A.P. State Road Transport Corporation and Others vs Nenawath Lal Singh and Others

Dr. B. Siva Sankara Rao, J.�The claimants, who are parents of deceased by name N. Babu @ Nenavath Babu Singh, aged about 23 years, as per Inquest Report and Post mortem Report (Exs. A.2 and A.3, respectively), filed the claim against A.P. State Road Transport Corporation, who is the owner of the Bus bearing No. AP-10/Z-1121, claiming compensation of Rs. 12,00,000/-under Section 166(1)(c) of M.V. Act and the Tribunal awarded Rs. 5,95,000/- by considering the age of the mother at 45 years, by applying multiplier ''15'' with joint liability against both respondents from the accident occurred on 11.06.2004. Admittedly, no appeal filed by the claimants muchless cross objections contending that the compensation awarded is utterly low. It is the owner of the bus that preferred the appeal impugning the judgment dated 24.10.2006 in O.P. No. 1130 of 2004 passed by the Tribunal in the grounds of appeal with 8 grounds taken in all contending that Tribunal went wrong in coming to the conclusion that the accident occurred was only due to the rash and negligent driving of driver of the bus and it ought to have held that the driver of Auto bearing No. AP-25/U-7500 too was equally responsible for the accident, that Tribunal ought to have applied the principle of res ipsa loquitur to the facts of the case, that the Tribunal failed to see that the claimants pleaded that the bus came in high speed in a wrong side and dashed to the auto, that Tribunal went wrong in assessing the income of the deceased as Rs. 4,500/- per month though there is no evidence to that effect, that the Tribunal went wrong in applying the multiplier ''15'' to the age of the mother of the deceased i.e., 45 years and it shall not exceed ''10.45'' as per the decision report in Bhagwandas Vs. Mohd. Arif, , that the Tribunal failed to see that Ex. A.1 FIR indicates that there were 9 passengers in the Auto and that the driver will not have control on his vehicle and as such, he too shall equally be held responsible for the accident, and that the Tribunal went wrong in awarding a sum of Rs. 50,000/- for loss of love and affection.

In the course of hearing, the counsel for appellants reiterated said contentions. Though, there is no specific ground raised before the Tribunal regarding multiplier applicable is from the age of the deceased and not age of the mother of the deceased and not even any ground specifically raised in the grounds of appeal in this regard, during hearing claimed that multiplier from age of deceased and not the dependant mother that is to be taken by referring to a Division Bench expression of this Court in N. Surender Rao and two others. v. B. Swamy and another- M.A.C.M.A. No. 2158 of 2013, dated 05-12-2013.

Whereas, it is the contention of the claimants, when there is no plea in the Tribunal either in the claim petition or during submission of arguments and there is no ground in the appeal that age of the mother taken is incorrect and age of the deceased even bachelor ought to have been taken, the claimants cannot raise the plea for the first time by referring to an expression in the appeal; apart from the Division Bench expression of this Court is running contrary to the settled expressions of the Apex Court and there is also a subsequent expression of the Apex Court where age of the mother taken as decisive for death of bachelor, hence to dismiss the appeal.

At this stage both parties requested the Court to seek for referring of the matter to another Division Bench or Full bench for deciding correctness of the Division Bench expression of this Court in N. Surender Rao(supra).

From the above, now the points that arise for decision are:

"i). Whether there is any contributory negligence on the part of driver of Auto bearing No. AP-25/U 7500 in which the deceased was travelling along with others?

ii). Whether the claimants without cross objections or independent appeal can claim more compensation than what the Tribunal awarded in the appeal filed by the Insurer?

iii). Whether for death of unmarried, age of deceased or age of the parents/mother among the claimants, which is the criteria?

iv). To what result?"

Points 1 and 2 : The claim is filed under Section 166 of the Act. The appeal against the claim even filed under Section 173 of the Act, Order 41 C.P.C. provisions are applicable even to the appeals under M.V. Act as per the settled law of the Apex Court for no cross-objections and with no power to the appellate Court to enhance, even it is the contention of the respondent-claimant to award more than what the tribunal awarded irrespective of cross-objections, vide decisions: (i). Ranjana Prakash and Others Vs. Divisional Manager and Another, where categorically held that but for to substantiate the quantum on one ground or other from impugning any of the findings of the lower Court (Tribunal) in that regard or by interference by this Court within its appellate power under Order XLI Rule 33 CPC, the respondent to the appeal cannot ask for increasing the quantum in the absence of cross-objections or independent appeal; (ii). Oriental Insurance Company Limited v. R. Swaminathan 2006 ACJ 1398 following the earlier expression of the Apex Court in (3). Banarsi v. Ramphal in the same lines. In said Banarsi and Others Vs. Ram Phal, (referring to (iv). Pannalal Vs. State Bombay and Others, (five Judge Bench), (v). Rameshwar Prasad and Others Vs. Shyam Beharilal Jagannath and Others, (three Judge Bench), (vi). Harihar Prasad Singh and Others Vs. Balmiki Prasad Singh and Others, it was held that normally a party who is aggrieved by a decree should, if he seeks to escape from its operation, appeal against it within the time allowed after complying with the requirements of law. Where he fails to do so, no relief should ordinarily be given to him even under Order XLI Rule 33 CPC. But there are well recognized exceptions to this Rule. One is where as a result of interference in favour of the appellant it becomes necessary to re-adjust the rights of other parties. A second class of cases based on the same principle is, where the question is one of settling mutual rights and obligations between the same parties. A third class of cases is when the relief prayed for is single and indivisible, but is claimed against a number of defendants. In such cases, if the suit is decreed and there is an appeal only by some of the defendants and if the relief is granted only to the appellants there is possibility that there might come into operation at the same time and with reference to the same subject matter two decrees which are inconsistent and contradictory. This, however, is not an exhaustive enumeration of the class of cases in which Courts would interfere under Order XLI Rule 33 of CPC. Such an enumeration neither be possible nor even desirable, (ix). In Nirmala Bala Ghose and Another Vs. Balai Chand Ghose and Others, (three judge Bench), it was held that Order XLI Rule 33 is undoubtedly expressed in terms which are wide but it has to be applied with discretion, and to cases where interference in favour of appellant necessitates. It is an interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties.--The Rule does not confer an unrestricted right to reopen decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from----by failure of the respondent to prefer appeal or to take cross-objections, the respondent has allowed the part of the trial Court''s decree to achieve a finality which was adverse to him. Thus, in the claim filed under Section 166 of the Act (as the appeal is not filed by the claimants, but by the Insurer) though just compensation the tribunal can award even it is more if arrived than claimed as per Rajesh (supra); the appellate Court cannot, but for readjustment of rights, enhance the compensation in favour of claimants/respondents for that quantum reached finality without dispute by claimants by way of cross objections or separate appeal. Thus, even they are entitled to agitate to substantiate the quantum arrived by the Tribunal on one ground or other, they cannot ask for more than what was awarded.

Coming to decide whether personnel & living expenses deduction for deceased unmarried is half or 1/3rd or even less concerned-(x). Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, taken consideration of the decisions in (xi). General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, ; (xii). U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and Others, ; (xiii). Fakeerappa and Another Vs. Karnataka Cement Pipe Factory and Others, and (xiv). New India Assurance Co. Ltd. Vs. Charlie and Another, it was held at paras 30 to 32 that:

"30. Though in some cases the deduction to be made towards personal &living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of deceased, should be(1/3rd)-where number of dependent family members is 2 to 3; (1/4th)-where the number of dependent family members is 4 to 6 and (1 /5th)-where the number of dependent family members exceeds six.

Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as person aland living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning or married or be dependent on the father.

Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor & 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to 1/3rd and contribution to the family will be taken as 2/3rd."

From the above principle, in the present facts, half of the amount deducted towards personnel expenses is just.

So far as contributory negligence is concerned, a perusal of the evidence on record with reference to Ex. A.1 - F.I.R., Ex. A.4 - M.V. Report, Ex. A.5 - charge sheet and the evidence of P.W.2 - eye-witness to the occurrence, there is no overloading much less that contributed, apart from any negligence of the driver of the auto for the accident, but for bus driver of the appellant to say that the Tribunal is right in holding that the accident was the result of rash and negligent driving by the bus driver of the appellants.

Accordingly point Nos. 1 and 2 for consideration are answered.

Point-3: There is no dispute on the fact that the claimants are the parents of deceased bachelor, aged 23 years and the age of his mother at the time of accident from evidence on record was 45 years.

8(a). On the question of age of deceased-unmarried (bachelor/ spinster) or age of the parents/mother of such deceased among the claimants which is the criteria concerned, the decisions in support of the contention of the Insurer are that age of the mother, the Class-I legal heir of the deceased for father even not the Class-I legal heir among the parents, but for if at all the average age of the parents that is the criteria in taking the multiplier and not the age of the deceased bachelor are the following:

(i). In the three Judge Bench expression of the Apex Court in Trilok Chandra (supra) it was held that "we must at once point out that the calculation of compensation and the amount worked out in the schedule suffer from sever defects. For example, in item No. 1 for a victim aged 15 years, the multiplier is shown to be 15 years'' and the multiplicand is shown to be Rs. 3000/-. The total should be 3000 X 15=Rs.45,000 but the same is worked out at Rs. 60,000/-. Similarly, in the second item the multiplier is 16 and the annual income is Rs. 9000, the total should have been Rs. 1,44,000 but is shown to be Rs. 1,71,000/-. To put it briefly, the table abounds in such mistakes. Neither the Tribunals nor the Courts can go by the ready reckoner. It can only be used as a guide. Besides that, the selection of multiplier cannot in all cases be solely dependent on the age of the deceased. For example, if the deceased, a bachelor also dies at the age of 45 and his dependants are parents, the age of the parents would also be relevant in the choice of the multiplier.

(ii). Trilok Chandra (supra) also referred the earlier expression in (xv). Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai and Another, regarding the meaning of legal representative, for maintaining the claim other than by parents if they are the sufferers from death even not dependants for entitlement to compensation. Trilok Chandra (supra) also referred the earlier expression of the Apex Court in (xvi). C.K. Subramania Iyer and Others Vs. T. Kunhikuttan Nair and Others, ."

Following decision of the Apex Court in (xvii). Gobald Motor Service Ltd. and Another Vs. R.M.K. Veluswami and Others, of C.K. Subramania Iyer, it was held that: "The life expectancy of the deceased or of the beneficiaries whichever is shorter is an important factor. The Apex Court in R.M.K. Veluswami (supra) also clearly stated that, the general principle is that the actual 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 dependant by the death must be ascertained". It is therefrom even to say only the life expectancy of the deceased or of the beneficiaries whichever is shorter is an important factor.

8(b). This Court earlier in (xviii). National Insurance Co. Ltd. Vs. Ojili Gopal Reddy and Others, held that as much as the claimants are parents of a bachelor, the age of the mother is a relevant factor for applying the appropriate multiplier. Even before in (xix). New India Assurance Co. Ltd. Vs. Mohd. Ahmed Qureishi and Others, it was held that when deceased was a bachelor, age of the dependents alone shall be the determining factor to apply the multiplier. In another judgment of this Court earlier in (xx) Md. Abdul Waheb and Others Vs. Society For Self Employed Training and Others, it was held that if the parents alone are the legal representatives, for compensation the multiplier suitable to the age of the parents has to be selected. If the persons younger to the deceased are also legal representatives such as wife and children, a multiplier suitable to the age of the deceased has to be selected as also held in (xxi). APSRTC v. Rama-natail 1987 (2) ALT 56 . Same is also laid down in another recent expression by this Court in The United India Insurance Company Limited. Vs. G. Satish Kumar and others, : The United India Insurance Company Limited. Vs. G. Satish Kumar and others, .

8(c). The other decisions of the Apex Court on this principle are:

"(xxii). In National Insurance Co. Ltd. Vs. M/s. Swaranlata Das and others, wherein it was held that in case of death of a bachelor or unmarried, the age of their mother alone shall be taken to adopt the appropriate multiplier.

(xxiii). In H.S. Ahammed Hussain and Another Vs. Irfan Ahammed and Another, , the Apex Court at para 6 reiterated the principle laid in Swaranlata Das (supra). The other decision reiterating the principle by the Apex Court is the two Judge Bench expression in Susamma Thomas(supra), where it was held that the assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of the life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income altogether, also referred the earlier expressions in holding the age of the parents is the criteria and not that of the deceased particularly bachelor, that is the basis. The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last. In Fakeerappa (supra) same principle was reiterated. In Charlie (supra) it was held further at para 14 that: "14. The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased or that of the claimants, whichever is higher and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed up over the period for which the dependency is expected to last."

(xxiv). In Bijoy Kumar Dugar Vs. Bidyadhar Dutta and Others, multiplier of 12 was applied from age of the parents of the deceased between 45-50 by reiterating the same principle.

(xxv). In Gyanchand Jain V. Parmanand 2003 ACJ 2152 it was held that the age of the claimants when they happened to be the parents of the deceased is only the relevant factor in determination of the multiplier. Where multiplier of 12 was applied from age of the parents between 48-55 of the 26 years old deceased by reiterating the same principle.

(xxv). It was held in New India Assurance Company Limited v. Satender Civil Appeal No. 4725 of 2006 two Judge Bench dated 08.11.2006.... Considering the age of the parents, multiplier of 17 was adopted by the tribunal, even appeal filed before the High Court came to be dismissed and when impugned before the Apex Court, it was observed that-there are some aspects of human life which are capable of monetary measurement, but the totality of human life is like the beauty of sunrise or the splendor of the stars, beyond the reach of monetary tape-measure. The determination of damages for loss of human life is an extremely difficult task and it becomes all the more baffling when the deceased is a child and/or a non-earning person. The future of a child is uncertain. Where the deceased was a child, he was earning nothing but had a prospect to earn. The question of assessment of compensation therefore becomes stiffer. The figure of compensation in such cases involves a good deal of guesswork. In cases where parents are claimants, relevant factor would be age of parents. The parents'' establish that they had a reasonable expectation of pecuniary benefit if the child had lived. This principle was laid down by Lord Atkinson for the House of Lords in the famous case of (xxvi). Taff Vale Rly. v. Jenkins (1913) AC 1 that:"....all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact - there must be a basis of fact from which the inference can reasonably be drawn. This Court in (xxvii). Lata Wadhwa and Others Vs. State of Bihar and Others, while computing compensation made distinction between deceased children falling within the age group of 5 to 10 years and age group of 10 to 15 years. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation.

(xxviii). In Maharashtra State Road Transport Corporation v. Lalnipuii Civil Appeal No. 5823 of 2006 two Judge Bench, dated 14.12.2006...it was held that, it is fairly a settled position in law that while parents are the claimants, the age of the deceased is not relevant and it is the age of the claimants which would determine the multiplier to be adopted. On that score it is clear that the Tribunal''s assessment of the quantum of Award taking multiplier 17 based on was age of deceased is held incorrect and for that conclusion also relied upon: (xxix). Jyoti Kaul and Others Vs. State of M.P. and Another, , M/s. Swaranlata Das & C.K. Subramania Iyer (supra).

(xxx). In Kaushlya Devi v. Shri Karan Arora Civil Appeal Nos. 2479 of 2007 two Judge Bench dated 14.05.2007 also it was held that in cases where parents are claimants, relevant factor would be age of parents.

(xxxi). In Oriental Insurance Co. Ltd. Vs. Syed Ibrahim and Others, in Civil Appeal No. 4308 of 2007, two Judge Bench, dated 17.09.2007...... also it was held that in cases where parents are claimants, relevant factor would be age of parents.

(xxxii). The three Judges Bench expression of the Apex Court in Civil Appeal Nos. 2926 and 2927 of 2007 dated 10.07.2007 in New India Assurance Company Ltd. Vs. Smt. Shanti Pathak and Others, also it was held that where parents are claimants, relevant factor would be age of parents. On facts, the parents of the deceased filed a Claim Petition and the tribunal awarded Rs. 4,10,000/-taking age of the deceased as 25 years and applied multiplier 17. The High Court confirmed the same. It was held by the Apex Court that it would be appropriate to take the multiplier of 5 considering the age of mother of the deceased is about 65 years and of the father is more than 65 years at the time of the accident and by taking into account the monthly contribution at Rs. 3,500/- as held by the Tribunal and the High Court, the entitlement of the claim would be Rs. 2,10,000/-with interest @ 7.5% p.a. from the date of claim application."

8(d). Other decisions of Apex Court reiterating the principle are:--

"(xxxiii). The two Judges Bench expression in Ramesh Singh v. Satbir Singh Civil Appeal Nos. 545-546 of 2008 dated 21.01.2008 by placing reliance upon the earlier expressions of two Judge Bench in Charlie (supra), three Judge Bench expression in Trilok Chandra (supra) and two Judge Bench expression in Syed Ibrahim (supra).

(xxxiv). The other decision reiterating the principle by the Apex Court two Judge Bench is Oriental Insurance Company Ltd. v. Jashuben Civil Appeal No. 1272 of 2008 dated 14.02.2008 referring to the earlier two Judge Bench expressions in Bijoy Kumar Dugar (supra)

(xxxv). U.P. State Road Transport Corporation Vs. Krishna Bala and Others, and the three Judges Bench expression in Smt. Shanti Pathak (supra).

(xxxvi). The other decision reiterating the principle by the Apex Court is the two Judge Bench expression in M.D., Bangalore Metropolitan Transport Corp. v. Sarojamma Appeal (Civil) 2897 of 2008 dated 22.4.2008...... which referred and relied in this regard the earlier expressions in Susamma Thomas (supra) and three Judge Bench expression of Trilok Chandra (supra) in holding the age of the parents is the criteria and not that of the deceased particularly bachelor, that is the basis.

(xxxvii). The other expression of the Apex Court as to parents age is only criteria for deceased bachelor is the two Judge Bench is Syed Basheer Ahamed v. Mohd. Jameel Civil Appeal No. 10 of 2009 which also referred the two Judge Bench expressions in Susamma Thomas (supra) and (xxxviii). The Managing Director, TNSTC Ltd. Vs. K.I. Bindu and Others, apart from R.M.K. Veluswami (supra) in saying from the age of the mother, the multiplier 14 that is required to be applicable on the facts as the life expectancy of the deceased or of the beneficiaries whichever is shorter is an important factor.

(xxxix). The other decision relied upon by the two Judge Bench of the Apex Court in Rani Gupta v. M/s. United India Insurance company Limited Civil Appeal No. 2241 of 2009, which referred (xxxx). United India Insurance Co. Ltd. Vs. Patricia Jean Mahajan and Others Etc. Etc., and Susamma Thomas (supra) in saying the multiplier specified in the second schedule may not be decisive for calculating compensation in cases of death. It was also held that, in fact the old multiplier in the second schedule has been used only for the purpose of calculating damages in case of permanent disability and not in case of death as would appear from note 5 and 6 appended thereto and for that conclusion they also referred the English decisions in (xxxxi). Devies v. Taylor, (xxxxii). Davies v. Powell, Duftyn Associated Collieries Limited, (xxxxiii). Picket v British Rail Engineering Limited and (xxxxiv). Mallett v. McMonagle, in saying age of the dependant parents is criteria and not that of the deceased-bachelor. The other decision referred is Smt. Sarla Verma (supra). The other decision referred is Charlie (supra)."

The other two Judge Bench expressions some of which are even subsequent to Smt. Sarla Verma (supra) that placed reliance on the principle of age of the claimants-being the parents of the deceased is the criteria and not of deceased in adopting multiplier are: (xxxxv). Deo Patodi v. Devendra Arora Civil Appeal No. 3492 of 2009; (xxxxvi). National Insurance Company Limited v. Gurumallamma Civil Appeal (arising out of SLP(C) No. 15167/2008); (xxxxvii). Priya Vasant Kalgutkar v. Murad Shaikh Civil Appeal No. 4795 of 2009; (xxxxviii). Arun Kumar Agrawal v. National Insurance Company Civil Appeal No. 5843 of 2010; (xxxxix). National Insurance Company Ltd. Vs. Shyam Singh and Others, in Civil Appeal No. 4921 of 2011. In Gurumallamma (supra) at paras 8&12 it was observed that: "8. Multiplier stricto sensu is not applicable in the case of fatal accident. The multiplier would be applicable only in case of disability in non-fatal accidents as would appear from the Note 5 appended to the Second Schedule. 12. In view of the aforementioned finding, we are of the opinion that it is not necessary for us to take into consideration, the decisions cited at the bar suggesting that in a case of death of an unmarried person and wherein the claimants are the parents of the deceased, the age of the deceased shall be irrelevant factor for applying the multiplier specified in the Second Schedule". The other decision placed reliance upon of the Apex Court two Judge Bench is the latest expression in (xxxxx). Kishan Gopal and Another Vs. Lala and Others, .

8(e). All these expressions in one voice say that, where the age of the dependants is more than the deceased, dependants age is criteria and where the age of the dependants is less to the deceased, age of the deceased is criteria. It was there from held where the dependants are wife and children, age of the deceased is criteria based on said principle and likewise dependants are parents age of the mother if not average age of the parents is criteria to adopt the multiplier for the sound reason that dependants can be maintained only in their life time and if they are more aged to deceased, their age thus basis, otherwise only age of deceased criteria. In fact, in the said expressions referred supra, it is categorically observed in some of which that the multiplier is a guiding factor for the claim under Section 163-A of the MV Act as per Schedule II of the Act and for the claim under Section 166 of the MV Act, the multiplier laid down in Sarla Verma (supra) is the guiding factor and Sarla Verma is also approved while answering the reference by the three Judge Bench in (xxxxxi). Reshma Kumari and Others Vs. Madan Mohan and Another, besides the later the three Judge Bench in (xxxxxii). Rajesh and Others Vs. Rajbir Singh and Others,

8(f). As stated supra, the appellants in the course of hearing mainly stressed saying that Tribunal erred in applying wrong multiplier though they did not specifically state age of the bachelor deceased is only the criteria and not of the parents, to say that age of the deceased to be adopted by placing reliance on the Division Bench expression of this Court in N. Surender Rao (supra). In fact, the Division Bench expression N. Surender Rao (supra) laid base on the two Judge bench expression of the Apex Court in (xxxxxiii). Amrit Bhanu Shali v. National Insurance Company Limited Civil Appeal No. 3397 of 2012 which discussed that the Tribunal in that case for the unmarried aged 26 years old young man by deduction rightly of 50% towards personal expenses, applied from his age multiplier 17 referring to Sarla Verma (supra) and the claimants when challenged the award of the Tribunal by filing appeal before Chhattisgarh High Court, the insurer challenging the same by filing another appeal No. 515 of 2010 in the same High Court and later the insurer withdrew their appeal and maintained cross objections to the appeal of the claimants and the High Court by impugned order dated 12.11.2010 reduced the compensation by adopting the multiplier 13 from the age of the parents and the question thereby before the Apex Court was on selection of the multiplier and at para 18, the Apex Court observed referring to the multiplier table of Sarla Verma (supra) that for the age group of persons between 15 to 20 and 21 to 25 for the claim under Section 166 of the M.V. Act multiplier ''18'' is given to adopt in Sarla Verma (supra) and for those aged between 26 to 30 it was reduced to 17 and likewise for every 5 years reduced one multiplier and in the case of the first appellant-Amrit Bhanu Shali-father, second appellant-Ritesh Bhanu Shali-mother, for sister of the deceased already married not a dependant, 50% deduction for personal expenses is held justified as per Sarla Verma (supra) and selected the multiplier 17 based on age of the deceased-26, holding the multiplier 17 ought to have been applied as done by the Tribunal rightly and thus the High Court held committed a serious error in not giving the benefit of multiplier 17 by bringing down it to multiplier 13 based on the age of the dependants-parents.

In Sarla Verma (supra) as contended by the counsel for owner of the vehicle under Section 166 of the Act, the multiplier table given not only for the deceased persons, but also for those who suffered with permanent disability and as held in the expressions placed reliance supra of (xxxxxiv). Rani Gupta v. M/s. United India Insurance Company Ltd. Civil Appeal No. 2241 of 2009 held referring to (xxxxxv). United India Insurance Co. Ltd. Vs. Patricia Jean Mahajan and Others Etc. Etc., , Susamma Thomas (supra) and Trilok Chand (supra) held from para 16 of the age of the dependant parents is relevant and not the deceased bachelor for proper multiplier and observed that by and large the multiplier mentioned in the second schedule should be taken as guidance. At para 19 observed that the multiplier specified in the second Schedule may not be decisive for calculating compensation in cases of death. In fact the word multiplier has been used only for the purpose of calculating damages in case of permanent disability and not in the case of death as would appear from notes 5 and 6 appended thereto. It is there from contended that in Sarla Verma (supra), the multiplier payable fixed is as a general guide for the claimants under Section 166 from column No. 4 apart from the claims under Section 163-A under Schedule II, it is not strictly to say that it is applicable even the deceased a bachelor and the claimants are parents from the basic principle that it is the higher age among the deceased or claimants that is criteria in adopting multiplier and even in Reshma Kumari (supra) which approved the Sarla Verma (supra) in answering the reference, by adding that where persons aged up to 15 years-multiplier 15 is fixed to apply; that in fact does not mean according to the submission the deceased even below 15 years the multiplier 15 that is applicable, despite bachelor whose parents are the dependants.

What is laid down even in Reshma Kumari (supra) is as regards the cases where the age of the victim (victim is only to mean injured with permanent disability to adopt multiplier from his age and victim does not mean deceased, as only claimants being dependants on deceased at best can also be called as victims for they suffer monetarily and otherwise also from such death-emphasis is mine) happens to be up to 15 years, we are of the considered opinion that in such cases irrespective of Section 163-A or section 166 under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in column (6) of the Table in Sarla Verma (supra) should be followed. This is to ensure that claimants in such cases are not awarded lesser amount when the application is made under Section 166 of the 1988 Act. In all other cases of death where the application has been made under Section 166, the multiplier as indicated in column (4), of the Table in Sarla Verma (supra) should be followed. For more clarity, Reshma Kumari (supra) relevant paras from para 29 onwards are reproduced below:

"29. Section 168 of the 1988 Act provides the guideline that the amount of compensation shall be awarded by the claims tribunal which appears to it to be just. The expression, ''just'' means that the amount so determined is fair, reasonable and equitable by accepted legal standards and not a forensic lottery. Obviously ''just compensation'' does not mean ''perfect'' or ''absolute'' compensation. The just compensation principle requires examination of the particular situation obtaining uniquely in an individual case.

Almost a century back in Taff Vale Railway Co. v. Jenkins (1913-AC 1), the House of Lords laid down the test that award of damages in fatal accident action is compensation for the reasonable expectation of pecuniary benefit by the deceased''s family. The purpose of award of compensation is to put the dependants of the deceased, who had been bread-winner of the family, in the same position financially as if he had lived his natural span of life; it is not designed to put the claimants in a better financial position in which they would otherwise have been if the accident had not occurred. At the same time, the determination of compensation is not an exact science and the exercise involves an assessment based on estimation and conjectures here and there as many imponderable factors and unpredictable contingencies have to be taken into consideration.

This Court in C.K. Subramania Iyer and Others Vs. T. Kunhikuttan Nair and Others, , reiterated the legal philosophy highlighted in Taff Vale Railway(supra) for award of compensation in claim cases and said that there is no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations. Obviously, award of damages in each case would depend on the particular facts and circumstances of the case but the element of fairness in the amount of compensation so determined is the ultimate guiding factor.

In Susamma Thomas, this Court - though with reference to Section 110B of the Motor Vehicles Act, 1939 - stated that the multiplier method was the accepted norm of ensuring the just compensation which will make for uniformity and certainty of the awards. We are of the opinion that this statement in Susamma Thomas is equally applicable to the fatal accident claims made under Section 166 of the Act, 1988. In our view, the determination of compensation based on multiplier method is the best available means and the most satisfactory method and must be followed invariably by the Tribunals and Courts.

We have already noticed the table prepared in Sarla Verma for the selection of multiplier. The table has been prepared in Sarla Verma having regard to the three decisions of this Court, namely, Susamma Thomas, Trilok Chandra and Charlie for the claims made under Section 166 of the 1988 Act. The Court said that multiplier shown in Column (4) of the table must be used having regard to the age of the deceased. Perhaps the biggest advantage by employing the table prepared in Sarla Verma is that the uniformity and consistency in selection of the multiplier can be achieved. The assessment of extent of dependency depends on examination of the unique situation of the individual case. Valuing the dependency or the multiplicand is to some extent an arithmetical exercise. The multiplicand is normally based on the net annual value of the dependency on the date of the deceased''s death. Once the net annual loss (multiplicand) is assessed, taking into account the age of the deceased, such amount is to be multiplied by a ''multiplier'' to arrive at the loss of dependency. In Sarla Verma this Court has endeavoured to simplify the otherwise complex exercise of assessment of loss of dependency and determination of compensation in a claim made under Section 166. It has been rightly stated in Sarla Verma that claimants in case of death claim for the purposes of compensation must establish (a) age of the deceased; (b) income of the deceased; and (c) the number of dependants. To arrive at the loss of dependency, the Tribunal must consider (i) additions/deductions to be made for arriving at the income; (ii) the deductions to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. We do not think it is necessary for us to revisit the law on the point as we are in full agreement with the view in Sarla Verma

If the multiplier as indicated in Column (4) of the table read with paragraph 42 of the Report in Sarla Verma is followed, the wide variations in the selection of multiplier in the claims of compensation in fatal accident cases can be avoided. A standard method for selection of multiplier is surely better than a criss-cross of varying methods. It is high time that we move to a standard method of selection of multiplier, income for future prospects and deduction for personal and living expenses. The courts in some of the overseas jurisdictions have made this advance. It is for these reasons; we think we must approve the table in Sarla Verma for the selection of multiplier in claim applications made under Section 166 in the cases of death. We do accordingly. If for the selection of multiplier, Column (4) of the table in Sarla Verma is followed, there is no likelihood of the claimants who have chosen to apply under Section 166 being awarded lesser amount on proof of negligence on the part of the driver of the motor vehicle than those who prefer to apply under Section 163A. As regards the cases where the age of the VICTIM happens to be up to 15 years, we are of the considered opinion that, in such cases irrespective of Section 163A or Section 166 under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the table in Sarla Verma should be followed. This is to ensure that claimants in such cases are not awarded lesser amount when the application is made under Section 166 of the 1988 Act. In all other cases of death where the application has been made under Section 166, the multiplier as indicated in Column (4) of the table in Sarla Verma should be followed.

With regard to the addition to income for future prospects, in Sarla Verma, this Court has noted earlier decisions in Susamma Thomas, Sarla Dixit and Abati Bezbaruah and in paragraph 24 of the Report held as under: "24.......In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary" should be read as "actual salary less tax"). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances." Above principle can only be justified in extraordinary circumstances and very exceptional cases.

As regards deduction for personal and living expenses, in Sarla Verma, this Court considered Susamma Thomas, Trilok Chandra and Fakeerappa and finally in paras 30, 31 and 32 of the Report held as under: "30....Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3; one-fourth (1/4th) where the number of dependent family members is 4 to 6; and one-fifth (1/5th) where the number of dependent family members exceeds six. 31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on him. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father. 32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third."

The above does provide guidance for the appropriate deduction for personal and living expenses. One must bear in mind that the proportion of a man''s net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses, but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependant members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependants.

In our view, the standards fixed by this Court in Sarla Verma on the aspect of deduction for personal living expenses in paragraphs 30, 31 and 32 must ordinarily be followed unless a case for departure in the circumstances noted in the preceding para is made out.

In what we have discussed above, we sum up our conclusions as follows:

(i) In the applications for compensation made under Section 166 of the 1988 Act in death cases where the age of the deceased is 15 years and above, the Claims Tribunals shall select the multiplier as indicated in Column (4) of the table prepared in Sarla Verma read with para 42 of that judgment.

(ii) In cases where the age of the deceased is up to 15 years, irrespective of the Section 166 or Section 163A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the table in Sarla Verma should be followed.

(iii) As a result of the above, while considering the claim applications made under Section 166 in death cases where the age of the deceased is above 15 years, there is no necessity for the Claims Tribunals to seek guidance or for placing reliance on the Second Schedule in the 1988 Act.

(iv) The Claims Tribunals shall follow the steps and guidelines stated in para 19 of Sarla Verma for determination of compensation in cases of death.

(v) While making addition to income for future prospects, the Tribunals shall follow paragraph 24 of the Judgment in Sarla Verma.

(vi) In so far as deduction for personal and living expenses is concerned, it is directed that the Tribunals shall ordinarily follow the standards prescribed in paragraphs 30, 31 and 32 of the judgment in Sarla Verma subject to the observations made by us in para 38 above.

(vii) The above propositions mutatis mutandis shall apply to all pending matters where above aspects are under consideration.

The reference is answered accordingly. Civil appeals shall now be posted for hearing and disposal before the regular Bench."

In the subsequent expression in Kishan Gopal (supra) the claimants, being the appellants-parents, who have lost their son at the age of 10 years in the motor vehicle accident and the vehicle was insured with respondent No. 3 - Insurance Company, preferred claim petition under Sections 140 r/w 166 of the M.V. Act, 1988 claiming compensation for Rs. 15,63,000/- inter alia, pleaded that the son would have earned a sum of Rs. 2000/- p.m. after the age of 18 years and he would have lived up to 70 years, therefore, multiplied by 52 for claiming the financial assistance that he could have rendered to the parents, the same is worked out to Rs. 12,48,000/-. The Tribunal dismissed the claim and on appeal the High Court confirmed the same. In appeal before the Apex Court on the facts - the deceased son of the appellants was traveling by sitting in the trolley of the tractor, it was turned down on account of rash and negligent driving of the offending vehicle by respondent No. 1 and he fell down from the trolley and the tractor tire ran over the body and he sustained grievous injuries and succumbed to the same. The deceased boy, had he been alive would have certainly contributed substantially to the family of appellants by working hard. In view of the aforesaid reasons, it would be just and reasonable to take his notional income at Rs. 30,000/- p.a. and further taking the young age of the parents, namely the mother who was about 36 years old, at the time of accident, by applying the legal principles laid down in the case of Sarla Verma, the multiplier of 15 can be applied. Thus, 30,000 x 15=4,50,000 and 50,000/- under conventional heads towards loss of love and affection, funeral expenses, last rites as held in Susamma Thomas, which is referred to in Lata Wadhwa and said amount under the conventional heads is awarded even in relation to the death of children between 10 to 15 years old.

Even in Halsbury''s Laws of England in Volume 34, para 98, states the principle thus: "(98).Assessment of damages under the Fatal Accidents Act, 1976 - The Courts have evolved a method for calculating the amount of pecuniary benefit that dependants could reasonably expect to have received from the deceased in future.

Having regard to the above settled expressions more particularly the three Judge bench expressions in Trilok Chandra and Shanti Pathak, it is indicating that the age of the claimants or of the deceased whichever is higher is criterion, as the dependency is so long as the dependants survive and if they being the claimants are younger to deceased (like wife and children), the age of the deceased is criterion and otherwise the age of the claimants (like parents) for so long as they survive from deceased is younger in age to them. Thus, with utmost respect to the Judges who decided contra to the above principle in Amrit Bhanu Shali and N. Surender Rao (supra) not even referring to the three Judge bench expressions in Trilok Chandra and Shanti Pathak apart from other two Judge bench expressions following the same, I regret my inability to fall in line with the reasoning of them, in seeking the reference. It is not out of context to quote here the principle laid down by the 3 Judge bench expression of the Apex Court in Government of Andhra Pradesh and Others Vs. A.P. Jaiswal and Others, that consistency is the cornerstone of the administration of Justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements; the Courts have evolved the rule of precedents, principle of stare decisis etc. These rules and principles are based on public policy. It is also apt to quote Lord Denning''s locus classicus- "Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to Justice clear of obstructions which could impede it." Thus, from the divergent opinions found in the two expressions viz., Amrit Bhanu Shali and N. Surender Rao (supra), are in contradistinction to the above several luculent expressions of the Apex Court including of 3 Judge benches and not capable of being read in harmony, even if not unpalatable, and thus from the studied scrutiny supra the lis deserves reference, as such this Court is but inevitably drafted the reference to the Hon''ble the Chief Justice for the purpose of constituting a division and co-equal bench or if feels just a full or larger bench as the case may be for an authoritative pronouncement. I cannot omit my duty in this regard without referring to the Full Bench expression of this Court in M/S. O.P.T.S. Marketing Pvt. Ltd. Vs... State of A.P. 2001(1)ALT-205(AP)(FB) holding that when a Single Judge is not agreeing to the finding of a Division Bench and opines that it requires a reference to answer, it shall not be referred to Full Bench but shall be referred to a Division Bench. Accordingly point 3 for consideration is answered for reference.

Point-4: In the result, the Registry is required to place the matter before the Hon''ble the Chief Justice to refer the same to another Division Bench to answer on Point No. 3 supra to the extent "whether for death of an unmarried, to adopt relevant multiplier, is it the age of the deceased only that is criteria or it is the age of the parents/mother among the claimants".