimony that performance of deceased Amit Arora was good could not be challenged in his cross-examination. Therefore, I tend to take the deceased''s annual salary as Rs. 2,17,400/- which corresponds with the monthly salary being paid to him, i.e. Rs. 19,450/-. This income included a component of House Rent Allowance (HRA) to the extent of Rs. 2914/- per month and conveyance allowance of Rs. 800/- per month. These allowances were tax free. If the amount of Rs. 800/- per month is taken as incidental to the employment, the total gross salary of the deceased will be tax free. Since deceased''s performance was good and he was going to be promoted and his salary was to increase to Rs. 2,38,400/- just after one month, the Claims Tribunal rightly made an addition of 50% towards future prospects.
10. Further, relying on
11. The question was examined at great length by this Court in Shriram General Insurance Co. Ltd. v. Maneesha Karnatak and Ors., MAC APP 655 of 2014 decided on 20.03.2015 and after analysing
"10.. the question of selection of multiplier was dealt with at great length by me in
11. I had discussed the law laid down in the earlier stated judgments and had further referred to the judgments in
12. The learned counsel for Respondents No. 1 and 2 has submitted that in view of the three Judge Bench decision in
13. 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
"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."
14. 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.
15. However, in
"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
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."
16. 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.) (supra), 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 41/2 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.""
17. 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.
18. 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
"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"
19. 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
20. 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
42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying
21. 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.
22.
23. However, in
24. On account of divergence of opinion in the earlier cases, a reference to a larger Bench was made by a two Judge Bench in
"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?"
25. 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
26. In
27. Of course, in
28. However, there is a three Judge Bench decision of the Supreme Court in
29. Also, in the latest judgment of the Supreme Court in
"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
30. Thus, right from the two Judge Bench decision in
31. Moreover, even if there is divergence of opinion in subsequent two Judge Bench decisions or three Judge Bench decisions (although there is no divergence by three Judge Bench decisions), the law laid down by three Judge Bench in Trilok Chandra (supra) shall be taken as a binding precedent. In this connection, a reference may be made to
"12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms:
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.
(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
(3) The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in
32. Similarly, in
"27. However, even assuming that the decision in WP No. 35561 of 1998 did not operate as res judicata, we are constrained to observe that even if the learned Judges who decided WP No. 304 of 2001 did not agree with the view taken by a coordinate Bench of equal strength in the earlier WP No. 35561 of 1998 regarding the interpretation of Section 2 (c) of the Act and its application to the petition schedule property, judicial discipline and practice required them to refer the issue to a larger Bench. The learned Judges were not right in overruling the statement of the law by a coordinate Bench of equal strength. It is an accepted rule or principle that the statement of the law by a Bench is considered binding on a Bench of the same or lesser number of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the well-accepted and desirable practice is that the later Bench would refer the case to a larger Bench."
33. Also, in
"9. It may be noted that the decision in
34. Thus, in view of this, the three Judge Bench decision in Trilok Chandra (supra), later reiterated in the three Judge Bench decision of New India Assurance Co. Ltd. v. Shanti Pathak (supra) shall be taken as a binding precedent. The multiplier will be as per the age of the deceased or the Claimant whichever is higher."
12. Thus, the multiplier will be as per the age of the mother of the deceased, which has been rightly adopted by the Claims Tribunal.
13. The loss of dependency, therefore, would come to Rs. 21,82,050/- (19,450/- - 800/- x 12 + 50% x 1/2 x 13).
14. As far as award towards non-pecuniary damages is concerned, it is now settled that the legal representatives are entitled to a sum of Rs. 1,00,000/- each towards loss of love and affection and loss of consortium, Rs. 25,000/- towards funeral expenses and Rs. 10,000/- towards loss to estate in view of the three Judge Bench decision of the Supreme Court in
15. In the instant case, the deceased was a bachelor, therefore, the Claimants would be entitled to a total sum of Rs. 1,35,000/- towards non- pecuniary damages.
16. The overall compensation thus, comes to Rs. 23,17,050/-.
17. The compensation is accordingly enhanced by Rs. 3,24,682/- which shall carry interest @ 7.5% per annum from the date of filing of the petition till its payment.
18. The Appellant UPSRTC is directed to deposit the enhanced compensation along with proportionate interest within six weeks in the UCO Bank, Delhi High Court, New Delhi.
19. The enhanced compensation shall be equally apportioned between Respondents no. 1 and 2 and shall be released to them on deposit.
20. Both the appeals are disposed of in the above terms.
21. Pending applications also stand disposed of.
22. Statutory amount, if any, deposited shall be refunded to the Appellant UPSRTC.
