Full Text
HIGH COURT OF DELHI
UTTAR PRADESH STATE ROAD TRANSPORT CORPORATION ..... Appellant
Through: Mr. Shadab Khan, Advocate
Through: Mr. S.N. Parashar, Advocate for Respondents no. 1 & 2
SMT SUNITA ARORA & ANR. ..... Appellants
Through: Mr. S.N. Parashar, Advocate
Through: Mr. Shadab Khan, Advocate
JUDGMENT
1. These two appeals arise out of judgment dated 18.09.2013 passed by the Motor Accident Claims Tribunal (the Claims Tribunal) whereby compensation of `19,92,368/- was awarded in favour of Smt. Sunita Arora and Shri Harish Arora, parents of deceased Amit Arora, who 2015:DHC:3820 suffered fatal injuries in a motor vehicular accident which occurred on 18.07.2011.
2. On appreciation of evidence, the Claims Tribunal found that the accident was caused on account of rash and negligent driving of Uttar Pradesh State Road Transport Corporation (UPSRTC) bus no.UP-11T- 4042 driven by Respondent Mehen Pal. The Claims Tribunal further found that the deceased was getting a gross salary of `19,450/- per month. The Claims Tribunal made an addition of 50% towards future prospects and adopted a multiplier of 13 as per the age of the mother of the deceased to compute the loss of dependency as `18,92,368/-. The Claims Tribunal further added a sum of `1,00,000/- towards nonpecuniary damages to award the overall compensation of `19,92,368/-
3. For the sake of convenience, the Appellant in MAC.APP.1075/2013 shall be referred to as the U.P. State Road Transport Corporation (UPSRTC), whereas the Appellants in cross-appeal MAC APP. No.343/2015 shall be referred to as the Claimants.
4. The following contentions are raised on behalf of UPSRTC:-
(i) The accident was caused on account of rash and negligent driving of the two wheeler bearing registration no.UP-14BH- 8662 driven by deceased Amit Arora himself. Therefore, the Appellant UPSRTC ought not to have been made liable to pay the compensation;
(ii) The gross salary of deceased Amit Arora was `1,95,654/- per annum. All the allowances were not part of the salary. The entire income ought not to have been taken into consideration to calculate the loss of dependency;
(iii) Deceased Amit Arora was not in Government service. Addition of 50% towards future prospects was not permissible; and
(iv) The compensation awarded towards non-pecuniary damages is on the higher side.
5. On the other hand, the learned counsel for the Claimants submits that the Claims Tribunal applied the multiplier of 13 as per the age of the deceased’s mother. In fact, the multiplier ought to have been 18 on the basis of the age of the deceased. Reliance is placed on Amrit Bhanu Shali v. National Insurance Company Limited, (2012) 11 SCC 738.
NEGLIGENCE
6. It is urged by learned counsel for UPSRTC that the Claims Tribunal erred in relying on the statement of PW-2 Pratesh Kumar and discarding the testimony of RW[1] Mehen Pal, driver of the UPSRTC bus.
7. I have the Trial Court Record before me. PW-2 Pratesh Kumar gave a vivid account of the accident. He deposed that the motorcyclist was proceeding towards Shahdara in front of Dilshad Garden Metro Station.
UPSRTC bus bearing registration no.UP-11T-4042 driven at a very high speed in a rash and negligent manner came from behind and struck against the motorcyclist. Nothing could be elicited in the cross-examination of this witness to discard his presence at the spot at the time of the accident. On the other hand, the version given by the UPSRTC bus driver is that the driver of the two wheeler came from the right side of the bus and while taking turn, he lost his balance, slipped and fell down on the road. Thus, he completely denied the involvement of the bus. A perusal of the site plan filed in criminal case arising out of FIR No.281/2011 discloses that the UPSRTC bus with registration no. UP-11T-4042 hit the motorcyclist at Point A and his blood was lying at Point B. The site plan clearly supports PW-2’s version.
8. In my view, the statement made by Mehen Pal, driver of the UPSRTC bus was only a self-serving statement. If the driver of the UPSRTC bus bearing registration no. UP-11T-4042 was not at fault, either he or the Appellant could have summoned any passenger from the bus to support the driver’s version. It may be noted that in a Claim Petition under Section 166 of the Motor Vehicles Act, 1988 (the Act), negligence is required to be proved only on the touchstone of preponderance of probability, which has been sufficiently done in this case. I do not find any error in the finding of negligence reached by the Claims Tribunal, which I hereby affirm.
COMPENSATION
9. In order to prove deceased Amit Arora’s income, the Claimants examined PW-3 Bunty Parwani, Manager (HR) of Genpact India, Delhi-110053. He proved the appointment letter with salary package as Ex.PW-3/A, salary certificate for the month of July, 2011 as Ex.PW3/B, Attendance record from May, 2011 to 18.07.2011 as Ex.PW-3/C, Promotion Record as Ex.PW-3/D, Educational Certificates as Ex.PW-3/E collectively and Nomination as Ex.PW-3/F. The witness testified that deceased Amit Arora was entitled to an annual salary of `1,92,400/- and in addition, performance based increment. He also stated that as per the record, performance of the deceased was good and his next increment was due on 11.08.2011. Deceased Amit Arora had joint Genpact just a little less than one year before the date whereon he suffered fatal injuries. He was also allotted Employment Provident Fund Number. There is nothing suspicious about the appointment letter proved on record though deceased’s employer. A perusal of the compensation details part of the appointment letter reveals that the deceased was to get a total salary of `1,92,400/- per annum if he was a low performer, `2,17,400/- per annum if he was an average performer and `2,47,400/per annum if he was the best performer. PW-3’s testimony that performance of deceased Amit Arora was good could not be challenged in his cross-examination. Therefore, I tend to take the deceased’s annual salary as `2,17,400/- which corresponds with the monthly salary being paid to him, i.e. `19,450/-. This income included a component of House Rent Allowance (HRA) to the extent of `2914/- per month and conveyance allowance of `800/- per month. These allowances were tax free. If the amount of `800/- per month is taken as incidental to the employment, the total gross salary of the deceased will be tax free. Since deceased’s performance was good and he was going to be promoted and his salary was to increase to `2,38,400/- just after one month, the Claims Tribunal rightly made an addition of 50% towards future prospects.
10. Further, relying on Amrit Bhanu Shali v. National Insurance Company Limited, (2012) 11 SCC 738, the learned counsel for the Appellant urges that the multiplier in the case of death of a bachelor has to be as per the age of the deceased.
11. The question was examined at great length by this Court in Shriram General Insurance Co. Ltd. v. Maneesha Karnatak and Ors., MAC APP 655 of 2014 decided on 20.03.2015 and after analysing General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors., (1994) 2 SCC 176 and three Judge Bench decision of the Supreme Court in U.P. SRTC v. Trilok Chandara, (1996) 4 SCC 362 and host of latest decisions of the Supreme Court including three Judge Bench decisions of the Supreme Court in Reshma Kumari v. Madan Mohan & Anr., (2009) 13 SCC 422 and New India Assurance Company Limited v. Shanti Pathak (Smt.) & Ors., (2007) 10 SCC 1, this Court had taken a view that in case of death of a bachelor, the multiplier will normally be as per the age of the mother of the deceased. Para 10 to 34 of the report in Maneesha Karnatak and Ors. are extracted hereunder:-
14. Initially, the trend of the Courts was to ascertain the life expectancy, deduct the age of the deceased and to award the compensation on the basis of the residual life span. The Courts started deducting certain sums out of the sum as arrived above on account of lump sum payment.
15. However, in General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors., (1994) 2 SCC 176, an attempt was made for the first time to award just and reasonable compensation on the basis of the multiplier method. The Supreme Court referred to the report in Gobald Motor Service Ltd. & Anr. v. R.M.K. Veluswami & Ors., AIR 1962 SC 1 and observed that actual pecuniary loss can be ascertained only by balancing, on one hand, the loss to the Claimant of the future pecuniary benefits and on the other hand, any pecuniary advantage which from whatever sources comes to them by reason of death. Paras 8 and 9 of the report in Susamma Thomas (Mrs.) (supra) are extracted hereunder:-
16. The Supreme Court referred to Davies v. Powell, (1942) AC 601 and Nance v. British Columbia Electric Railway Company Limited, (1951) AC 601 and in Paras 13 and 14 of the report in Susamma Thomas (Mrs.) (supra), the Supreme Court observed as under:-
17. The purpose of adopting the multiplier as per the age of the deceased or as per the age of the Claimant whichever is higher was that if the Claimant is of much higher age, particularly in case of death of a bachelor where the mother or for that matter the parents may be double the age of the deceased, the dependency is to come to an end in a much lesser period as against the dependency of a widow or minor children of a deceased. In any case, the deceased was not to support more than his own life span and thus, by providing the dependency to the Claimants, it was held that the dependency has to be as per the age of the deceased or the Claimant whichever is higher.
18. The law laid down in Susamma Thomas (Mrs.) (supra) with regard to adoption of multiplier method and selection of multiplier according to the age of the deceased or the Claimant whichever is higher was affirmed by a three Judge Bench decision in U.P. SRTC v. Trilok Chandra, (1996) 4 SCC 362. The three Judge Bench laid down that the multiplier cannot in all cases be solely dependant on the age of the deceased and the age of the parents would also be relevant in case of death of a bachelor in the choice of multiplier. In para 18 of the report of the Supreme Court in Trilok Chandra (supra), it was observed as under:- “18.…… Besides, the selection of multiplier cannot in all cases be solely dependant on the age of the deceased. For example, if the deceased, a bachelor, dies at the age of 45 and his dependants are his parents, age of the parents would also be relevant in the choice of the multiplier………”
19. There was some confusion as to the selection of the multiplier because of the multiplier table as given in the Second Schedule of the Act under Section 163-A which was inserted w.e.f. 14.11.1994. Some of the cases had adopted the multiplier as given in the Second Schedule. Although, the three Judge Bench in Trilok Chandra (supra) had noticed some clerical mistakes in the multiplier table as given in the Second Schedule, it stated that the said table can be taken as a guide. Noticing the wide variations in the selection of multiplier, a two Judge Bench of the Supreme Court in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 noted the multiplier as adopted in Susamma Thomas, Trilok Chandra and New India Assurance Company Limited v. Charlie & Anr. (2005) 10 SCC 720 and in the Second Schedule and in Para 40 of the report, it compared the same in a tabulated form which is extracted hereunder:- Age of the deceased Multiplier scale as envisaged in Susamma Thomas [(1994) 2 SCC 176:
335] Multiplier scale as adopted by Trilok Chandra [(1996) 4 SCC 362] Multiplier scale in Trilok Chandra4as clarified in Charlie [(2005) 10 SCC 720:
1657] Multiplier specified in Second Column in the Table in Second Schedule to the MV Act Multiplier actually used in Second Schedule to the MV Act (as seen from the quantum of compensation) (1) (2) (3) (4) (5) (6) Up to 15 yrs - - - 15 20 15 to 20 yrs 16 18 18 16 19 21 to 25 yrs 15 17 18 17 18 26 to 30 yrs 14 16 17 18 17 31 to 35 yrs 13 15 16 17 16 36 to 40 yrs 12 14 15 16 15 41 to 45 yrs 11 13 14 15 14 46 to 50 yrs 10 12 13 13 12 51 to 55 yrs 9 11 11 11 10 56 to 60 yrs 8 10 09 8 8 61 to 65 yrs 6 08 07 5 6 Above 65 yrs 5 05 05 5 5
20. The Supreme Court with a view to having a uniform multiplier held that the multiplier as given in Column (4) of the above table should be usually followed. In Paras 41 and 42 of the report in Sarla Verma (Smt.), the Supreme Court observed:-
21. It may be noted that the Supreme Court had gone into the history of adoption of multiplier method and referred to Nance v. British Columbia Electric Railway Company Limited, (1951) AC 601 and Davies v. Powell, (1942) AC 601.
22. Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 related to the death of a Scientist who died leaving behind his widow, three minor children, parents and grandfather. Thus, the Supreme Court while laying down that the multiplier has to be adopted as per Column 4 of the table as per the age of the deceased, was generally referring to the award of compensation in cases of death of a person who had a family consisting of widow, children and parents. Of course, general principles with regard to award of compensation in case of death of a bachelor were also laid down by the Supreme Court in Sarla Verma (Smt.), but it was not specifically laid down that even in the case of death of a bachelor, the age of the Claimants who may be aged parents will be totally irrelevant.
23. However, in Amrit Bhanu Shali v. National Insurance Company Limited, (2012) 11 SCC 738, the Supreme Court stated that the selection of the multiplier has to be as per the age of the deceased and not on the basis of the age of the dependants. It was a case which related to the death of a bachelor.
24. On account of divergence of opinion in the earlier cases, a reference to a larger Bench was made by a two Judge Bench in Reshma Kumari v. Madan Mohan & Anr., (2009) 13 SCC 422. The question of award of compensation in relation to multiplier and future prospects was gone into at great length by a three Judge Bench of the Supreme Court in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65. The two referred questions by Reshma Kumari v. Madan Mohan & Anr., (2009) 13 SCC 422 were:- “1.1. Whether the multiplier specified in the Second Schedule appended to the Motor Vehicles Act, 1988 (for short “the 1988 Act”) should be scrupulously applied in all cases” and
1.2. Whether for determination of the multiplicand, the 1988 Act provides for any criterion, particularly as regards determination of future prospects?”
25. While answering the points, in Para 43, the Supreme Court observed as under:-
26. In Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65, these were general observations that the steps and guidelines stated in para 19 of Sarla Verma (Smt.) have to be followed. In Sarla Verma (Smt.), it was laid down that having regard to the age of the deceased and period of active career, the active multiplier should be selected and the multiplier should be chosen from the table with reference to the age of the deceased. As I have observed above, it was not the intention in Sarla Verma (Smt.) to apply the multiplier of 18 in case of death of a bachelor aged 25 years where the dependants may only be the aged parents. Thus, in Reshma Kumari also, it was not laid down that the multiplier has to be according to the age of the deceased even when the deceased is a bachelor having dependency of the parents only.
27. Of course, in M. Mansoor & Anr. v. United India Insurance Company Limited & Anr., (2013) 15 SCC 603, the two Judge Bench observed that the multiplier has to be as per the age of the deceased and even in case of death of a bachelor aged 24 years, the multiplier will be 18.
28. However, there is a three Judge Bench decision of the Supreme Court in New India Assurance Company Limited v. Shanti Pathak (Smt.) & Ors., (2007) 10 SCC 1 wherein a bachelor aged 25 years lost his life in a motor vehicular accident which occurred on 11.11.2002. The Claims Tribunal adopted a multiplier of 17, as per the age of the deceased (25 years). On appeal filed by the New India Assurance Company Limited before the High Court, it was contented that the multiplier has to be as per the age of the Claimants (in that case) and not as per the age of the deceased. The Division Bench of High Court of Uttarakhand declined to accept the contention and dismissed the appeal. In the SLP filed by the Insurance Company, the multiplier of 17 was reduced to „5‟ on the age of the mother of the deceased being 65 years.
29. Also, in the latest judgment of the Supreme Court in Ashvinbhai Jayantilal Modi v. Ramkaran Ramchandra Sharma & Anr., (2015)2 SCC 180, a two Judge Bench of the Supreme Court dealt with the questions of multiplier and the appropriate multiplier in case of death of a bachelor in the said case was taken as 13, keeping in mind the age of the parents of the deceased. Para 11 of the report is extracted hereunder:-
30. Thus, right from the two Judge Bench decision in General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors., (1994) 2 SCC 176, which for the first time held that the multiplier method is the best way of awarding just compensation, which was approved in U.P. SRTC v. Trilok Chandara, (1996) 4 SCC 362, wherein it was held that the multiplier has to be as per the age of the deceased or the Claimant whichever is higher, which is reiterated in New India Assurance Company Limited v. Shanti Pathak (Smt.) & Ors., (2007) 10 SCC 1 by applying the multiplier as per the age of the mother of the deceased (bachelor), the consensus of the larger Bench decisions seems to be that the multiplier has to be selected as per the age of the deceased or the Claimant whichever is higher. The judgment in Vijay Laxmi & Anr. v. Binod Kumar Yadav & Ors., ILR (2012) 6 DEL 447 has thus, correctly interpreted the law. Three Judge Bench decision in U.P. SRTC v. Trilok Chandara, (1996) 4 SCC 362 shall be taken as a binding precedent in the matter of selection of multiplier as per the age of the deceased or the Claimants.
31. Moreover, even if there is divergence of opinion in subsequent two Judge Bench decisions or three Judge Bench decisions (although there is no divergence by three Judge Bench decisions), the law laid down by three Judge Bench in Trilok Chandra (supra) shall be taken as a binding precedent. In this connection, a reference may be made to Central Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra & Anr., (2005) 2 SCC 673, wherein, in para 12, the Supreme Court observed as under:-
32. Similarly, in Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94, in para 27, the Supreme Court observed as under:-
33. Also, in Union of India and Ors. v. S.K. Kapoor, (2011) 4 SCC 589, while holding that the decision of the Coordinate Bench is binding on the subsequent Bench of equal strength, it was held that the Bench of Co-ordinate strength can only make a reference to a larger Bench. In para 9 of the report, the Supreme Court held as under:-
34. Thus, in view of this, the three Judge Bench decision in Trilok Chandra (supra), later reiterated in the three Judge Bench decision of New India Assurance Co. Ltd. v. Shanti Pathak (supra) shall be taken as a binding precedent. The multiplier will be as per the age of the deceased or the Claimant whichever is higher.”
12. Thus, the multiplier will be as per the age of the mother of the deceased, which has been rightly adopted by the Claims Tribunal.
13. The loss of dependency, therefore, would come to `21,82,050/- (19,450/- - 800/- x 12 + 50% x 1/2 x 13).
14. As far as award towards non-pecuniary damages is concerned, it is now settled that the legal representatives are entitled to a sum of `1,00,000/- each towards loss of love and affection and loss of consortium, `25,000/- towards funeral expenses and `10,000/towards loss to estate in view of the three Judge Bench decision of the Supreme Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54.
15. In the instant case, the deceased was a bachelor, therefore, the Claimants would be entitled to a total sum of `1,35,000/- towards nonpecuniary damages.
16. The overall compensation thus, comes to `23,17,050/-.
17. The compensation is accordingly enhanced by `3,24,682/- which shall carry interest @ 7.5% per annum from the date of filing of the petition till its payment.
18. The Appellant UPSRTC is directed to deposit the enhanced compensation along with proportionate interest within six weeks in the UCO Bank, Delhi High Court, New Delhi.
19. The enhanced compensation shall be equally apportioned between Respondents no.1 and 2 and shall be released to them on deposit.
20. Both the appeals are disposed of in the above terms.
21. Pending applications also stand disposed of.
22. Statutory amount, if any, deposited shall be refunded to the Appellant UPSRTC.
JUDGE APRIL 28, 2015 vk