Judgment:
1. The appeal is for enhancement of compensation for the award passed for the death of the daughter of the claimants. The deceased was said to be a Canadian citizen on holiday tour in India and while traveling as a pillion rider on a motorcycle the vehicle hit against the bus belonging to Haryana Roadways and the motorcycle driver and the pillion rider died on the spot. The deceased was aged 28 years and said to have working as Data Processing Executive in M/s Air Care Ltd. and drawing a salary of Bermuda $32,240/-, equivalent to Indian Rupees 15,16,443/-. The Tribunal found that the accident had been the result of contributory negligence of drivers of both the vehicles and after determining the compensation of Rs.25 lacs as payable, made a partial abatement of 50% for the negligence attributed to the driver of the motorcycle and awarded Rs.12.5 lacs with 9% interest and costs.
2. In appeal counsel appearing on behalf of the appellant would contend that
1) The contributory negligence attributed to a pillion rider is erroneous. The driver of the motorcycle was not in any way negligent and even if any negligence could be attributed, such negligence could be only against the driver and not against the passenger or a pillion rider.
2) While assessing the income of the deceased the Tribunal had not taken into consideration the prospect of increase in income over a period of years and had taken the last drawn income alone as relevant. 3) The extent of dependency as determined by the Tribunal was also erroneous and a provision for a deduction of 2/3rd and a contribution of 1/3rd to the parents was grossly in error of the principles laid down for determination of the multiplicand. 4) The choice of multiplier at 5 was wrong and a multiplier of 18 must have been taken, having regard to longer years of longevity for a person who was of a different country and race with higher life span.
3. As regards the first contention that there was a contributory negligence on the part of the driver of the motorcycle and hence the claimants would have to suffer abatement of the claim, in my view, it does not require much of legal wrangling, for, the concept was clearly misunderstood by the Tribunal and the finding would require to be set aside. There is significant difference between contributory negligence and composite negligence. The former is used in situations where the person who is a claimant or a representative had himself contributed to the accident, while in the latter, when negligence is attributed on drivers of two vehicles involved in the accident, it would be a case of composite negligence. A claimant who is either a passenger or a third party will not come to any harm by abatement of the claim and it shall be open for the person to institute proceedings against anyone of the tort-feasors and realise the amounts in full. This Court has had an occasion to deal with this aspect in the decision in Oriental Insurance Company vs. Meena Kumari, in FAO No.4246 of 2006 dated on 24.8.2010, where decisions of various High Courts have been considered to lend support to the same view.
4. Learned counsel appearing for the appellant has relied on a decision of the Hon'ble Supreme Court in Union of India vs. United India Insurance Company, reported as AIR 1998 Supreme Court 640 [this decision was over-ruled in Union of India vs. Bhagwati Prasad (dead), (2002) 3 SCC 661: AIR 2001 1301 on another point relating to the maintainability of petition and continuance of proceedings before MACT even in a case where the negligence is found against the Railway Engine driver or Railway Administration] where the Hon'ble Supreme Court had dealt with law on the subject by particular reference to decisions of the House of Lords. It has been held as follows:-
"There is no rule that the driver of an omnibus or a coach or a cab or the engine driver of a train, or the captain of a ship on the one hand and the passengers on the other hand are to be 'identified' so as to fasten the latter with any liability for the former's contributory negligence. There cannot be a fiction of the passenger sharing a 'right of control' of the operation of the vehicle nor is there a fiction that the driver is an agent of the passenger. A passenger is not treated as a backseat driver. (Prosser and Keeton on Torts, 5th Ed., 1984 p.521-522). It is therefore; clear that even if the driver of the passenger vehicle was negligent, the Railways, if its negligence was otherwise proved could not plead contributory negligence on the part of the passengers of the vehicle. What is clear is that qua the passengers of the bus who were innocent, - the driver and owner of the bus and, if proved, the railways can be joint tort-feasors."
5. I, therefore, set aside the finding of the Tribunal that there was any contributory negligence to suffer the claimants with a partial abatement of the claims. I am not entering into an enquiry whether there was any negligence on the part of the motorcyclist, since in this case the driver of the motorcycle was dead and I have no details as to who the owner was and whether there was an insurance and in the absence of such details any finding, without impeding the parties who may be connected with the motorcycle, will be futile to determine any apportionment of liability. Any such finding relating to the apportionment of liability between the owner of the bus and the owner of the motorcycle will have no meaning for a person who is not made as a party, who could be a person other than the deceased motorcyclist. It shall always be open for Haryana Roadways to work out independent rights seeking for contribution if a proof of negligence of the motorcyclist is also established and if liability is determined in properly instituted suit apportioning respectively the degree of negligence that could be attributed between the driver of the bus and the driver of the motorcycle.
6. On the issue of quantum of compensation, the point urged relating to the determination of income, the extent of dependency and choice of multiplier, the law is fairly well settled now and I find no reason to refer to all the decisions that the learned counsel for both the parties have referred to. I will stay confined to the decision of the Hon'ble Supreme Court in Sarla Verma & Ors. vs. Delhi Transport Corporation & Another reported as AIR 2009 SC 3104 as settling the issue and to a subsequent decision in Shakti Devi vs. United India Insurance Company reported as JT 2010 SC 103 that has dealt with the choice of multiplier. The dispensation in Sarla Verma's case is to the effect that where the deceased is less than 40 years of age and when he is in employment where there is a definite prospect of increase in scales of pay and evidence is led to the effect, it will be possible to provide for the prospect of future increase at 50%. This is not merely to offset the fall in value of currency and hedge against inflationary trends; this is to take note of a sure prospect of increase in emoluments with prospects of promotion and what such promotional avenues could bring by increase in resources. What was dealt with by the Hon'ble Supreme Court in Sarla Dixit and another vs. Balwant Yadav & Ors., reported as AIR 1996 SC 1274 came to full circle in Sarla Verma, referred to above. That dealt with the whole subject when such increase could be made. It will be wrong to assume that in every case the future prospect of increase will have to be provided for. It depends on the evidence specifically adduced and sure prospects clearly revealed. It may be a matter of experience that a person who enters service does not end with receiving the same salary by the end of his career. Stagnation in service is anathema and perceived as a disincentive for work and therefore, even in situation where no promotion avenues are available, we have come by new dispensations such as Assured Career Progression Schemes (ACPs) or time bound promotions with higher scales of pay that may involve no additional responsibility. Still, I will be loathe to merely provide for a prospect of future increase, when there is not even a modicum of evidence placed in that regard.
7. In this case, the deceased was a Data Processing Executive and she had discontinued her work and was thinking of undertaking a post- graduate course and there was evidence of the mother of the deceased herself to say that the deceased was fond of traveling and she had visited several countries and the accident had taken place at the time when she was touring India. She was perhaps no rolling stone, but I cannot at least definitely take her employment as something which was permanent and which was assuring her of higher scales. On the contrary, at the time when she died she was not even employed, though there was evidence that she was capable of securing employment any time, particularly in her country at Bermuda, where it was stated that there was no unemployment at all. This aspect of evidence may only justify taking her average income to be what she was earning before her death in the previous employment for the rest of her life. If she had passion for travel, it is another way of saying that she could save for travel and go back her country for replenishments to explore the world further. I will, therefore, make no provision for enhancement on her income by adding 50% or two times her last known pay package, as advocated by the counsel appearing on behalf of the appellant.
8. Even as regards the extent of dependence, learned counsel would state that she was unmarried at 28 years and she would have continued in the same way and a 2/3rd contribution or 1/2 would have been appropriate and just. The decision in Sarla Verma's case which takes 50% as appropriate in cases of death of bachelors and for contribution to parents might admit of exceptions, such as, when the parents themselves are very affluent and they may not be dependent on the children. In this case, the evidence was that the deceased was earning about Bermuda $32,240/-, while father himself in his business was stated to be earning around Bermuda $50,000/-. The best evidence could have been to place the contribution which the daughter was making to the parents by showing the bank accounts or any of the bank accounts of the deceased herself. However, I am no prepared to take this as very significant, for after all, for successful prosecution of claim before the Tribunal, dependence is only one of the factors. Section 165 or 168 does not import the word "dependent" for entitlement, but on the other hand, the expression used for eligibility is "legal representative" which is even a wider term than legal heir. Both the parents would have come to benefit from the estate of the daughter and I have no reason to suspect that even if they were not dependent, they were still entitled to inherit her estate if she had pre-deceased her parents by her natural death. While ascertaining the compensation, we are trying to invoke a fiction that if a person had a normal life and if that person had continued to earn, what her presence would have meant to the claimants. In our attempt to determine compensation, I am not persuaded to take a view that this case presents any peculiarities to deviate of homogeneous approach brought through Sarla Verma (supra).
9. As regards the method of determining the compensation, I would take 50% of her income of Bermuda $32,240/- and adopt a multiplier of 5. I am not impressed by the argument that parties have lived all these years even more than the number of years' purchase that we are adopting in this case. It is not possible to predict how many more years they will be living. It will be a preposterous attempt to predict what is not in human domain. If we adopt a multiplier of 5 in a situation where there is not even a likelihood to find dependence, we are doing so for the sake of consistency in approach that shall be the hall-mark of law and for giving effect to the normative acceptance of legal precept that in its application, it shall hold the scales even; adopt the tools of compensation-reckoning similarly, no matter, the deceased was a foreigner and in her own country, compensation could have been higher. If the lex fori is India, inevitably, the law ought to be the same as what is applied to a citizen of this country. The amount of compensation shall, therefore, be 1/2 x 32240/- Bermuda Dollars x 5 =80600/- Bermuda Dollars. Since the assumption of compensation itself is not on account of any particular dependence as having been established in trial but as inheritors of estate, I will make no separate provision for loss of estate. I have no details of funeral expenses incurred and whether the body was transported out of India. I will, therefore, not make any conjectures for any additions. The amount determined in Bermuda Dollars will be converted to Indian currency as on the date of award of the Tribunal @ $46.65 per Dollar, namely, as in the manner laid down by the Hon'ble Supreme Court in United India Insurance Co. Ltd. vs. Patricia Jaen Mahajan, 2002 ACJ 1441 (SC). It will be consequently `37,59,990/- which is taken to the nearest hundred viz. `37,60,000/-. The extent to which the award is in excess of the amount determined by the Tribunal, viz. `12,50,000/- it will attract interest at 6% from the date of the award of the Tribunal till date of payment.
10. The appeal is allowed to the above extent. January 5, 2011 (K.KANNAN) Gulati JUDGE