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Rajasthan State Road Transport Corporation Vs. Smt. Manorma and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Miscellaneous Appeal No. 19/81
Judge
Reported in1981WLN(UC)372
AppellantRajasthan State Road Transport Corporation
RespondentSmt. Manorma and ors.
Cases ReferredBhagchand Panjuram v. Smt. Snelilata (supra
Excerpt:
motor vehicles act, 1939 - section 110a--accident of jeep with bus--extensive damage on right side of jeep and left side of bus--head lights of jeep in working order--conduct of not stopping bus supports an inference that bus was driven at fast speed--held, bus was driven in rash and negligent manner and accident was not cause i due to negligence of jeep driver;there was extensive damage on the right side of the jeep as well as on the left side of the bus indicating the seriousness of the impact. moreover, the site plan as well as the memo of the site-inspection did not show that bus had been taken on the 'kutcha' road. on the other hand, ex. 15, the memo of inspection of the jeep, indicates that both the head lights of the jeep were in working condition. in the circumstances, the conduct.....s.c. agarwal, j.1. this is an appeal filed under section 110-d of the motor vehicle act (hereinafter referred to as 'the act'), against the award dated october 9, 1980, given by the motor accidents claims tribunal udaipur (hereinafter referred to as 'the claims tribunal'), in civil miscellaneous petition no. 64 of 1979, filed by the respondents nos. 1 and 2 (hereinafter referred as to ''the claimants') against the rajasthan state road transport corporation, the appellant herein, and shri hari rain driver respondent no. 3 under section 110-a of the act. in the said claim petition the claimants had claimed for rs. 17,05,000/- as compensation. the claims tribunal has awarded rs. 6,17,600/- as compensation to the claimants.2. the claim for compensation relates to a motor accidents which took.....
Judgment:

S.C. Agarwal, J.

1. This is an appeal filed under Section 110-D of the Motor Vehicle Act (hereinafter referred to as 'the Act'), against the award dated October 9, 1980, given by the Motor Accidents Claims Tribunal Udaipur (hereinafter referred to as 'the Claims Tribunal'), in Civil Miscellaneous Petition No. 64 of 1979, filed by the respondents Nos. 1 and 2 (hereinafter referred as to ''the claimants') against the Rajasthan State Road Transport Corporation, the appellant herein, and Shri Hari Rain Driver Respondent No. 3 under Section 110-A of the Act. In the said claim petition the claimants had claimed for Rs. 17,05,000/- as compensation. The claims Tribunal has awarded Rs. 6,17,600/- as compensation to the claimants.

2. The claim for compensation relates to a motor accidents which took place on the Banswara Partapur road, near village Talwara on January 29, 1979 at about 8.30 P.M. In the said accident, a jeep bearing No. RJY 3891 and a Bus bearing No. RRM 3885 owned by the appellant Corporation and driven by Hari Ram respondent No. 3 were involved. One Prakash Chandra the husband of the respondent No. 1 and father of respondent No. 2 who was travelling in the aforesaid jeep sustained injuries during the said accident and as a result of the injuries sustained by him he died on the spot. There after, the claim petition, giving rise to the present appeal, was filed by the claimants on May 13, 1979.

3. In the claim petition, the claimants submitted that on the date of accident, i.e. on January 29, 1979, the deceased Prakash Chandra, was going from Banswara to Partapur, in jeep No. RJY 3891 which was being driven by Abdul Rahman the owner of the said Jeep. At about 8.30 P.M. when the jeep was about 1 1/2 kilometers from village Talwara, and was going at a normal speed. Bus No. RRM 3885 came from the opposite direction at a fast speed and as the bus was not under the control of the driver, the driver of the jeep stopped the jeep on one side of the road but in view of the fact that the driver of the bus was driving the bus in a rash and negligent manner, the bus hit the jeep, as a result of which Prakash Chandra sustained injuries on his person and died instantly and that even after the accident the driver of the bus did not stop the bus, Dilip Kumar who was travelling in the jeep at that time gave information about the accident to the Sarpanch of village Talwara, who informed the police there upon, Shri Suresh Chandra, Assistant Sub-Inspector of Police, arrived at the scene of the accident on the same night, he also recorded a report at the police station on January 30, 1979 at 8.15 A.M. Nathu Jogi who was also travelling in the jeep, sustained injuries as a result of accident, the ring of the head light of the bus and the foot board of the bus had fallen down near the scene of the accident. According to the aforesaid claim petition deceased Prakash Chahdra was partner in the firm M/s. Vijay Lal Harish Chandra at the time of the accident, his monthly income was Rs. 3,000/- and that the deceased was spending about l/3rd of his income on himself and remaining 2/3rd income was being spent by him on the claimants. According to the claim petition the deceased was 31 years old at the time of the accident and the normal expectation of his life was 75 years. The claimants, therefore, claimed Rs. 15,05,000/- as a compensation on account of loss of earning a$ a result of the death of Prakash Chandra and Rs. 2,00,000/ as compensation for the mental agony suffered by the claimants.

4. The aforesaid claim petition was contested by the appellant Corporation and respondent No. 3, who filed separate but identical written statements, wherein they denied that the accident had been caused, as a result of rash and negligent driving of the bus, but pleaded that the accident had been caused on account of the negligence of the driver of the jeep and persons travelling in the said jeep.

5. On the basis of the aforesaid pleadings, the Claims Tribunal framed four issues out of which issue No. 1 was as to whether on January 29, 1979, respondent No. 3 was driving the bus No. RRM 3885, owned by the appellant Corporation, at a fast speed in rash and negligent manner as a result of which the said bus hit the jeep, standing on the side of the road and Prakash Chandra sustained serious injuries on his persons, as a result of which he died.

6. Issue No. 3 was as to whether the accident had been caused on account of the negligence of the driver of jeep No. RJY 3891 and the persons travelling in the said jeep.

7. Issue No. 2 was as to whether the claimants were entitled to compensation and if so, from whom and to what extent.

8. In order to establish that the accident had been caused on account of the rash and negligent driving on part of respondent No. 3 the claimants examined Dalip Kumar AW5, who was travelling in the said jeep and was present at the time of the accident and Abdual Rahman, AW9, driver of the said jeep. In addition the claimants have examined Jeet Mal, Awl, the Sarpanch of village Talwara, who arrived at the scene of accident soon after the accident, Shri Suresh Chandra, AW7, Assistant Sub-Inspector of Police, who had also arrived at the scene of the accident and had prepared the site-plan (Ex. 13) and the memo of inspection of the site (Ex. 12). He also proved the report (Ex. I.J) lodged by him at the Police Station and the photographs (Ex.Ps.20/1 to Ex. Ps.20/22) which were taken at the scene of the accident. The claimants have also examined Dr. Sushil Mehta, AW3, who had conducted the post mortem examination of the dead body of the deceased Prakash Chandra and has proved the post-mortem report (Ex, 12). The claimants have also examined Mohammed Hussain AW8, who was employed as a Motor Mechanic in Banswara and had inspected both the vehicles and has proved the inspections report (Ex. 14 and 15) relating to the inspection of the aforesaid vehicles. In order to prove their case, with regard to quantum of compensation, the claimants have examined Smt. Manorma, AW1, the wife of the deceased Prakash Chandra, Shri Dinkar Lal Meata, AW 2, the father of Smt. Manorma and Shri Mangilal, AW4, the father of deceased Prakash Chandra. In addition to oral aforesaid evidence the claimants have produced, the Income-tax assessment order, (Ex. 1.2.3 and 11) relating to the assesment of the income of deceased Prakash Chandra for the purpose of income tax and the sales-tax assesment orders (Ex. 4 and 5) relating to the assesment of sales-tax payable by the firm M/s. Vijay Lal Harish Chandra of which deceased Prakash Chandra was a partner. The claimants have also produced a copy, (Ex. 6) of the entry in the Register of Firms maintained in the office of Registrar of Firms, Rajasthan Jaipur, relating to firm of Vijay Lal Harish Chandra.

9. The appellant Corporation, in support of its case, examined Hari Ram, AW2, the driver of the bus and Tulsi Ram, AW3, the Conductor of the said bus. In addition, the appellant Corporation examined Radheshyam, AW 1, who has proved the map (Ex.A-4), that was prepared by him on the basis of site-plan (Ex.A-5) and the memo of inspection (Ex.A-6).

10. The Claims Tribunal, after taking into consideration, the evidence of Dilip Kumar, AW 5, Abdul Rehman, AW 9, Jeet Mal, AW 6. Suresh Chandra, AW 7, and Mohammed Hussain AW 8, examined by the claimants and Hari Ram, AW 2 and Tulsi Ram, AW 3 examined by the appellant Corporation arrived at the conclusion that bus No, RRM 3885 was being driven rashly & negligently & at an excessive speed and that as a result there of it collided against the jeep and this resulted in the death of Prakash Chandra. The Claims Tribunal further held that the appellant Corporation bad not been able to prove that there was any negligence or rashness on the part of the driver of the jeep or on the part of the occupants of the jeep. The Claims Tribunal, therefore, decided issues Nos. 1 and 3 against the appellant Corporation and respondent No. 3. As regards the compensation, the Claims Tribunal held that at the time of his death Prakash Chandra was earning on an average of Rs. 3.000/- per month and that after deducting a sum of Rs. 1,000/-, which he was spending on himself, he was spending about Rs. 2,000/- per month on the claimants. The Claims Tribunal, therefore, held that the claimants had been deprived of at least Rs. 24,000/- per year on account of the death of Prakash Chandra. The Claims Tribunal assessed the expected age of Prakash Chandra as more than 60 years and found that at the time of his death, the age of Prakash Chandra was 32 years. The Claims Tribunal, therefore, assessed the compensation for loss of maintenance to the claimants at Rs. 6,72,000/- by multiplying the sum of Rs. 24,000/- by 28. In addition, Claims Tribunal assessed the compensation on account of mental shock suffered by Smt. Manorma, the wife of the deceased, at Rs. 1,00,000/-. According to the Claims Tribunal the total amount of compensation to which the claimants were entitled was Rs. 7,72,000/- but taking into consideration the fact that lum-sum payment was to be made to the claimants and also keeping in view, the uncertainty of the life, the Claims Tribunal made a deduction of 20% from the aforesaid amount of Rs. 7,72,000/- and awarded a sum of Rs. 6,17,600/- as a compensation. The Claims Tribunal directed that the appellant Corporation, as well as respondent No. 3, would be liable to pay the aforesaid amount jointly and severally and that the claimants would get interest at the rate of 6% per annum from the date of the award till the date of realisation and that out of the awarded amount Kum. Rashmi, respondent No. 2, would share, Rs, 2,00,000/- and that amount would be deposited in a Nationalised Bank in Fixed Deposit Account in her name till she attains majority and that she would be entitled to get monthly interest on the Fixed Deposit Account for her maintenance through her natural guardian.

11. Being aggrieved by the aforesaid award made by the Claims Tribunal the appellant Corporation has filed this appeal. The Claimants feave also filed their cross-objections under Order 41, Rule 22 CPC and hive asked for enhancement of the compensation to Rs. 17,05,000/-.

12. I have heard Shri R.N. Mitnshi, the learned counsel for the appellant Corporation and Shri M. Mridul and Shri M.M. Singhvi, the teamed coansel for the respondents Nos. 1 and 2.

13. The questions which arise for consideration in this appeal, are:

(i) Was the accident involving bus No. RRM 3885 and Jeep No. RJY 3891, resulting in death of Prakash Chandra, caused on account of the rash and negligent driving of the bus by respondent No. 3, the driver of the bus ?

(ii) In case the first question is decided against the appellant Corporation, what should be the amount of compensation to which the claimants are entitled ?

14. In so far as the first question is concerned, Shri Munshi has sought the challenge in the findings recorded by the Claims Tribunal and has submitted that from the evidence on record it is hot established that the accident had been caused on account of the rash and negligent driving of the bus by respondent No. 3. The submission of Shri Munshi was that the accident had been caused on account of negligence on the part of the driver of the jeep in as much as the jeep was found on the middle of the road. On a perusual of the evidence produced by the parties I find myself unable to accept the aforesaid contention of Shri Munshi.

15. Dilip Kumar, AW5, who was an occupant of the jeep and Abdul Rahman, AW9, who was the driver of the jeep, have both deposed that the jeep was being driven at normal speed and on seeing the bus coming from the opposite direction at a very high speed the driver of the jeep had stopped jeep and that inspite of the fact the jeep had been stopped, the bus which was coming at a very fast speed, hit the jeep on the right side and as a result thereof deceased Prakash Chandra, who was sitting front seat on the right side, sustained severe injuries and was thrown out on the road. The aforesaid evidence of Dilip Kumar and Abdul Rehman that they had stopped the jeep is borne out by the memo of the inspection of the site (Ex. 12) as well as the site plan (Ex. 12), prepared by Shri Suresh Chandra, Assistant Sub-Inspector of Police. The said documents show that there were marks of tires on the ROAD NEAR the place wherein jeep was found, which indicates that driver of the jeep, had applied the breaks in order to stop the jeep & that the jeep must have been in a stationary position at the time of the accident. The aforesaid documents also indicate that at the time of the accident the jeep was not on the center of the road and it was on the side of the road in as much as the width of the road was at about 15 ft. and that the distance between front portion of the jeep and left extremity of the road was 4ft. and the distance between rear part of the jeep and the left extremity of the road was 3ft Shri Munshi has laid stress on the fact that according to the aforesaid documents the body of Prakash Chandra was found on the middle of the road and on that basis Shri Munshi has submitted that jeep must have been in the centre of the road at the time of the accident. In my view, the fact that body of Prakash Chandra was found on the centre of the road does not lead to the inference that the jeep was on the centre of the road at the time of the accident because as a result of the impact Prakash Chandra was thrown out from the jeep and he fell on the centre of the road. A perusual of the photographs of the jeep, which were taken after the accident, shows that there is extensive damage on the right side mud-guard of the jeep, which appears to be completely smashed, indicating that the bus had hit the right mud-guard of the jeep and, Prakash who was sitting on the right extremity was also hit by the bus and as a result of the impact Prakash Chandra was thrown out of the jeep and he fell in the middle of the road. The fact that the foot board of the bus had got detached and was found near the dead body of Prakash Chandra, indicates that Prakash Chandra might have been hit by the foot board of the bus and as a result of the impact, foot board get detached from the bus. The medical evidence also shows that all the injuries found on the person of Prakash Chandra are on right side of the body which also supports the inference that Praksh Chandra was hit by the bus and was thrown out of the jeep and fell on the roe I. In so far as the evidence adduced by the appellant Corporation is concerned, there is only evidence of Hari Ram, the driver of the bus and Tulsi Ram, the Conductor of the said bus. The aforesaid witnesses have sought to make out that at the time of the accident there was only one light in jeep and in order to avoid the jeep the driver of the bus had taken the bus on the 'kutcha' route & inspite of that the jeep dashed against the bus. According to the aforesaid witness the driver of the bus did not stop the bus because the jeep also did not stop. In my opinion, the aforesaid evidence cannot be accepted in view of the inspection report (Ex. 14 and 15) which showed that there was extensive damage on the right side of the jeep as well as on the left side of the bus indicating the seriousness of the impact. Moreover, the site plan as well as the memo of the side-inspection did not show that bus had been taken on the 'kutcha' road. On the other hand. Ex. 15, the memo of inspection of the jeep, indicates that both the head lights of the jeep were in working condition. In the circumstances, the conduct of Hari Ram, and Tulsi Ram in not stopping the bus also support the inference that at the time of the accident the bus was being driven at a very fast speed and in a rash and negligent manner. I am, therefore, fully in agreement with the findings recorded by the Claims Tribunal that the accident was caused on account of the fact that respondent No 3 who was the driver of bus No. RRM 3881, was driving the said bus at a very fast speed and in a rash and negligent manner and the appellant Corporation has failed to establish that the said accident had been caused due to negligence on the part of the driver of the jeep or the occupants of the jeep. The next question which arises for consideration is with regard to the amount of compensation to which the claimants are entitled. As noticed earlier, the Claims Tribunal has made an award of Rs. 6,17,600/-. The appellant Corporation is seeking to challenge the aforesaid award on the ground that the compensation awarded is excessive in facts and circumstances of the case. The claimants, on the other hand, have filed cross-objections wherein they have submitted that the compensation awarded by the Claims Tribunal is inadequate and that the claimants should be awarded the full amount claimed by them i.e. Rs. 17,05,000/ -

16. Shri Munshi has raised a preliminary objection with regard to the maintainability of the cross objections and has submitted that under the Act no express provision has been made for filing of cross objections in an appeal against the award of the Claims Tribunal and, therefore, cross-objection submitted by the claimants cannot be entertained. In my view, the aforesaid preliminary objection raised by Shri Munsni cannot be accepted in view of the decision of a Division Bench of this Court in M/s. Automobile Transport (Rajasthan) Private Limited and Anr. v. Dewalal and Ors. (1). In the said case, it has been laid down that in an appeal under Section 110-D of the Act, the respondent can file cross objections by invoking the provisions of Order 41, Rule 22, CPC because where a statute directs that an appeal shall lie to a court, already established, then that appeal must be regulated by the practice and procedure of that Court. While dealing with the question as to the amount of compensation which can be awarded in the present case, I will, therefore, take into account the cross objections that have been filed by the claimants.

17. Before I proceed to deal with the evidence on record pertaining to the quantum of compensation awarded to the claimants, it is necessary to take note of the relevant provisions of law governing the award of compensation in such cases. Under Section 110B of the Act, it has been provided that the Claims Tribunal, after giving the parties an opportunity of being heard, shall hold an enquiry into the claim and may make an award determining an amount of compensation, which appears to it just, and specify of the person or persons to whom the compensation shall be paid. The aforesaid provision was inserted in me Act by Motor Vehicles (Amendment) Act No. 76 of 1956. Prior to the insertion of the aforesaid, provision, claims for compensation arising out of motor accidents used to be decided by the courts which adjudicated the same on the basis of the provisions of the Fatal Accidents Act, 1855. Under the aforesaid provisions, compensation was payable (i) in respect of pecuniary loss sustained by the person making the claim by the reason of death of deceased, and (ii) loss sustained to the estate of the deceased on account of the death of deceased. Apart from the two heads of damages which could be awarded, the claimants were not entitled to any compensation on account of the mental agony or suffering or shock caused to the claimants as a result of the death of the deceased. The aforesaid provisions which were applied for the purpose of assessing compensation under the provisions of the Fatal Accidents Act have been applied by the courts while assessing compensation under section 110B of the Act. The submission of Shri Mridul was that in view of the wide language used in Section 110B of the Act which requires the Claims Tribunal to determine the amount of compensation which appears to be just, it is open to the Claims Tribunal to award compensation for mental agony and suffering or shock sustained by the claimants as a result of the death of the deceased. I am unable to accept the aforesaid contention. In my view, although the Claims Tribunal has been conferred wide discretion in the matter of assessing the compensation and it is not strictly bound by the provisions of the Fatal Accidents Act, 1885, in the matter of determination of compensation, but still the general principles with the regard to the assessment of damages applicable to cases of fatal accidents under the law of Torts, would be applicable to claims for compensation under Section 110B of the 'Act and according to the aforesaid principles, compensation cannot be awarded by way of solatium for mental suffering or shock sustained by the claimants on account of the death of the deceased. In this context, reference may be made to the following observations of Lord Wright in Dariex v. Powele Duffryn Associated Colleries Ltd. 1942 AC 601:-

There is no question here of what may be called sentimental damage bereavement or pain or suffering. It is a hard matter of pounds' shillings and pence subject to the element of reasonable future' probabilities.

18. In D.K. Subramania lyer and Ors. v. T. Kimhikuttan Nair and Ors. 1970 ACJ 110 while assessing damages under Section 1A and 2 of the Fatal Accident Act, the Supreme Court has observed : -

In ascertaining pecuniary loss caused to the relatives mentioned in Section 1A, it must be borne in mind that these damages are not to be given as solatium, but are to be given with reference to a pecuniary loss.

19. A Division Bench of the High Court of Himachal Pradesh, in State of Punjab v. Harbhajan Lal Kochar 1980 ACJ 8 while assessing compensation under Section 110B of the Act, has relied upon the observations of Lord Wright in Davies v. Powele Duffryn Associated Colleries Ltd. (supra) to hold that the Claims Tribunal is not justified in awarding compensation for loss of affection and care besides mental agony and torture suffered by the claimant. In my view, therefore, in a claim for compensation under Section 110B of the Act. the Claim Tribunal cannot make any award for compensation for loss of affection, mental agony shock, or torture suffered by the claimants.

20. In the matter of assessment of compensation under the two heads referred to above , viz. (i) pecuniary loss sustained by the claimants and (ii) loss sustained by the estate of the deceased, it may be observed that the compensation that can be awarded under the first head i.e. pecuniary loss sustained by the claimant, would be the capitalized value of the income of the deceased which was spent on the claimants but subject to the relevant deductions and compensation for the loss sustained by the estate of the deceased would be the capitalized value of the income of the deceased minus the expenditure incurred by him on himself and his dependents, subject to relevant: deductions. If the person or persons taking under both the heads are the same the compensation under both the heads would be the capitalized value of the income of the deceased, minus the expenditure incurred by him or himself but subject to the relevant deductions.

21. A study of English cases shows that there are two methods for determination of compensation for loss resulting from death in fatal accidents. One is the principle laid down by Viscount Simon in Nance v. British Columbia Railway Co. Ltd. 1951 AC 601. In the said case Viscount Simon has observed :-

That the claim for damages in cases of death falls under two separate heads; first, what sums the deceased would have probably applied out of his income to the maintenance of his wife, and his family if the deceased had not been killed and would have lived the full span of his life; and second, what would have been the additional savings which the deceased would might have accumulated during the period he would have lived but for the premature death, which would probably have accrued to his wife and family.

In the said case Viscount Simon has laid down the following principles for estimating damages:-

At first, the deceased man's expectation of life has to be estimated having regard to his age, bodily health and the possibilities of premature determination of his life by late accidents;

Secondly, the amount required for the future provision of his wife shall be estimated having regard to the amounts he used to spend on her during his life time and other circumstances;

Thirdly, the estimated annual sum is multiplied by the number of years of the man's estimated span of life, and the said amount

must be discounted so as to arrive at the equivalent in the form of a lum sum payable on his death;

Fourthly, further deductions must be made for the benefit accruing to the widow from the acceleration of her interest in his estate;

Fifthly, further amounts have to be deducted for the possibility of the wife dying earlier if the husband had lived the full span of living; and

Lastly, in case of a claimant who is the widow it should also be taken into account that there is the possibility of the re-marrying such to the improvement of her financial position.

Another made of assessing damages, has been laid down by Lord Wright in Davies v. Duffryn Associated Galleries Ltd. (supra). In the said case Lord Wright has observed as under :-

It is a hard matter of pounds, shillings and pence subjects to the element of reasonable future probabilities. The starting point is the amount of wages which the deceased was earning the ascertainment of which to some extent may depend upon the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of year's 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 dependent and other life matters of speculation and doubt.

Both, the methods laid down by Viscount Simon and Lord Wright in the cases referred to above do not differ in principle. But the latter method, i.e. method adopted by Lord Wright, is simple in working. In Viscount Simon's method various imponderables uncertainties and vicissitudes life, such as the future possible hazards to the deceased person's expected span of life as well as to the life of dependent, possibilities of increase or decrease in the future income of the deceased had he survived the accident, financial inflationary tendencies making the standard of living costlier, re-marriage of the widow acceleration of the interest of the dependents due to the death of the deceased, advantage of getting the compensation immediately in lump sum, are separately discounted involving various complications in calculations. In the method suggested by Lord Wright this is worked out by selecting a suitable multiplier of a certain number of year's purchase, and all these different categories of possibilities resulting in different types of deductions are not required to be separately calculated as they care taken are of by a shrewed and judicious selection of a proper and suitable multiplier. The trend of English Law is to apply the multiplier method. It has been applied by the House of Lords in Mallete v. Mc. Monagla 1970 AC 166 in Madhya Pradesh State Road Transport Corporation v. Sudhakar and Ors. AIR 1977 SC 1189, the present practice in England has been thus summed up :

A method of assessing damages usually followed in England as appears from Mallett v. Mc. Monagle (1970) AC 166 (supra) is to calculate the net pecuniary loss upon an annual basis and to 'arrive at the total award by multiplying the figure assessed as the amount of the 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 in fixing either the multiplier or the multiplicand.

The Gerald Meter Service Ltd. v. R.M.K. Veluswami and Ors. : [1962]1SCR929 , the Supreme Court has referred to the principles laid down by Viscount Simon in Nance v. British Columbia Co, Ltd. (supra), but while dealing with the question as to whether the amount of damages that had been awarded by the courts below was reasonable or not, the Supreme Court applied the multiplier method and it observed that the compensation which was awarded, represented the expenditure that was incurred by the deceased on his family for just over right years.

22. In Municipal Corporation of Delhi v. Subhagwati and Ors. : [1966]3SCR649 , the Supreme Court affirmed the judgement of the High Court assessing compensation under the Fatal Accidents Act, by applying the multiplier method.

23. Similarly, in Sheikhupra Transpor Co. Ltd. v. Northern India Transporters' Insurance Co. Ltd. 1971 AC 206, the Suprme Court affirmed judgement the High Court determining the compensation by applying the multiplier method.

24. In Madhya Pradesh Road Transport Corporatian v. Sudhakar (supra), after referring to the practice in England and the decision of the House of Lords in Mallett v. Me. Monagle (supra), the Supreme Court applied the multiplier method for the purpose of assessing of compensation under Section 110B of the Act.

25. The decision of the various High Courts also show that the trend is towards applying the multiplier method. In this context, reference may be made to the decision of the Gujarat High Court in Hirji Virji Transport and Ors. v. Basi Ram Bibi 1971 ACJ 458, wherein, a Division Bench of the Gujarat High Court has applied the multiplier method. To the same effect, is the decision of the Himachal Pradesh High Court in Himachal Pradesh Road Transport Corporation v. Pandit Jai Ram and Ors. 1980 ACJ 1, wherein, a Division Bench of the said High Court, after examining the relevant law on the subject, has adopted the multiplier method. In Lachman Singh and Ors. v. Gurmeet Kaur and Ors. , a special Bench of the Punjab and Haryana High Court reversed the earlier Full Bench decision of the said High Court in Vanguard Insurance Co. Ltd. v. Smt. Narese Kanka 1974 WLN 36, wherein, the compensation had been assessed by determining the annual earnings of the deceased taking into consideration the prospective benefits in the form of increments and promotions after making deductions which might accrue to the dependents as a result of the death of the deceased. The learned Judge observed that the aforesaid method of estimation of compensation was not correct and that the multiplier method appeard to be 'more sound and equitable.'

26. In Messers. Bhaghchand Panjuram v. Smt. Snehlata and Ors. 1974 WLN 36 a Division Bench of this Court has taken note of the English Law as well as the Indian Law and has applied the multiplier method as laid down by Lord Wright in Davies v. Power Duffryn Associated Colleries Ltd. (supra).

27. In view of the authorities referred to above, I am of the opinion that in the matter of assessment of compensation under Section 110B of the Act, the more suitable method for assessing compensation would be the multiplier method and for the purpose of applying the said multiplier method the Court will have to assess the amount of the annual dependency, i.e., the net pecuniary loss caused to the claimants upon annual basis multiply it by the number of years the benefit was expected to last, taking into consideration the imponderable factor.

28. In the present case, the Claims Tribunal has assessed the compensation by determining the amount of money which was being spent by the deceased on the claimants and multiplying the said amount by the number of years, during which, the deceased could be expected to live if would not have met with the accident and thereafter, making a deduction of of 20% from the said amount for lump sum payment. The Claims Tribunal appears to have adopted the method laid down by Viscount Simon in Nance v. British Columbia Railway Co. Ltd. supra) but the Claims Tribunal did not make various deductions in accordance with the principles laid down by Viscount Simon in the aforesaid judgment. In my opinion, the aforesaid determination made by the Claims Tribunal, cannot be sustained, and the compensation must be reassessed. I will, therefore, reassess the compensation on the basis of the multiplier method.

29. For applying the multiplier method it would be necessary to determine the net pecuniary loss on annual basis that has been caused to the claimants on account of the death of the deceased and the loss sustained by the estate of the deceased. In order to determine the amount of the pecuniary loss sustained by the claimants and the loss sustained by the estate of the deceased it would be necessary to assess the annual income of the deceased at the time of his death and the amount that was being spent by him on himself and the rest of the amount of his income can be treated to be the amount that was being spent by the deceased on the claimants or would have been his savings to which, the claimants alone are entitled.

30. To prove the annual income of the deceased at the time of his death, the claimants have examined Smt. Manorma AW 1, the wif of the deceased, Shri Dinkarlal Mehta, AW 2 the father in law of the deceased and Shri Mangilal AW 4, the father of the deceased. Apart from the aforesaid witnesses, the claimants have produced the income tax assessment orders (Exs. 1,2,3, and 11) relating to the assessment of the income of the deceased for the purpose of payment of income tax, entry (Ex. 6) relatting to the film M/s. Vijay Lal Harish Chandra with the Registrar of the Firms, Rajasthan, as well as the assessments orders (Exs. 4 & 5) relating to the assessment of sales tax payable by the firm, M/s. Vijay Lal Harish Chandra.

31. Smt. Manorma AW1 has stated that the deceased was carrying on the business under the name of M/s. Vijaylal Harish Chandra and that his monthly income was Rs. 4,000/- per month. During the course of cross-examination, she has stated that the deceased and his father were jointly carrying on the business as partners and that they were agents for the arious products viz. Kirloskar, Shriram Urea, Cement and Bajaj efrigators. Shri Dinkarlal Mehta, AW2 has stated that at the time of death, he deceased was earning about Rs. 3,000/- per month, & that he & Mangilal were carrying on the business and that they were the agents for variousrms. viz, Kirloskar, Shriram Urea, Dunlops and Bajaj Mangilal, AW4, he father of the deceased, has stated that he and deceased, Prakash Chandra were the partners of the firm, M/s. Vijaylal Harish Chandra and that the net annual income was Rs. 72,000/-, out of which, deceased Prakash Chandra had half share and that he was getting about Rs. 35,000/- per year. Entry (Ex. 6) in the register of firms shows that there was a change in the constitution of the firm from 21st March, 1973 and from that date, the deceased and Shri Mangilal were the two partners in the said firm. The income-tax assessment order (Ex. 1) relating to the assessment year, 1976-77, i.e. the year ending 3rd November, 1976, discloses the income of Rs 24, 970/-. The income tax assessment order (Ex. 2) for the year 1977-78 discloses an income of Rs. 26, 220/-. The income tax assessment order (Ex. 3) for the year 1978-79 discloses an income of Rs. 29078/-. The income tax assessment order (Ex. 11) for the assessment year 1979-80 relating to the income for the year ending on 31st October, 1978 discloses an income of Rs. 35,694/-The sales tax assessment order (Ex. 4) for the firm, M/s Vijaylal Harish Chandra relating to the year 1976-77 discloses a turnover of Rs. 13,49,652/-by the firm. The Sales Tax assessment order (Ex. 5) for the firm M/s. Vijaylal-Harish Chandra relating to the year 1977-78 discloses to a turnover of Rs. 15,42.541/-.

32. After taking into consideration the evidence, aforesaid, the Claims Tribunal has recorded its findings that the annual income of the deceased at the time of his death, could not be less than Rs. 36,000/- Shri Munshi, has, challenged the aforesaid findings recorded by the Claims Tribunal and has submitted that it was incumbent on the claimants to have produced the profit and loss account of the firm and in the absence of the profit and loss account the estimate of the income of the firm could not be made merely on the basis of the income tax assessment orders. The submission of Shri Munshi was further that the income tax returns could provide a reliable material on the basis of which a finding with regard to the income of the firm could be arrived at because if often happens that false returns are filed with a view to inflate the income. In my opinion, there is no force in the aforesaid contention of Shri Munshi. In the first place, no suggestion has been made to any witness examined by the claimants that the income tax returns which were submitted by the deceased, were false and were inflated. Moreover, there is no reason, why the deceased would file false returns of his income and pay higher income tax on the same. That apart, the annual turnover of the firm for the purpose of Sales Tax also indicates that the returns for the income that were submitted by the deceased were not false, in as much as in the assessment year, 1977-78 relating to the year ending Deepawali 8, 1976, the annual turover Rs. 1349642-04 and the income of the deceased which was assessed in that order was Rs. 26,220/- Since the deceased was the partner to extent of half share, the income of both partners of the said firm in that year was Rs. 52.440/-. It comes to less than 4% of the annual turnover of the firms. Similarly, in the assessment year, 1977-78, the annual turnover of the firm was Rs. 15,42,451/- and the decesased had submitted a return disclosing an income of Rs. 29,728/-. The net income of the firm in that year was thus Rs. 58,136/-, i.e. less than 4% of the annual turnover. In my opinion, therefore, the returns submitted by the deceased for the purpose of income tax income, can be taken as a safe for assessing the income of the deceased. Ex. 11 is the latest income tax assessment order. It relates to the assessment year 1979-80 for the year ending Deepawali Samavat year 2034 on 31st October, 1978. It shows that an income of Rs. 35,694/-. The death of the deceased took place on 29th January, 1979. Taking into consideration the fact that there was a continuous increase in the income of the deceased from year to year, it cannot be, said that the Claims Tribunal has committed any error in assessing the income of the deceased at the time of his death at Rs. 36,000/- per year.

33. The Claims Tribunal has, however, failed to take note of the fact that for the purpose of assessing the compensation payable to the claimants, the income of the .deceased after deducting the income-tax payable on the aforesaid income had to be taken into consideration. According to the assessment order (Ex. 11), the income tax payable on the income of Rs. 35,694/- was Rs. 7,544/-. Therefore, on the annual income of Rs. 36,000/-, the tax payable might be 8,000/- & after deducting the aforesaid amount, the actual income which was available, in the hands of the deceased, comes to Rs. 28,000/- per year. I would, therefore, assess the annual income of the deceased for the purpose of determining compensation at Rs. 28, 000/- per year.

34. The next question, which arises for consideration is with regard to the amount which should be deducted from the aforesaid income towards expenses incurred by the deceased on himself. Smt. Manorma AW 1 has stated that the deceased was spending a sum of Rs. 1,000/- upon himself and the rest of his income was being spent by him, for meeting the daily expenses of his family. In view of the aforesaid evidence an sum of Rs 12,000/- can be deducted from the annual income of the deceased towards the expenses incurred by him upon himself and the balance amount i.e. Rs 16,000/- per year can be regarded as amount which was available for the use of the claimants. In other words, the annual dependency for the purpose of assessing compensation, was Rs, 16,000/-.

35. The next question which requires determination is what would be the proper multiplier in, the facts and circumstances of the present case. In Kemp and Kemp on 'The Quantum of Damages' (Second Edition Col. II), 1974 WLN 41, it has been observed;

Where the deceased had good prospects of considerably increased earnings, the court must take into account that the value of the dependency would probably have increased, as the deceased's earnings' increased. The assessment of damages in this type of the dependency at the date of death, may represent a multiplier of twenty or more.

Similarly, in Mavne Gregar on Damages, pages 42-43 it has been stated:

It is impossible to the state with any precision what the multiplier should be because of the varying circumstances of each case; all that can be said is that the number of year's purchase is an average case where the paities are not too old or ailing tends to be in the region of thirteen to eighteen. Where, however the deceased had good prospects of increased earnings in the future by promotion or otherwise, this is accounted for by continuing lake the annual value of the family dependency at the time of death but applying a rather higher multiplier, generally in the region of twenty to twenty two.

36. In Madliya Pradesh State Road Transport Corporation v. Sudhakar and Ors. (supra), the deceased was the wife of the claimant & she was-employed as a Physical Training Instructor in a school and her age at the time of the death was 23 years. The Supreme Court, after taking into consideration that the deceased had 35 years of service, before her when she died, fixed 20 as a suitable multiplier for assessing the compensation.

37. IN M/s. Bhagchand Panjuram v. Smt. Snelilata (supra) the deceased was employed as a Munsif Magistrate in the Rajasthan Judicial Service and at the time of his death, his age was 26 years. This court, taking; into cofisideration the fact that the deceased had good prospect of increased earning by way of promotion or otherwise fixed 20 as proper multiplier for assessing the compensation.

38. In the present case, the age of the decased at the time of the accident, which resulted in his death, was 32 years, Mangilal, AW4, the father of the deceased as the time when his evidence was recorded before the court, was 75 years. From the evidence of Mangilal,. it appears that the uncle of the deceased is alive and his age is 63 years & that the deceased was, the youngest of the eleven children of Mangilal and that all, the brothers and sisters of the deceased are alive. The Claims Tribunal, after taking into consideration, the aforesaid evidence,, has held that if the deceased had not met with: the accident, he could be reasonably expected to live upto the age of 60 years. Shri Mridul, has challenged the aforesaid finding and has submitted that the figure of 60 years fixed by the Claims Tribunal, is too low in view of the improvement in life expectancy, all over the country & especially in view of the family history of the deceased. Taking into consideration the evidence aforesaid, I am of the opinion that the figure of 60 years fixed by the Tribunal,, is rather low & the deceased could be reasonably expected to be in a position to carry on his business upto the age of 65 years. In other words, the deceased could be expected to earn and make provision for the claimants for another 33 years. An other, factor, which oannotbe ignored is that there was; a continuous increase in the income of the deceased from year to year & it cam be said that the deceased had good prospects of increased earrings in. future in view of the fact that most of the products in which the deceased was, dealings were of a nature for which there is a growing demand. In so far as. the expectancy of the life of the claimants is concerned', there is the evidence of Shri Dinkar Lal Mehta, AW2; the father of Respondent No. 1 who has depossed that in his family the average life of the members of his family is 75 years and that his father had died at about 74 years of age and his mother, who is about 76 years of age is still alive and that he himself is of 50 years of age and his wife is 47 years. In my view of the aforesaid evidence, it can be said that claimant No. 1 can be reasonably be expected to live upto the age of 65 years. The age of claimant No. 1 on the date when she was examined before the Claims Tribunal was 24 years. In this context, it may also be noticed that the father of the deceased was Dewan of the former Banswara State and after the merger of the said State in the State of Rajasthan, he became an employee of the Government of Rajasthan,. and when he retired from service he was holding the post of Additional Commissioner. Taking into consideration the facts and circumstances referred to above, I aim of the opinion that 20 can be adopted as the suitable multiplier for assessing the. compensation in the present case.

39. The Claims Tribunal has determined the compensation payable to the claimants towards pecuniary loss at Rs. 672.000/-. In my opinion the aforesaid assessment made by the Claims Tribunal cannot be sustained and the amount of compensation which can be awarded to the claimants on account of the pecuniary loss sustained by them is Rs. 3,20,000/- (Annual dependency of Rs. 16.000/- multiplied by 20).

40. The claimants have claimed Rs. 2,00,000/- as compensation for mental shock and the Claims Tribunal has awarded a sum of Rs. 1,00,000/-on that account. As held by me earlier, in a claim under Section 110B, as a claimant cannot seek compensation for mental sufferings caused to them a result of accident resulting in the death of the deceased^ In. my view, therefore, the award of Rs. 1,00,000/- as compensation for mental shock to the claimants, made by the Claims Tribunal, cannot be sustained.

41. Since I am of the opinion that the compensation awarded by the Claims Tribunal is excessive I do not find any merit in the cross-objections filed by the claimants and the same are, therefore, liable to be dismissed.

42. In the result, the appeal is partly allowed and compensation payable to the claimants is reduced to Rs. 3,20,000/- The cross-objections filed by the claimants are rejected. The appellant as well as respondent No. 3 would be liable to pay the aforesaid amount of Rs. 3,20,000/- jointly and severally. The claimants would get interest @6% per annum on the aforesaid amount from the appellant and respondent No. 3 from the date of the award till the date of realisation. Out of the awarded amount Kumari Rashmi, respondent No. 2, will be paid Rs. l,20,000/-and this amount will be deposited in a nationalized bank account in her name till she attains the majority. However, the minor claimant would be entitled to monthly interest on the fixed deposit for her maintenance through her natural guardian. The direction given by the Claims Tribunal with regard to costs and counsel fee are maintained. In so far as the present appeal is concerned the parties are left to bear the own costs.


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