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Supreme Court of India
Mohammed Siddique vs National Insurance Company Ltd on 8 January, 2020Author: V. Ramasubramanian
Bench: N.V. Ramana, V. Ramasubramanian
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.79 OF 2020
(arising out of Special Leave Petition (C) No.9618 of 2018)
MOHAMMED SIDDIQUE & ANR. … APPELLANTS
Versus
NATIONAL INSURANCE COMPANY LTD. & ORS. … RESPONDENTS
JUDGMENT
V. Ramasubramanian, J.
1. Leave granted.
2. Aggrieved by the order of the High Court reducing the
compensation awarded by the Motor Accident Claims Tribunal from
the sum of Rs.11,66,800/ to Rs.4,14,000/, the parents of the
deceasedaccident victim have come up with the above appeal.
3.
Signature Not Verified
We have heard the learned counsel for the appellants and the
Digitally signed by
SATISH KUMAR YADAV
Date: 2020.01.13
17:12:52 IST
learned counsel for the Insurance Company.
Reason:
4. Admittedly, the son of the appellants who was aged about 23
years, died on 7.09.2008 as a result of the injuries sustained in a road
traffic accident that took place on 5.09.2008. It appears that the
victim was one of the 2 pillion riders on a motor cycle and he was
thrown off the vehicle when a car hit the motor cycle from behind.
The Motor Accident Claims Tribunal found that the accident was
caused due to the rash and negligent driving of the car. This finding
was confirmed by the High Court, though with a rider that the victim
was also guilty of contributory negligence, in as much as there were 3
persons on the motor cycle at the time of the accident, requiring a
reduction of 10% of the compensation awarded.
5. On the question of quantum of compensation, the appellants
claimed that their son was aged 23 years at the time of the accident
and that he was employed in a proprietary concern on a monthly
salary of Rs.9600/. The employer was examined as PW2 and the
certificate issued by him was marked as Ex.P1/8. Finding no reason
to disbelieve the testimony of PW2, the Tribunal applied a multiplier
of 18 and arrived at a sum of Rs.10,36,800/ towards loss of
dependency, after deducting 50% of the salary towards personal
expenses, as the deceased victim was a bachelor. In addition, the
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Tribunal also allowed a sum of Rs.1,00,000/ for loss of love and
affection; Rs.20,000/ for the performance of last rites and
Rs.10,000/ towards loss of Estate. Accordingly, the Tribunal arrived
at an amount of Rs.11,66,800/ as the total compensation payable.
6. As against the said award, the Insurance Company filed a
statutory appeal under Section 173 of the Motor Vehicles Act, 1988.
The appeal was primarily on two grounds namely (i) that the deceased
was guilty of contributory negligence inasmuch as he was riding on
the pillion of the motor cycle with two other persons and (ii) that the
employment and income of the deceased were not satisfactorily
established.
7. On the first ground, the High Court held that though the motor
cycle in which the deceased victim was riding was hit by the speeding
car from behind, the deceased was also guilty of contributory
negligence, as he was riding a motor cycle with two other persons.
Therefore, the High Court came to the conclusion that an amount
equivalent to 10% has to be deducted towards contributory
negligence.
8. On the second issue, the High Court held that the employer did
not produce any records to substantiate the quantum of salary paid to
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the deceased and that therefore the income of the deceased may have
to be assessed only on the basis of minimum wages, payable to
unskilled workers at the relevant point of time. Accordingly the High
Court fixed the income of the deceased at the time of the accident as
Rs.3683/ per month, which was the minimum wages for unskilled
workers at that time.
9. Insofar as the issue of multiplier is concerned, the High Court
applied the multiplier of 14 instead of the multiplier of 18, on the
basis of the ratio laid down by this Court in UPSRTC Vs. Trilok
Chandra1, to the effect that the choice of the multiplier should go by
the age of the deceased or that of the claimants, whichever is higher.
As a result, the High Court took Rs.3,683/ as the monthly income,
allowed a deduction of 50% on the same towards personal expenses,
applied a multiplier of 14 and arrived at an amount of Rs.3,10,000/.
The award of Rs.1,00,000/ towards loss of love and affection granted
by the Tribunal was confirmed by the High Court but the amount of
Rs.10,000/ each awarded towards funeral expenses and loss of
Estate were enhanced to Rs.25,000/ each.
1 (1996) 4 SCC 362
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10. Thus, the High Court arrived at a total amount of Rs.4,60,000/
(Rs.3,10,000/ towards loss of dependency; Rs.1,00,000/ towards
loss of love and affection; Rs.25000/ towards funeral expenses and
Rs.25,000/ towards loss of Estate). Out of the said amount, the High
Court deducted 10% towards contributory negligence and fixed the
compensation payable at Rs.4,14,000/ (Rs.4,60,000/ minus
Rs.46,000/). Aggrieved by this drastic reduction in the quantum of
compensation, the claimants are before us.
11. As could be seen from the above narration, the High Court
interfered with the award of the Tribunal, on 3 counts, namely (i)
contributory negligence; (ii) monthly income of the deceased and (iii)
the multiplier to be applied. Therefore, let us see whether the High
Court was right in respect of each of these counts.
12. It is seen from the material on record that the accident occurred
at about 2:00 a.m. on 5.09.2008. Therefore, there was no possibility
of heavy traffic on the road. The finding of fact by the Tribunal, as
confirmed by the High Court, was that the motor cycle in which the
deceased was travelling, was hit by the car from behind and that
therefore it was clear that the accident was caused by the rash and
negligent driving of the car. In fact, the High Court confirms in
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paragraph 4 of the impugned order that the motor cycle was hit by the
car from behind. But it nevertheless holds that 3 persons on a motor
cycle could have added to the imbalance. The relevant portion of
paragraph 4 of the order of the High Court reads as follows:
“On careful assessment of the evidence led, this Court
finds substance in the plea of the insurance company.
While it is correct that the offending car had no
business to strike from behind against the motorcycle
moving ahead of it, even if the motor cycle was
changing lane to allow another vehicle to overtake, the
fact that a motor vehicle meant for only two persons to
ride was carrying, besides the driver, two persons on
the pillion would undoubtedly have added to the
imbalance.”
13. But the above reason, in our view, is flawed. The fact that the
deceased was riding on a motor cycle along with the driver and
another, may not, by itself, without anything more, make him
guilty of contributory negligence. At the most it would make him
guilty of being a party to the violation of the law. Section 128 of the
Motor Vehicles Act, 1988, imposes a restriction on the driver of a two
wheeled motor cycle, not to carry more than one person on the motor
cycle. Section 194C inserted by the Amendment Act 32 of 2019,
prescribes a penalty for violation of safety measures for motor cycle
drivers and pillion riders. Therefore, the fact that a person was a
pillion rider on a motor cycle along with the driver and one more
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person on the pillion, may be a violation of the law. But such violation
by itself, without anything more, cannot lead to a finding of
contributory negligence, unless it is established that his very act of
riding along with two others, contributed either to the accident or to
the impact of the accident upon the victim. There must either be a
causal connection between the violation and the accident or a
causal connection between the violation and the impact of the
accident upon the victim. It may so happen at times, that the
accident could have been averted or the injuries sustained could have
been of a lesser degree, if there had been no violation of the law by the
victim. What could otherwise have resulted in a simple injury, might
have resulted in a grievous injury or even death due to the violation of
the law by the victim. It is in such cases, where, but for the
violation of the law, either the accident could have been averted
or the impact could have been minimized, that the principle of
contributory negligence could be invoked. It is not the case of the
insurer that the accident itself occurred as a result of three persons
riding on a motor cycle. It is not even the case of the insurer that the
accident would have been averted, if three persons were not riding on
the motor cycle. The fact that the motor cycle was hit by the car from
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behind, is admitted. Interestingly, the finding recorded by the Tribunal
that the deceased was wearing a helmet and that the deceased was
knocked down after the car hit the motor cycle from behind, are all
not assailed. Therefore, the finding of the High Court that 2 persons
on the pillion of the motor cycle, could have added to the imbalance, is
nothing but presumptuous and is not based either upon pleading or
upon the evidence on record. Nothing was extracted from PW3 to the
effect that 2 persons on the pillion added to the imbalance.
14. Therefore, in the absence of any evidence to show that the
wrongful act on the part of the deceased victim contributed either to
the accident or to the nature of the injuries sustained, the victim
could not have been held guilty of contributory negligence. Hence the
reduction of 10% towards contributory negligence, is clearly
unjustified and the same has to be set aside.
15. The second issue on which the High Court reversed the finding
of the tribunal, related to the employment of the deceased and the
monthly income earned by him. According to the claimants, the
deceased was aged 23 years at the time of the accident and he was not
even a matriculate. But he was stated to have been employed in a
proprietary concern named M/s Chandra Apparels on a monthly
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salary of Rs.9600/. The sole proprietor of the concern was examined
as PW2 and the salary certificate was marked as Ex.PW1/8. The
Tribunal which had the benefit of recording the evidence and which
consequently had the benefit of observing the demeanour of the
witness, specifically recorded a finding that there was no reason to
discard the testimony of PW2.
16. But unfortunately the High Court thought that the employer
should have produced salary vouchers and other records including
income tax returns, to substantiate the nature of the employment and
the monthly income. On the ground that in the absence of other
records, the salary certificate and the oral testimony of the employer
could not be accepted, the High Court proceeded to take the minimum
wages paid for the unskilled workers at the relevant point of time as
the benchmark.
17. But we do not think that the approach adopted by the High
court could be approved. To a specific question in crossexamination,
calling upon PW2 to produce the salary vouchers, he seems to have
replied that his business establishment had been wound up and that
the records are not available. This cannot be a ground for the High
Court to hold that the testimony of PW2 is unacceptable.
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18. The High Court ought to have appreciated that the Court of first
instance was in a better position to appreciate the oral testimony. So
long as the oral testimony of PW2 remained unshaken and hence
believed by the Court of first instance, the High Court ought not to
have rejected his evidence. After all, there was no allegation that PW2
was set up for the purposes of this case. There were also no
contradictions in his testimony. As against the testimony of an
employer supported by a certificate issued by him, the High Court
ought not to have chosen a theoretical presumption relating to the
minimum wages fixed for unskilled employment. Therefore, the
interference made by the High Court with the findings of the Tribunal
with regard to the monthly income of the deceased, was uncalled for.
19. Coming to the last issue relating to the multiplier, the Tribunal
applied the multiplier of 18, on the basis of the age of the deceased at
the time of the accident. But the High Court applied a multiplier of 14
on the ground that the choice of the multiplier should depend either
upon the age of the victim or upon the age of the claimants, whichever
is higher. According to the High court, this was the ratio laid down in
General Manager, Kerala SRTC Vs Susamma Thomas2 , and that
2 (1994) 2 SCC 176,
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the same was also approved by a three Member Bench of this Court in
UPSRTC Vs. Trilok Chandra (supra).
20. The High Court also noted that the choice of the multiplier with
reference to the age of the deceased alone, approved in Sarla Verma
& Ors. Vs. Delhi Transport Corporation & Anr. 3, was found
acceptance in two subsequent decisions namely (1) Reshmi Kumari
& Ors. Vs. Madan Mohan & Anr.4 and (2) Munna Lal Jain Vs.
Vipin Kumar Sharma5. But the High court thought that the
decisions in Susamma Thomas and Trilok Chandra were directly on
the point in relation to the choice of the multiplier and that the issue
as envisaged in those 2 decisions was neither raised nor considered
nor adjudicated upon in Sarla Verma. According to the High court, the
impact of the age of the claimants, in cases where it is found to be
higher than that of the deceased, did not come up for consideration in
Reshma Kumari and Munnal Lal Jain. Therefore, the High court
thought that it was obliged to follow the ratio laid down in Trilok
Chandra.
3 (2009) 6 SCC 121
4 (2013) 9 SCC 65
5 JT 2015 (5) SC 1
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21. But unfortunately the High Court failed to note that the decision
in Susamma Thomas was delivered on 06011993, before the
insertion of the Second Schedule under Act 54 of 1994. Moreover
what the Court was concerned in Susamma Thomas was whether the
multiplier method involving the ascertainment of the loss of
dependency propounded in Davies v. Powell (1942) AC 601 or the
alternative method evolved in Nance v. British Columbia Electric
Supply Co. ltd (1951) AC 601 should be followed.
22. Trilok Chandra merely affirmed the principle laid down in
Susamma Thomas that the multiplier method is the sound method of
assessing compensation and that there should be no departure from
the multiplier method on the basis of section 110B of the 1939 Act.
Trilok Chandra also noted that the Act stood amended in 1994 with
the introduction of section 163A and the second schedule. Though it
was indicated in Trilok Chandra (in the penultimate paragraph) that
the selection of the multiplier cannot in all cases be solely dependent
on the age of the deceased, the question of choice between the age of
the deceased and the age of the claimant was not the issue that arose
directly for consideration in that case.
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23. But Sarla Verma, though of a two member Bench, took note of
Susamma as well as Trilok Chandra and thereafter held in paragraphs
41 and 42 as follows:
“41. Tribunals/ courts adopt and apply different
operative multipliers. Some follow the multiplier with
reference to Susamma Thomas [set out in Column (2) of
the table above]; some follow the multiplier with
reference to Trilok Chandra, [set out in Column (3) of the
above]; some follow the multiplier with reference to
Charlie [set out in Column (4) of the table above]; many
follow the multiplier given in the second column of the
table in the Second Schedule of the MV Act [extracted in
column (5) of the table above]; and some follow the
multiplier actually adopted in the Second schedule
while calculating the quantum of compensation [set out
in column (6) of the table above]. For example, if the
deceased is aged 38 years, the multiplier would be 12
as per Susamma Thomas, 14 as per Trilok Chandra, 15
as per Charlie, or 16 as per the multiplier given in
Column (2) of the Second schedule to the MV Act or 15
as per the multiplier actually adopted in the second
schedule to the MV Act. some Tribunals as in this case,
apply the multiplier of 22 by taking the balance years of
service with reference to the retiring age. It is necessary
to avoid this kind of inconsistency. We are concerned
with cases falling under section 166 and not under
section 163A of the MV Act. in cases falling under
section 166 of the MV Act Davies methods is applicable.
42. We therefore hold that the multiplier to be used
should be as mentioned in Column (4) of the Table
above (prepared by applying Susamma Thomas, Trilok
Chandra and Charlie), which starts with an operative
multiplier of 18 (for the age groups of 15 to 20 and 21 to
25 years), reduced by one unit for every 5 years, that is
M17 for 26 to 30 years, M16 to 31 to 35 years, M15
for 36 to 40 years, M14 for 41 to 45 years and M13 for
46 to 50 years, then reduced by 2 units for every 5
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years, i.e., M11 for 51 to 55 years, M9 for 56 to 60
years, M7 for 61 to 65 years, M5 for 66 to 70 years.”
24. What was ultimately recommended in Sarla Verma, as seen
from para 40 of the judgment, was a multiplier, arrived at by
juxtaposing Susamma Thomas, Trilok Chandra and Charlie6 with the
multiplier mentioned in the Second Schedule.
25. However when Reshma Kumari v. Madan Mohan came up for
hearing before a two member Bench, the Bench thought that the
question whether the multiplier specified in the second schedule
should be taken to be a guide for calculation of the amount of
compensation in a case falling under section 166, needed to be
decided by a larger bench, especially in the light of the defects pointed
out in Trilok Chandra in the Second Schedule. The three member
Bench extensively considered Trilok Chandra and the subsequent
decisions and approved the Table provided in Sarla Verma. It was held
in para 37 of the report in Reshma Kumari that the wide variations in
the selection of multiplier in fatal accident cases can be avoided if
Sarla Verma is followed.
6 (2005) 10 SCC 720
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26. In Munna Lal Jain, which is also by a bench of three Hon’ble
judges, the Court observed in para 11 as follows:
“ Whether the multiplier should depend on the age
of the dependents or that of the deceased has
been hanging fire for sometime: but that has been
given a quietus by another three judge bench in
Reshma Kumari. It was held that the multiplier is to
be used with reference to the age of the deceased. One
reason appears to be that there is certainty with regard
to the age of the deceased, but as far as that of
dependents is concerned, there will always be room for
dispute as to whether the age of the eldest or youngest
or even the average etc is to be taken.”
27. In the light of the above observations, there was no room for any
confusion and the High Court appears to have imagined a conflict
between Trilok Chandra on the one hand and the subsequent
decisions on the other hand.
28. It may be true that an accident victim may leave a 90 year old
mother as the only dependent. It is in such cases that one may
possibly attempt to resurrect the principle raised in Trilok Chandra.
But as on date, Munna Lal Jain, which is of a larger Bench, binds us
especially in a case of this nature.
29. Thus, we find that the High Court committed a serious error
(i) in holding the victim guilty of contributory negligence (ii) in rejecting
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the evidence of PW2 with regard to the employment and monthly
income of the deceased and (ii) in applying the multiplier of 14 instead
of 18. Therefore, the appeal is allowed and the impugned order of the
High Court is set aside. The award of the Tribunal shall stand
restored. There shall be no order as to costs.
…..…………………………..J
(N.V. Ramana)
.…..………………………….J
(V. Ramasubramanian)
New Delhi
January 08, 2020.
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