M. Satyanarayana Murthy, J.@mdashDissatisfied with the quantum of compensation awarded by the Motor Accidents Claims Tribunal-cum-I Additional Metropolitan Sessions Judge-cum-XV Additional Chief Judge, Hyderabad, in O.P. No. 2076 of 2009, dated 29.10.2012, the present Appeal is preferred by the appellants-claimants, u/s 173 of the Motor Vehicles Act, (For short, ''the Act), seeking enhancement of compensation to Rs. 25,00,00/- as claimed before the Tribunal in O.P. No. 2076 of 2009. The appellants herein were the petitioners and the respondents herein were the respondents before the Tribunal in O.P. No. 2076 of 2009. For the sake of convenience, the parties hereinafter will be referred to as appellants and respondents.
2. The appellants filed the claim petition before the Tribunal u/s 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs. 25,00,000/- under various heads, for untimely death of N. Abinav, who happened to be son of first and second appellants and brother of third appellant, in a road accident that occurred on 29.03.2008 at about 11:30 p.m. while the deceased Abinav was returning after attending his college annual day celebrations on his Honda Activa motor cycle bearing No. AP-13-G-7343 slowly on the left side of the road and when he reached near Jeedimetla bus stop, one Endeavor Car bearing No. AP-29Q-0009 proceeding towards Hyderabad from Medchal, being driven in a rash and negligent manner, hit the motorcycle of the deceased Abinav, due to which he fell down and sustained grievous injuries all over his body, succumbed to the injuries while shifting to Balaji Hospital, Hyderabad. The deceased Abinav was aged 19 years, hale and healthy studying III Year B. Tech., and on account of untimely death of Abinav, the appellants being the parents and sister lost their future dependency.
3. The accident occurred due to rash and negligent act of the driver of Endeavor Car bearing No. AP-29Q-0009. The first respondent being the owner and the second respondent being the insurer of the Endeavor car are jointly and severally liable to pay the compensation. Hence, the claim of Rs. 25,00,000/-.
4. The first respondent though initially contested the matter remained ex-parte. The second respondent filed written statement denying the material allegations inter-alia contending that accident not occurred due to rash and negligent driving of the driver of Endeavor car No. AP-29Q-0009 and the driver of the alleged vehicle was not holding valid and effective driving license at the time of accident to drive the vehicle and as such the first respondent violated the terms and conditions of the policy, committed breach of the policy condition; as such the second respondent is not liable to pay any compensation and called upon the appellants to put strict proof of the age and educational qualifications of the deceased Abinav and that the claim is on high side. Further, it is contended that the accident occurred only due to rash and negligent riding of the Honda Activa motor cycle by the deceased Abinav and prayed to exonerate the second respondent from payment of any compensation by dismissing the petition.
5. During the course of enquiry, on behalf of the appellants, P.Ws. 1 to 3 were examined and Exs. A-1 to A-15 and Exs. X-1 to X-5 were marked. On behalf of the second respondent, none were examined but got marked Ex. B-1, Insurance policy.
6. Upon hearing arguments of both the counsel and considering the material available on record, the Tribunal awarded a total compensation of Rs. 8,84,000/- together with interest at the rate of 75% p.a. from the date of petition till the date of realization, against both the respondents. Dissatisfied with the compensation amount awarded by the Tribunal, appellants-claimants preferred this Appeal challenging the inadequacy of compensation on various grounds mainly contending that:
(a) The Tribunal did not appreciate the oral and documentary evidence and wrongly taken the earnings of the deceased on lower side and awarded meager compensation erroneously;
(b) The Tribunal erroneously took the average age of the parents of the deceased Abinav and ought to have taken the age of the deceased Abinav;
(c) The Tribunal would have added 50% as future prospects but did not consider the same on wrong appreciation of law;.
(d) The Tribunal erroneously deducted 50% towards personal and living expenses of the deceased.
And finally prayed to allow the Appeal setting aside the impugned award granting total compensation of Rs. 25,00,000/-, which is inclusive of compensation already awarded, together with subsequent interest on the total amount of compensation.
7. During the course of arguments, learned counsel for the appellants mainly contended that in case of death of a bachelor, the age of the deceased shall be taken for application of multiplier but not the age of his parents placing reliance on the judgments of the Hon''ble Apex Court in
8. Per contra, learned standing counsel for the second respondent contended that in case of death of a bachelor, the age of the surviving dependants, whichever is higher alone shall be taken basing on the capitalization method placed reliance on the judgment of the Hon''ble Apex Court in
9. Considering rival contentions and perusing the material available on record the points that arise for consideration in this Appeal are:
1. Whether the average age of the parents of the deceased Abinav or the age of the deceased Abinav shall be taken into consideration for application of multiplier?
2. Whether deduction of 50% towards personal and living expenses of deceased Abinav is in accordance with law?
3. Whether the appellants are entitled to compensation of Rs. 25,00,000/-?
10. POINT No. 1: As the respondents did not prefer any Appeal questioning the quantum of compensation or occurrence of accident due to the rash and negligent driving attributed to the deceased Abinav, the finding recorded by the Tribunal that the accident occurred due to the rash and negligent driving of the driver of the Endeavor car bearing No. AF-29-Q-0009 attained finality. Hence, we ourselves restrained to decide the core issue of application of relevant multiplier in this Appeal.
11. There are two divergent opinions on this aspect; one line of decision was that the age of the deceased bachelor alone shall be taken from the principles laid down by the Apex Court in Sarla Verma''s case onwards, earlier to that the line of decision was that either the age of the deceased or the dependants of deceased whichever is higher shall be taken for application of multiplier. The principles laid down in the decisions will be discussed in detail in the later paragraphs.
12. The first and foremost contention of learned counsel for the appellants is that in case of death of bachelor, the age of the bachelor alone shall be taken, not the age of his parents, but the Tribunal placing reliance on the judgment of Hon''ble Apex. Court in
21. For the purpose of calculating the multiplier, the High Court held that mother was the real legal representative and others could not claim to be the legal representatives of the deceased, and accordingly applied the multiplier of 5, whereas the Tribunal had calculated compensation by considering a multiplier of 16.
22. This Court is of the opinion that the law as has been laid correctly in the case of
13. The learned counsel for the appellants also relied on the judgment of Apex Court in
17. The selection of multiplier is based on the age of the deceased and not on the basis of the age of dependant. There may be a number of dependants of the deceased whose age may be different and, therefore, the age of dependents has no nexus with the computation of compensation.
14. In the facts of the decision cited supra, Amrit Bhanu Shali (father) and Sarlaben (mother) were held to be the dependents of deceased Ritesh Bhanu Shali. Therefore, the Tribunal held that the appellants 1 and 2 have the right to get compensation. On the date of accident the appellant No. 3, Mamta, was not married but by the time the case was heard by the Tribunal, the appellant No. 3, Mamata, had already been married. In those circumstances, she was found to be not depending upon the deceased Ritesh Bhanu Shali. Therefore, the age of the parents, being dependants of deceased, was taken into consideration and applied multiplier. The Apex Court found that application of multiplier basing on the age of the mother of deceased Ritesh Bhanu Shali is erroneous and applied multiplier 17 basing on the age of the deceased Ritesh Bhanu Shan, who was aged 26 years.
15. In another judgment of the Apex Court in
34. If the multiplier as indicated in column (4) of the Table read with para 21 of the Report in
40. In what we have discussed above, we sum up our conclusions as follows:
(i) In the applications for compensation made u/s 166 of the 1988 Act in death cases where the age of the deceased is 15 years and above, the Claims Tribunals shall select the multiplier as indicated in column (4) of the Table prepared in
(ii) In cases where the age of the deceased is up to 15 years, irrespective of Section 166 or Section 163A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in column (6) of the Table in
(iii) As a result of the above, while considering the claim applications made u/s 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.
(iv) The Claims Tribunals shall follow the steps and guidelines stated in para 9 of
(v) While making addition to income for future prospects, the Tribunals shall follow para 11 of the judgment in
(vi) Insofar as deduction for personal and living expenses is concerned, it is directed that the Tribunals shall ordinarily follow the standards prescribed in paras 14 and 15 of the judgment in
(vii) The above propositions mutatis mutandis shall apply to all pending matters where above aspects are under consideration.
16. In view of the judgments of the Hon''ble Apex Court in
17. When we advert to the table in
18. The main contention of second respondent is that in case of death of a bachelor the age of the parents alone has to be taken into consideration for application of multiplier for the reason that during the life time of the parents, they are entitled to enjoy the income of the deceased bachelor and the question of enjoying any benefits after death of parents though the bachelor was alive does not arise. If for any reason, bachelor''s age is taken into consideration, it amounts to conferring undeserved benefit to the claimants (appellants herein) and the claims in motor accident cases cannot be a boon but it is only a solace for loss of dependency on account of untimely death of a bachelor. Hence, the age of the dependants or the age of deceased, which ever is higher shall be taken to adopt appropriate multiplier. Thus the capitalization method alone shall be applied for adopting the multiplier and drawn the attention of this Court to a decision of the Apex Court in
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.
19. Lord Wright adopted the principle applicable also under the Indian Act in
(98) Assessment of damages under the Fatal Accidents Act, 1976 - The courts have evolved a method for calculating the amount of pecuniary benefit that 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 elapsed between the death and the trial is deducted from a multiplier based on the number of years that the expectancy would probably have lasted; central to that calculation is the probable length of the deceased''s working life at the date of death.
20. In any view of the matter the method of capitalization is only based on the dependants as supposed to incur for assessment of damages, to compensate the dependants it has to take into account the total pecuniary loss expected to suffer and if the compensation awarded by the Court if invested in any bank, where the interest accrued thereon would be sufficient to the loss of earnings is the main consideration.
21. In another judgment of the Apex Court reported in
6. Learned counsel then submitted that under Second Schedule to the Act providing compensation based on a formula, the multiplier which was applicable was 15 and not 13 as age of mother of victim Vazeer was 45 years in which case the correct multiplier should have been 15 and not 13 whereas in the case of victim Rafeeq, as age of his mother being 40 years, the correct multiplier should have been 16 and not 14. On the other hand, learned counsel appearing on behalf of the respondents submitted that compensation has been awarded in accordance with the Second Schedule. It is well settled that life expectancy of the deceased or the beneficiaries whichever is shorter is an important factor. Reference in this connection may be made to the decision of this Court in the case of
22. In another judgment of the Apex Court in
6. In view of these deficiencies in the judgment we should have granted special leave. But then it is a hard case where a young life, the bread winner of a family, is snuffed out ere its prime as a result of the tragic accident. The claimants aver that the deceased was earning Rs. 1,500/- per month. Even if we assume as a rough and ready estimate of Rs. 750/- per month or Rs. 9,000/- per year as the loss of dependency - which may not be an unreasonable estimate - and capitalize it on a multiplier of 15 (which would be the appropriate multiplier having regard to the age of the deceased) the resultant figure will be Rs. 1,35,000/-. To this should be added the usual awards for Loss to the Estate and Loss of Consortium which are generally in conventional figures ranging from Rs. 5,000/- to Rs. 10,000/- on each count. If Rs. 7,500/- on each count is added, the quantification of Rs. 1,50,000/- arrived at by the High Court could be justified; though on a reasoning entirely different from any discernible or manifest from the appellate judgment of the High Court.
23. In another judgment of the Apex Court in
6. The second schedule provides for the amount of compensation for third-party fatal accident/injury cases claims. It provides for the age of the victim and also provides for the multiplier for arriving at the amount of compensation which became payable to the heirs and legal representatives of the deceased depending upon his annual income.
10. Parliament in laying down the amount of compensation in the Second Schedule, as indicated hereinbefore, in its wisdom, provided for payment of some amount which should be treated to be the minimum. It took into consideration the fact that a person''s potentiality to earn is highest when he is aged between 25 and 30 years and that is why in case of permanent disability multiplier of 18 has been specified. The very fact that even if the deceased had an income of Rs. 3,000/- per month, he being aged about 15 years would receive a sum of Rs. 60,000/- but if his income was Rs. 40,000/- per annum, his legal heirs and representatives would receive a sum of Rs. 8,00,000. In the case of any non-earning person, the notional income has been fixed at Rs. 15,000/- per annum.
12. In view of the aforementioned finding, we are of the opinion that it is not necessary for us to take into consideration, the decisions cited at the Bar suggesting that in a case of death of an unmarried person and wherein the claimants are the parents of the deceased, the age of the deceased shall be an irrelevant factor for applying the multiplier specified in the Second Schedule.
24. In another judgment of the Apex Court in
15. What thus emerges from the above decisions is that the Court must adhere to the system of multiplier in arriving at the proper amount of compensation, and also with a view to maintain uniformity and certainty. Use of higher multiplier has been deprecated and it is emphasized that it can not exceed 18. The multiplier, as would be evident from the observations quoted earlier, may differ in the peculiar facts and circumstances of a particular case as according to the example cited where bachelor dies at the age 45, the age of his dependent parents may be relevant for selecting a proper multiplier. Meaning thereby that a multiplier less than that what is provided in the schedule could be applied in special facts and circumstances of a case.
25. Similarly, in a decision of this Court in
26. In view of the legal position, which the second respondent-Insurance Company relied upon is anterior to the judgment of the Apex Court in
42. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the table above (prepared by applying
27. At the same time, in a recent judgment of the Apex Court in
4. Before the High Court it was contended by the appellant that the multiplier to be adopted is to be determined on the age of the claimants and not on the age of the deceased, which was to be taken as the basis for working out the compensation. The High Court did not find any substance in this plea. It was held that no permission had been granted to the insurer to contest its claim. It was submitted that it is a clear case of contributory negligence and the quantum of compensation should be suitable divided. The High Court did not find any substance in this plea also.
28. Thus, the principle laid down by the Apex Court in the decision cited supra is totally contrary to the principle laid down by the Apex Court in
16. Admittedly both the parents, appellant No. 1 Amrit Bhanu Shali (father) and appellant No. 2 Sarlaben (mother), have been held to be dependants of deceased Ritesh Bhanu Shali and, therefore, the Tribunal held that the appellant No. 1 and the appellant No. 2 have the right to get the compensation. On the date of the accident the appellant No. 3, Mamta, was not married but by the time the case was heard by the Tribunal the appellant No. 3, Mamta, had already been married. In these circumstances, she is not found to be dependant upon the deceased. Thus, both the parents being dependants, that is, father and the mother, the Tribunal rightly restricted the personal and living expenses of the deceased to 50 per cent and contribution to the family was required to be taken as 50 per cent as per the decision of this Court in the case of Sarla Verma, 2010 (1) An.W.R. 402 (SC) : 2009 (4) SCJ 91.
29. In a recent judgment of the Apex Court in
30. The judgment in
22. A decision on a question of sentence depending upon the facts and circumstances of a particular case, can never be regarded as a binding precedent, much less ''law declared'' within the meaning of Article 141 so as to bind all Courts within the territory of India. According to the well-settled theory of precedents every decision contains three basic ingredients:
(i) Findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts;
(ii) Statements of the principles of law applicable to the legal problems disclosed by the facts; and
(iii) Judgment based on the combined effect of (i) and (ii) above.
However, for the purposes of the doctrines of precedents ingredient No. (ii) is the vital element in the decision. This indeed is the ratio decidendi. It is not every thing said by a Judge when giving judgment that constitutes a precedent. The only thing in a Judge''s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. Even where the direct facts of an earlier case appear to be identical to those of the case before the Court, the Judge is not Bound to draw the same reference as drawn in the earlier case.
31. In view of the principle laid down by the Apex Court in the decision cited supra, to treat the judgment as law or a precedent, it must satisfy the ingredient No. 2, which is a vital element in the decision. This indeed is the ratio decidendi. It is not everything said by a Judge when giving judgment that constitutes a precedent.
32. Thus, finding that the age of the dependents or the deceased whichever is higher is to be taken into consideration is though a ratio which forms part of a precedent but in view of the later judgment where certain directions were made by three judges is a precedent which laid down law. Therefore, the judgment of the Apex Court in
33. POINT Nos. 2 and 3: The Tribunal basing on the principle laid down by this Court in
7. What would be the percentage of deduction for personal expenditure cannot be governed by any rigid rule or formula of universal application. It would depend upon circumstances of each case. The deceased undisputedly was a bachelor. Stand of the insurer is that after marriage, the contribution to the parents would have been lesser and, therefore, taking an overall view the Tribunal and the High Court were justified in fixing the deduction.
34. Further, the Apex Court
31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parents and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father.
32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.
35. Hence, in view of the principles laid down by the Apex Court i
36. In the result, the Appeal is allowed, in part, enhancing the compensation awarded by the Tribunal from Rs. 8,84,000/- to Rs. 14,21,000/-. Out of the compensation awarded by this Court, first appellant, being father of deceased, is entitled to an amount of Rs. 5,00,000/-, second appellant, being mother of deceased, is entitled to Rs. 8,00,000/- and third appellant, being younger sister of deceased is entitled to Rs. 1,21,000/- respectively. Appellants herein are permitted to withdraw their respective share of compensation amount after deducting the amount, if any withdrawn earlier. The rate of interest awarded by the Tribunal is unaltered. In consequence, the Miscellaneous Petitions, if any, pending in this Appeal, shall stand closed. No order as to costs.
