Guman Mal Lodha, J.
1. Urbanisation with auto revolution is not unmixed good. Accidents, death traps and blood baths are a few amongst other evil effects of it. One has to live dangerously. Now the traditional facts.
2. At about 9.30 p.m. on 16th July, 1978, a fatal accident was witnessed near Niros Restaurant, Mirza, Ismil Road, Jaipur, Girraj Prasad Agrawal was the unfortunate victim, who died on account of this accident.
3. The deceased along with his nephew was coming towards Niros Restaurant on Mirza Ismail Road, one of the busiest place in Jaipur. The Rajasthan State Road Transport Corporation's Bus No. RRG 1957 dashed against the said scooter causing this accident. It was being driven by Mubarak Ali, an employee of the Corporation.
4. The deceased was an Electrical Engineer having passed Diploma in it in First Division and was serving as Manager in K.K. Mills, Jaipur, on a salary of Rs. 1800/- per month. He was also partner in M/s. P.J. Textiles and was getting share in profits. At the time of this fatal accident, the deceased was 32 years of age.
5. The claimants-widow of the deceased, daughter and sons and parents of the deceased filed a claim petition claiming Rs. 13,29,800/-. The Motor Accident claims Tribunal Jaipur after recording the evidence and hearing the arguments granted an award for Rs. 2,75,000/- in all.
6. Both the Corporation as well as the claimants have filed appeals and they have been heard together and are being decided by this common judgment, as jointly requested by both sides.
7. Whereas, Mr. C.K. Garg counsel for the claimants has prayed that the amount of compensation is too inadequate and deserves to be increased suitably. Mr. Sharma the counsel for the corporation has prayed that the claim petition should be dismissed because there was no negligence of the Driver of the Corporation Alternatively it was argued that the deceased himself was liable for contributory negligence. Lastly it was argued by Mr. Sharma that the amount allowed is too excessive as multiplier of 16 years only should have been applied and the increase on account of factors, like chances of promotions and expected rise in prices cannot be justified. Since the points involved in the case are very important and both the learned Counsel have argued the various facts of the cast at great length in 3 successive hearings, I propose to deal with them in greater details.
8. The first and foremost point to be considered is whether the finding of the Tribunal in respect of the rashness and negligence of the driver of the bus owned by the Corporation is just and proper. This finding is the bedrock of the Award and therefore, unless it is upheld, so further discussion would be relevant.
9. Before I proceed to analyse the evidence on this point, I must mention that the area near the Niros Restaurant on the Mirza Ismail Road, Jaipur admittedly is the most busy locality. On its one side is Panch Batti with the traffic coming from verious roads and some times, there is huge and massive inflow and outflow of people and traffic from nearby Cinema-house known as Raj Mandir. This Cinema house is famous throughout Asia. The traffic at Panch Batti is usually heavy and crowded. Even at the point where the Niros Restaurant is located, there is heavy traffic. This restaurant and adjoining restaurants and shops attract considerable traffic at all times, and the area favourably compares with Connaught Circus of Delhi and fort of Bombay. It is in this background of well-known factors that the case of the Corporation that its bus being driven at a speed of 30 to 40 kms., is to be appreciated. To start with, without analysing further evidence in such a heavily crowded thorough-fare and at vulnerable point like Panch Batti, what should be the speed of an automobile like a Bus, is itself an important question. Apart from the exact and actual evidence about the accident, the method, manner and topography of various points at which the vehicle collided, I am of the opinion that the first and the foremost circumstance which goes against the Corporation right from the very commencement of discussion is that the admission of the Corporation in the statement of the conductor that the speed of the Bus was 35 kms. which is prima facie excessive, high and too fast for this area. In these thorough-fares and areas like that of Panch Batti and Niros Restaurant at M.I. Road, great care and caution is to be taken by the driver of every vehicle, if they want to avoid accidents. They have to ensure that at every moment and every point which means every yard on which they travel and every second that passes, several persons using the busy roads are exposed to the risk of life. They are under suspense of life and death, as the slighest lack of caution, care and precaution by a driver can result in an accident. At and near the site of the accident it is common knowledge that every moment hundreds and thousands of persons pass on that was. Some of them are pedestrians while others may be cyclists, scooterists car owners and drivers. Besides, the traffic also composes of rickshaws, autorickshaws, tempos, and mini buses etc. In such a situation, the possibility of accident cannot be over emphasised. 'Watch you; Wheels' should be the alert for every driver here. There is no doubt that on such a vulnerable and crucial important point of traffic, the bus drivers should watch and weigh a very step, while in motion as slighest lack of caution, vigilence, alertness and imagination and foresight, in handling a heavy vehicle like Bus can result in not only an accident but even in a catastrophy. In my considered opinion, the speed of 30 to 40 Kms. would certainly fall on the wrong side of the cautions and safe driving and it can safely be termed as excessive in the context of busy traffic site of Niros even at 9.30 p.m.
10. It should not be forgotten that the accident took place in the month of July when usually the traffic continue upto 10 or 11 in the night on a busy through fare like M.I. Road in the present case. The Cinema-shows which are held in the adjoining areas are also a cause of heavy traffic. Near about the time of accident there is crowd on the road on account of the Cinema-shows closing and starting. As a matter of fact it has come in evidence that deceased's scooter was coming from the cinema house as the show was over. The above factors clearly go to show that, to start with, there can be an inference of negligence in driving the vehicle at the speed of 30 to 40 Kms. near Niros Restaurant of M.I. Road, Jaipur resulting in this accident.
11. The second important point which assumes relevance in the case of this nature is the well recognised principle and maxim of 'Res Ipsa Loquitur' The application of this maxim is essential and unavoidable. It means that it is for the defendant to show and prove how the accident happened as according to the maxim the accident speaks for itself. For the claimants it is sufficient that the accident happened and nothing more. The maxim applies. However, it is stated that the accident could happen with the negligence of the defendant, that a reasonable jury could find without further, evidence that it was so caused.
12. The principle of 'Res Ipsa Loquitur' shifts the onus of proof in as much as a prime facie case in assumed to be made out against the defendant showing his negligence and rashness. The burden shifts to defendant who has to prove that he was not negligent.
13. Apart from the above 2 important features of this case due to which the case goes against the Corporation, the evidence produced in the case may now be looked into for appreciating the submissions, of Mr. Sharma and the reply given Mr. Garg on the crucial point of negligence. The claimants examined Mamraj a boy of 13 years, in addition to Harpal Singh. Mamraj was with the deceased on the scooter. He received injuries in the accident and his presence on the spot cannot be doubted. His evidence is corroborated by Report Ex. 1. His evidence has been disbelieved by the Tribunal as he has created confusion in respect of the directions. He has also slated that he lodged the first information Report according to the dictation given by the Police. Since the Tribunal has not placed reliance upon him, as the body is only 13 years of age, I would not like to basemy judgment on his evidence.
14. However, the fact that he came with the deceased from the cinema house where he saw Anjan is important. There was a collision between the scooter and the bus near the Niros Restaurant on account of which he as well as the deceased fell down and which is common case of the parties. As for the other aspect of the case namely the cause of accident, I would, however, not like to place much reliance on the first Information Report in view of the infirmities in his statement.
15. Harpal Singh, therefore, is the only witness for throwing light on the manner in which this accident took place. He is from Jal Mahal Hotel. He was standing there in the night and he saw the accident. The scooter was coming from the side of Panch Batti to Ajmeri Gate. The bus at that time was coming from the side of Ajmeri Gate at an excessive speed according to him. The collission resulted in the fall of scooter-driver, the deceased, and the boy from the scooter. Harpal Singh helped them at that time. The boy gave the name of deceased.
16. In his examination-in chief he stated that the cause of the accident was mistake of the bus-driver which was being driven at an excessive speed in comparison to the scooter's speed which was being driven at a very slow speed. In cross-examination he further stated that the inference of excessive speed was based on the nature of the accident, which he observed. He did not observe the scooter or the bus before be was attracted by the impact of the accident. The place of the accident was in the centre near the Niros Restaurant.
17. The Tribunal has held that he is a truthful witness and he has not tried to conceal anything nor he has shown any enthusiasm to support the claimants' case. The Tribunal's finding is in support of the claimants' case. The Tribunal's finding regarding the cause of accident is justified. Harpal Singh was there on the spot and his presence is not disputed. He observed the accident. From the facts and circumstances of the case and the observations made by Harpal Singh, the finding cannot be challenged as incorrect or unacceptable or incredible.
18. The Driver of the Bus was a most important witness who could have thrown light as to be speed of the vehicle and other facts and circumstances under which the collision took place on the basis of which the responsibility and liability of the accident could be properly appreciated. Mubarak Ali the driver of the Corporation who happens; to be the employee of the Corporation, has not been produced and I am of the opinion that the Tribunal and this court would be justified in drawing an adverse inference against the Corporation and the driver, who is also a party, from his non-production.
19. In the reply filed by the Corporation, it was mentioned that the driver immediately filed report with the police giving details of the accident. The reply of the Corporation show that an Inspector of the Corporation visited the spot immediately after the accident and prepared site inspection memo and mentioned the facts and circumstances in which the accident took place. Curiously enough, both have also been withheld, It is surprising that why a public sector undertaking in matters relating to serious accidents resulting into loss of human lives, does not behave fairly and in a forthright manner, when the avowed object of the Constitution, inter alia, is to secure social justice. Why should the Corporation play game of hide and seek and if it chooses to do, it would be at its own peril and an adverse inference will have to be drawn against the respondents.
20. It is in this background of the circumstances which are established on record and which are self-speaking, that the evidence of the conductor produced by the Corporation is to be appreciated. The conductor is an employee of the Corporation and therefore his evidence is to be considered with great care and caution. The conductor has failed to inspire any confidence as rightly observed by the Tribunal. The conductor firstly admits that he did not see the scooter earlier to the accident. Ram Singh mentioned in his statement that cycle came in front of the scooter and the bus was coming on its side. The scooterist tried to save the cyclist and in that process he took a long round and struck the bus from front side at Bumper. According to him the bus was being plied at the speed of 35 Kms. The bus driver tried to apply brakes also.
21. In cross-examination he admits that he saw the scooter for the first time after the accident happened. Before the impact of collision he did not see the scooter. This shows that the story of cyclist and the scooterist trying to overtake each other or the scooterist's taking long round or long cut, are imaginary, and only a cook and bull story. Again in the statement, he tired to state that he was on the front side of the bus near the conductor's seat but later on in cross-examination he confessed that he was at a distance of about 15 steps from the driver which means that he was in the rear of the bus. If that was so, it is very doubtful that he could have observed the accident on the front side.
22. 15 'kadams' normally mean about 30 to 40 feet. Therefore a conductor who is at a distance of about 30 to 40 feet from the seat of the driver cannot see what happened on the road on the front side of the bus. It could not be seen from its rear side. In view of this, his evidence fails to inspire any confidence whatsoever.
23. It would thus be seen that apart from the nature of the circumstances of the case, which go in favour of the finding that the accident occurred due to the negligence of the driver of the bus, the evidence of Harpal Singh, in this respect, appears to be dependable and credible in comparison to the evidence of the conductor of the Corporation. The latter has failed to inspire confidence.
24. In the background where and when the accident took place and further where the main witness namely the driver the vehicle has been withheld, the submissions made by Shri Sharma as regards either contributory negligence or total lack of negligence on the part of the driver of the Bus are found to be without any merit and wholly untenable.
25. In Bingham's Motor Claims case (5th Edn. by Trailor page 152), the doctrine of res ipsa loquitur has been mentioned to mean as follows:
Res Ipsa Loquitur:- This doctrine was stated to mean that an accident by its nature be more consistent that it is being caused by negligence for which the defendant is responsible, then by other cause, and that in such a case the mere fact of the accident is prima facie evidence of such negligence. In such a case, the burden of proof is on the defendant to explain and to show that it occurred without fault on his part.
In State of Punjab v. Krishna Devi and Ors. 1970 A.C.J. Page 154 it was held that the driver was in charge of the entire vehicle and was as such responsible of steering the rear portion of the bus clear of all pedestrians and passengers and obstructions as the front. When the bus driver is negotiating a dangerous bend in the thickly populated part in busy town; he is expected to take extra care to ensure that the pedestrians are not knocked down or run over by his vehicle whether by the rear or the front portion. In such circumstances, even a speed of 10-15 miles can be described as rash.
26. In the present case, the cause of the accident attracts the applicability of the maxim 'res ispa loquitur' and the event of the accident speaks for itself.
27. It may be mentioned that in Niranjan Das v. Gulzarilal and Ors. 1967 A.C.J. 202 D.B. Delhi and Shakuntla Shridhar Shetty v. State of Maharashtra 1976 A.C.J. Page 368 D.B. Bombay and, General Manager, Bangalore Transport Service v. N. Narashimhiah 1976 A.C.J. Page 379-D.B. Karnataka it has been held that it is the duty of the driver of the vehicle to be very cautious and careful while driving the vehicles. The driver should look around and keep a close watch to avoid any accident.
28. The present one is a typical case. In the instant case, the accident took place in the heart of the city of Jaipur which is the capital of Rajasthan, at the Mirza Ismail Road, near the centralised Niros Restaurant which is the important and very busy road of the city. On this very busy road of the Jaipur city, Mubarak Ali, the driver of the Corporation's bus was driving the vehicle and it was his duty to have kept in view the extreme necessity cautious while driving the vehicle, watching every step and looking around all the sides following the driving rules strictly even keeping a close watch on the persons, driving the cycle, scooter and walking as the pedestrian.
29. I had occasion to rely upon the above decisions on this point and observe in Northern India General Insurance Company Limited v. Mrs. Savtiri and Ors. S.B. Civil Miscellaneous Appeal No. 15/1976 decided on 13th September 1984 that the vehicle driver has to save the life even of drunkard, insane persons, blind persons, infirm, and handicapped persons, if they come in the way and he has to drive the vehicles with care and caution. No law permits a driver to crush and knock down any infirm, handicapped, insane or intoxicated persons. Human life is too precious to be treated lightly by vehicle drivers.
30. The golden rule which I have articulated is that the bus driver should watch every step and he should move his wheels with caution. More particularly, at busy places like Niros Restaurant and rush time like 9.30 p.m. when cinema shifts change and people come in groups, he must slow down the vehicle to the minimum, 'watch every steps' and watch wheels', should be his guidelines for a safe driving and avoiding knocking down the pedestrians, cyclists or scooter drivers and its riders. In such a situation when he was required to have such a highest degree of caution, even if it is assumed that the scooter driver deceased took a long turn to save some one, the bus driver could not get licence to knock him down. The bus driver was required to be much more cautious because he was regotiating three lives-one which the scooter driver was saving and other one of the scooter driver and third one of the person was sitting behind the scooter. I am convinced that on contributory negligence can be ascribed to the scooter driver and the bus driver on his own shown was negligent and rash.
31. In view of the above discussion, I am in agreement with the finding of the Tribunal that the accident happened solely due to the rashness and negligence of the bus driver Mubarak Ali, who knocked down the scooter driver deceased resulting in later's death.
32. 'Decks' are now clear for entering into the debate and discussion in respect of the quantum of the compensation. The quantum of compensation has been dascribed vaguely as damages or compensation and the amount is to be asserted on the basis of several factors. Mr. Sharma put it as capitalisation of benefits. Be that as it may, the nomenclature is not very important so long as estate gets the benefits and the claimants the assistance, which they would have had for but the death by accident. Therefore, Tribunal is required first to ascertain what was the income of the deceased at the time of death and then to find out what would have been the normal total income of the deceased if he had remained alive. Thereafter the final exercise is to find out as to how much amount the claimants would have received for them from him out of the earnings of the deceased.
33. After the above exercise is over, the Court or the Tribunal is further required to consider various other relevant factors, like uncertainty of life, age expectancy etc., an objective manner so as to do full justice to the claimants and to the dependants of the deceased.
34. One of the important points of controversy which often arises in such case is as to what procedure should be adopted to find out the total income, expected of the deceased. Various formulas have been evolved. One for the calculation of total income is by finding out what salary in case of an employee, profits from business or from profession or vocation would have been received by the deceased on the basis of the expectancy of his age and functioning in the employment or profession of business or vocation. While arriving at the expected figure of income, allowances have to be made for uncertainty of life, illness, service hazards, business losses etc.
35. The second method is what is called adopting the Multiplier. After ascertaining the expectancy of the age and probable income per year of the deceased and the expectancy of the claimants, the number of years for which the deceased is likely to earn, is multiplied by the income/dependency of the claimants per year. In some courts the practice is that some deduction may be made from lumpsum amount as the compensation for the loss of the income is being paid all at once, in lump sum which ensures interest.
36. I would not enter into an academic exercise of the entire case law on this subject as that would be avoidable exercise.
37. In my considered view the latest trend of decision is to adopt Multiplier system and then adjudicate the compensation.
38. In the instant case the Tribunal has found the age of expectancy somewhere between 80 and 85. According to it, the deceased would not earn after 55 years of age and the therefore, multiplier of 23 years has been applied after coming to the conclusion that the expectancy of the benefits by the claimants would have been Rs. 875/- per month. The Tribunal has after adopting the multiplier of 23, arrived at a figure of Rs. 2,41,500/- by way of compensation to be paid.
39. In the above amount, it has further allowed an increase of 25% for the rising prices, and 25% for the expected increase in the income in future of the deceased. It has thus computed the compensation to be Rs. 3,63,050/-. Thereafter it has reduced it by 25% on the ground that the lump sum is being paid. This reduction is Rs. 90,650/-. It has thus finally arrived at a figure of Rs. 2,71,687/-. in respect of the expectancy of the benefits from the deceased.
40. Now Mr. Garg has assailed the finding about the income on the ground that it is against the evidence. The Tribunal has considered documents Ex. 11 and Ex. 12, Ex. 2 Partnership-Deed, Ex. 6 copies of the Accounts, Ex. 10 copies of the Account Books and Ex. 5 to 13 in addition to 14 which are orders of the Income Tax Department and notices. From them the salary of 10 months was Rs. 8,000/- and the benefit from partnership have been 9731/-. From the above the Tribunal has concluded that the monthly income was Rs. 800/- from salary and Rs. 950/-from partnership and thus the total income was Rs. 1750/- per month. The Tribunal has also mentioned that during the arguments this had been virtually conceded by the claimants counsel.
41. In view of the above I am of the opinion that it is not necessary to discuss the oral evidence as in the face of the Income Tax Department record and amount of oral evidence of the claimants which is interested in getting the maximum amount of benefit, cannot be accepted. I would, therefore, confirm the finding of the Tribunal that the income at the time of death of the deceased was Rs. 175C/- per month.
42. Mr. Garg then submitted that the whole of this income or in any case the lion's share, that is about 2/3rd was being spent by the deceased on his family. It is very difficult to be precise on this point as same can vary from time to time. On some occasions it can be l/3rd, while on others it can be 2/3rd. The Tribunal has come to the conclusion that 50% of the amount of income of the deceased should be treated as the income which the claimants were receiving and would have received, but for his death, from the deceased. It is true that there is scope for taking two opinions for this matter and it may behalf or it may be 2/3rd but in a matter like this when the Tribunal has taken one opinion and came to one decision the appellate court should be slow in disturbing it unless there are good reasons. 1 am of the opinion that Tribunal's finding on this point is quite fair and reasonable and it would not be proper to disturb the same.
43. Now remains the most important question as to what Multiplier should be applied in the present case. Mr. Sharma has submitted the principles regarding the application of the Multiplier regarding the great details, in the Full Bench decision Lachhman Singh and Ors. v. Gurmit Kaur and Ors. of the Punjab and Haryana High Court and from that the deductions drawn and the formula and principles laid down should be adopted by alt courts. Mr. Sharma's stand is that the judgment is important and it significantly throws light on the question as to what multiplier has to be adopted. The judgment has discussed various judgments of other High Courts and so also Supreme Court. The principles evolved from the above judgment are as under:
(1) The compensation to be assessed is the pecuniary loss caused to the dependents by the death of the person concerned, and no compensation is to be assessed on any extraneous consideration like love, affection, mental agony or any such similar consideration. Solatium is alien to the concept of compensation.
(2) For the purpose of calculating the just compensation annual dependency of the dependants should be determined in terms of the annual loss accruing to them due to the abrupt termination of life. For this purpose, annual earning of the debased at the time of the accident and the amount out of the same which he was spending for the maintenance of the dependents will be the determining factor. This basic figure will then be multiplied by a suitable multiplier.
(3) The suitable multiplier, as referred to in (2) above, shall be determined as held in Sudhakar's case 1977 A.C.J. Page 290 decided by to Supreme Court as well as in Mallet's case 1969 A.C.J. Page 312 HL) by taking into consideration the number of years of the dependency of the various dependents, the number of years by which the life of the deceased was cut short and the various imponderable factors such like early natural death of the deceased, his becoming incapable of supporting the dependents due to illness or any other natural handicap or calamity, the prospects of the re-marriage of the widow, the coming up of age of the dependants and their developing their independent sources of income as well as the pecuniary benefits which might accrue to the dependants on account of the death of the person concerned. Such benefits, however, should not include the amount of the insurance policy of the deceased to which the dependants may become entitled on account of its maturity as a result of the death.
(4) The method adopted in certain decisions of Punjab High Court of multiplying the amount of the annual loss to the dependants with the number of years by which the life has been cut short without anything else cannot be sustained and all those decisions in which this view has been taken are hereby overruled;
(5) The compensation cannot be assessed on the basis of the so called interest theory as the same provides the dependents with the capital as well as the amount of annual loss earned by way of interest and it also suffers from a number of other defects A.I.R. 1977 Punjab & Haryana Page 214 (F.B.) Rel. on, and
(6) Considerations of over growing inflation and the decrease in the money value are also not relevant for the purpose of assessment of compensation. Case law reviewed.
44. The Full Bench was dealing with the case of a person of 23 years of age who was murdered. The suit was for damages. The life expectancy was treated as 60 years. The Multiplier was reduced to 16 instead of 37. I repeatedly inquired from Mr. Sharma as to whether there is any rational basis and this judgment or on any other judgment enlightens on the principles on which a particular multiplier should be applied. It is true that in this judgment of the Full Bench their Lordships have discussed the scheme of the Fatal Accident Act which traces its origin to English Fatal Accident Act, 1846, which is known as Lord Campbell's Acts. It also notices a judgment of the House of Lords given in Davies v. Dowell Duffryh Associated Collieries Ltd. 1942 A.C.J. Page 601.
45. The judgment of House of Lords emphasizes the monetary expectancy and rules out the damages on the consideration of the sentimental damages, bereavement or pain and suffering. It emphasises that 'It is a hard matter of Pound, Shillings, Pence subject to the element of 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 for his own or personal and living expenses. The balance will give a basic figure which will generally be termed into a lump sum by taking a certain number of years. The uncertainties of life as also the possibilities of widow's remarriage and expectancy of the other dependants on the deceased were also considered as relevant factors in the matter of compensation computation by the said judgment.
46. According to Lord Russel's dictum in Fatal Accidents, the benefit accruing to. dependent before anybody's death must be taken into account and the balance of loss and gain to the dependent must be ascertained.
47. Their Lordships have taken into consideration the principles laid down in Sheikhupura Transport Co. Ltd. 1971 S.C. 1624: Gabald Motor Service Ltd. v. R.M.K. Veluswamy 1962 S.C. Page 1 and observed that perusal of various judgments of Punjab and Haryana High Court would show that no uniform principle has been followed. It has noticed in Smt. Jaswant Kanwar's case in which on the death of the person of 44 years of age, 21 years multiplier was applied on the ground that expectancy of age was 65 years. The lump sum deduction was not allowed in Jaswant Kanwar's Case and in Manju Devi's case. In Manju Devi's case the age of retirement was noted and multiplier was applied, accordingly.
48. Further, in the opinion of the Full Bench the principle that only such amount should be allowed to the claimants which will ensure the amount of interest equal to the annual dependency, if the same were invested on some long term basis in some Bank, was not accepted as a correct basis.
49. The Full Bench of the Punjab High Court in Vanguard Insurance Co. Ltd. v. Smt. Naresh Kumar Kanta rejected the interest theory mentioned above, observing that in these days when the purchasing power in terms of money is being eroded after short intervals on account of run away inflation, the interest theory, cannot be adopted. Justice Harbanslal who delivered the Full Bench Judgment opined and held the same view which he took in the earlier Full Bench on this point and in para 19 observed as under:
The judgment in the aforesaid Full Bench case was also rendered by me after closely considering the arguments by the learned Counsel in the present case, I am still of the view that the interest theory ought not be made the basis of determining the quantum of compensation due to the claimants.
In England also the interest theory which was earlier adopted has now been ruled out on account of the inflation and the high bank interest rates.
50. In para 21 of the above judgment of the Full Bench, their Lordships have noted the bank rate fluctuations and then observed as under:
21. In present day India when our economy is not so highly developed as in western countries and the banking system has not taken deep roots especially in the villages, it is too unrealistic to adopt interest theory for determining the damages. In a large number of villages, there are neither any banks nor are the people accustomed to make investments therein. Besides, bank interest rates are not stable and static and the same go on fluctuating in view of the inflationary trends in the economy. Only a decade back, the normal bank interest rate did not exceed 4 per cent. As inflation in course of time becomes an essential part of the economy, the banks, in order to mop up the surplus money in the hands of the people, contrived of the inducement to pay higher rates of interest and these interests have been going up from time to time. The adopted of interest theory presumes that the claimant will invest the amount of claim in the bank which will ensure the amount of monthly dependency. In this manner, the claimants while getting the monthly interest will also be having the capital invested in the bank as intact. This argument may be further advanced for the purpose of further reduction in the total amount of compensation. To my mind, the interest theory is impracticable and unrealistic and will not be a proper yardstick for determining the correct amount of compensation.
51. The interest theory was not accepted by the Full Bench of the Punjab and Haryana Court not only once but twice (1) 1977 P&H; Page 214 Vanguard Insurance Co. Ltd. v. Smt. Naresh Kumar Kanta, and (2) 1979 P&H; Page 50 Lachhman Singh v. Gurmit Kaur. It was mainly rejected on account of the speculative prices, inflation, fluctuating bank rates, uncertainty of investment etc.
52. After the above discussions, their Lordships of the full Bench, then found that the options which are open are following:
22. After eliminating the interest theory from our consideration, we are left with the following options:
(1) After determining the basic figure relating to the annual dependency of the claimants, the same should be multiplied by the number of years by which the life expectancy of the victim has been cut short without making any deduction whatsoever.
(2) Some deduction should be made in the above amount in lieu of lump sum payment to the claimant; and
(3) The basic figure of annual dependency should be multiplied by a suitable multiplier which will take into consideration the life expectancy of the deceased as well as the average life of the dependants amongst other relevant factors.
53. From the above options, their Lordships again opined that the total amount of damages should be arrived at by finding suitable multiplier. It was also observed that the basic figure of annual dependency has thus to be determined after excluding the amount which the deceased was spending himself or which he had invested in some capital investment or formulation of the estate.
54. The crucial discussion follows when their Lordships commenced the discussion regarding the system of Multiplier. In para 24, it was observed that average life expectancy has to be worked out and alongwith it the ages of dependents has also to be kept in view. Their Lordships here observed that the amount to be paid to old parents cannot be some as in the case of children and the widow who may have a long time in life. The above relevant factors e.g., an uncertainty of life, disease or ailment, remarriage of the widow, known fluctuations of the trade and business of the victim, losses in business, have to be taken into account.
55. Their Lordships referred and relied on the principle as laid down by the Supreme Court in this connection that in the very nature of things it is not possible to visualise and measure in exact terms all the uncertainty, hazards and the windfalls of life. In view of this even the Supreme Court confessed that there is bound to be some sort of general estimates and some sort of conjectures cannot be ruled out. It cannot be windfall to the dependents but normally it has the estimate of the amount which would be available to the dependents if the accident would not have taken place.
56. Their Lordships again observed that the principle of working our suitable Multiplier appear to be the only just and reasonable method because it takes into consideration the age of the victim, the ages of dependents and all uncertainty of life both in the realm of enhancement of income as well as factors justifying reduction in the amount of compensation and no exact mathematical calculations can be applied. The English Courts adopted Multiplier of 16 times. Mr. Garg pointed out that the Supreme Court in a latter case has calculated the income of 28 years and for that he referred Manjushri Rana v. B.L. Gupta 1977 A.C.J. page 134. In this case Mr. Garg pointed out that though Multiplier system was not adopted by the Apex Court, but even after retirement, pensionary benefits which were to be received, by the deceased, were taken into account for determining the compensation.
57. Be that as it may, the view of the Full Bench was that in between the England decisions and the Apex decisions of the Supreme Court, the Multiplier should be nearabout it.
58. In such circumstances, there cannot be any rule of them, for fixing the years of multiplier, as Rule of Thumb is a negation of Rule of law. The Tribunal or the Court is to objectively consider the various facts and circumstances which are either proved or too patent in these accident cases and taking a liberal view of the entire matter and at the same time safeguarding against the various hazards of life and business keeping in view the cautions given by the Apex Court, that it should not be the windfall or lottery but only an objective adjudication of the expected benefits, the Tribunal has to calculate the compensation.
59. Unfortunately on the reading and re-reading of the judgment of the Full Bench reported above, some of the portion of which I have extracted, and on a thorough study of the entire matter, it is difficult to find out or to agree or to deduce even that, either the Supreme Court or the English Court approved any ceiling of 16 years or 20 years. The two multipliers of 16 or 20 years are illustrative and not exhaustive. They are neither minimum nor maximum.
60. The age of the deceased being one of the important bedrock of the of the formulation of such a Multiplier, it has certainly to be different. When a matured aged person dies at the age of 70 or 80 and when a young person in the prime of his youth with all ambitious career and expectation of the best income and prosperity dies at the age of 25, the two can never be on parity and they can never be treated alike. This has been accepted by the Lordships of the Punjab and Haryana High Court also.
61. All that can be deduced from the judgment is that the determining factors could be considered in light of the age of the deceased, the age of the dependents, the nature of the profession, business or vocation with probabilities of increasing the income or chances of progress in business or uncertainty of life or probability of some future illness or disease etc. There is no universal rule nor 'caste iron', 'water tight' or inflexible rigid formula.
62. Before I proceed to examine the present case I may also mention here that different High Courts have adopted different Multiplier. Though on a close scrutiny of facts of each case, it would be found that it is dependent on the peculiar facts and circumstances of each case.
63. The Allahabad High Court in Mahavir Prasad Goyal v. Guru Saran Singh 1983 A.C.J. Page 99 where deceased was of 36 years applied the Multiplier of 24 years. The Delhi High Court in Delhi Tarns. Corp. v. Harbans Kaur 1983 A.C.J. Page 110 : ACC 1984(1) 415 where deceased was 44 years, after holding the expectancy of age is 75 years and the working age as 70 years, applied the multiplier of 26 years. The Delhi High Court again in Satyavati Pathak v. Hari Ram 1983 A.C.J. Page 424 where the deceased was 39 years held that the expectancy was 80 years and working age as 75 years and thus determined the compensation on the basis of working span of life between the ages of 39 and 75 i.e. 36 years. In Andhra Pradesh in Srisailam Devastanam v. Bhavani Pramilamma 1983 A.C.J. Page 580 in a case of deceased of 35 years, after fixing the expected age at 60 years, calculated the income. The Punjab and Haryana High Court in Nirmal Bhutani v. Haryana State 1983 A.C.J. Page 640 fixed expected age as 60 years. The Orissa High Court in Mis. Jupiter General Insurance Co. Ltd. v. Kamala Dai and Ors. 1975 A.C.J. Page 131 where the deceased was of 44 years, held the expectancy of life to be 60 years and calculated the amount as such! In a case of Himachal Pradesh in Rita Arora v. Salig Ram 1975 A.C.J. Page 420 where the deceased was of 27 years the multiplier of 33 years was applied, and in case of another deceased of 51 years, the multiplier of 19 years was applied and in the third case of 38 years, the Multiplier of 22 years was applied.
64. The Assam High Court in Kanija Khatun v. Union of India 1974 A.C.J. Page 103 where the deceased was of 35 years, applied the Multiplier of 25 years in appeal, setting aside the Tribunal's application of 20 years. The Madras High Court in Full Bench decision Jayalakshmi v. Ruby General Insurance Co. Madras 1970 A.C.J. Page 451 applied the Multiplier of 25 years where the deceased was of 34 years.
65. Madras High Court in G. Parvathi v. Pallavan Transport Corporation Ltd. 1984 A.C.J. Page 342 where a boy of 18 years reading in B.A. in an accident, enhanced the compensation amount from 17900/- to Rs. 304)00/.
66. Their Lordships of the Gujarat High Court (DB) in Mangaldas Mohanlal Patel v. Union of India 1982 A.C.J. 426 inclined to increase the amount from 21000/- to 54000/- wherein the boy aged 13 years while reading in 7th class, died in the accident and the father of the boy at that time, was 40 years of age. In Tehmina P. Jasawalla v. Mahadeo Sitaram Ghadi 1983 A.C.J. 666-DB. Their Lordships of the Bombay High Court in the case of death of boy aged 16 years, awarded Rs. 50000/-although the Tribunal has allowed Rs. 31,400/-.
67. The Delhi High Court in Chameli Wati v. Delhi Municipal Corporation 1982 A.C.J. Page 300 treated the expectancy of the age of parents as 70 years or 75 years and allowed Rs. 38,522/- when the age of the parents at the time of accident was 25 years of age. The Delhi High Court in Hazarilal v. Dharam Pal Singh 1981 A.C.J. Page 439 in the case of death of student aged 17 years in appeal enhanced the award to Rs. 22,000/- from 10,000/-.
68. On the study of the judgments of the Apex Court we find that Hon'ble Supreme Court in Municipal Corporation of Delhi v. Subhagwanti A.I.R. 1966 S.C. Page 1750 applied Multiplier of 15 years. In Sheikhupura Transport Co. Ltd. v. Northern India Transporters Insurance Co. Ltd. 1971 S.C. Page 1624 again the Supreme Court applied the Multiplier of 15 years; in M.P.S.R.T. Corporation v. Sudhakar 1977 S.C. Page 1189 applied the Multiplier of 20 years and in Manjushri v. B.L. Gupta 1977 S.C. Page 1158 calculated the income upto the age of 65 years including the period of pension commencing from the superannuation age of 55 years.
69. In Concord of India Insurance Co. Ltd. v. Nirmala Devi 1980 A.C.J. Page 55 S.C. the Hon'ble Supreme Court has opined that the determination of the compensation should be based on liberal approach. The Allahabad High Court in Mahabir Prasad Goyal v. Gurusharan Singh 1983 A.C.J. Page 99 applied the Multiplier of 24 years and the Himachal Pradesh in Rita Arora v. Salig Ram 1975 A.C.J. Page 420 applied the Multiplier of 33 years. This Court in Bhagchand Panju's case 1974 WLN 34 (p. 47) (DB) adopted multiplier of 35 years, when the deceased was of 26 years of age.
70. A bird's eye view of the various judgments would show that there cannot be any ceiling and it is always dependent upon a court to find out what should be the Multiplier in a given case. It is true that in the Full Bench case of the Punjab and Haryana High Court as referred to by Mr. Sharma above, general application of the Multiplier namely 16 years, was applied. The conclusion of their Lordships leave no manner of doubt that 'the basic figure of annual dependency should be multiplied by a suitable multiplier which will take into consideration the life expectancy of the deceased as well as the average life expectancy of the dependents amongst other relevant factors.' This principle is salutory and should be given effect to while fixing a suitable multiplier. Life expectancy, therefore, has to be kept in view while adopting a multiplier. Adoption of 16 as Multiplier by their Lordships of the Full Bench it seems, has overlooked this important aspect of the principle. They did not mean to lay down the multiplier of 16 as a rule of universal application for all the cases, by making it a blind rule of thumb.
71. On a close consideration of the entire matter and the various decisions, I am of the opinion that the principles evolved in the above judgments provide ample guidance for the Tribunal and the Courts, and what is required is to first ascertain the age of the deceased at the time of the accident, the ages of the parents if they are alive and the only dependents, the nature of profession, business or vocation and its hazards and/or health hazards and then to determine the multiplier, of course keeping in view the uncertainty of life, service and professional and business profits, increase prospects as well as hazards etc.
72. In the instant case the Tribunal has found that the expectancy of the age of the deceased would have been 80 to 85 years. This finding is based on the age of mother and father and grandfather etc. of the deceased as they have come on record in the evidence. The age of the deceased at the time of death was 32 years. He was in private service where there is no superannuation age and was also doing business in a partnership firm. Nothing has come on the record to show that he was suffering from any such ailment which would have proved as a harmful hazard in future or in the past there was some such serious ailment as may probably recur in future. So far as business is concerned there is of course scope for growth, but chances of set back can never be ruled out. Similar is the case of private service where there is no fixed tenure and the employer can even 'hire and fire'. May be that in some case the principal or employer may also give extraordinary benefits to a loyal employee but in face of all these probabilities a private service cannot be equated with the government service where there is benefit of guaranteed tenure and gratuity etc. There is a recent trend which has become manifest by the amendments brought forth in Gratuity Act, that the law is taking care of private employees also. The private employees are being provided with provident fund in matters of age of retirement and gratuity etc. but they are all uncertain so far as particular business or employment is concerned and it would be too hazardous for this Court to enter into detailed discussions for the purposes of present case. So far as the widow and children are concerned, they are all below 30 years. Children are minor. Therefore the age of the dependents to whom the compensation has been allowed by the Tribunal being less than the age of the deceased. I should consider the age of deceased only in the instant case.
73. The Tribunal has awarded compensation on the Multiplier of 23 years on the ground that at the age of 55 years or 60 or after it one is not expected to work. Firstly it is not based on any direct or indirect evidence. Secondly in my opinion that is too conservative. In the present times normal people having attained longevity of life on account of advance medical science and health facilities are working well even after age of 55. It is not unusual to find that people work upto the age of 60 to 65 years depending upon the health. The normal age even in government services have been increased to 58 years. In private sector at many places it is 60 years. In view of the above it would be improper to deprive the dependents of the benefits on the assumption that after 55 years of age the deceased would not be able to work. In the present case it is more so because the deceased was working as a partner in a firm and there cannot be any question of his being deprived of that. It is obvious that the Tribunal has committed an error in this respect, in not considering these factors while adopting the Multiplier of 23, only on the basis of the finding that he could not work after 55 years of age.
74. So far as working expectancy, keeping in view the expectancy of life, could have been 65 years instead of 55 years as adopted by the Tribunal. However, when coming to the question of Multiplier 1 would certainly note the factors regarding uncertainty of life, probable hazards to life by illness or disableness or handicap and also other ailments and risk in the business etc. In view of that instead of the Multiplier being 23 years, I would apply the Multiplier of 28 years. This would mean that the income dependency would increase for 5 years. The Tribunal has calculated the amount of Rs. 875/- and therefore, the 5 years increase would mean 875x 12x5=Rs. 52,500/-.
75. The Tribunal has also added on account of prospects in increase of future income, by 25% and further on account of rise of price by 25%. I am unable to accept this principle as they are covered while adopting multiplier of 28 years. I would, therefore, deduct the above amount because in my opinion the expectancy of increase in income is equated by equal expectancy of loss in business or harad in service which is a private one.
76. So far as the deduction of 25% on account of lump sum is concerned. I am of the opinion that this deduction is uncalled for because in the present judicial trend interest theory has been rejected, and spirale of rising prices, the lump sum amount if given, cannot be reduced This has been held to be so by this court in Smt. Chand Kanwar v. Manna Ram and Ors. (S.B. Civil Miscellaneous Appeal No. 190 of 1982, decided on 28th September 1984). The same view finds support in the following decisions:
1. Mis. Bhagchand Panju Ram v. Smt. Snehlata 1975 A.C J Page 9 para 48.
2. Bhagwanti Devi v. Ish Kumar 1975 A.C.J. Page 56-Delhi.
3. Municipal Corporation of Delhi v. Shanti Devi 1975 A.C.J. Page 508-Delhi.
4. Delhi Transport Corporation v. Pushpa Chopra 1981 A.C.J. Page 203.
5. Mohinder Kaur v. Manphool Singh 1981 A.C.J. Page 231.
6. Srisailam Devastanam v. Bhavani Pramillama 1983 A.C.J. Page 580 (Andhra Pradesh).
7. National Insurance Co. Ltd. v. Pushpa Kanwar 1983 A.C.J. Page 629-Madhya Pradesh.
8. Sundershan Puri v. Raj State Road Transport Corporation 1983 A.C.J. Page 489.
9. Satyawati Pathak v. Hari Ram 1983 A.C.J. Page 424-Delhi.
77. The next question now cames for consideration is whether the compensation of Rs. 3000/- allowed as Rs. 3000/- as amount for the claim about mental shocks, agony, loss of love and affection and patronage and loss of consortium is adequate or inadequate. The Andhra Pradesh High Court in E. Narain Rao v. Venugopal 1976 ACJ Page 474 has observed that under Fatal Accidents Act, the provisions of which may be applied for computing claim compensation under Motor Vehicles Act, a husband is entitled to damages for loss of consortium. Their Lordships were of the opinion that the work 'injury' is a war of long import and cannot be restricted to mean mental injury only. It was held that apart from claiming mental damages the claimants would be entitled to compensation in respect of any other injury suffered and one of the head of such injury is the loss of the society of the deceased. The Karnataka High Court took the same view in Raja v. Oriental Fire and General Insurance Co. 1981 A.C.J. Page 374. The Andhra Pradesh in Srisailam Devasthanam v. Bhavanis Parmilamma 1983 A.C.J. Page 580 allowed consortium to the wife for losing association, assistance, care and affection of here husband at the prime of her married life. The Calcutta High Court allowed consortium in Piyush Kanti Chandra v. M.R. Chatterji 1971 A.C.J. Page 267.
78. Mr. Sharma has not pointed out any judgment of the Hon'ble Supreme Court on account of which consortium cannot be allowed under Fatal Accidents Act although a contrary view has been taken by the Punjab and Haryana High Court, Himachal Pradesh High Court. I am inclined to allow consortium of Rs. 5,000/- to the widow. Rs. 2,000/- to each of children and Rs. 2,000/- each to father and mother. The amount of consortium in all would be Rs. 15,000/-.
79. So far as the compensation on the basis of mental shock, agony, physical suffering, loss of love and affection is concerned there is unsurmountable difficulty because of the judgment of the court in Gyarsi Devi v. Shri Saindas A.I.R. 1982 Rajasthan Page 30 in which it has been held that under Fatal Accidents Act Section 1 and Section 2 only the compensation can be for the loss caused to the dependants of the deceased and the dependants are not entitled to any compensation for such pains and suffering. Thus no compensation can be allowed for shocks, mental agony pains, suffering and loss of love and affection and care. I have made a reference to the larger bench, but for the present Gyarsidevi Decision prevails.
80. The appeal of the Corporation is dismissed and the appeal filed by the claimants Pista Devi and others is partly accepted to the above extent as against the Corporation only for the appeal against the Driver has not been pressed.
81. Before parting with this judgment, I may mention that during last few months, I have considered about 200 accidents cases in hearing the appeals against the Awards of the Motor Accident Claims Tribunals and I have found that the accident claims Tribunals are not consistent in making appropriate arrangements for ensuring that the real benefit of the Awards goes to the dependents of the deceased, many of whom are minors and widows. A general complaint was made in many of the cases that inspite of the Awards the unfortunate victims of the accident continue without money benefits going to them so as the amounts awarded by the Tribunals are usurped by the middle men.
82. I am distressed and perturbed to find that in this field of social welfare legislation where for social justice the Awards are being given liberally as per the lastest judicial trends of the Apex Court and judicial activism and dynamism, the claims Tribunals do not realise that the real implementation of this progressive social welfare legislation for social security is to ensure that the compensation awarded is not frittered away by the middle men and other uscruplous persons intervening sometimes between the victims of the accidents or their legal representatives and the payment machinery.
83. Their Lordships of the Gujarat High Court in Muljibhai v. United India Insurance Co. Ltd. : AIR1984Guj7 confronted with the serious difficulties and realities of this situation, brother A.M. Ahamdi J., speaking for himself and R.C. Mankal J., laid down the elaborate procedure for ensuring that the socio-economic objective intended to be achieved by the award of compensation is not defeated by squandering the money.
84. I am in agreement with the views expressed by their Lordships of the Gujarat High Court in this respect. To prevent the squandering of amount of compensation awarded and frittering away of this amount by unscrupulous persons and, to ensure that it provides life time light in otherwise dark house of the deceased or the victims. I would direct that invariably the claims Tribunal should ensure proper investments of the lump sum amount awarded so that the corpus remains in tact and steady income on the investments to the claimants.
85. The Claims Tribunal while investing the said amount in long term fixed deposits will also take care to see that the corpus remains in tact so that no loan or advance is permitted on the said fixed deposit to the applicants by the Bank without obtaining its express order in that behalf. The Bank issuing the Fixed Deposit Receipt should endorse on the fact of the receipt that no loan or advance should be granted on the strength of that receipt unless there is an express order of the Tribunal in that behalf. Similar note should be made in the bank records to rule out the possibility of obtaining a loan or advance by taking out a duplicate receipt. On the expiry of the period of 5 years, the Claims Tribunal will consider where the fixed deposit should be further extended and if so, for what period.
86. Having regard to the fact that day in and day out thousands of rupees are paid by way of compensation to various categories of claimants, I think that before I part I may indicate a few broad guidelines which the Claims Tribunals may follow while disposing of Claims applications arising under the Motor Vehicles Act, 1939, to scotch complaints of misapplication of compensation money.
(i) The Claims Tribunal should, in the case of minors, invariably order the amount of compensation awarded to the minor be invested in long term fixed deposits at least till the date of the minor attaining majority. The expenses incurred by the guardian or next friend may however be allowed to be withdrawn;
(ii) In the case of illiterate claimants also the Claims Tribunal should follow the procedure set out in (i) above, but if lump sum payment is required for effecting purchases of any movable or immovable property, such as, agricultural implements, rickshaw, etc. to earn a living, the Tribunal may consider such a request after making sure that the amount is actually spent for the purpose and the demand is not a rouge to withdraw money;
(iii) In the case of semi-literate persons the Tribunal should ordinarily resort to the procedure set out at (i) above unless it is satisfied, for reasons to be stated in writing, that the whole or part of the amount is required for expending any existing business or for purchasing some property as mentioned in (ii) above for earning his livelihood, in which case the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid;
(iv) In the case of literate persons also the Tribunal may resort to the procedure indicated in (i) above, subject to the relaxation set out in (ii) and (iii) above, if having regard to the age, fiscal background and strata of society to which the claimant belongs and such other considerations, the Tribunal in the larger interest of the claimant and with a view to ensuring the safety of the compensation awarded to him thinks it necessary to so order;
(v) In the of case widows the Claims Tribunal should invariably follow the procedure set out in (i) above;
(vi) In personal injury cases if further treatment is necessary, the claims Tribunal on being satisfied about the same, which shall be recorded in writing, permit withdrawal of such amount as is necessary for incurring the expenses for such treatment;
(vii) In all cases in which investment in long term fixed deposits is made it should be on condition that the Bank will not permit any loan or advance on the fixed deposit and interest on the amount invested is paid monthly directly to the claimant or his guardian, as the case may be;
(viii) In all cases Tribunals should grant to the claimants liberty to apply for withdrawal in case of an emergency. To meet with such a contingency, if the amount awarded is substantial, the claims Tribunal may invest it in more then one fixed Deposit so that if need be one such F.D.R. can be liquidated:These guidelines are not exhaustive but are merely illustrative. A copy of this order may be sent to all the Claims Tribunals of Rajasthan for guidance.
87. The net result of the above discussion is that the Award passed by the Tribunal is modified and the total amount of the award would now be Rs. 3,09,000/- which would be apportioned by the claimants as under:
1. Pista Devi 90,000 plus 5000=Rs. 95,000/-
2. Savita Agarwal 68,000 plus 2000=Rs. 70,000/-
3. Rajesh Agarwal 68,000 plus 2000=Rs. 70,000/-
4. Rakesh Agarwal 68,000 plus 2000=Rs. 70,000/-
5. Jagdish Parsad Rs. 2,000/-
6. Ganga Devi Rs. 2,000/-
Total: Rs. 3,09,000/-
88. The appeal of claimants is dismissed against Mubarak Ali.
89. The Corporation should pay this amount within a period of 4 months failing which they would be required to pay interest @ 12% from the date of the application till the date of realisation. If the amount is paid within 4 months then the interest as allowed by the Tribunal would be paid alongwith the principal amount. The corporation appellant would pay cost of Rs. 1500/-to the Respondents for this appeal as cost of the appeal.
90. In all other aspects the award given by the Tribunal is confirmed.