Mr. S.V Angadi & Mr. Balakrishna for Appellants
Mr. Ravi G. Sabhahit for Respondents
Messrs H.G Ramesh, S.P Shankar, D. Satyanarayana Setty & C.K Kambeyanda for Insurance Companies
EDITOR'S NOTE:
By the Order dated 6-9-1990 in M.F.A No. 922 c/w 604 of 1990 per SAH & BNK, JJ., the following question is referred for determination by Full Bench:
“Whether the decision of this Court in H.T Bhandary v. Muniyamma (ILR 1985 KAR 2337) stands impliedly over-ruled in view of the decisions of the Supreme Court in Rajendra Kumari v. Shanta Trivedi ((1989) 2 SCC 140 : AIR 1989 SC 1074) and in Jyotsna Dey v. State of Assam [1987 (1) ACJ 172).”
The Judgment of the Court was delivered by
Chandrakantaraj Urs, J.:— This is an appeal by the General Manager of the Karnataka State Road Transport Corporation as well as the Deputy General Manager of the Internal Insurance Fund of the said Corporation. They were respondents Nos. 1 and 2 before the Motor Accidents Claims Tribunal, Belgaum, in M.V.C No. 831/1988.
2. Respondents-1 to 8 before us were the claimants before the Motor Accidents Claims Tribunal. Claimants-7 and 8 are mother and brother of the deceased who, it is alleged in the claim petition before the Motor Accident Claims Tribunal, died as a consequence of rash and neglient driving of a bus owned by the first appellant-Corporation on 28-7-1988 at about 9-30 a.m on Poona-Bombay Road (National Highway No. 4), near Shetti Galli Cross in Belgaum Town. It is further alleged by the claimants-respondents that the deceased Kashimsab Mulla was earning Rs. 1,200/- per month. They claimed a total of Rs. 4,75,000/- as compensation on account of the death caused by the accident in question.
3. In support of the claim P.W 1 by name Ismail was examined. He has an eye witness to the accident. His version that the accident was due to negligence of the driver, has been accepted by the Tribunal. P.W 2 is the widow who deposed on oath as to the earnings of her deceased husband. She claimed that her husband was earning Rs. 40/- a day as blacksmith under P.W 3 - Laxman. In addition, after work between 10 a.m and 5 p.m he was buying fruits and which were re-sold and by that process he was earning an additional sum of Rs. 20 to 25/- per day. It is noticed by us that the learned District Judge has not believed the latter part of the claim made in regard to the earnings. He has taken the evidence of P.W 3 - the employer (Laxman) to arrive at the figure of Rs. 30/- per day as earnings of the deceased Kashimsab Mulla. He has further directed, out of that Rs. 30/- a sum of Rs. 5/- per day be deducted as a reasonable amount, which the (deceased) would have spent on himself. Therefore he has arrived at the net sum of Rs. 25/- per day as income of the deceased. As a result of which the multiplant has been arrived at Rs. 750/- per mensum, the sum which the deceased was contributing to meet the expenditure and maintenance of the family. In other words under the head loss of dependency the claimants were entitled to that sum per mensum subject to reduction made in accordance with judicial decisions.
4. In regard to the multiplier to be used, on the facts and circumstances of the case, the learned Judge chose to follow the ruling of the Supreme Court in the case of Jyotsna Dey v. State of Assam . 1987 1 ACJ 172.. In the said case the claimant's husband therein was knocked down by a lorry owned by the Public Works Department of the Government of Assam. The victim of the accident left behind him a widow and 2 minor children. It is evident that the claim was for Rs. 1,20,000/- on the plea that the deceased had a monthly income of Rs. 400/- from his cycle repairing shop and confectionary shop and he was aged 40 and would have lived upto the age of 70. On the basis of the evidence placed before the Tribunal, the Tribunal found that the victim was 45 years old at the time of death; his contribution to the family was about Rs. 150/- per month and life expectancy was 60. The Judge awarded compensation of Rs. 25,000/-. We are unable to make out the principle followed by the Tribunal as the same is not set out in the Judgment of the Supreme Court as reported. On an appeal preferred by the claimants for escalation of the compensation, the High Court, while concurring with the Tribunal took the life span of the deceased husband of the claimant at 65 and enhanced the compensation to Rs. 36,000/- but deducted a sum of Rs. 10,000/- for or on account of lumpsum payment and fixed the compensation at Rs. 25,200/- giving a net enhancement of Rs. 200/-. On further appeal the Supreme Court ruled as follows:—
“The victim's age at the time of death has been fixed at 45 against the case made out by the claimants that it was 40. We do not propose to disturb this finding. The span of life should have been taken to be 70 in view of high rise in life expectancy. In the absence of any material evidence on behalf of the State, the evidence of the widow about the extend of contribution should have been accepted. A modest estimate should have led the High Court to fix it at Rs. 250/- per month. On such basis, the total compensation works out to be 25 × Rs. 3,000/- = Rs. 75,000/-. In consideration of the fact that the compensation is being paid at a time and uncertainties of life are a relevant factor, we reduce the compensation by Rs. 15,000/-. The net amount is thus fixed at Rs. 60,000/-. Out of it Rs. 25,200/- has already been paid. Thus the balance is Rs. 34,800/-. For convenience we round it off at Rs. 35,000/-. In case this amount is not paid within two months, the appellants shall become entitled to recover the amount with interest @ 12% per annum calculated from the date of the claim.”
In the result the petitioners obtained a compensation of Rs. 60,000/-. The balance after deducting Rs. 25,200/- was required to be paid at Rs. 35,000/-, rounding off Rs. 34,800/- to Rs. 35,000/-, with interest at 12% per annum from the date of claim as is obvious from the passage extracted.
5. The same principle in arriving at the multiplier has been followed by the learned District Judge in the case on hand, i.e, having fixed the contribution or the multipland at Rs. 750/- per mensum. The same has been multiplied by the multiplier 30 taking the expectancy of life at 70 years. That has resulted in an award of Rs. 2,70,000/- under the head ‘loss of dependency’. A further sum of Rs. 10,000/- was awarded for loss of consortium having regard to the very young age of the widow. Further, a sum of Rs. 2,000/- has been awarded towards funeral expenses. Thus a total compensation of Rs. 2,82,000/- has been awarded. Further he has directed deduction of the sum already paid as interim compensation under the direction of the Court. He has awarded 9% interest but he has made apportionment of the amount in the following manner:
Petitioner No. 1 - Rs. 50,000/- + Interest
Petitioner Nos. 2 to 6 - Each Rs. 33,400/- + Interest
Petitioner Nos. 7 & 8 - Each Rs. 25,000/- + Interest
He has further directed that the award in favour of the minors shall be in fixed deposit in a Nationalised Bank until they attain the age of majority. Aggrieved by the same this appeal has been preferred in this Court.
6. The principal contention urged before us is that the learned Judge has not followed the decision rendered by this Court in the case of H.T Bhandary v. Muniyamma.2 To the other contentions we will refer to a little later in the course of this Judgment. There cannot be any doubt that the ruling of this Court in Bhandary's case supra has not been followed in arriving at the multiplier. Therefore the question before us is whether it constitutes an error on the part of the learned District Judge particularly in view of the fact that even this Court, till the commencement of this week, was applying the ratio decidendi in Bhandary's case in all appeals for the simple reason, that the decision of Supreme Court in Jyotsna's case was not brought to our notice. We are not in doubt that if the multiplier arrived at by this Court in Bhandary's case which is a multiplier fixed having regard to the many factors and in the light of the many decided cases in England at the maximum numerical 16 subject to further scaling down for each 5 years in the life span of the victim of the accident by one numerical or one unit. We are also not in doubt by that method the compensation awarded will be considerably lesser than the compensation awarded if the multiplier method adopted by the Supreme Court in Jyotsna's case is followed.
7. Three principles, we feel, have been laid down by the Supreme Court in Jyotsna's case and they are: 1) If evidence on oath regarding the income of the deceased by his widow goes unchallenged, then that evidence must be accepted as the income of the dependent-claimants through the earnings of the victim of the accident. 2) That the multiplier should be arrived at by deducting the age of the victim on the date of his death from the life span expectancy of a normally healthy Indian which in that case has fixed at 70. Therefore, the multiplier of 35 was adopted. 3) That regard being had to uncertainties of life a deduction must be made out of the lumpsum award which we find is at 20% of the amount awarded as lumpsum compensation.
8. On the same facts as in the case of Jyotsna if we apply in place of the multiplier method decided by this Court in Bhandary's case, the amount, Jyotsna and her children would have received would be as follows under the various headings; under loss of dependency a sum of Rs. 250/- multiplied by 12 would work out to be Rs. 3,000 × 11 = Rs. 33,000; loss of consortium Rs. 10,000/-, and loss to estate Rs. 5,000/-, totally she and her children would have received Rs. 48,000/- as against Rs. 60,000/- which she infact they received at the hands of Supreme Court.
9. But since rendering of Bhandary's case this Court has been uniformly applying the ratio decidendi of that case as we have already stated, is put in doubt. The result is that the method adopted by the Supreme Court in Jyotsna's case has been followed by the other High Courts notably the High Court of Rajasthan, as seen from the case of New India Assurance Co. Ltd. v. Vidya Devi.3 This puts this Court in a very awkward situation. Accidents occurring in Karnataka resulting in the death of the bread earner of the family is compensated without any doubt by a lower sum to the claimants and dependents than in some other parts of the Country. If the difference was negligible this Court would not have troubled itself to ponder further over the matter. That the difference being considerable the loss to the people of Karnataka who have suffered mis-fortune in motor vehicle accidents resulting in the death of the bread earner of the family is considerable and therefore we have to re-examine whether we shall continue to apply the ratio decidendi or the multiplier arrived at by this Court in Bhandary's case or ignore it in the light of the decision of the Supreme Court not only in Jyotsna's case but reiterated in the case of Smt. Rajendra Kumari v. Smt. Shanta Trivedi.4
10. Having regard to the additional liability that the insurance companies would be suffering in the State of Karnataka we invited the Counsel who generally appear for the various insurance companies to address their arguments as to whether or not we should ignore the ratio decidendi in Bhandary's case supra and follow the multiplier method adopted by the Supreme Court in the two cases which we have mentioned in addition to the decision of Rajasthan High Court which undoubtedly would benefit the claimants, which in fact has been done by the learned District Judge - Tribunal on the facts of the case in the appeal before us.
11. Mr. S.P Shankar, Mr. Ramesh, Mr. Kambeyanda, and Mr. D. Satyanarayana Setty. Counsel appearing for various Nationalised Insurance Companies have also been heard and their main contentions were the following:
(i) that Jyotsna's case does not lay down any law and as such this Court need not consider that as a binding decision in terms of the Article 141; (ii) that in Bhandary's case this Court had done no more than follow the earlier decision of the Supreme Court and arrive at a fixed multiplier having regard to the number of decisions rendered in England which have been discussed therein and therefore they commended that Bhandary's decision laid down a specific law and as such is binding on this Division Bench.
12. Having regard to the law of precedents a number of authorities have been cited before us as to what constitutes a precedent and what does not constitute a precedent. We do not think we need advert to those decisions because the Judgment in Jyotsna's case and Rajendrakumari's case supra are decisions of Supreme Court cannot be in doubt nor can it be said that they do not lay down any law. We have already expressed ourselves as to what the law is which is laid down in Jyotsna's case. Undoubtedly the exercise undertaken by this Court in Bhandary's case is very lengthy and painstaking. But those factors will not affect or override the decisions of the Supreme Court. We are barred, in terms of Article 141, to question the decision rendered by the Supreme Court and the law laid down by the Supreme Court expressly or impliedly. In all the three cases i.e, Bhandary's case, Jyotsna's case and Rajendrakumari's case what has been done is no more than arriving at a multiplier and multiplicand. If that is borne in mind then there is no difference in the ratio decidendi of the cases referred. Therefore the learned District Judge cannot be held to have committed any error of law in applying ratio decidendi of Jyotsna's case in arriving at the multiplier and multiplicand and awarding compensation accordingly. If the method to arrive at the multiplier and multiplicand adopted by the Supreme Court results in higher and more beneficial compensation, then we should lean in favour of that method. The intendment of the Act is to confer the benefit on the dependents left behind by the victim of the accident who has died. Therefore we have no hesitation to concur with the finding of the Motor Accidents Claim Tribunal, in question, in arriving at the multiplier and the multiplicand.
13. Next, it was contended by the Corporation Counsel Sri Balakrishna that there is no uniform approach made in regard to arriving at the multiplicand based on the life expectancy of an Indian. We have seen in Jyotsna's case itself that the Tribunal adopted the figure 60 as the life expectancy while the High Court in that case arrived at 65 years and the Supreme Court fixed life expectancy, having regard to the improvement in the living conditions, etc., at 70 years. Our attention was drawn specifically by Sri Balakrishna to the fact that in Rajendrakumari's case supra the Supreme Court fixed the age at 60 years as the normal life expectancy of a healthy Indian. It is undoubtedly so, but then it is an educated guess made by the Judge or Judges constituting the Bench or Individual, as the case may be. The Court or the Tribunal, without reference either in regard to the evidence or with any statistical data available which the Court may rely upon and take judicial notice is left without any choice. But we do find that in the two Supreme Court decisions, namely, Jyotsna's case and Rajendrakumari's case one of the Judges is common to both the cases. Therefore judicial proxiety demands that we make no further comment on the figure arrived at by the Supreme Court. An ultimate solution as observed by the Supreme Court itself in the case of Gobald Motor Service Ltd. v. R.M.K Veluswami,5 (it will be useful to extract the relevant passage as found in the headnote):
“In calculating the pecuniary loss to the dependents many imponderables enter into the calculation. Therefore, the actual extent of the pecuniary loss to the dependents may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. Shortly stated, the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependent by the death must be ascertained. The burden is certainly on the plaintiffs to establish the extent of their loss. When the Courts below have, on relevant material placed before them, ascertained the said amount as damages the Supreme Court cannot in second appeal disturb the said finding except for compelling reasons. (1942) AC 601 & (1951).”
(Emphasis supplied)
has to be an educated guess or a conjecture. That view has been repeated in a number of subsequent decisions of the Supreme Court and the various High Courts. Therefore, where, in imponderable decisions, the Court cannot evolve in emperical method by which arithmetical exactitude is achieved we may award compensation to a type of loss which is peculiar to human beings, that is death, even though it be a conjecture. Therefore human errors are bound to be made in making estimates. But that cannot be a ground to interfere with the 70 years as the life span accepted by the Tribunal on the facts of this case. Once a lumpsum deduction is made on account of the uncertainties of the life, that is expected to take care of all the inaccuracies and inconsistencies that may appear to be even conjectures. Therefore, we feel, Justice would be better administered in this Court if we follow the method adopted by the Supreme Court of taking the life expectancy and the age of the victim who died in the accident in determinig the multiplier as it results in a larger amount of compensation to the dependents. This in fact was the method that was being followed by this Court and other High Courts even before Bhandary's case Since Bhandary's case does not give the same amount of benefit to the dependents left behind by the deceased in Karnataka we have preferred to fall in line, with respect to the authority of Article 141, and disallow the argument that there is an element of arbitrariness in the method adopted by the Supreme Court.
14. We must, therefore, necessarily reject the argument of Mr. Balakrishna.
15. But one other argument advanced on behalf of insurance Company i.e, the Tribunal below failed to deduct in regard to the uncertainties of life as done in Jyotsna's case, is a point well taken and following the principle emanating in Jyotsna's case we direct 20% of Rs. 2,70,000/- be deducted for lumpsum awarded in favour of the claimants. To that extent the award and decree of the Tribunal shall stand modified. Corresponding deduction of 20% shall be made in respect of the apportioned sums.
In other respects the appeal stands dismissed.