Judgment:
R.M. Lodha, J.
1. These two appeals arise out of the judgment and decree passed by the Civil Judge, Senior Division, Solapur in Special Civil Suit No. 82 of 1974 and accordingly both the appeals have been heard together and arc disposed of by this common judgment.
2. Shri Laxman Patil who was serving as Police Constable in the Police Department, State of Maharashtra, was going to Mahud from Pandharpur on his motor cycle bearing registration No. MHH 9024 on 6.2.1971 at about 3.00 p.m. The S.T.Bus belonging to the Maharashtra State Road Transport Corporation driven by Shri Gyanba Aba Sagar was going from Atpadi towards Pandharpur and at that time due to rash and negligent act of the driver of S.T. Bus bearing registration No. MHO 9370, the said bus dashed against the motor cycle being driven by Laxman Patil and he was thrown away and died on the spot. The deceased was about 39 years of age at the time of accident and was survived by his wife Smt. Anusaya, 5 sons, 1 daughter and old mother. Smt. Anusaya, widow of Laxman Patil and their sons and daughter filed the suit for compensation against the Maharashtra State Road Transport Corporation (for short, MSRTC) and driver Shri Gyanba Aba Sagar. The mother of the deceased was also impleaded as proforma defendant. The plaintiffs claimed compensation of Rs. 50.000/- by way of damages; from defendant Nos. 1 and 2. The claim was contested by MSRTC as well as the driver as a plea was set out that the bus MHO 9370 owned by MSRTC and driven by defendant No. 2 was at the relevant time going with the normal speed. They denied the bus MHO 9370 having dashed against the motor cycle driven by the deceased. According to defendants, defendants No. 2 was neither rash nor negligent and, therefore, they were not liable to pay any compensation to the plaintiffs.
3. The trial Court framed 6 issues and after recording the evidence, dismissed the plaintiffs suit against defendant Nos. 1 and 2 for compensation but held that defendant No. 1 should pay Rs. 5000/- by way of compensation because of accidental death of Laxman Patil and bear the proportionate costs. The said judgment and decree was passed on 29.1.1980 giving rise to the present two appeals. First Appeal No. 463 of 1980 has been preferred by MSRTC challenging the award of compensation of Rs. 5000/- to the plaintiffs while First Appeal No. 253 of 1984 has been preferred by the plaintiffs for enhancement and decree of the entire claim made by them.
4. I have heard learned Counsel for the parties and also perused the judgment and the relevant evidence available on record with the assistance of the learned Counsel for the parties.
5. The first question that requires to be considered in these two appeals is whether the plaintiffs have proved that due to rash and negligent act of defendant No. 2 Shri Gyanba Aba Sagar who was driving S.T. Bus No. MHO-9370, death was caused to Laxman Patil on 6.2.1971. Mahadeo Ramchandra Kharat was examined as eye witness of the accident. His deposition is referred to in the judgment of the trial Court. He deposed that in the afternoon of 6.2.1971 the motor cycle was coming by the left side of the S.T. Driver, and all of a sudden he changed the direction and went to the right side. According to this witness, the bus driver applied brakes and stopped the bus on the right side just by the border of the road. According to him, the motor cyclist was unable to stop his motor cycle and he dashed against the bus resulting in his fall. The driver examined himself and his deposition is that a bus was coming from Pandharpur side for going to Mahud. He placed his foot on the breaks and cautioned the other driver of the bus to slow down while crossing his bus. He was blowing horn and driving the vehicle slowly. Dust was blown in the air. The road had 5 ft. kaccha road on either side with cart tracks. Pandharpur-Mahud bus crossed his bus and the motor cyclist was following that bus. According to him the motor cyclist was driving in a zig-zag manner with top speed and no control over his vehicle. The motor cyclist dashed against his bus on left side. In his attempt to save the motor cyclist, he swerved towards right. The left side head light of his bus was damaged. He stopped his bus and came down and found that Motor cyclist was dead.
6. Exhibit-68 is the plan of the site placed on record. A close perusal of the said site map would reveal that the motor cyclist i.e. Laxman Patil was going from East to West. It is further seen that the bus MHO-9370 belonging to MSRTC and driven by defendant No. 2 was going from West to East. The bus was found beyond the right side of the kaccha track. The motor cycle was lying almost on the centre of the road and deceased was lying few yards from the motor cycle. The breaks marks of the bus are of about 45 ft. The site of the accident is on the left of the centre from East to West. It is apparent from this site map that Laxman Patil was riding his mobile on the left side of the road while he was going from Pandharpur to Mahud. He was not on the wrong side. On the other hand, the offending vehicle S.T. Bus MHO 9370 owned by MSRTC and driven by defendant No. 2 was going from West to East and at the time of accident was on the centre of the road. The map placed on record clearly speak about the nature of the accident and applying the doctrine of res ipsa loquitur, it is clearly seen that there was negligence on the part of the bus driver. The defence set out and the statements of the driver and Mahadeo Ramchandra Kharat cannot be believed. The deposition of driver that bus was coming from his opposite direction and he gave signal to the be coming from opposite side to slow down and that the motor cyclist was following the bus and when he wanted to save the motor cyclist, he swerved the bus towards right side cannot be believed on the fact of the site map Exhibit-68 and that negatives the entire version and deposition of defendant No. 2. The motor cyclist was not on the wrong side. He was going from East to West and on the left of the road which is apparent from the map. The defendant No. 2 was driving the S.T. Bus from West to East and there was no justification from him to serve the bus on the right side because there was also kaccha cart road on the left side and be could have turned the bus on the left side instead of taking it across the road on the right side. The bus driver was driving a heavy vehicle and while driving such heavy vehicle he must have taken care and caution that he did not turn on the right side of the road and continue endanger the traffic coming from opposite direction. The break marks of about 45 ft. shows that bus was driven by the bus driver at quite high speed and it did not stop immediately. The Court below has not at all considered Exhibit-68 available on record. Had that map Exhibit-68 been seen in right perspective, the deposition of defendant No. 2 and Mahadeo Ramchandra. Kharat would have been immediately seen unreliable and unbelievable. Eye witness can fail in giving correct account of the accident and human memory may fail to remember but the things speak for themselves and the spot of accident clearly indicate that the bus was driven by defendant No. 2 rashly and negligently and as a result thereof Laxman Patil died. The evidence of Mahadeo Kharat and the defendant No. 2 were not reliable on the fact of site map Exhibit-68 and the Court below seriously erred in not adverting to the said document which was most vital on this issue. The finding of the courts below on issue No. 1 that plaintiffs have failed to prove rash and negligent act of defendant No. 2 cannot be sustained and is liable to be set aside and is set aside accordingly.
7. Coming to the next question about the quantum of compensation which is covered by issue 2, it may be observed that the trial Court found that had negligence of the driver been proved, the plaintiffs would have been entitled to damages of Rs. 25,000/-.
8. It need not be reiterated and law is now well settled that multiplier method is the accepted method of ensuring the just compensation which will make for uniformity and certainty of the award and the departure therefrom can only be justified in rare, extraordinary and in very exceptional circumstances. In the fatal accident case, the damages awarded to the dependents is the pecuniary loss suffered by them as a result of the death. The measure of damage is the pecuniary loss suffered and is likely to be suffered by each dependent.
9. In General Manager, Kerala State Road Transport, Trivendrum v. Susamma Thomas : AIR1994SC1631 , the Apex Court considered the question relating to award of just compensation elaborately and in paragraph 11 of the said report, the Apex Court held thus:
11. It is necessary to reiterate that the multiplier method is logically sound and legally well-established. There are some cases which have proceeded to determine the compensation on the basis of aggregating the entire future earnings for over the period life expectancy was lost, deducted a percentage therefrom towards uncertainties of future life and awarded the resulting sum as compensation. This is clearly unscientific. For instance, if the deceased was, say, 25 years of age at the time of death and the life expectancy is 70 years, this method would multiply the loss of dependency for 45 years-virtually adopting a multiplier of 45-and even if one third or one-fourth is deducted therefrom towards the uncertainties of future life and for immediate lump sum payment, the effective multiplier would be between 30 and 34. This is wholly impermissible. We are aware that some decisions of the High Courts and of this Court as well have arrived at compensation on some such basis. These decisions cannot be said to have laid down a settled principle. They are merely instances of particular awards in individual cases. The proper method of computation is the multiplier method. Any departure, except in exceptional and extraordinary cases, would introduce inconsistency of principle, lack of uniformity and an element of unpredictability for the assessment of compensation. Some judgments of the High Courts have justified a departure from the multiplier method on the ground that Section 110-B of the Motor Vehicles Act, 1939, in so far as it envisages the compensation to be 'just', the statutory determination of a 'just' compensation would unshackle the exercise from any rigid formula. It must be borne in mind that the multiplier method is the accepted method of ensuring a just' compensation which will make for uniformity and certainty of the awards. We disapprove these decisions of the High Courts which have taken a contrary view. We indicate that the multiplier method is the appropriate method, a departure from which can only be justified in rare and extraordinary circumstances and very exceptional cases:
The multiplier represents the number of years purchase on which the loss of dependency is capitalised. Take, for instance, a case where annual loss of dependency is Rs. 10,000/-. If a sum of Rs. 1,00,000/- is invested at 10 per cent annual interest, the interest will take care of the dependency perpetually. The multiplier in this case works out to 10. If the rate of interest is 5 per cent annum and not 10 per cent, then the multiplier needed to capitalise the loss of the annual dependency at Rs. 10,000/- would be 20. Then the multiplier, i.e. the number of years purchase of 20 will yield the annual-dependency perpetually. Then allowance to scale down the multiplier would have to be made taking into account the uncertainties of the future 1 the allowances for immediate lump sum payment, the period over which the dependency is to last being shorter and the capital feed also be spent away over the period of dependency is to last, etc. Usually in English courts the operative multiplier rarely exceeds 16 as maximum. This will come down accordingly as the age of the deceased person (or that of the defendants, whichever is higher) goes up.
10. Recently in U.P. State Road Transport Corporation and Ors. v. Trilok Chandra and Ors. in CIVIL appeal Nos. 7760-7761 of 1996 the Apex Court has held that in suitable cases operative multiplier could be 18 and it was held thus:
We thought it necessary to reiterate the method of working out 'just' compensation because, of late, we have noticed from the awards made by Tribunals and Courts that the principle on which the multiplier method as developed has been lost sight of and once again a hybrid method based on the subjectivity or the Tribunal/Court has surceased, introducing uncertainty and lack of reasonable uniformity in the matter of determination of compensation. It must be realised that the Tribunal/Court has to determine a fair amount of compensation award to the victim of an accident which must be proportionate to the injury caused. The two English decisions to which we have referred earlier provide the guide lines for assessing the loss occasioned to the victims. Under the formula advocated by Lord Wright in, the loss has to be ascertained by first determining the monthly income of the deceased, then deducting therefrom the amount spent on the deceased, and thus, assessing the loss to the dependents of the deceased. The annual dependency assessed in this manner is then to be multiplied by the use of an appropriate multiplier. Let us illustrate: X, male, aged about 35 years, dies in an accident. He leaves behind his widow and 3 minor children. His monthly income was Rs. 3,500/-. First, deduct the amount spent on X every month. The rough and ready method hitherto adopted where no definite evidence was forthcoming, was to break up the family into units, taking two units for an adult and one unit for a minor. Thus X and his wife make 2+2 = 4 units and each minor one unit i.e. 3 units is all, totalling 7 units. Thus the share per unit works out to Rs. 3,500 : 7 = Rs. 500 per month. It can thus be assumed that Rs. 1000 was spent on X. Since he was a working member some provision for his transport and out-of-pocket expense has to be estimated. In the present case we estimate the out-of-pocket expense at Rs. 250/-. Thus the amount spent on the deceased X works out to Rs. 1250 per month leaving a balance of Rs,3500-1250 = Rs. 2250 per month. This amount can be taken as the monthly loss to X's dependents. The annual dependency comes to Rs. 2250 X 12 Rs. 27.000. This annual dependency has to be multiplied by the use of an appropriate multiplier to assess the compensation under the : head of loss to the dependents. Take the appropriate multiplier to be 15. The compensation comes to Rs. 27000 15 = Rs. 4,05,000. To this may be added a conventional amount by way of loss of expectation of life. Earlier this conventional amount was pegged down to Rs. 3000 but now having regard to the fall in the value of the rupee, it can be raised to a figure of not more than Rs. 10,000/-. Thus the total comes to Rs. 4,05,000+10,000 = Rs. 4,15,000/-.
In the method adopted by Viscount Simon in the case of Nance also, first the annual dependency is worked out and then multiplied by the estimated useful life of the deceased. This is generally determined on the basis of longevity. But then, proper discounting on various factors having a bearing on the uncertainties of life, such as premature death of the deceased or the defendant, remarriage, accelerated payment and increased earning by wise and prudent investments, etc. would become necessary. It was generally felt that discounting on various imponderables made assessment of compensation rather complicated and cumbersome and very often has a rough and ready measure, one-third to one half of the dependency was reduced, depending on the life-span taken. That is the reason why courts in India is well as England preferred the Davies' formulas being simple and more realistic. However, as observed earlier and as pointed out in Susamma Thomas case, usually English courts rarely exceed 16 as the multiplier. Courts in India too followed the same pattern till recently when Tribunals/courts began to use a hybrid method of using Nance's method without making deduction for imponderables.
The situation has now undergone a change with the enactment of the Motor Vehicles Act, 1988, as amended by Amendment Act, 54 of 1994. The most important change introduced by the amendment insofar as it relates to determination of compensation is the insertion of Section 163A and163B in Chapter XI entitled 'Insurance of Motor Vehicles against third Party Risks'. Section 165A begins with a non-instants clause and provides for payment of compensation, as indicated in the Second Schedule, to the legal representatives of the deceased or injured, as the case may be. Now if we turn to the Second Schedule, we find a table fixing the mode of calculation of compensation for third party accident injury claims arising out of fatal accidents. The first column gives the age group of the victims of accident, the second column indicates the multiplier and the subsequent horizontal figures indicate the quantum of compensation in thousand payable to the heirs of the deceased victim. According to this table the multiplier varies from 5 to 18 depending on the age group to which the victim belonged. Thus, under this schedule the maximum multiplier can be upto 18 and not 16 as was held in Susamma Thomas case. The amount worked out in the schedule suffer from several defects. For example, in item No. l for a victim aged 15 years, the multiplier is shows to be 15 years and the multiplicand is shown to be Rs. 3000/-. The total should be 3000 15 = 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 in 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 to by the ready reckoner. It can only be used as a guide. Besides, the selection of multiplier cannot in all cases by solely dependent on the age of the deceased. For example, if the deceased, a bachelor, dies at the age of 45 and his dependents are his parents, age of the parents would also be relevant in the choice of the multiplier. But these mistakes are limited to actual calculations only and not in respect of other items. What we propose to emphasise is that the multiplier cannot exceed 18 years purchase factor. This is the improvement over the earlier position that ordinarily it should not exceed 16. We thought it necessary to state the correct legal position as Courts and Tribunals are using higher multiplier as in the present case where the Tribunal used the multiplier of 24 which the High, Court raised to 34 thereby showing lack of awareness of the background of the multiplier system in Davies case.
11. In the present case the deceased was 39 years old. His income at the time of accident was Rs. 214/- per month. The future prospects of advancement in life and career should also be sounded in terms of money to augment the emoluments. The deceased was working as police constable and ought to have got future increments and promotions from time to time but for the accident. The deceased has stable job. Looking to the prospects of advancement in the future career, the gross income of deceased could be fixed at Rs. 600/-. From this has to be deducted his personal living expenses the quantum of which will again depend on various factors and in the absence of any evidence it would not be unfair and unjust to deduct 1/3rd of the gross income towards personal living expenses and treat the balance as the amount likely to have been spent of the dependents plaintiffs. This loss of dependency should be capitalised with appropriate multiplier. In the present case for the reasons aforesaid Rs. 400/- per month or Rs. 4800/- per year would be the loss of dependency and if capitalised at a multiplier of 12 it would be Rs. 57,600/-. However, since the plaintiffs themselves have claimed a sum of Rs. 50,000/-, the decree cannot exceed the claim and, therefore, the plaintiffs would be entitled to Rs. 50,000/-. As a matter of law, to the aforesaid usual award, loss of consortium also could be added. But again in the present case since the claim of the plaintiffs is limited to Rs. 50,000/-, the award and decree cannot exceed the said amount.
12. For the reasons aforesaid, the finding of the trial Court on issue No. 2 also needs to be modified and hold that the plaintiffs are entitled to the damages of Rs. 50,000/- as claimed by them.
13. Mr. Hedge, the learned Counsel for MSRTC submits that in the appeal filed by the claimants/appellants, the finding recorded by the trial Court about the quantum of damages is not challenged. Mr. Mengane, the learned Counsel for the plaintiffs submits that the memorandum of appeal is not happily drafted and because of that the plaintiffs should not suffer when they are entitled to the claim of damages of Rs. 50,000/-. In the interest of justice I have permitted Mr. Mengane to challenge the finding, recorded by the trial Court about the quantum of compensation. It would be seen that the plaintiffs have valued their appeal at Rs. 45,000/- both for Court fee and jurisdiction and, therefore, I deem it fit and proper to consider the prayer made by the plaintiffs, counsel that the finding recorded by the trial Court about the quantum of compensation needs modification and enhancement and for the reasons aforesaid to the damages to the tune of Rs. 50,000/-.
14. The judgment and decree passed by the Civil Judge, Senior Division, Solapur, on 29.1.1980 is accordingly modified. The Maharastra State Road Transport Corporation is held liable to pay damages to the plaintiffs to the extent of Rs. 50,000/-. Incase the aforesaid amount of damages/compensation is not paid by the Maharashtra State Road Transport Corporation to the plaintiffs within two months, it will be liable to pay interest thereon at the rate of 12% per annum from the date of the filing of the suit.
15. Both the appeals are disposed of accordingly. The appeal filed by the Maharashtra State Road Transport Corporation is dismissed with costs and the appeal filed by the plaintiffs is allowed with costs.
16. Certified copy expedited.