Maharaj Sinha, J.
1. The above two appeals were preferred by the claimants/appellants against the Judgment and Awards of the Claims Tribunal, Jalpaiguri, in M.A.C. Case No. 411 of 1989 and M.A.C. Case No. 413 of 1989, both dated 4th August, 1998.
2. In both the above appeals the claimants/appellants primarily have challenged the quantum of compensation awarded by the claims Tribunal in favour of the claimants/appellants under section 166 of the Motor Vehicles Act, 1988, needless to mention also by questioning the correctness of the reasons of the said Tribunal in support of the said Awards.
3. Since the above two claims before the learned Claims Tribunal arose out of the same accident and since the correctness of the said awards are under challenge on the identical grounds in both the appeals, this Judgment is intended to and will govern both the above appeals and be disposed of accordingly.
4. For the sake of convenience it is to be mentioned, however, that the above claim case No. 413 of 1989 was preferred by Malati Goon claiming compensation for her own injuries in the accident and in the other claim being No. 411 of 1989 the said Malati Goon together with her husband Ranadhir Goon claimed compensation for the death of their daughter in the self same accident wherein the said Malati Goon was seriously injured.
5. In order to decide the correctness of the Judgments and Awards under the two appeals, the facts in brief need be mentioned herein.
6. On the fateful day on 10th July 1989, at about 4 p.m. the said Malati Goon, being one of the above appellants (hereinafter referred to as Malati Goon), with her daughter Basabi Goon boarded a mini bus from its goomti No. 3 in Jalpaiguri for going to their destination Gairkarta for attending a marriage ceremony.
7. At a place called Mainaguri, the driver of the said mini bus informed the passengers thereof including the said Malati Goon and her daughter Basabi that the bus was unable to ply further as it went out of order and, therefore, could not reach the destination. The said Malati Goon and her daughter and the other passengers had to get off from the said bus. It was about 4.30 p.m. in the evening when they got off from the said mini bus and waited for the next bus. At about the same time a white coloured ambassador car was passing by the said bus stand, the driver of the said ambassador offered to the said Malati Goon and her daughter Basabi and other stranded passengers to take them to their destinations when the said Malati Goon told the driver that she and her daughter would go to Gairkata. The driver of the said ambassador car agreed to take them to Gairkata upon payment of Rs. 10/- per head as fare for Gairkata. The driver also took five other passengers from the said bus stand. At first, seeing the white ambassador the said Malati Goon thought it to be a taxi. The other five passengers who were traveling along with Malati Goon and her daughter Basabi got off at a place called Dhupguri upon payment of their fares. The said ambassador then proceeded to Gairkata with Malati Goon and her daughter. They were sitting in the back seat of the said ambassador when it was seen that the driver was driving the car at a very high speed. The said Malati Goon requested the driver to drive slowly but he did not listen.
8. After covering some distance the said Malati Goon felt a jerk and, thereafter, she lost her consciousness. When she regained her consciousness, she found herself lying at Binaguri Military Hospital. At the time when she felt the jerk she also felt that the car hit something. In her evidence and in her own words she said the followings:- 'At the time of jerking I felt that the vehicle dashed against something'. When she regained her consciousness in the hospital she enquired about her daughter but nothing was disclosed to her. She spent about seven days in the hospital and was then removed to Siliguri Hospital for better treatment and, thereafter, she was shifted to North Bengal Medical College.
9. After her release from the hospital she returned home and it was then she came to know that she lost her daughter Basabi who was in the said ambassador car with her traveling to Gairkata due to the said accident. The said accident took place at about 7.45 in the evening on 10th July, 1989 on the National Highway near National Highway Bridge - 31 at a place called 'Mallicksave'. The above was the evidence of the said Malati Goon, one of the appellants herein at the trial before the claims Tribunal. She maintained her evidence given in chief in her cross-examination as well.
10. One Kazi Mainul Alam also gave evidence at the trial clearly corroborating the evidence of the said Malati Goon. The said Mainul Alam was an eye-witness of the accident on 10th July, 1989 as the said accident took place near a club called Diomali Mitali Sangha Club of which he was a member. The said eye-witness saw a white coloured taxi came at a high speed and dashed against a tree on the left side of the road. The said Alam along with the other members of the said club rushed to the aid of the passengers of the said ambassador car being No. 79-B/18739, i.e., the offending vehicle.
11. The said Alam along with others took the said Malati Goon and her daughter Basabi and the said driver of the ambassador car to Dhupguri Military Hospital. On the way to the hospital, however, one of the passengers of the said car, namely the daughter of Malati Goon, Basabi, most unfortunately died on the way to the hospital.
12. An F.I.R. was lodged with the police station namely, Dhupguri Police station in whose jurisdiction the said accident occurred. However, later it transpired that the said white ambassador involved in the accident was not, in fact, a taxi but owned by the Defence Department of the Ministry of Defence, Government of India. Two officials of the Defence Department, however, gave evidence in the trial acknowledging entirely the case of the said Malati Goon but the only defence vehicle in question was not authorized to take any passenger in the car which the driver did on the fateful day.
13. At the hearing of the claims case, however, the learned Advocate, for the respondent raised a plea that the driver of the said vehicle was a necessary party to the proceeding and in the absence of the driver the said claims proceedings were defective.
14. Both the above points, in my opinion, were rightly rejected by the Claims Tribunal. Since the owner of the offending vehicle being the Defence Department of the Ministry of Defence, Government of India, was a party to the proceedings or the respondent there was no legal obligation and/or necessarily on the part of the claimants to implead the driver of the offending vehicle as a party to the claims proceedings in the first place.
15. The driver of the offending vehicle who was an employee of the Ministry of Defence, Government of India, was never produced as a witness by the respondent, if the respondent wanted to prove or disprove any particular fact or facts, it was for them to produce the driver of the offending vehicle as witness in support of the case of the respondent which they perhaps did not deliberately do because in that event, perhaps their case would have been worse.
16. In any event the claims Tribunal was right in rejecting the plea of respondent that the driver of the offending vehicle was not driving within the course of his employment when he allowed the victim to travel in his car. Since the driver of the offending vehicle himself offered the victims to travel in his car and the accident took place, the driver was liable and since the driver was liable the employer of the driver, being the respondent herein, must shoulder the servant's liability.
17. Since the driver in the present case himself offered the victims or consented that they should travel in his car was enough to fasten the employer of the driver with the liability. Such liability is, of course, a vicarious liability, (see the decision in Pushpa Bai Purasuttam. Udashi and Ors. v. Ranjit Pressing Ginning Co. Ltd. and Anr. in : [1977]3SCR372 ).
18. As aforesaid, these two appeals were preferred by the claimants/appellants and the respondents did not question the correctness of the Judgments and the Awards of the Claims Tribunal. The claimant Malati Goon was aggrieved as according to her the Claims Tribunal committed grave error in refusing proper compensation in her favour in the facts and the circumstances of the entire case upon improper application of the relevant provisions of the Motor Vehicles Act 1988.
19. The claimant/appellant Malati Goon in support of her claim for compensation also relied on a handicapped certificate from where it appears that due to the accident the said Malati Goon became 40 Per cent disabled. She was about 45 years age when the accident occured.
20. In rejecting the claim for compensation the Claims Tribunal held that though the petitioner became handicapped as established by her but the injury and the disablement suffered by the appellant/ claimant did not entitled her to any compensation more than Rs.50,000/-. Why the claimant/appellant was not entitled to compensation more than Rs. 50.000/- cannot be made out from the reasons in support of the Judgment and the Award of the claims Tribunal. The case before the learned Tribunal was definitely a case where a rule of thumb seems to have been applied.
21. It is difficult to comprehend as to why the claimants/appellants would not be entitled to more than Rs. 50.000/- as compensation for her injury and for her disablement caused by the said accident. The learned Judge further held that since the claimant/appellants received Rs. 12.500/- as an interim relief in her claim under section 140 of the said Motor Vehicles Act she was entitled only to Rs. 30.500/- as compensation which would meet the justice in the opinion of the Claims Tribunal.
22. It was proved before the Claims Tribunal that the said accident took place due to the rash and negligent driving of the driver of the said car, it was also proved that because of the said accident the said Malati Goon, being the claimant in the said M.A.C. Case No. 413 of 1989, suffered serious injuries and ultimately became disabled. The evidence of the claimant being the injured victim of the said accident was neither challenged nor questioned to any extent whatsoever. The eye-witness, as aforesaid, of the accident fully corroborated the evidence of the said Malati Goon, the injured victim.
23. The respondent, Union of India also did not question the case of the claimant/appellant Malati Goon in support of her claim for compensation in Claim Case No. 413 of 1989. The only point that remains to be considered in this appeal is whether the award of compensation of the Claims Tribunal in favour of the said Malati Goon in claim case No. 413 of 1989 can be regarded as fair and just compensation in the facts and circumstances of the present case.
24. The Claims Tribunal found that though the said Malati Goon claimed loss of income due to the said accident but was unable to prove the exact figure of her monthly income before the Claims Tribunal. In a claim under Section 163(A) of the Motor Vehicles Act 1988, the compensation is assessed as per second schedule to the said Act. In a claim under Section 163(A) of 1988 a claimant does not have to prove any fault on the part of the offending vehicle or rather its driver. The entire claim is based on no fault principle, if an accident is proved, then and in that event, the claimant becomes entitled to claim compensation in terms of the second schedule to the said Motor Vehicles Act. Under the said second schedule a person who does not prove any income or when it is found that the person namely the claimant does not have any income, then Rs. 15.000/- a year is taken to be reasonable figure for assessing the yearly income being the notional income of the victim of the accident.
25. Since in the instance case the claim was made under section 166 of the Motor Vehicles Act and the rash and negligent driving were proved, the claimant Malati Goon at least is entitled to her yearly income assessed at Rs. 15.000/- per year being her notional income since she was unable to prove her exact monthly income as claimed by her. Thus, a multiplier of 15 would be applicable as the injured victim was 45 years of age at the time when the said accident took place. The disablement certificate in her favour also confirms her age to be 45 years.
26. Thus the claimant/appellant Malati Goon is entitled to total loss of income for a period of 15 years on the basis of her annual income Rs. 15.000/-. Thus, she is entitled to receive compensation for a sum of Rs. 2.25.000/- on account of her loss of income caused by the said accident. In addition to that she is entitled to general damages because of her injuries and disability such as pain and sufferings for grevious injuries which made her disabled to the tune of 40 per cent. Thus, a sum of Rs. 10.000/- is considered reasonable and awarded on that account. She is, thus, entitled to a total compensation of Rs. 2,35,000/-. It is also evident from the certificate of the medical practitioner that she required full time attendant for herself as she became confined to bed due to the said accident.
27. The claimant/appellant Malati Goon is, therefore, entitled to receive a total compensation of Rs. 2,35,000/- as above from the respondent for her own injuries and disablement due to the said accident in the said M.A.C. Case No. 413 of 1989.
28. The above figure, in my opinion, may be said to be a reasonable compensation in her favour.
29. As aforesaid, in the claim case No. 411 of 1989 the said Malati Goon and her husband Ranadhir Goon claimed compensation for the death of their daughter Basabi in the said accident where the mother the said Malati Goon was seriously injured.
30. The Claims Tribunal awarded a sum of Rs. 5.000/- as compensation in favour of the father, the said Ranadhir Goon 'for shock and grief as consortium', the father was held to be not entitled to any other compensation as the father was not depending upon the daughter's income when she died in the said accident. The mother namely, the said Malati Goon of the deceased daughter was held to be entitled to Rs. 50.000/- as compensation together 'with consortium of Rs. 5.000/- for shock and grief caused due to the said accident'. The said sum of Rs. 50.000/- was given in favour of the mother, the said Malati Goon, as compensation as according to the Claims Tribunal the mother would require the said sum because her husband had retired from his service and as such she would require the said amount for her own maintenance.
31. Thus, the mother, namely the said Malati Goon, being one of the claimants/appellants herein and the father, the said Ranadhir Goon being the other claimant/appellant herein were awarded a sum of Rs. 5.000/- respectively. Thus, the total amount of compensation in favour of the claimants/appellants was Rs. 60.000/- due to the death of their daughter Basabi in the said accident.
32. I do not think it is necessary to repeat the reasons in support of the said award of compensation in favour of the appellants herein as the Claims Tribunal practically repeated its Judgment as given by the Claims Tribunal in the claim case No. 413 of 1989 wherein the mother of the said deceased daughter claimed compensation for her own injuries and the disablement caused by the said accident.
33. It is, however, to be mentioned, that the Claims Tribunal thought that the father was not entitled to any compensation because the father would have had to spend a sum of Rs. 1,50,000/- for the marriage of her deceased daughter but because of the said accident and the consequent death of the daughter the father was' relieved from spending that amount.
34. This, in my opinion, is a shocking observation on the part of the Claims Tribunal apart from being a perverse decision in determining as to whether the father was entitled to compensation for the death of his daughter in the said accident.
35. In my opinion, that should not have been a relevant consideration at all in the first place in determining whether the father of the deceased victim was entitled to claim compensation for the death of his daughter in the said accident. The second reason for depriving the father of compensation, it appears, was that the father Ranadhir Goon said in his evidence that he was not depending on the income of her deceased daughter. At the time when the father lost the daughter in the said accident the daughter admittedly had no income as she was not engaged in any employment at the relevant point of time. She was a graduate and taking different courses such as computer etc., and was learning music but that she had no fixed income from any employment was also an established fact as such the father could not be deprived of claiming compensation due to the death of the daughter in the said accident only because the father was not depending on his daughter's income at the time of the said accident.
36. At the cost of repetition it should be mentioned that it was proved before the Claims Tribunal that the victim, namely the daughter of the claimants/appellants herein, died due to the rash and negligent driving of the offending vehicle. The Claims Tribunal also otherwise satisfied that the claimants therein proved their case of accident and the consequent death of the daughter under the provisions of section 166 of the Motor Vehicles Act 1988.
37. Since the case of the claimants/appellants herein was proved before the Claims Tribunal the claimants/appellants were entitled to fair and reasonable compensation under the said provisions of the said Motor Vehicles Act.
38. It was, in my opinion wrong to deprive the father of fair and reasonable compensation only because the father was not depending on the income of the daughter at the time of her death and also the father would have to spend Rs. 1,50,000/- for the marriage of her daughter which he would not spend because of the death of the daughter in the said accident. Thus, the Claims Tribunal, in my opinion, committed grave error in refusing reasonable compensation to the father of the deceased daughter.
39. The mother of the daughter though was given compensation but why she should receive only Rs. 50.000/- by way of compensation for the death of the daughter after proving the rash and negligent driving on the part of the offending vehicle or its driver, is not understood. No reason has also been given in support of the said finding and/or incomputing compensation for the mother being the other claimant/appellant herein.
40. Even by accepting the said second schedule under section 163A of the Motor Vehicles Act, 1988 to be a valuable guidelines even in a case under section 166 of the Motor Vehicles Act for assessing compensation, a sum of Rs. 15.000/- per annum should be held to be the notion income of the deceased victim as she was not in gainful employment at the time of her death in the said accident.
41. On that basis, the minimum monthly income of the deceased victim should be assessed at Rs. 1.250/- per month being the probable monthly income of the deceased victim which she would have been able to earn had she been alive. If l/3rd of the said monthly income is deducted on account of the personal expenses or personal maintenance of the deceased victim, then a sum of Rs. 10.000/- per annum should be held to be the loss of income of the deceased daughter to which the parents, being the claimants herein should be entitled. Thus, the claimants/appellants in all fairness should be held to have been deprived of Rs. 10.000/- per annum on account of the yearly income of their deceased daughter.
42. Since the mother of the deceased daughter was 45 years of age at the time of the accident a multiplier of 15 should be applied. Thus, the total loss of income of the mother on account of the income for their deceased daughter becomes Rs. 1,50,000/-. The parents namely, the claimants/appellants herein are thus entitled to receive a sum of Rs 1,50,000/- on account of loss of income of their deceased daughter. On account of loss of estate and funeral expenses a sum of Rs. 4.500/- is assessed to be the reasonable sum which the claimants/ appellants are entitled to receive. Thus, in claim case No. 411 the appellants herein are entitled to receive a total sum of Rs. 1,54,500/-.
43. Thus, the said Malati Goon, being the claimant in the said claim case No. 413 of 1989 and the appellant in F.M.A. No. 126 of 2001, is entitled to receive a total sum of Rs. 2,35,000/- by way of compensation in her favour being an injured victim of the said accident.
44. Both the claimants in the said claim case No. 411 of 1989, namely the appellants in F.M.A. No. 97 of 2001, are entitled to receive a sum of Rs. 1,54,500 by way of compensation in their favour for the death of their daughter in the said accident.
45. Since the said Malati Goon being the claimant in the said claim case No. 413 of 1989 has so far received a principal amount of compensation of Rs. 50.000/-. The same is deducted from the total compensation in her favour of Rs. 2.35.000/-. Thus, she shall be entitled to receive Rs. 1.85.000/- as compensation in her favour in the said claim case No. 413 of 1989.
46. The claimants in the said claim case No. 411 of 1989 namely the said Malati Goon and the said Ranadhir Goon, the appellants in the said F.M.A. No. 97 of 2001. shall be entitled to receive a sum of Rs. 1,54,500/- by way of compensation in their favour for the death of their daughter in the said accident.
47. Since the appellants received a sum of Rs. 60.000/- being the principal amount of compensation in their favour in the said claim case No. 411 of 1989. the said sum of Rs. 60.000/- is deducted from the said amount of compensation of Rs. 1,54,500/- and the appellants are, thus, entitled to receive a total sum of Rs. 94.500/- jointly in their favour.
48. The respondent is, thus, directed to pay to the said claimant/ appellant Malati Goon in claim case No. 413 of 1989 (and the appellant in F.M.A. No. 126 of 2001) a sum of Rs. 1,85,000/- as compensation in her favour in the said claim case No. 413 of 1989. Similarly, the respondent is directed to pay to the claimants in the said claim case No. 411 of 1989 (being the appellants in F.M.A. No. 97of 2001) a sum of Rs. 94.500/- jointly in their favour in the said claim case No. 411 of 1989 within a period of four weeks from date.
49. The claimant/appellant Malati Goon in claim case No. 413 of 1989 shall also be entitled to 9% interest on the said sum of Rs. 1,85,000/- from the date of her application for compensation till payment. Similarly, both the claimants the said Ranadhir Goon and Malati Goon in claim case No. 411 of 1989 being the appellants herein shall also be entitled to 9% interest on the said sum of Rs. 94.500/-from the date of their application till payment.
50. The respondent is, however, directed to deposit the above two sums namely Rs. 1.85.000/- and 94.500/- together with the above interest with the Motor Accident Claims Tribunal, Jalpaiguri, within a period of four weeks from date.
51. Both the above appeals are, thus, deposed of in terms of the above Judgment and the directions given herein.
52. There will be no order as to costs.
53. Urgent xerox certified copy of this Judgment, if applied for by the party or parties, be given expeditiously.
P.K. Samanta, J.
I have gone through the Judgment of my learned brother. I think I should express my views in brief so far as the claim case in relation to the death of the daughter of the claimants in the said accident is concerned in support of the view taken by my learned brother. The learned Claims Tribunal has determined the quantum of compensation at Rs. 60.000/- only on the reasoning that it was not certain that the said deceased daughter would have got an employment and maintained her parents after her marriage. The father of the victim since admitted in his deposition that he would not have to depend upon the income of his daughter, the learned Claims Tribunal determined the aforesaid amount on account of shock and grief.
54. In this respect my opinion in the first place is that the above amount as determined by the Claims Tribunal on such account is too meager. Because the object of awarding damages is for the purpose of compensating the loss. To compensate again is to counterbalance the loss in equivalent return. To the parents the death of their daughter at her prime age is a loss for which no amount of money is sufficient to counterbalance in equivalent return. But there is no other conceivable method of counterbalancing such loss by equivalent return than to assess in money value. Now comes the question what should be such money value? In my opinion such money value though cannot be determined with mathematical precision but at the same time should not be left to be decided without any standard or norm, only because there is no dependency factor involved in such determination. Reason could be that loss of a daughter with high qualification or employed in a highly remunerative post may create a larger sense of loss than the loss of a daughter ordinarily qualified or employed even when there is no question of dependency of the parents on her. It is, for this reason, better to follow a procedure which would at least prevent different determination at different times. Guidance may be taken from the Second Schedule to the Act as being a safer method for quantifying the loss in money value.
55. In my considered opinion in all cases where parents only are to be compensated for the death of their unmarried and unemployed daughter not on account of their loss of dependency but because of the shock and grief and the void created by such death with which they will have to live the rest of their lives, there compensation should not be in any case less than Rs. 1,50,000/-. In modern society where families are mostly nuclear, it is not uncommon that a daughter shows much concern for her parents at their time of need than a son. This much I hold on the basis of notional income of Rs. 15.000/-less one third upon application of minimum multiplier of 15 for a victim between the age group of 15 to 35 years by which time a girl is expected to get married. In case such unmarried daughter was employed then such determination should be made by applying multiplier of five on her annual income minus one third of her income for her personal expenses had she been alive, or by fixing at Rs. 1,50,000/- in total whichever is higher. The choice of multiplier of five may be ascribed as the reasonable period by which the parents may be taken to have come to terms with the loss.