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The Chairman, A.P.S.R.T.C., Hyderabad Vs. Shafiya Khatoon and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal Against Order No. 74 of 1979
Judge
Reported inAIR1985AP83
ActsMotor Vehicles Act, 1939 - Sections 110; Fatal Accidents Act, 1855 - Sections 1A, 4 and 4A
AppellantThe Chairman, A.P.S.R.T.C., Hyderabad
RespondentShafiya Khatoon and ors.
Appellant AdvocateC. Ananda Rao, Standing Counsel
Respondent AdvocateK.F. Baba, Adv.
Excerpt:
motor vehicles - compensation - section 110 of motor vehicles act, 1939 and sections 1a, 4 and 4a of fatal accidents act, 1855 - award passed by tribunal to respondent legal heir of deceased who died due to rash and negligent driving of appellant's driver - deceased left behind his mother and four unmarried sisters - appeal preferred - appellant contended tribunal was wrong in taking multiplier of 48 and sister of deceased not entitled to amount as dependents by provision of section 110-b - section 110-b empowered tribunal to make award and all dependents of deceased including mother and unmarried sisters entitled - appropriate multiplier of 16 would be reasonable. - - that sum however, has to be taxed down by having due regard to uncertainties for instance, that the widow might have.....jagannadha rao, j.1. the following questions arise for consideration in this appeal as to how compensation under s.110-b of the motor vehicles act is to be computed, what is meant by loss to the 'dependency' and how is the 'multiplier' to be chosen, what is meant by the loss to he 'estate' and how is it to be computed, can the compensation be shared by the dependents not enumerated under the fatal accidents act, 1855 and finally as to how the compensation is to be apportioned?2. the deceased mohd. mahfooz was a carpenter when he died, he was aged 22 years. the accident occurred at 9.45 p.m. on 14-11-1977 at hanamakonda when a bus belonging to the appellant corporation bearing the number apz 8330 knocked down the deceased. the deceased was admitted in the mahatma gandhi hospital, warangal.....
Judgment:

Jagannadha Rao, J.

1. The following questions arise for consideration in this appeal as to how compensation under S.110-B of the Motor Vehicles Act is to be computed, what is meant by loss to the 'dependency' and how is the 'multiplier' to be chosen, what is meant by the loss to he 'estate' and how is it to be computed, can the compensation be shared by the dependents not enumerated under the Fatal Accidents Act, 1855 and finally as to how the compensation is to be apportioned?

2. The deceased Mohd. Mahfooz was a carpenter when he died, he was aged 22 years. The accident occurred at 9.45 p.m. on 14-11-1977 at Hanamakonda when a bus belonging to the appellant Corporation bearing the number APZ 8330 knocked down the deceased. The deceased was admitted in the Mahatma Gandhi Hospital, Warangal and he expired on 21-11-1977 in the hospital at 9.00 p.m. The deceased was a carpenter owning a carpentry shop at Hunter Road and was earning Rs.400/- to Rs.500/- per month. He left behind him his mother and four unmarried sisters as his heirs and dependents who filed O.P. No. 11/1978 on 5-61978 claiming Rs.72, 000/- towards the dependency, at the rate of Rs.1500/- p.a. for 48 years and Rs.500/- towards damages to his clothing articles and cycle. The Corporation was impleaded as the Ist respondent and the driver as the 2nd respondents.

3. The Tribunal held that the accident occurred on account of the negligence of the appellant's driver. It accepted that the deceased was aged 22 years at his death, that he was earning Rs.400/- to Rs.500/- P.M. as a carpenter and would have given for the family at least Rs.1500/- per annum for a period of 48 years i.e., Rs.72, 000/- inasmuch as he would have lived up to 70 years. An award was passed for the other damages of Rs.500/- towards loss of clothing articles and cycle, in all making up a total of Rs.72, 500/-. Interest was granted at 6% p.a from the date of petition i.e., 5-6-1978.

4. Against the above award, the Corporation has filed the present appeal.

5. We are not inclined to disturb the finding of the lower Court that the appellant's driver was negligent. The finding in this regard is based on the evidence of P.W. 2, another cyclist who was cycling by the side of the deceased, the wound certificate Ex. A-1 and the other circumstances. This finding is therefore confirmed.

6. Sri C. Ananda Rao, the learned counsel for the Corporation contends that the Tribunal erred in taking a multiplier of 48. He also contended that the sisters of the deceased are not among the dependents enumerated in the Fatal Accidents Act, 1855, that the provisions of S.110-B are merely procedural and that they cannot confer any rights on the sisters of the deceased for claiming share in the dependency. He placed reliance on the decision of the Supreme Court in N.I. Insurance Company v. Shanti Misra : [1976]2SCR266 .

7. On the other hand, it is contended by the learned counsel for the respondents Sri K.F. Baba, that the multiplier adopted under law, be Rs.2400/- p.a. and not Rs.1500/- p.a. He also contended that the sisters of the deceased are entitled to be in the dependency in view of the special provisions of S.11 of the Motor Vehicles Act which according to him are wider than those under the Fatal Accidents Act, 1855. He contends that the provisions of S.110-B are also substantive in nature. According to him the sisters of the deceased are entitled to a share in the dependency in view of the decision of a Division Bench of this Court in Vanguard Insurance Company v. C. Hanumantha Rao (1975) 1 Andh WR 327 1975 Acc C.J. 344.

8. We shall firstly address ourselves to these twin concept of loss to the dependency and loss to the estate.

9. The loss of the benefit to the dependents' is a concept derived from the English Fatal Accidents Act, 1846, known as the Lord Campbells Act. The corresponding law in India is the Fatal Accidents Act (Act 13 of 1855).

10. The loss of 'benefit to the estate' of the deceased is the loss arising to the estate under the heads of mental and physical pain, loss of expectation of life and loss of amenities. The compensation payable in this regard is made to survive to his legal representatives under the Legal Representatives Suits Act. 1855 read with S. 306 of the Indian Succession Act, 1925. The corresponding law in England in this regard is the Law Reform (Miscellaneous Provisions) Act. 1934. The Indian Legislature would seem to have anticipated the English Stature of 1934 by several decades.

11. As there is a fatal accident in this case, the provisions of the Fatal Accidents Act. 1955 and of the Legal Representatives Suits Act read with S. 306 of the Indian Succession Act 1925 apply and allow damages to be claimed after the death of the person killed in the accident. The damages are ascertained and shared and apportioned under S.110-B of the Motor Vehicles Act.

12. We shall now deal with the various components of the above-said 'compensation'.

(A) Loss of Benefit to the Dependents and the Multiplier:

13. The Fatal Accidents Act, 1855 provides that whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable to death had ensued shall be liable to an action or suit for damages notwithstanding the death of the person injured. Even such action or suit shall be for the benefit of the wife husband, parent or child, if any, the deceased and the Court may 'apportion' the damages 'as it may think fit.'

14. Damages under this head are restricted to the financial loss A basic figure regarding the net contribution for the support of the dependents which would have been derived from the future income of the deceased is arrived at. Then an estimate of the probable length of time for which the earnings or contribution would have continued is made, and then a convenient 'multiple' is determined - a number of years purchase - which will reduce the total loss to its 'present value' after taking into account the provide risks of rise of fall in the income. Thereafter all contingencies such as the possibility of the widow remarrying or the dependant dying earlier have to be taken into account. We shall explain this question in detail presently.

15. The mode of estimating the present value of the loss of benefit to the dependants by applying the 'multiplier' method was first dealt with by Lord Wright in Davis v. Powell Duffryn Association Collieries limited (1942) Ac 601 = (1942) 1 All ER 657 (HL) and by Lord Simon in Nance v. British Columbai Electric Railway Company Ltd. (1951) A.C. 601 = (1951) 2 All ER 448 (P.C.) and has been consistently followed in England. Australia, Newzealand etc.

This method was explained in Davis case (1942) A.C. 601) (page 617) by Lord Wright:

'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 of 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 the widow might have again married and thus ceased to be dependant, and other like matters of speculation and doubt.'

16. The multiplier method has been consistently applied by our Supreme Court in various cases Subba Rao, J. (as he then was) referred to the above rulings in the decision of the Supreme Court in Gobald Motor Service Limited v. R.M.K. Veluswami : [1962]1SCR929 . In Municipal Corporation of Delhi v. Subhagwanthi : [1966]3SCR649 , after referring to the above passage from Lord Wright's judgment. Ramaswami J. applied a multiplier of 15 in respect of a person who died at the age of 30 years. A few years later, in C.K. Subrahmonia Iyer v. T. Kunhi Kuttan Nair : [1970]2SCR688 Hegde J. also referred to the above English cases and after quoting a passage from Windfiled on Torts (7th Edn. At pages 135, 136) observed:

'as a general rule parents are entitled to recover the present cash value of the prospective service of the deceased minor child. In addition they may receive compensation for loss of pecuniary benefit reasonably to be expected after the child attains majority.'

Coming to Sheikpura Transport Company v. N.I.T. Company Limited : AIR1971SC1624 in respect of a person who died at the age of 42 years, Hegde J. adopted a multiplier of 15. In Hardeep Kaur v. State of Punjab : AIR1974SC1995 the deceased was 25 years of age and a multiplier of 20 was adopted by Jaganmohan Reddy J. Similarly in Madhya Pradesh S.R.T.C. v. Sudhakar AIR 1977 SC 1189 Krishna Iyer & A.C. Gupta, JJ. Observed:

'a method of assessing damages, usually followed in England, as appears from Mallet v. M.C. Monagle (1970) A.C. 166 = (1969) 2 All ER 178 annual 'dependency' by a number of 'years' purchase. (p.178) that is the number of years the benefit was expected to last taking into consideration the imponderable factors infixing either the multiplier or the multiplicand.'

There the deceased died at the age of 23 years and had 35 years of service and a multiplier of 20 was used against the annual sum payable to the dependents and it was observed;

'In a decision of the Kerala High Court relied on by the appellant (P.B. Kader v. Thatchamma : AIR1970Ker241 ) to which on of us was a party the rare method of assessing compensation was adopted. Krishna Iyer J. who delivered the Judgment in the Kerala case P.B. kader v. Thatchmma : AIR1970Ker241 explained that standardised methods have been devised for calculating the value of the dependency of the 'present value' of the pecuniary benefit that the deceased would have conferred upon the dependents in the future. In the Kerala case Krishna Iyer, J. finally observed as follows:

'As I mentioned earlier there are two ways of which the present value of the dependents can be worked out: either you fix the multiplier, disregarding the fact of lump sum payable now, and the, with reference to the relevant annuity tables read down that figure into the present value; or alternatively you reduce the multiplier having in mind the thought that a lump sum is being paid now in the place of staggered payments over the years. Courts in England have learned towards the latter method and in arriving at the multipliers mentioned above I have adopted the same course.'

17. Thus in England as well as in India, the multiplier method is applied to compute the 'present value' of the future benefit to the dependents.

The British Law Commission has observed:

'the multiplier has been remains and should continue to remain, the ordinary, the best and only method of assessing the value of a number of future annual sums (Working paper No. 27- 1970)

18. With regard to the choice of the multiplier, Judges select the same from their experience. But there is every possibility of the awards being arbitrary or speculative if it is left to the uncontrolled discretion of the Court. Lord Goddard in Heatley v. Steel Company of Wales (1953) 1 All ER 489 pointed out that Judges were likely to act arbitrarily or on speculative grounds. The present case is an example of the use of a multiplier of 48 for which there is neither precedent nor scientific basis.

19. We are of the view that it is necessary to judicially define the scope of the discretion in the selection of the 'multiplier' as well as the 'multiplicand' (the annual dependency) so that it may not be exercised arbitrarily.

20. It is in this context that the annuity tables become useful. Their use will help in selecting a multiplier appropriate to the age of the deceased at his death with reference to his working age or the age up to which the deceased would have earned for his dependents.

21. At one time it was thought that these tables do not take into consideration the probabilities but they consider only the chances that they do not take into account various 'contingencies', or that they give a false appearance of accuracy and precision in a sphere where conjectural estimates have to play a large part. (Per Lord person in Taylor v. O Connor (1970) 1 All ER 365.

22. But it has been explained that these misgivings have no true basis. Prof. Street on Law of Damages (1962) Ed. Page 111) shows that the House of Lords had earlier allowed the use of the annuity tables in 1880 in order to value reversionary interests in property M Donald v. M Donald (1880) 5 A.C. 519. These tables are widely used in computation of death duties or for evalution of pensionary benefits of a person unlawfully dismissed. In fact, Lord Denning advocated the actuary's assistance in Hodges v. Hindland & Wolff Limited (1965) 1 WLR 523 as follows:

'The Judges do take actuarial considerations into account. They often take a number of years' purchase. If the evidence of an actuary would be helpful in any case, I know of no rule o law which prevents it being entertained.'

The British Law Commission has clearly accepted the use and relevancy of the annuity tables prepared by actuaries in its Working Paper No. 27 (1970-71). It observed:

'The actuarial method of calculation, whether from expert evidence or from tables, continues to be technically relevant and technically admissible but its usefulness is confined, except perhaps in very unusual cases, to an ancilliary means of checking a computation already made by the multiplier method.'

And also recommended legislative action to reaffirm the efficacy of the actuarial tables or the evidence of actuaries (vide Actuarial Assessment of Damages. The Thalidomide case - by Mr. J. H. Prevett in Vol. 35 Modern Law Review (1972) (P. 140 at P.146). Kemp & Kemp on 'Quantum of Damages' (1967) have compared the multiplies chosen by Judges from experience and found a close proximity between them and those arrived at from the annuity tables.

23. The position in the United States is no different. In the American Restatement of the Law of Torts (Vol. 4) (1939) it is stated at para 924.

'For this purpose, it is permissible to use mortality tables and other evidence as to the average expectation of life.'

In fact, some American States such as North Carolina and Wisconsin have laid down statutory tables for use in personal injury actions. Actuarial tables are widely used by Courts in the U.S., Canada, Australia and Sought Africa (Street, 1962 PP. 114, 137). Using life-expectancy, pension plans compute differently for men and women were held by the American Supreme Court to be discriminatory City of Los Angeles v. Manhart (1978) 435 U.S. 702.

24. We are adverting in detail to the Tables only for the purpose of enabling across-check of the Judge's multiplier chosen from experience.

25. We shall now advert to the scientific basis on which these annuity tables are prepared combining (i) mortality tables, and (ii) the formula for reduction of the prospective loss to its 'present value'. Munkaman's Damages (3rd Ed. P.54) has set out the actuarial basis of these tables. A detailed analysis is also given in 'Judicial Attitudes towards actuarial evidence by M/s. K. Richanrds and R. Kidner in Vol. 124. New Law Journal (1974) page 105 as set out hereunder:

26. They explain that these tables are prepared after taking into account the chances of premature death of the deceased at any later date and after making suitable deduction for a lump sum payment. They first direct the estimation of the annual dependency (we shall deal with it in detail later) taking into account the future salary increments and inflation, at 5% compound interest per annum. From the English Mortality Table No. 12 (1960-62) the probability of a male aged 30 surviving until age 35 can be calculated as 0.989 (i.e. he has got 98.9% chance of reaching that age until 50 is 0.95; until age 60 is 0.83 and so on. Th3se figures help in calculating the 'Expected value' of the dependency in any year i.e., the estimate of the dependency multiplied by the probability that the man would have remained alive to provide it for his wife and family. If the annual dependency of a lecturer, on date of his death at 30 years is 4, 500, the probability of his living to provide for his family till 35 years is 0.989 and the expected value of the dependency in the 35th year will be 4, 451 (0.989 X 4, 500). For each future year, this expected value is to be calculated till (say) 65 years of for life.

27. But before totalling them, each expected-value for 'each' of the future years has to be reduced to its 'present value'. Since a pound received in future is not equivalent to a pound received now. Pounds in the future must be discounted. For example if a 100 is invested at 5% p.a. for one year, it will be worth 105. The 'discounted' or present value of 105 received in one year's time at a rate of discount of 5% is 100. Similarly the present value of 100 to be received in the 5th year from now, using a discount rare of 5% will be 78.35 (by using the compound interest or equivalent formula).

28. We have seen that if the annual dependency in the 30th year is 4500, the estimated value of the dependency in the 35th year is 4451. Reducing it to its present value, it will be 4451 X 0.7835, giving 3487. It is these reduced values that are to be totalled for the 31st, 32nd, 33rd, 34th, 35th and so on till the 65th year, to provide a final present value of damages for all these years.

29. These two processes i.e., probabilities of death and the conversion to present value are combined into a single annuity table providing a multiplier which will, when applied against the annual dependency, give the present value of the total 'expected values' or prospective loss. Mr. J.H. Prevett in his Article already referred to (Vol. 35 Modern Law Review) stat4es that the association of a survival probability and a rate of discount lies at the root of the actuary's technique of arriving at the 'present value'. The tables (prepared by Mr. J.H. Prevett) are set out in Kemp & Kemp 'Quantum of Damages (1967 Ed. Pp. 40 to 51) and the authors observe (at page 36):

'It will be apparent that in the preparation of these tables both discount and mortality have been taken into account.'

And that once the multiplier is chosen form the Table, we have only to provide for other 'contingencies' and adjust the multiplier suitably.

30. There are several tables provided in Kemp & Kemp on 'Quantum of Damages' (1967 Ed) as also fresh tables in their 1982 Ed. The multipliers in the latter edition are higher in view of the improved health conditions in England. Having regard to Indian conditions, we are of the view that the Table No. IV (General Mortality Males) in the 1967 Ed. And which is prepared by calculating present value at 51/2 discount rate are useful for cross checking the multiplier which the Court might otherwise fix from its experience Table No. IV gives multipliers for those earning up to the end of their life and also those who learn up to 65 years. We are extracting the table in so far as those earning up to 65 years and the multipliers in cases of those earning for life i.e., beyond 65 years are mentioned in brackets. Conversely, if the earning capacity is to cease at the 55th or 60th year the multipliers in Table IV have to be slightly reduced. The Table is based on mortality figures for males and in cases where the deceased is a female, the multipliers from the Table are to be slightly reduced.

31. The other tables which adopt lesser rates of interest between 3% to 5% for reduction

Value in Rupees of prospective loss of Rs.100/- per annum payable monthly or weekly.Age Males (ceasing at age 65 ) Multiplier Earners for life 20 1649 16.49 (17.00) 21 1639 16.39 (16.92)22 1628 16.28 (16.85)23 1616 16.16 (16.76)24 1604 16.04 (16.68)25 1592 15.92 (16.59)26 1578 15.78 (16.49)27 1564 15.64 (16.39)28 1549 15.49 (16.28)29 1533 15.33 (16.16)30 1516 15.16 (16.04)31 1498 14.98 (15.91)32 1480 14.80 (15.78) 33 1460 14.60 (15.64)34 1440 14.40 (15.49)35 1418 14.18 (15.34)36 1396 13.96 (15.18)37 1372 13.72 (15.02)38 1348 13.48 (14.84)39 1322 13.22 (14.66)40 1295 12.95 (14.48) 41 1267 12.67 (14.28) 42 1237 12.37 (14.08)43 1206 12.06 (13.87)44 1174 11.74 (13.65)45 1140 11.40 (13.43)46 1105 11.05 (13.20)47 1069 10.69 (12.96)48 1030 10.30 (12.72)49 991 9.91 (12.47)50 949 9.49 (12.21)51 906 9.06 (11.95)52 860 8.60 (11.68)53 813 8.13 (11.40)54 763 7.63 (11.13)55 712 7.12 (10.85)56 658 6.58 (10.57)57 601 6.01 (10.28)58 541 5.41 (10.00)59 478 4.78 (9.72)60 412 4.12 (9.43)61 341 3.41 (9.15)62 265 2.65 (8.88)63 184 1.84 (8.60)64 96 0.96 (8.32)65 --- ---- (8.05)

of the annual dependency to 'present values' give higher multipliers than those in Table IV. It will be noticed that the higher the interest rate adopted (for reduction to present values), the lower will be the multiplier and vice versa. We have adopted the table No. IV prepared at 51/2% compound interest rate as being applicable to our country inasmuch as this rate can be treated as in vogue during stable periods of our country as pointed out by Lord Diplock in Mallet v. Mc. Monagle (1970-AC 166). We shall revert to this aspect while dealing with the question of 'inflation'.

32. The assumption of certain critics that the multipliers from the Table are likely to be on the high side because they do not take into consideration (i) the chances of the deceased dying earlier than heir normal life span or (ii) the factum of a lump sum payment are, from what we have seen to be the basis of the Tables, not correct as explained by several leading writers (see Street, Law of Damages 1962 Ed. O, 120 and the two articles, one by Mr. J.H. Prevett in (1972) 36 Modern law Review p. 140 at p.150 and the other by M/s K. Richards & R. Kidner (1974)124 Net law Journal passages 105 at 106 already referred to).

33. But the critics are justified in stating that the multipliers from the Tables are to be adjusted or reduced for certain other 'contingencies' and this is fully accepted by the authors of the tables and the actuaries.

34. Contingencies which are 'negative' or necessitate a reduction in the multiplier chosen from the Table are:

(i) the chances of premature death of the dependents:

(ii)the chance of marriage or remarriage of the female dependents; (iii) the chance of the deceased falling sick or his earning coming down due to holidays, strikes, unemployment, sickness and industrial disablement etc.

According to Prof. Street, the items in the last contingency (iii) require a reduction of the multiplier by 2% to 6%

35. The 'contingency' which has a positive content is the one pertaining to 'inflation' as stated by this Court in Polavarapu Somarajyam v. A.P.S.R.T.C. : AIR1983AP407 where this Court referred to the three earlier rulings of the House of Lords in Mallet v. Mc. Monagle (1970 AC 166). Taylor v. O' Connor (1070- 1 All ER 365) and Cookson v. Knowles (1977-3 WLR 279). In the first of these cases that is Mallet's case (1970-AC 166) Lord Dilpock stated that in computing damages under the Fatal Accidents Act. 1885, it was more practicable for Courts.

'..........to leave out of account the risk of further inflation.......... On the other hand.......money should be treated as retaining its value at the date of judgment and in calculating the present value of annual payments which would have been received in future years interest rates appropriate to times of stable currency such as four per cent to five per cent should be adopted.'

Views to the same effect were expressed in the second case Taylor v. O' Connor (1970-1 All ER 365) by Viscount Dilhorne and Lord person but Lord Reid different. However on the facts of Taylor's case (1970-1 All ER 365) it was found that the award being sufficiently large, investment thereof by the dependents in interest-earning investments might result in charge to income tax on the interest and the multiplier was therefore slightly increased to compensate for tax rather than for inflation. In the third case Cookson v. Knowles (1977-3 WLR 279) Lord Diplock reiterated his views in Mallet's case (1970-AC 166) that future inflation is taken care of in a rough and ready way because the conventional multipliers applied by Judges 'are higher as being the result of applying an interest rate of 4 to 5 per cent' whereas, actual rates of interest are much higher and higher interest rates would have otherwise yielded smaller multipliers.

36. We have seen that the 'conventional multipliers, used by Judges from experience or those taken from annuity tables are based on a interest rate between 3% to 51/2% per annum compound - for reducing prospective earnings to present values. It would be anomalous, as pointed out by Lord Diplock, to take advantage of a higher multiplier obtained by use of lower rates of interest obtaining during stable periods of currency and asking for a further increase of the multiplier for offsetting inflation and higher rates of interest obtaining or obtainable in future. The reason is that the multiplier would have otherwise been smaller if current rates of interest at 8% to 10% granted by Nationalised Banks are used for reducing future earnings to their 'present value'. However in exceptional cases such as Taylor's case (1970-1 All ER 365) where the award is huge and investment in current deposits would result in liability to income tax it would be permissible to increase the multiplier slightly to off set the deduction.

37. Recently in Lim poh Choo v. Camden and Islington Area Health Authority (1980) A.C. 174, the House of Lords speaking through Lord Scarman reviewed the above cases and accepted the vi3w of Lord Diplock in Mallet's case (1970-A.C. 166), that the conventional multiplier takes care of inflation but in exceptional cases such as Taylor's case (1970-1 All ER 365) where there was chance of incidence of income -tax, the multiplier could be increased and to that extent inflation was relevant. The approach of Lord Diplock has been accepted by the British law Commission in the Report on personal Injury Litigation Assessment of Damages (No. 56 paras 217, k227 to 230 and Working paper 41, para 190) which recommended that the inflation-factor should be included in the actuarial tables. We have already seen that interest rates and multipliers are in inverse proportion.

38. We shall now proceed to deal with the computation of the 'annual dependency' which is the multiplicand. Start with the deceased net income at the date of his death, estimate how much of this he spends on himself, and then, if his pattern of life justifies the assumption take the remainder as his net income as being spent for the benefit of his dependents (kemp & Kemp 4th Ed, 1975. Vo. 1, pp. 235-236). In Adsett v. West (1983) 3 WLR 437, Mc. Cullough J. pointed out that customary calculations and estimates which have been made for many years in cases under the Fatal Accidents Act reveal that the deceased would roughly have spent only about a third or less of his income upon himself. In our view, this may vary between 35% to 50%. Further the deceased's liability to income-tax must be taken into account in arriving at his net annual income (British Transport Corporation v. Gourley (1956) A.C. 185).

39. The product of the multiplier and the multiplicand gives the compensation payable under the Fatal Accidents Act. The said product need not be reduced by the collateral benefits received by the dependents on the event of the death of the victim - such as insurance, provident fund etc. Parry v. Cleaver (1970) A.C. 1. The compensation under the Fatal Accidents Act is not to be distributed equally among the recipients but is to be apportioned (as we shall explain later) according to their needs and expected tenure of life.

40. In case the recipients under the Fatal Accidents Act. 1855 receive any amounts from the estate, the award under the former is to be reduced by the share from the estate.

41. In Graham v. Dodds (1983) 2 All ER 953 the House of Lords held that in fatal accident cases the multiplier and the annual dependency have to be worked out with reference to the date of death of the victim and not as on date of trial.

42. We shall work out an illustration. Assume that the age of the deceased at his death was (say) 24 years. Taking the monthly value of the total income at Rs.800/- P.M. taking into account the usual deductions and the absence of income-tax at that level the amount which the deceased would have spent upon himself may be around Rs.350/- leavingRs.450/- towards monthly dependency. The annual dependency could be Rs.5400/-. The multiplier from the table would be 16.04 for a person earning up to 65 years. Assuming that the deceased would have retired from service at 55 years, and that he does not belong to the classes of law or high mortality groups, and taking into consideration the chances of his widow or children dying early, the chances of the deceased falling sick or earning less, etc. a multiplier of 14 would be proper. The award under the Fatal Accidents Act would be Rs.75, 000/- as being the present value of the prospective loss. As we shall point out below this is to be apportioned between the widow and children according to their needs and expected life span and if these persons should get a share from the loss to the estate', the same is to be deducted from the amount apportioned under the Fatal Accidents Act.

(A) Loss To The Estate:

43. The loss to the estate is to be recovered by these who are entitled to the estate under the law - the heirs on intestacy or the legatees administrators or executors in cases of testamentary succession. The right survives the deceased in England under the provisions of the Law Reform (Miscellaneous Provisions) Act, 1934 and in India under the Legal Representatives' suits Act, 1855 read with S. 306 of the Indian Succession Act, 1925. Under S. 2 of the Fatal Accidents Act, 1855 a claim for the estate and a claim for the dependency can be combined in the same action.

44. The loss to the estate comprises of damages that are payable to the deceased towards physical injuries sustained by him as representing pain and suffering (see Compensation for pain & suffering by Arye Miller at p.554 of International & Comparative law Quarterly, 1982, p.554) and for loss of amenities for the period between the time of accident and the time of death, together with a conventional small sum towards loss of expectation of life. These are all treated as non-pecuniary benefits.

45. But in the decision in Pickett v. Gritish Rail Engineering Ltd. (1980) A.C. 136 = (1979) 1 All ER 774 (HL) the House of Lords added to this head, a separate item called the 'lost earnings' for the 'lost years'. Their Lordships held that a person's interest in his 'good health' and 'sound earning' is a valuable assets distinct from his 'expectation of life' and that he should be duly compensated for the 'loss of earnings' for the 'lost years'. Damages wee awarded to the widow under this head for the deceased's pain and suffering, loss of expectation of life and also 'loss of earnings' for the 'lost years'. The loss of earnings had to be calculated by arriving at the annual loss of earnings for the future years and applying the multiplier formula and reducing the same to the present values. This was applied by the house of Lords in Gammel v. Wilson (1982) A.C. 27= (1981) 1 All ER 578 to the case of the death of the victim of the accident.

46. In cases where the recipients of the dependency and the recipients of the estate were the same, it was found as a result of these rulings that they would receive more under the claim to the estate in an action under the Law Reforms Act, 1934 rather than under the Fatal Accidents Act for the multiplier under the claim to the estate need not be reduced for the contingency of the chances of death or marriage or remarriage of the legal heirs. Thus the status quo ante before Gammel v. Willson (1982 A.C. 27) was again restored.

47. We are of the view that it is not necessary or desirable to adopt the English rule in Gammel v. Willson (1982 A.C. 27) in our law. The results in England were found unsatisfactory and had to be eliminated by statute. We therefore hold the loss to the 'estate' cannot be increased by computing the 'lost earnings' for the 'lost years'. We respectfully dissent from the contrary view taken by the Madhya pradesh High Court in Ramesh Chandra v. M.P.S.RAT.C. : AIR1982MP165 . The other items under this head already adverted to however remain.

(A) Deduction for Avoiding Double-Benefit

48. During the course of our discussion we have pointed out that in cases where the recipients of the dependency under the Fatal Accidents Act and the loss to the estate are the same, the compensation obtained by a person under the Fatal Accidents Act, after apportionment, is to be reduced by the amount he receives as heir to the 'loss to the estate'. The balance that remains payable under the Fatal Accidents'. Award has of course to be added to the share obtainable towards 'loss to the estate' and the sum total is recoverable from the defendants. In case however the recipients under the Fatal Accidents Act are different from those of 'the loss to the estate', there is no question of such a deduction. This is clear from the decisions in Rose v. Ford (1973) A.C. 826 at 835. And Davis v. Powell Dufferyn Collieries (1942-A.C. 601). The deduction procedure is accepted by our Supreme Court in Gobald Motor Service Limited v. R.M.K. Veluswamy : [1962]1SCR929 where Subba Rao, J. (as he then was) observed:

'If the claimants under both the heads are the same, and if they get compensation for the entire loss caused to the estate, they cannot claim again under the head of personal loss to capitalised income that might have been spent on them if the deceased were alive'.

That leads us to the question as to who the recipients under the head of 'loss to the dependency' and 'loss to the estate' should be.

(A) Who Are Persons Entitled Under (A) and Under (B):

49. The next question that arises for consideration is: 'Whether the apportionment of the dependency under the Fatal Accidents Act, 1855 is to be limited to the enumerated class of persons under S. 1-A of the Fatal Accidents Act, 1855?'

50. Under S. 1-A of the said Act the apportionment of the dependency is to be made between the wife, husband, parent and child, if any, of the deceased. Section 4 of the said Act states the word 'parent' shall include the father, mother, grandfather and grandmother and that the word 'child' shall include the son, daughter, grandson, granddaughter, step-son and step-daughter.

51. It is contended by Sri K.F. Baba, the learned counsel for the respondents that the provisions of S.110-B of Motor Vehicles Act are wider in scope than the provisions of S. 1A of the Fatal Accidents Act, 1855, that the apportionment under the Motor Vehicles Act is at the discretion of the Court and that therefore the brothers and sisters of the deceased, if they are otherwise legal representatives of the deceased according to their personal law, would also be entitled for an apportionment of the dependency.

52. Section 110-B of the Motor Vehicles Act provides that the tribunal shall hold an enquiry into the claims of the parties and shall 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'.

53. In our view the provisions under S.110B of the Motor Vehicles Act, 1939 not only empower the Tribunal to make an award which is 'just' but also empower the said Tribunal to specify the person or persons to whom the compensation shall be paid, thereby permitting apportionment of compensation payable under the Fatal Accidents Act to persons other than those enumerated in the Fatal Accidents Act 1855. In our view all the legal representatives of the deceased according to the personal law applicable to the deceased will be entitled to apportionment of the dependency according to their needs and according to their age and that apportionment is not limited to the class of persons enumerated under S. 1-A of the Fatal Accidents Act read with S. 4 thereof. The observations of their Lordships of the Supreme Court in relation to the wider scope of S.110-B of the Motor Vehicles Act 1939 in Sheikpura Transport Company v. N.I.T. Insurance Company : AIR1971SC1624 are in our view apposite. Hegde, J. of the Supreme Court observed:

'Under S.110-B of the Motor Vehicles Act 1939 the Tribunal is required to fix such compensation which appears to it to be just.

The power given to the Tribunal in the matter of fixing compensation under that provision is wide. Even if we assume (we do not propose to decide that question in this case) that compensation has to be fixed on the same basis as required to be done under the Fatal Accidents Act 1855 (Act 13 of 1855), the pecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately but must necessarily be an estimate or even partly a conjecture. (Emphasis ours).

54. The liberal view permitting apportionment of the dependency between all the legal representatives of the deceased - without being restricted to the persons enumerated under the Fatal Accidents Act - taken by us has also been taken by a Full Bench of the Punjab & Haryana High Court consisting of Chinnappa Reddy, M.R. Sharma and Harbanslal, JJ. In Jokhiram v. Naresh Kantha, , Damayant Devi v. Sita Devi, 1972 ACCC.J. 334 (Punj & Har) and by a Division Bench of the karnatka High Court in K.S.R.T. Corporation v. Peerappa, : AIR1979Kant154 , by the Madras High Court in Mohd. Habibullah v. Seethammal, : AIR1967Mad123 , the Himachal Pradesh High Court in State v. Dole Ram, and the Gujaat High Court in Megjibhai v. Chaturbhai, : AIR1977Guj195 . The liberal vies which we have adopted was also taken earlier by a Division Bench of this Court in Vanguard Insurance Company v. C. Hanumantha Rao (1975-1 Andh WR 327).

55. For the reason given above, we respectfully dissent from the judgments of the following High Courts viz., Delhi High Court in Dewan Hari Chand v. Delhi Municipality, AIR 1981 Delhi 71, the kerala High Court in P.B. Kader v. Thatchamma : AIR1970Ker241 the Madhya Pradesh High Court in Budha v. Union of India, : AIR1981MP151 and the Madras High Court in Perumal v. Elluswamy Reddiar (1974 1 Mad LJ 292 = 1974 Acc CJ 82.

56. The learned counsel for the appellant placed reliance upon another judgment of the Supreme Court in N.I. Insurance Company v. Shanti Misra : [1976]2SCR266 . A reading of the judgment would show that their Lordships were only concerned with Ss. 110-A and 110-F of the Motor Vehicles Act and held that the said two sections only dealt with the procedural law and not with the substantive law relating to compensation. In our view that judgment was concerned with the question as to the forum before which a claim under the Motor Vehicles Act should be adjudicated and was confined to two sections viz., S.110-A and 110-F and is therefore clearly distinguishable. In our opinion the decision of the Supreme Court in Sheikpura Transport Company v. N.I.T. Company (AIR 1917 KLSC 1624) which directly deals with S.110-B is in point and binding on us.

57. We may point out that in England and list of statutory dependents has been periodically enlarged ksubs3quent to 1846 in several statutes such as the Fatal Accidents Act. 1959, the Fatal Accidents Act 1976 and the Administration of Justice Act, 1982. Under the English statutory law the brother, sister, uncle or aunt of the deceased and the persons related by adopted or half blood and the illegitimate off-spring are entitled to the apportionment of the dependency. The recipients are in three classes viz., the dependents, the mourners, apart from the beneficiaries of the estate (see New law Journal. Vol. 133 pp. 307 and 321 by Mr. Tom Harvery).

58. We have also pointed earlier that under S. 1-A of the Fatal Accidents Act. 1855 the Court may give such 'damage as it may think proportioned to the loss resulting from such death to the par4ie respectively, for whom and for whose benefit such action shall be brought and the amount so recovered......shall be divided amongst the before-mentioned parties or any of them, in such shares as the Court by its judgment or decree shall direct.'

The Court therefore has the power to apportion the dependency between the recipients individually. The entitlement of each person is to a separate award and not just to a joint-interest in a global sum.

59. The compensation payable to the dependents of the deceased is determined and apportioned by the Tribunal constituted under the Motor Vehicles Act. 1939 but the survival of the right in respect of the damages to the dependents and to the legal heirs could only be traced to the Fatal Accidents Act, 1855 read with S. 306 of the Indian Succession Act. 1925. Once the right survives, the Tribunal exercises various powers of the Motor Vehicles Act. 19939. Under S.110-B of the Act, it has power to

'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.......'

The Tribunal therefore has power to apportion the dependency among the dependents under the Fatal Accidents Act, 1855 in accordance with their needs and life-span. But so far as the 'loss to the estate' is concerned, the Tribunal has to divide the same in accordance with the personal law applicable to the deceased in case of intestacy or to the legal representatives, administrators, executors or legatees in accordance with law or any other testamentary directions.

60. We shall now proceed to apply the above principles to the facts of the case.

61. The first step is to determine the annual dependency of the 'multiplicand'. In our view, the evidence of P.W. 1. the mother of the deceased and of P.W. 2, the husband of one of the married sisters is to the effect that the deceased was having a carpentry and painting workshop and that he was earning, on an average, about Rs.400/- to Rs.500 P.M. at the time of his death. We determine the average monthly net earning at Rs.400 and consider that the deceased would have given Rs.200/- P.M. to his dependents. The annual dependency thus works out to a sum of Rs.2, 400/-. We are not inclined to go by the rough figure of Rs.1500/- P.A. mentioned by the claimants for that figure is clearly contrary to the conventional figure is clearly contrary to the conventional figure adopted towards the dependency. Thus the annual dependency will be Rs.2, 400 and for such an income there is no incidence of income-tax.

62. The next step is to arrive at the appropriate multiplier. The decesed having died at the age of 22 years, we consider that a multiplier of 16 would be reasonable.

63. We now proceed to cross-check the multiplier with reference to the annuity tables. The deceased not being a salaried employee liable to retirement, it is reasonable to assume that his earning capacity extends beyond 65 years. For a person dying at 22, and earning beyond his 65th year, the multiplier would be 16.85. This multiplier has to be reduced for the 'contingencies' - namely, the chances of the mother dying, the sisters marrying soon, the deceased falling sick or his earning capacity being diminished. We are of the view that the multiplier of 16.85 from the Table is to be reduced to 16. Thus the multiplier of 16 selected by us compares favourably with the one arrived at by use of the actuarial or annuity tables. Therefore it is clear that the multiplier of 48 adopted by the Tribunal is hopelessly arbitrary.

64. The compensation payable to the dependency under the Fatal Accidents Act, 1855 comes to Rs.2400 x 16 = Rs.38, 400/-.

65. As the same is not high when apportioned, it is not likely to result in any diminution towards income-tax on any investments so as to fall within the exception in Limpoh Choo's case (1980-A.C. 174). As the multiplier of 16 is arrived at by reducing the prospective loss to its 'present value' by applying a standard rate of 51/2% compound for future years, it will not be reasonable to treat any investment of the dependency at rate higher than 51/2% so as to provide further for inflation or income-tax.

66. The next question is the loss to the estate. We confirm the loss to the estate at Rs.500/-

67. The further question is as to who are entitled to receive these sums. The dependency, according to the liberal view accepted by us, is to go to all the legal heirs of the deceased who died interstate. The heirs are the mother and sister, married and unmarried. But the married sisters, not being any longer dependent get nothing. The dependency goes to the mother and the unmarried sisters.

68. The dependency of Rs.38, 400/- has however to be apportioned between the mother and the unmarrieds isters according to their needs and span of life. The loss to the estate, namely Rs.500/- has to be divided according to Mahomedan law between the mother and sisters of the deceased. Therefore, the amount received by each of the claimants from the estate has to be deducted from the amount each is apportioned from the dependency.

69. On the facts of this case, the claimants having already withdrawn 'jointly' one half of the award of Rs.72, 500 - with interest, we do not propose to make the above calculation. Suffice it to say that the amount receivable by the claimants 'jointly' would be as follows:

(a) towards dependency underFatal accidents Act, 1855(Rs.38, 400 - Rs.500) Rs.37, 900.00(b) towards the lossto the estate Rs. 500.00___________Total Rs.38, 400.00___________

70. In the result, the award made by the Tribunal is set aside and the appeal allowed in part and an award of Rs.38, 400 with interest at 6% P.A. from 5-6-78, the date of the petition, is substituted. There shall be no order as to costs in the C.M.A.

71. With regard to the mode of payment of compensation award under the Motor Vehicles Act, 1939, it would in our opinion, be desirable that the Tribunals should issue payments under 'Account-payee' cheques or similar orders, directly to the parties or their legal guardians upon verification of their identity.

72. Compensation cases raise issue of social, economic and financial policy not amenable to Judicial reform but can be resolved by the legislature only after full consideration of factors which cannot be brought into clear focus, or be weighed and assessed, in the courses of the forensic process. The judge - however wise, creative, and imaginative he may - is 'Cabi' c. cribb'd confin'd bound in not as was Macbeth, to his 'saucy doubts and fears' but by the evidence and arguments of litigants. It is this limitation, inherent in the forensic process, which sets bounds to the scope of judicial law reform (per Lord Scarman at .1813 of Lim Poh Choo's case (1980-A.C. 174).

73. The reform must therefore come from Parliament. The Fatal Accidents Act, 1855 requires to be made up to date in the light of the experience of the English Fatal Accidents Acs of 1959 and 1976. Similarly the legal Representatives Suits Act 1855 and S. 306 of the Indian Succession Act 1925 require to be brought in line after examining the amendments to the Law Reforms (Miscellaneous Provisions) Act, 193 (Sic). The widespraed reforms made under the Administration Justice Act 1982 have also to be taken into account. The law has to be simplified and adjusted to suit Indian conditions.

74. Lord Hailsham, while introducing the Administration of justice Bill, 1982 spoke of the need for 'darning' the statute from time to time, like darning old socks. Perhaps, as pointed out by M/s. Andrew Borkowski & K. Stanton (Vol. 46, Modern Law Review, 1983, P. 191) it is necessary to buy 'new socks' rather than darn the old ones.

75. Appeal partly allowed.


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