No one entitled to keep dogs as a right: Madras HC

NOTHING TO BARK ABOUT
No one entitled to keep dogs as a right: Madras HC
Says Barking, Howling Could Be Construed As Public Nuisance

Chennai: No one is entitled to keep dogs or other animals in residential areas as a “matter of right,” the Madras High Court has ruled. The court also observed that barking and howling of dogs and their emitting a foul odour could be construed as “public nuisance.”
Justice S Tamilvanan gave the ruling while upholding an order by the Coimbatore authorities to a dog owner to remove the canines at his home on the ground that it annoyed and inconvenienced other residents of the area. The authorities had served the order following a complaint from some residents.
“It was not in dispute that unbearable noise or foul smell can be an annoyance and hence a public nuisance,” the judge said, adding that keeping dogs in a residential area spreads a foul smell that is injurious to public health.
“No one is entitled to keep dogs or other animals in residential areas as a matter of right,” the judge said, adding, “noise pollution and emitting foul smell by keeping dogs is no way a lesser hazard than a factory creating noise pollution.”
The judge said, “It has been established in the present case that barking and howling of dogs has caused inconvenience and annoyance to the complainants,” Justice Tamilvanan said. The court dismissed the review petition filed by D Vikram, a resident of Coimbatore, challenging the order by the authorities concerned to direct him to “remove forthwith his dogs” following a complaint. The court gave its verdict last week.
At least three residents had complained to sub-divisional magistrate/revenue district officer that Vikram’s dogs, about 30 in number, kept barking and howling at nights, besides emitting a foul smell. Vikram contended that the Coimbatore authorities had failed to note that the complainants had an animosity towards him due to his success in competitions conducted by the kennel club.

The judge, in his order passed last week, pointed out that it was the duty of the respective district authorities and municipal administration to regulate and remove the nuisance in public interest. The neighbours in their complaint claimed that the dog owner was violating Section 352 of the Coimbatore City Municipal Corporation Act. AGENCIES

RANI GUPTA & ORS. v. M/S UNITED INDIA INSURANCE CO.LTD.& ORS. [2009] INSC 704 (8 April 2009)

Judgement

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2241 OF 2009 (Arising out of SLP (C) No.20207 of 2007)

Rani Gupta & Ors. ... Appellants

Versus

M/s. United India Insurance Co. Ltd. & Ors. ... Respondents
S.B. Sinha, J.
1. Leave granted.



2. This appeal is directed against the judgment and order dated 31.5.2007 passed by the High Court of Delhi in MAC No.986 of 2006 whereby and whereunder an appeal preferred by the first respondent herein under Section 173 of the Motor Vehicles Act, 1988 (for short, `the Act') was allowed.
2
3. Appellant filed an application before the Motor Vehicles Accidents Claims Tribunal praying for payment of compensation for the death of her husband Praveen Kumar Gupta who was travelling in a private Indica Car driven by his friend Shri Avtar Singh.
Shri Ankit and Shri Rajendra Jindal (the deceased) were returning from Agra after attending some business promotion work. The accident took place as the said car ran into a tree. Praveen Kumar Gupta and Rajendra Jindal died on the spot. Ankit suffered injuries.
4. Before the learned Tribunal, one of the questions which was raised is as to whether a passenger in a car which was being driven negligently would be covered by the policy of insurance.
5. The learned Tribunal, applying the principle of Res Ipsa Loquitor, opined that Shri Avtar Singh was driving the car rashly and negligently.
Having regard to the income tax returns filed by the deceased, the learned Tribunal arrived at the finding that his annual income was Rs.1,87,500/-. In view of the age of the deceased and the children having attained the age of majority, multiplier of 13 was applied in determining the amount of compensation. Upon deducting 1/3rd of the annual income towards personal 3 use from his annual income, the total amount of compensation, thus, was arrived at in the following terms :
"Annual Income Rs. 1,25,000 Future Increase in income Rs. 2,50,000 Rs. 3,75,000 Mean/Average income Rs. 1,87,500 Less: 1/3rd towards personal use An consumption Rs. 62,500 Annual Dependency Rs. 1,25,000 Hence a) Loss of Financial dependency Rs. 16,25,000 (1,25,000 x 13) b) Loss of consortium Rs. 25,000 c) Loss of love and affection Rs. 75,000 (25,000 X 3) d) Funeral expenses Rs. 15,000 TOTAL COMPENSATION Rs.17,40,000"
6. First Respondent preferred an appeal thereagainst.
7. The question raised before the High Court was as to whether the deceased having been travelling as a gratuitous passenger in a private car 4 would fall within the meaning of `third party' and, thus, would be covered by the statutory policy under Section 147 of the Act.
The learned Judge noticed that the policy was "Private Car Package Policy" as notified by the Tariff Advisory Committee with effect from 1.7.2002, the terms and conditions whereof are :
"SECTION II - LIABILITY TO THIRD PARTY
1. Subject to the limits of liability as laid down in the Schedule hereto the Company will indemnify the insured in the event of an accident caused by or arising out of the use of the vehicle against all sums which the insured shall become legally liable to pay in respect of :
(i) death of or bodily injury to any person including occupants carried in the vehicle (provided such occupants are not carried for hire or reward)but except so far as it is necessary to meet the requirements of Motor Vehicles Act, the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured.
(ii) Damage to property other than property belonging to the insured or held in trust or in the custody or control of the insured."
8. It was furthermore opined that the object and purpose of Section 146 and 147 is that policy of insurance should cover liability in respect of death 5 or bodily injury of a person including owner of the goods or its authorized representative who may be carried in a goods vehicle/carriage as defined in Section 2(14) of the Act.
9. The learned Judge, however, having regard to several decisions of this Court in particular UP State Road Transport Corporation v. Trilok Chand [(1996) 4 SCALE 22 = (1996) 4 SCC 362], as also various other decisions including New India Assurance Co. v. Kalpana & Ors. [(2007) 2 SCALE 227], opined that appropriate multiplier to be adopted was 10. On the aforementioned premise loss of dependency was determined at Rs.1,87,500/- per annum. The learned Judge further apportioned 2/3rd as labour input, i.e., personal input of the deceased in business and treated 1/3rd as yield from the capital asset, loss occasioned due to death of the deceased was held to be Rs.12,50,000/-, stating :
"The remaining loss of Rs.6,25,000/- could be made good by the family by renting out the factory or after liquidating the capital asset investing the money in an annuity yielding income by way of interest."
10. Mr. Ashok K. Majhajan, learned counsel appearing on behalf of the appellant, would contend that the High Court committed a serious error in 6 applying the multiplier of 10 only as in terms of the Second Schedule appended to the Act, the appropriate multiplier which should have been applied is 13. It was urged that for the purpose of calculation of annual dependency, in a case of this nature, the High Court should have been kept in view the backdrop of events, namely, the deceased who took loan for a sum of Rs.14,00,000/- from the bank for the purpose of purchasing an industrial plot in NOIDA in 1985, had paid up the same.
11. Mr. A.K. De, learned counsel appearing on behalf of the respondent, on the other hand, contended that the income of the deceased can only be assessed on net earnings and what was actually lost is his labour and other's contributions to run his business, and, thus, the loss of dependency should be determined on the value of such services or contribution of labour being in the nature of skill and knowledge that he had been contributing thereto.
It was urged that indicator of the value of his services could only be the profitability of the business which must be shown and established upon bringing on appropriate materials on record.
12. Determination of the amount of compensation arising out of loss of life of a person, who was the earning member of the family, would depend upon a large number of factors; one of them being the nature of job or 7 business he was doing. For the said purpose, an average gross future monthly income must be arrived at by adding the actual gross income at the time of his death to the maximum which he might have got, had he not met a pre-mature death.
The learned Tribunal, keeping in view the fact that within a short time, appellant had been able to wipe off the entire loan taken by him from the bank and, thus, became the owner of an industrial plot and furthermore in view of the fact that he was only aged 46 years at the relevant time, thought that his income would have doubled at the time of his death. We think that the approach of the learned Tribunal was correct.
13. This Court in Sarla Dixit v. Balwant Yadav [(1996) 3 SCC 179] took into consideration the future prospect of the deceased in great details. It was held that multiplier method involving the ascertainment of the loss of dependency should be applied in appropriate case. It took into consideration the decision of English Courts to opine that the said method is appropriate. It opined that only in severe cases, the said method should be departed from. As regards adoption of proper multiplier, it was held :
"7. So far as the adoption of the proper multiplier is concerned, it was observed that the future prospects of advancement in life and career should 8 also be sounded in terms of money to augment the multiplicand. While the chance of the multiplier is determined by two factors, namely, the rate of interest appropriate to a stable economy and the age of the deceased or of the claimant whichever is higher, the ascertainment of the multiplicand is a more difficult exercise. Indeed, many factors have to be put into the scales to evaluate the contingencies of the future. All contingencies of the future need not necessarily be baneful."
14. Average life expectancy in India also is one of the factors which must be taken into consideration for the purpose of calculating the average gross future monthly income. The average life expectancy in India is now 60-61 years. It is necessary to subtract personal and living expenses and other statutory liabilities like payment of income tax etc.
This Court in National Insurance Co. Ltd. v. Indira Srivastava [(2008) 2 SCC 763], held :
"17. This Court in Asha did not address itself the questions raised before us. It does not appear that any precedent was noticed nor the term "just compensation" was considered in the light of the changing societal condition as also the perks which are paid to the employee which may or may not attract income tax or any other tax. What would be "just compensation" must be determined having regard to the facts and circumstances of each case. The basis for considering the entire pay-packet is what the dependants have lost due to 9 deaths of the deceased. It is in the nature of compensation for future loss towards the family income.
19. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be deducted.
21. If the dictionary meaning of the word "income" is taken to its logical conclusion, it should include those benefits, either in terms of money or otherwise, which are taken into consideration for the purpose of payment of income tax or professional tax although some elements thereof may or may not be taxable or would have been otherwise taxable but for the exemption conferred thereupon under the statute.
25. The expression "just" must also be given its logical meaning. Whereas it cannot be a bonanza or a source of profit but in considering as to what would be just and equitable, all facts and circumstances must be taken into consideration."
15. Ordinarily and subject to just exceptions, a lump sum amount equivalent to 1/3rd of the income of the deceased, i.e., living and 10 miscellaneous expenses from the income should be deducted. [See Sunil Kumar v. Ram Singh Gaud & Ors. [(2007) 12 SCALE 792].
16. We may, however, note that in a case of permanent disability, where the injured even for a very small thing would have to depend on the services of another, a direction to deduct the said amount may not be insisted upon.
17. Deduction of 1/3rd is, thus, the ordinary rule.
Upon applying the aforementioned principle, the multiplicant would be annual dependency multiplied by life expectancy minus age of the deceased.
On the aforementioned premise, we may consider the applicability of multiplier method for the purpose of calculating the amount of compensation. The said method was applied in Davies v. Powell Duffryn Associated Collieries Ltd. [1942 (1) All ELR 657], wherein it was held :
"The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years' purchase. That sum, 11 however, has to be taxed down by having due regard to uncertainties, for instance, that the widow might have again married and thus ceased to be dependant, and other like matters of speculation and doubt."
In Trilok Chand (supra), this Court noticed as under:
"7. The same principles were recalled by this Court in the case of Municipal Corpn. of Delhi v.
Subhagwanti. In this case the claim for compensation arose on account of loss of life caused by the collapse of the Clock Tower abutting a highway. The Court referred to both the aforementioned judgments, and extracted the following passage from the judgment in the case of Davies :
"The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend upon the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years' purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance, that the widow might have again married and thus ceased to be dependant, and other like matters of speculation and doubt."
12 In Helen C. Rebello v. Maharashtra S.R.T.C. [(1999) 1 SCC 90], this Court stated the law, thus :
32. So far as the general principle of estimating damages under the common law is concerned, it is settled that the pecuniary loss can be ascertained only by balancing on one hand, the loss to the claimant of the future pecuniary benefits that would have accrued to him but for the death with the "pecuniary advantage" which from whatever source comes to him by reason of the death. In other words, it is the balancing of loss and gain of the claimant occasioned by the death. But this has to change its colour to the extent a statute intends to do.".
In regard to the choice of the multiplier, Halsbury's Laws of England in Vol. 34, states, thus:
"However, the multiplier is a figure considerably less than the number of years taken as the duration of the expectancy. Since the dependants can invest their damages, the lump sum award in respect of future loss must be discounted to reflect their receipt of interest on invested funds, the intention being that the dependants will each year draw interest and some capital (the interest element decreasing and the capital drawings increasing with the passage of years), so that they are compensated each year for their annual loss, and the fund will be exhausted at the age which the court assesses to be the correct age, having regard to all contingencies. The contingencies of life such as illness, disability and unemployment have to be taken into account. Actuarial evidence is 13 admissible, but the courts do not encourage such evidence. The calculation depends on selecting an assumed rate of interest. In practice about 4 or 5 per cent is selected, and inflation is disregarded. It is assumed that the return on fixed interest bearing securities is so much higher than 4 to 5 per cent that rough and ready allowance for inflation is thereby made. The multiplier may be increased where the plaintiff is a high taxpayer. The multiplicand is based on the rate of wages at the date of trial. No interest is allowed on the total figure."
The legislation being a beneficient one, the provisions thereof should be interpreted liberally but it is also well settled that it does not contemplate unjust enrichment. We may, however, notice that in New India Assurance Company Ltd. v. Charlie [(2005) 10 SCC 720], this Court held:
"14. The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalising 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."
14 In United India Insurance Co. Ltd. v. Patricia Jean Mahajan [(2002) 6 SCC 281], however, this Court following the earlier decisions in General Manager, Kerala S.R.T.C. v. Susamma Thomas [(1994) 2 SCC 176] as also Trilok Chand (supra), held :
"16. What thus emerges from the above decisions is that the court must adhere to the system of multiplier in arriving at the proper amount of compensation, and also with a view to maintain uniformity and certainty. Use of higher multiplier has been deprecated and it is emphasized that it cannot exceed 18. The multiplier, as would be evident from the observations quoted earlier, may differ in the peculiar facts and circumstances of a particular case as according to the example cited, where a bachelor dies at the age of 45, the age of his dependent parents may be relevant for selecting a proper multiplier. Meaning thereby that a multiplier less than what is provided in the Schedule could be applied in the special facts and circumstances of a case. In the later cases also this Court has taken the same view that multiplier system is a more appropriate and proper method for calculating the amount of compensation. Lata Wadhwa v. State of Bihar may be referred to.
Decision in the case of Susamma Thomas and other English decisions considered in the judgments referred earlier, namely, Davies v.
Taylor, Davies v. Powell Duffryn Associated Collieries Ltd. and Mallett v. McMonagle have been referred to."
15
18. By and large, therefore, the Court had proceeded on the basis that the multiplier mentioned in the Second Schedule should be taken to be the guide but it may not be.
19. 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 the case of permanent disability and not in the case of death as would appear from note 5 and 6 appended thereto.
20. The Second Schedule provides for payment of the amount of compensation to the persons whose income is from Rs.3,000/- to Rs.40,000/- per annum, depending upon the age of the deceased; as for example if the age of the deceased is 15 years, the amount of compensation payable would be 60,000/-, but where the annual income is Rs.3,000/-, a sum of Rs.50,000/- has been specified therefor even if the age of the deceased is between 35 to 65 years.
21. The Parliament had, therefore, thought that Rs.50,000/- should be the minimum amount of compensation payable to legal representatives of those persons whose annual income is Rs.3,000/- per month. For the said purpose, the multiplier specified in the Second Schedule has no role to play.
16 Even in absence of the multiplier in the Second Schedule, the amount of compensation payable would be the same irrespective of the multiplier specified therein.
22. We may, however, notice that in a given case even in terms of the Second Schedule where the compensation is payable on the basis of a no fault liability, the amount of compensation may be higher than the one which has been specified in the Second Schedule in case of a fault liability.
23. The question, in an appropriate case, may require consideration by a larger Bench.
24. In this case, however, the deceased was a businessman. What was the actual loss of dependency to the family was his contribution to run the business. The assets of the business remained. The amount of compensation, therefore, was required to be determined keeping in view that factor in mind.
25. Application of the multiplier of 10, therefore, cannot be said to be bad in law. In terms whereof the amount of compensation would come out to Rs.12,50,000/-, although the High Court, in our opinion, might not, thus, be entirely correct in opining that the remaining loss could be made good. We, 17 however, need not delve into the said question any further as we are of the opinion that the ultimate decision of the High Court is correct.
26. We, therefore, do not find any merit in this appeal, which is dismissed accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs.
...............................J.
[S.B. Sinha] ................................J.
[Cyriac Joseph] New Delhi;

Multiplier in Accident Case The victim from abroad

ORIENTAL INSURANCE CO. LTD. v. DEO PATODI & ORS. [2009] INSC 1038 (12 May 2009)


Judgement


IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. __3482______OF 2009
[Arising out of Special Leave Petition (Civil) No. 2997 of 2007] WITH CIVIL APPEAL NO. _3492_______OF 2009 [Arising out of Special Leave Petition (Civil) No. 3807 of 2007]


ORIENTAL INSURANCE CO. LTD. ...APPELLANT


VERSUS


2 DEO PATODI & ANR . ...
S.B. Sinha, J.


1. Leave granted.
2. What should be the appropriate multiplier as also the multiplicand in a case where a student having a brilliant career and had an offer of employment from a U.S. based Company is the question involved in these appeals.
They arise out of the following factual matrix.
Deepak Patodi was 22 years of age on 12.6.2003 when the accident took place. He was the only son of the claimants. The accident took place when he was going to Bhopal along with his friends in a Tata Indica Car. He was immediately taken to "Chirayu Hospital" at Bhopal and thereafter 3 shifted to `Bhandari Hospital' in Indore. On 18.6.2003, he succumbed to the head injury suffered by him in the said incident..
3. His parents filed an application under Section 166 of the Motor Vehicles Act, 1988 (for short, "the Act") on or about 24.12.2003 inter alia claiming a sum of Rs.75 lakhs as compensation on the premise that while he was doing his Business Administration Course in U.K. he was also doing a part-time job with World Bank on a monthly salary of Rs.80,000/- (UK # 1008.31) and he was offered an employment in the capacity of EU Controller in GOA LLC, a company registered in USA at an annual remuneration of Rs.18 lakhs per annum approx. ($41,600/-) Indisputably, he did not accept the said offer. He intended to pursue his higher studies in MBA at Central Queensland University in Australia.
4. The learned Tribunal opined that keeping in view his capability he would have been employed on a monthly salary of Rs.18,000/- per month.
2/3rd was deducted from the said amount for working out the loss of dependency of the claimants at 1/3 rd. The multiplier of 13 was applied keeping in view the age of the claimants. An amount of Rs.9,36,000/- by 4 way of compensation was awarded by the Tribunal. A sum of Rs.2000/- was also granted towards funeral expenses.
5. The claimants preferred an appeal thereagainst in the High Court which was registered as M.A. No. 1842 of 2005. Enhancement in the amount of compensation was claimed inter alia on the premise that the dependency of the parents should have been taken into consideration at 2/3 rd of the income of the deceased and furthermore the expenses incurred during treatment should have also been awarded. The insurance company filed cross objections in the said appeal in terms of Order XLI Rule 22 of the Code of Civil Procedure on the ground that the income of the deceased could not be taken at Rs.18,000/- per month in the absence of any cogent evidence and that the claimants were not dependents on the deceased.
6. By reason of the impugned judgment, the High court while maintaining the estimated income of the deceased at Rs.18,000/- per month on a notional basis opined that the dependency of the claimants should have been taken at 2/3rd of the income of the deceased. The High court also noticed that although the Tribunal had found that claimants must have spent a sum of Rs.2 lakhs towards treatment of the deceased, but no compensation 5 on that head was awarded by it. The High Court, thus, awarded a sum of Rs.1,25,000/- towards the medical expenses. Applying the multiplier of 13, the loss of dependency was calculated at Rs.18,72,000/-. A sum of Rs.25,000/- was also granted towards the funeral expenses.
Both the insurance company as also the claimants are before us.
7. Mr. M.K. Dua, learned counsel appearing on behalf of the insurance company would contend that the deceased being a bachelor and for all intent and purport being a dependant on his parents and as he intended to pursue his higher studies in Australia, the Tribunal had rightly calculated the loss of dependency of parents at 1/3rd of his income and not 2/3rd.
8. Mr. Sushil Kumar Jain, learned counsel appearing on behalf of the claimants, on the other hand, would contend that the learned Tribunal could not have estimated the income of the deceased only at Rs.18,000/- per month keeping in view the background as also the salary he had obtained even as part-time employee as also the offer which he received from an U.S.
based Company..
6
9. The question in regard to the calculation of loss of dependency, it is trite, would vary from case to case.
The fact that the deceased was a brilliant student is not in dispute. He had graduated in Business Administration in U.K. Even as a student, in a job on a part-time basis he was being paid a salary of Rs.80,000/- per month ((UK # 1008.31). He paid his income-tax even in U.K.
After his graduation, he came back to India. He was offered a job as EU Controller by GOA LLC, a company based in Chicago, USA at an annual salary of Rs.18 lakhs (i.e. $ 41,600/-). However, when the accident took place he was not working; having not accepted the said offer. He was still a student. It would have been hazardous for the Tribunal to calculate the amount of compensation towards the loss of dependency on that basis.
10. The Tribunal and the High Court, however, in our opinion, keeping in view the aforementioned backdrop might not be correct in holding that he would have earned only Rs.18,000/- per month. It is true that the cost of living in the western countries would be higher. The standard of living in the western countries cannot be followed; in the absence of any material placed before this Court it should not be followed in India. Even in a case 7 where the victim of an accident was earning salary in U.S. Dollars, this Court opined that a lower multiplier should be applied.
In United India Insurance Co. Ltd. & Ors. vs. Patricia Jean Mahajan & Ors. [(2002) 6 SCC 281], this Court held:
"19. In the present case we find that the parents of the deceased were 69/73 years. Two daughters were aged 17 and 19 years. The main question, which strikes us in this case is that in the given circumstances the amount of multiplicand also assumes relevance. The total amount of dependency as found by the learned Single Judge and also rightly upheld by the Division Bench comes to 2,26,297 dollars. Applying multiplier of 10, the amount with interest and the conversion rate of Rs 47, comes to Rs 10.38 crores and with multiplier of 13 at the conversion rate of Rs.30 the amount comes to Rs 16.12 crores with interest.
These amounts are huge indeed. Looking to the Indian economy, fiscal and financial situation, the amount is certainly a fabulous amount though in the background of American conditions it may not be so. Therefore, where there is so much of disparity in the economic conditions and affluence of the two places viz. the place to which the victim belongs and the place where the compensation is to be paid, a golden balance must be struck somewhere, to arrive at a reasonable and fair mesne. Looking by the Indian standards they may not be much too overcompensated and similarly not very much undercompensated as well, in the background of the country where most of the dependent beneficiaries reside. Two of the dependants, namely, parents aged 69/73 years live in India, but four of them are in the United States.
8 Shri Soli J. Sorabjee submitted that the amount of multiplicand shall surely be relevant and in case it is a high amount, a lower multiplier can appropriately be applied. We find force in this submission....
20. The court cannot be totally oblivious to the realities. The Second Schedule while prescribing the multiplier, had maximum income of Rs. 40,000 p.a. in mind, but it is considered to be a safe guide for applying the prescribed multiplier in cases of higher income also but in cases where the gap in income is so wide as in the present case income is 2,26,297 dollars, in such a situation, it cannot be said that some deviation in the multiplier would be impermissible. Therefore, a deviation from applying the multiplier as provided in the Second Schedule may have to be made in this case. Apart from factors indicated earlier the amount of multiplicand also becomes a factor to be taken into account which in this case comes to 2,26,297 dollars, that is to say an amount of around Rs. 68 lakhs per annum by converting it at the rate of Rs.
30. By Indian standards it is certainly a high amount. Therefore, for the purposes of fair compensation, a lesser multiplier can be applied to a heavy amount of multiplicand."
The said decision, however, to some extent was clarified by this Court in Punjab National Bank v. Indian Bank & Anr. [(2003) 6 SCC 79].
9
11. It is in the aforementioned situation, we are of the opinion that the fair amount of compensation should have been calculated at Rs.25,000/- per month being about 1/3rd of the amount which he was receiving in U.K.
12. The next question which arose for our consideration for the purpose of loss of dependency is whether 1/3rd from the said amount should be deducted or 2/3rd.
13. Mr. Dua relied on a decision of this Court in Donat Louis Machado &
Ors. v. L. Ravindra & Ors. [1998] 8 SCC 633] wherein it was opined:
"Consequently, the total amount would work out at Rs. 7500 per month during the whole span of future career and taking an average at 50%, his future monthly income during the rest of the life could have worked out at Rs. 3750. On that basis, 12 months' earning would have been Rs.45,000 and adopting a multiplier of 15 looking to the young age of the deceased the total economical gain to his estate would work out at Rs. 6,75,000 at least. But taking a conservative figure of Rs 6 lakhs it can easily be visualised that the claimants who are the parents and unmarried sister and who are dependent on him would have got at least 1/3 amount as he would have spent the rest of 2/3 amount of his earnings on his own family which he would have raised and on himself. This would come to a figure of Rs. 2 lakhs. This can easily be treated to be the appropriate compensation payable to the claimants on account of economical loss 10 suffered by them as a result of the unfortunate accident to their breadwinner."
In Halkibai and Anr. vs. Managing Director, Rajasthan State Road Trans. Corpn. and Anr.[2004 ACJ 481], the Division Bench of the High Court of Madhya Pradesh (Gwalior Bench) held as under:
"As regards determining dependency of the mother of the deceased is concerned, this question has already been settled by the Apex Court in the case of Donat Louis Machado, 1999 ACJ 1400 (SC). This judgment was considered by this court in a recent decision in the case of Parathsingh v.
Sanjay Sharma, 2003 (1) TAC 103 (MP) and in Rajesh v. Rajesh alias Pappu, M.A. No. 291 of 2003; decided on 18.8.2003 and ratio has been laid down that in the case of parents of the deceased, dependency will be 1/3rd of the income of the deceased at the time of his death. The judgment of Supreme Court is binding upon this court and there is no reason to differ from the said judgment.
Therefore, we hold that the dependency of the parents of the deceased shall be 1/3rd of income of the deceased. This view has been taken by various Division Benches and this being consistent view, we do not wish to differ from it."
However, somewhat different view was taken by this Court in Fakeerappa & Anr. vs. Karnataka Cement Pipe Factory & Ors. [(2004) 2 SCC 473], wherein it was held:
11 "6. Learned counsel for Respondent 2, submitted that there cannot be any rigid formula as to what would be the percentage or quantum of deduction. The Tribunal and the High Court have taken note of the relevant aspects to hold that 50% deduction would be appropriate. There is no scope for any interference with the percentage of deduction as fixed. Further, before the High Court there was no challenge to the rate of interest awarded by the Tribunal. Therefore, for the first time before this Court such a grievance cannot be raised. It is also submitted that multiplier of 18 as adopted is on the higher side.
xxx xxx xxx
8. It has to be noted that the ages of the parents as disclosed in the claim petition were totally unbelievable. If the deceased was aged about 27 years as found at the time of post-mortem and about which there is no dispute, the father and mother could not have been aged 38 years and 35 years respectively as claimed by them in the claim petition. Be that as it may, taking into account special features of the case we feel it would be appropriate to restrict the deduction for personal expenses to one-third of the monthly income.
Though the multiplier adopted appears to be slightly on the higher side, the plea taken by the insurer cannot be accepted as there was no challenge by the insurer to the fixation of the multiplier before the High Court and even in the appeal filed by the appellants before the High Court, the plea was not taken."
12 In Bijoy Kumar Dugar vs. Bidya Dhar Dutta & Ors. [(2006) 3 SCC 242] this court deducted 1/3rd from the earnings of the deceased inter alia holding:
"...It is by now well settled that the compensation should be the pecuniary loss to the dependants by the death of a person concerned. While calculating the compensation, annual dependency of the dependants should be determined in terms of the annual loss, according to them, due to the abrupt termination of life. To determine the quantum of compensation, the earnings of the deceased at the time of the accident and the amount, which the deceased was spending for the dependants, are the basic determinative factors. The resultant figure should then be multiplied by a "multiplier". The multiplier is applied not for the entire span of life of a person, but it is applied taking into consideration the imponderables in life, immediate availability of the amount to the dependants, the expectancy of the period of dependency of the claimants and so many other factors. Contribution towards the expenses of the family, naturally is in proportion to one's earning capacity. In the present case, the earning of the deceased and consequently the amount which he was spending over the members of his family i.e. dependency is to be worked out on the basis of the earnings of the deceased at the time of the accident. The mere assertion of the claimants that the deceased would have earned more than Rs.8000 to Rs.10,000 per month in the span of his lifetime cannot be accepted as legitimate income unless all the relevant facts are proved by leading cogent and reliable evidence before MACT. The claimants have to prove that the deceased was in a trade 13 where he would have earned more from time to time or that he had special merits or qualifications or opportunities which would have led to an improvement in his income. There is no evidence produced on record by the claimants regarding future prospects of increase of income in the course of employment or business or profession, as the case may be. It is stated that the deceased was about 24 years old at the time of the accident.
MACT has accepted Rs.4000 per month, as the earning of the deceased and after deducting Rs .400 per month for his pocket expenses, the remaining sum of Rs. 3600 has been divided into three equal shares, out of which two shares i.e. Rs.2400 per month or Rs.28,800 (wrongly mentioned as Rs.28,000 in the award), were assessed as loss to both the claimants, who were the parents of the deceased. The ages of the claimants are stated to be between 45 and 50 years and accordingly multiplier of 12 was applied.
Thus, a sum of Rs 28,800 x 12 = Rs.3,45,600 was awarded as compensation."
In Bilkish vs. United India Insurance Co. Ltd. [(2008) 4 SCC 259], this Court held:
"4. After hearing learned Counsel for the parties, we are of the opinion that the view taken by the High Court & Tribunal is not correct. The incumbent was a bachelor and he could not have spent more than 1/3rd of his total income for personal use and rest of the amount earned by him would certainly go to the family kitty. Therefore, determining the loss of dependency by 50% was not correct. Therefore, we assess that he must be 14 spending 1/3rd towards personal use and contributing 2/3rd of his income to his family....."
Yet again in Bangalore Metropolitan Transport Corporation vs.
Sarojamma & Anr. [(2008) 5 SCC 142], this Court held:
"9. Whereas in determining an application for grant of compensation under Section 166 of the Act, the Tribunal may be entitled to find out actual loss of damages suffered by the claimants, the formula having not envisaged such a contingency, we are of the opinion that ordinarily one-third should be deducted from the income of the deceased and not the half thereof......"
In Syed Basheer Ahamed & Ors. vs. Mohammed Jameel & Anr.
[(2009) 2 SCC 225], one-half (50%) of the income was held to be deductible if the deceased was a bachelor.
14. Indisputably, deduction of 1/3rd towards personal expenses is the ordinary rule in India. We think that in the facts and circumstances of the case, the same should be applied. The concept of joint family unlike the western countries where it has been wholly evaporated, although on the decline, should also be taken into consideration. The deceased's father was a Doctor working in a Government Hospital; he was aged about 51 years at the time of the accident; he would have retired from the Government job 15 after a few years. He might not, therefore, be completely dependent upon his son. We, therefore, are of the opinion that having regard to his age as also the age of his wife multiplier of 10 should be applied. We do so keeping in view the fact that the Court has a duty to grant a just and reasonable compensation. What would, however, be a just and reasonable compensation depends upon the fact situation obtaining in each case. No hard and fast rule therefore can be laid down. The Court must also bear in mind that compensation should not be treated to be wind-fall.
15. We are not oblivious of the fact that the multiplier referred to in the Second Schedule in the Act may not automatically be applied in a case initiated under Section 166 of the Act. We have applied the aforementioned multiplier keeping in view the fact that the multiplier specified in the Second Schedule would not ordinarily be applicable in a case under Section 166 of the Act.
16. The finding required to be arrived at by the choice of multiplicand as also the multiplier would depend upon a large number of factors as this aspect of the matter has been considered in various judgments, the same need not be reiterated.
16
17. The question, in an appropriate case, may require consideration by a larger Bench.
18. In this view of the matter, the appeal filed by the insurance company is dismissed and that of the appellant is allowed. Tribunal may draw a fresh award in the light of the observations made hereinbefore. No costs.
.....................................J.
[S.B. Sinha] .....................................J.
[Dr. Mukundakam Sharma] New Delhi;

The entitlement shall be worked out by the concerned MACT by taking note of Section 53 of the Act.

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3324 of 2009 (Arising out of SLP(C) No. 5989 of 2003)

National Insurance Co. Ltd. ....Appellant


Versus


Hamida Khatoon and Ors. ....Respondents


Dr. ARIJTI PASAYAT, J.

Judgement




1. Leave granted.
2. Challenge in this appeal is to the judgment of the Division Bench of the Allahabad High Court dismissing the appeal filed by the present appellant (hereinafter referred to as the `insurer').
3. Factual position which is almost undisputed is essentially as follows:
An appeal was filed questioning the correctness of the Award made by the Motor Accident Claims Tribunal, Saharanpur (hereinafter referred to
as the `MACT') wherein a sum of Rs.1,20,000/- was awarded as
compensation.
The claim petition was filed on the basis that on 1.5.1991 while Abdul Hamid (hereinafter referred to as the `deceased') was traveling by Matador No. URF-9761 from Saharanpur to Sarsawa, a truck bearing registration No.PIJ-5166 belonging to Border Security Force (in short the `BSF') dashed against the said vehicle resulting in serious injuries on the body of the deceased. He succumbed to the injuries at the SDB Hospital Saharanpur.
The appellant-insurer contested the claim petition inter alia taking the stand
that the compensation as claimed was high and exorbitant. The MACT held
that the accident occurred due to rash and negligent driving of the driver of the truck and awarded Rs.1,20,000/- as compensation.
In appeal the stand of the appellant was that the application filed by the claimant- respondent under Section 173 of the Motor Vehicles Act, 1988 (in short the `Act') was not maintainable in view of Section 53 of the Employees State Insurance Act, 1948 (in short the `ESI Act'). The High Court did not accept the stand primarily on the ground that no such plea was 2 taken specifically in the written statement. It was also held that as regards applicability of Section 53 of the Act certain factual aspects were to be considered. The appeal was accordingly dismissed.
4. Learned counsel for the appellant submitted that true scope and ambit of Section 53 of the ESI Act has not been kept in view.
5. Learned counsel for the respondent on the other hand supported the judgment.
6. It is to be noticed that in Regional Director, ESI Corporation & Anr.
v. Francis De Costa and Anr. [1993 Suppl.(4) SCC 100] at para 44 it was observed as follows:
44. The next contention that the Motor Vehicles Act provides the remedy for damages for an accident resulting in death of an injured person and that, therefore, the remedy under the Act cannot be availed of lacks force or substance. The general law of tort or special law in Motor Vehicles Act or Workmen's Compensation Act may provide a remedy for damages. The coverage of insurance under the Act in an insured employment is in addition to but not in substitution of the above remedies and cannot on that account be denied to the employee.
In K. Bharathi Dev v. G.I.C.I [AIR 1988 AP 361] the contention that the deceased contracted life insurance and due to death in air accident the appellant received compensation and the same would be set off and no double advantage of damages under carriage by Air Act be given was negatived.
3
7. In A Trehan v. Associated Electrical Agencies [1996(4) SCC 255] it was observed as follows:
"The ESI Act was enacted with an object of introducing a scheme of health insurance for industrial workers. The scheme envisaged by it is one of compulsory State insurance providing for certain benefits in the event of sickness, maternity and employment injury to workmen employed in or in connection with the work in factories other than seasonal factories. The ESI Act which has replaced the Workmen's Compensation Act, 1923 in the fields where it is made applicable is far more wider than the Workmen's Compensation Act and enlarges the scope of compensation. Section 38 provides that all employees in factories or establishments to which the ESI Act applies shall be insured in the manner provided in it. Under Section 39 the employer is also made liable to pay contribution. Section 42 provides for circumstances under which the employee need not pay his contribution. Section 46 provides for the benefits which the insured persons, their dependants and the persons mentioned therein shall be entitled to get on happening of the events mentioned therein. Sections 51-A to 51-D create certain fictions in favour of the employee so as to have wider coverage for him. In case of an employment injury Section 46 provides periodical payments to him or to his dependants in case of his death. Employment injury is defined by Section 2(8) to mean a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India. Section 2(9) defines employee to mean any person employed for wages in or in connection with the work of a factory or establishment to which the ESI Act applies. It includes other persons but it is not necessary to refer to that part of the definition. Insured person is defined by Section 2(14) to mean a person who is or was an employee in respect of whom contributions are or were payable under the Act and who is by reason thereof, entitled to any of the benefits provided by the ESI Act. The Second Schedule to the ESI Act specifies the injuries deemed to result in permanent total disablement or permanent partial disablement. Rule 54 of the Employees' State Insurance (Central) Rules, 1950 provides 4 the daily rate of benefit which the employee would get if an employment injury is suffered by him. Rule 57 provides for disablement benefits. Rule 58 provides for dependant's benefits in case the injured person dies as a result of an employment injury. Rule 60 provides for the medical benefits to an insured person who ceases to be in an insured employment on account of permanent disablement. Other benefits are also conferred by the ESI Act and the Rules but it is not necessary to refer to them for deciding the point which arises in this case. Two other provisions in the ESI Act to which it is necessary to refer are Sections 53 and 61. The present Section 53 was substituted by Act No. 44 of 1966 with effect from 28-1-1968. Section 61 has been there in the Act since it came into force. It provides that when a person is entitled to any of the benefits provided by the ESI Act he shall not be entitled to receive any similar benefits admissible under the provisions of any other enactment. Thus, by enacting Section 61 the legislature has created a bar against receiving similar benefits under other enactments. Section 53 before its amendment read as under:
"53. Disablement and dependant's benefits.--When an insured person is or his dependants are entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen's Compensation Act, 1923, or otherwise, in respect of an employment injury sustained by the insured person as an employee under this Act, then the following provisions shall apply, namely-- (i) The insured person shall, in lieu of such compensation or damages, receive the disablement benefit provided by this Act, (but subject otherwise to the conditions specified in the Workmen's Compensation Act, 1923) from the Corporation and not from any employer or other person.
(ii)-(iv) * * * (v) Save as modified by this Act the obligations and liabilities imposed on an employer by the Workmen's Compensation Act, 1923, shall continue to apply to him."
9. Experience of the administration of the ESI Act had disclosed certain difficulties in its working. It was, therefore, further amended in 1966. Along with other amendments made 5 in the ESI Act the legislature substituted present Section 53 which read as under:
"53. Bar against receiving or recovery of compensation or damages under any other law.--An insured person or his dependants shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen's Compensation Act, 1923 (8 of 1923) or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employee under this Act."
10. The Workmen's Compensation Act was enacted by the legislature in 1923 with a view to provide for the payment by certain classes of employers to their workmen compensation for injury by accident. Section 3(1) of the Act provides that if personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions contained in that Act. Under Section 2(1)(c) the word compensation is defined to mean compensation as provided for by the Act. The definition of the workman under the Act is as under:
"2. (1)(n) `workman' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is-- (i) * * * (ii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union; and any reference to a workman who has been injured shall, where the workman is dead includes a reference to his dependants or any of them."
11. A comparison of the relevant provisions of the two Acts makes it clear that both the Acts provide for compensation to a workman/employee for personal injury caused to him by accident arising out of and in the course of his employment.
The ESI is a later Act and has a wider coverage. It is more comprehensive. It also provides for more compensation than what a workman would get under the Workmen's Compensation Act. The benefits which an employee can get 6 under the ESI Act are more substantial than the benefits which he can get under the Workmen's Compensation Act. The only disadvantage, if at all it can be called a disadvantage, is that he will get compensation under the ESI Act by way of periodical payments and not in a lump sum as under the Workmen's Compensation Act. If the legislature in its wisdom thought it better to provide for periodical payments rather than lump sum compensation its wisdom cannot be doubted. Even if it is assumed that the workman had a better right under the Workmen's Compensation Act in this behalf it was open to the legislature to take away or modify that right. While enacting the ESI Act the intention of the legislature could not have been to create another remedy and a forum for claiming compensation for an injury received by the employee by accident arising out of and in the course of his employment.
12. In this background and context we have to consider the effect of the bar created by Section 53 of the ESI Act. Bar is against receiving or recovering any compensation or damages under the Workmen's Compensation Act or any other law for the time being in force or otherwise in respect of an employment injury. The bar is absolute as can be seen from the use of the words shall not be entitled to receive or recover, "whether from the employer of the insured person or from any other person", "any compensation or damages" and "under the Workmen's Compensation Act, 1923 (8 of 1923), or any other law for the time being in force or otherwise". The words "employed by the legislature" are clear and unequivocal. When such a bar is created in clear and express terms it would neither be permissible nor proper to infer a different intention by referring to the previous history of the legislation. That would amount to bypassing the bar and defeating the object of the provision. In view of the clear language of the section we find no justification in interpreting or construing it as not taking away the right of the workman who is an insured person and an employee under the ESI Act to claim compensation under the Workmen's Compensation Act. We are of the opinion that the High Court was right in holding that in view of the bar created by Section 53 the application for compensation filed by the appellant under the Workmen's Compensation Act was not maintainable.
13. The observations made in Francis De Costa2 by K.
Ramaswamy, J. were made in a different context. In that case the question which had arisen for consideration was whether the injury caused by an accident on a public road while an employee was on his way to join duty can be held as arising out 7 of or in the course of his employment within the meaning of Section 2(8) of the ESI Act. Moreover, in that case the Court was not examining the bar created by Section 53 of the ESI Act."
8. In Bharagath Engg. v. R. Rangamayaki [2003(2) SCC 138] it was held as follows:
8. Section 2(14) of the Act, which is the pivotal provision, reads as follows:
"`Insured person' means a person who is or was an employee in respect of whom contributions are or were payable under this Act and who is, by reason thereof, entitled to any of the benefits provided by this Act."
9. It is to be noted that the crucial expression in Section 2(14) of the Act is "are or were payable". It is the obligation of the employer to pay the contribution from the date the Act applies to the factory or the establishment. In ESI Corpn. v. Harrison Malayalam (P) Ltd. [1993(4) SCC 361] the stand of the employer that employees are not traceable or that there is dispute about their whereabouts does not do away with the employer's obligation to pay the contribution. In ESI Corpn. v.
Hotel Kalpaka International [1993 (2) SCC 9] it was held that the employer cannot be heard to contend that since he had not deducted the employee's contribution on the wages of the employees or that the business had been closed, he could not be made liable. The said view was reiterated in ESI Corpn. v.
Harrisons Malayalam Ltd [1998(9) SCC 74] That being the position, the date of payment of contribution is really not very material. In fact, Section 38 of the Act casts a statutory obligation on the employer to insure its employees. That being a statutory obligation, the date of commencement has to be from the date of employment of the employee concerned.
10. The scheme of the Act, the Rules and the Regulations clearly spell out that the insurance covered under the Act is 8 distinct and different from the contract of insurance in general.
Under the Act, the contributions go into a fund under Section 26 for disbursal of benefits in case of accident, disablement, sickness, maternity etc. The contribution required to be made is not paid back even if an employee does not avail any benefit. It is to be noted that under Regulation 17-A, if medical care is needed before the issuance of temporary identification certificate, the employer is required to issue a certificate of employment so that the employee can avail the facilities available. "Wage period", "benefit period" and "contribution period" are defined in Section 2(23) of the Act, Rule 2(1-C) and Rule 2(2-A) of the Rules. Rule 58(2)(b) is a very significant provision. For a person who becomes an employee for the first time within the meaning of the Act, the contribution period under Regulation 4 commences from the date of such employment from the contribution period current on that day and the corresponding benefit period shall commence on the expiry of the period of nine months from the date of such employment. In cases where employment injuries result in death before the commencement of the first benefit period, Rule 58(2)(b)(ii) provides the method of computation of dependant's benefits. It provides for computation of dependant's benefits in the case of an employee dying as a result of employment injuries sustained before the first benefit period and before the expiry of the first wage period.
11. Rule 58(2)(b)(ii), insofar as it is relevant, reads as follows:
"58. Dependant's benefits.-- (1) * * * 2(b) Where an employment injury occurs before the commencement of the first benefit period in respect of a person, the daily rate of dependant's benefit shall be-- (i) * * * 9 (ii) where a person sustains employment injury before the expiry of the first wage period in the contribution period in which the injury occurs, the rate, forty per cent more than the standard benefit rate, rounded to the next higher multiple of five paise corresponding to the group in which wages actually earned or which would have been earned had he worked for a full day on the date of accident fall."
12. When considered in the background of statutory provisions, noted above, the payment or non-payment of contributions and action or non-action prior to or subsequent to the date of accident is really inconsequential. The deceased employee was clearly an "insured person", as defined in the Act. As the deceased employee has suffered an employment injury as defined under Section 2(8) of the Act and there is no dispute that he was in employment of the employer, by operation of Section 53 of the Act, proceedings under the Compensation Act were excluded statutorily. The High Court was not justified in holding otherwise. We find that the Corporation has filed an affidavit indicating that the benefits under the Act shall be extended to the persons entitled under the Act. The benefits shall be worked out by the Corporation and shall be extended to the eligible persons."
9. Above being the position in law, the appeal deserves to be allowed.
The entitlement shall be worked out by the concerned MACT by taking note
of Section 53 of the Act.
..............................................J.
(Dr. ARIJIT PASAYAT) 10 ..

13 fast-track judges not renewed

The Gujarat government has not renewed the contract of 13 fast-track court (FTC) judges and issued orders to relieve them from service.
However, two of the judges have approached the Supreme Court against the termination and obtained a stay on the relieving order till January 4. The state government has decided not to renew the contracts on the Gujarat High Court’s recommendation on basis of a review of the 13 judges.
But KR Vora of the Nadiad court and BN Trivedi of the Mehsana court filed a suit against their termination. After hearing their arguments, a division bench of Justice JM Panchal and Justice BS Chauhan of the Supreme Court ordered the state government and high court to maintain status quo till the next hearing.
“We have received a fax message from SC directing us to maintain status quo,” registrar general of high court PP Bhatt said. When asked on what basis the judges obtained the stay, Bhatt said these judges were selected from the Bar and offered contracts for certain years. “We will prepare our answer in this regard and submit it to the SC by next hearing,” Bhatt said. The Centre has decided to scrap the FCT scheme by April, 2010.


Judges relieved
YH Upadhyay and PP Trivedi — Ahmedabad rural court
RR Bhatt and RM Patel — City civil court
KR Vora — Nadiad
BN Trivedi — Mehsana
PG Gokani — Jam Khambhalia
AN Mehta and KJ Trivedi — Mehsana
JH Singh — Gandhidham-Kutch
UH Bhatt — Bhavnagar
RB Bhatt — Gandhinagar
BH Oza — Banaskantha

Redevelopment only if all members agree: HC

Mumbai: In a path-breaking judgment, the Bombay high court has held that even a single dissenting member of a cooperative housing society cannot be thrown out by a builder based on a mere development agreement with the society and a majority of the flat owners in it for redevelopment of the building.

Expressing serious concern at the “disturbing trend of developers approaching the court and seeking eviction and dispossession of noncooperating members of housing societies’’, Justice S C Dharmadhikari held that any redevelopment activity “should not compromise the rights of members and must safeguard the existence of the society’’.

Legalize prostitution if you can’t curb it: SC to govt

New Delhi: The Supreme Court on Wednesday asked the Centre whether it could legalize prostitution if it wasn’t possible to curb it.



“When you say it is the world’s oldest profession and when you are not able to curb it by laws, why don’t you legalise it? You can then monitor the trade, rehabilitate and provide medical aid to those involved,” Justices Dalveer Bhandari and AK Patnaik told Solicitor-General Gopal Subramaniam.
The court said legalizing sex trade would be a better option to avoid trafficking of women and pointed out that nowhere in the world was prostitution curbed by punitive measures. Subramaniam said he would look into the suggestion.
“They (sex workers) have been operating in one way or the other and nowhere in the world have they been able to curb it by legislation. In some cases, they (the trade) is carried out in a sophisticated manner. So, why don’t you legalize it?” the judges asked.
The court was hearing a PIL filed by NGOs Bachpan Bachao Andolan and Childline complaining about large-scale child trafficking in the country and seeking directives to contain it.
The apex court also wondered why 37 per cent of the country’s population continues to reel under below poverty line at a time when then there is much talk of growing GDP rate in the country.
The bench said child trafficking and sex trade were flourishing because of poverty which needs to be tackled.
“We are taking about growing GDP. I do not know what is the development we are all talking about when the number of BPL families is at 37% which has increased from 30%.
“Growth of GDP does not mean some four or five families have developed. If this is the state of development, we can’t help it,” the bench said while posting the matter for further hearing to January 5.
The contention of the petitioner is that a number of minor children, particularly girls and those of tender age, are being pushed into sex trade.
Childline counsel Nandita Rao alleged several minor girls are being sexually exploited by circus owners and there has to be adequate legal framework to prevent such exploitation. PTI

Do Mont Blanc & Mahatma go together: SC

PIL Accuses The Pen-Maker Of Misusing Gandhi In Its Ads

New Delhi: Can Mahatma Gandhi be the poster boy for driving home the message that a super-expensive Mont Blanc “pen is mightier than the sword?” To this question of a PIL petitioner, the Supreme Court on Monday sought responses of the Centre and the retail outlet of the pen-maker in Delhi.
Though a Bench comprising Chief Justice KG Balakrishnan and Justices AK Ganguly and BS Chauhan had some reservations in entertaining the PIL filed by Harsh Vardhan Surna and Sandeep Singh, it issued notices to the Centre and Mont Blanc Boutique after they pointed out that use of Mahatma Gandhi’s pictures was in violation of Emblem Act.
However, the Bench declined to issue notice to Mahatma Gandhi Foundation. The petitioners had alleged that Tushar Gandhi, the greatgrandson of the Father of the Nation, had accepted a cheque of Rs 70-75 lakh to lend the name of the organisation to the foreign pen brand.
“The foundation will further receive between $200 and $1,000 for each pen sold. The maker of Mont Blanc is offering the ‘Mahatma Gandhi Pens’ at an unbelievable price of approximately Rs 12 lakh per pen. Mahatma Gandhi’s images are being displayed in hoardings conveying messages that the pen is mightier than the sword,” the petitioners said.
Associating Mahatma Gandhi’s name with the expensive pen rebelled against the values and ideals in which the Father of the Nation believed in and fought for throughout his life, the petitioners said.

Over 100 dead in fire at Russian club

Nearly 233 people were at the Lame Horse club in Perm when faulty fireworks triggered the inferno; more than half of the injured critical

MOSCOW: A fire ripped through a club on Friday in the Russian city of Perm, killing close to 100 people, according to officials. Russia’s Emergency Ministry said 98 people have been killed and 135 people were hospitalised, Russia Today television reported.

Regional Health Minister Dimitry Trishkin put the death toll at 101, including seven victims who died in hospital, the Interfax news agency reported. A spokesman of the regional emergencies service said more than half of the injured were in serious condition, raising fears of an even higher death toll.

An estimated 233 people were at the Lame Horse club, at a party hosted by the owners to celebrate the club’s eighth anniversary. Police said the cause of the blaze was still unknown, but was believed to have been triggered by faulty fireworks, the spokesman for the investigators, Vladimir Markin, said. He said the possibility of a terrorist attack had been discounted.

Most of the victims suffered from burn wounds and carbon monoxide poisoning. Many people were injured in the stampede to flee the inferno, Markin said. “There was an explosion and then came the fire. Some people ran out of the place, but some stayed. There are 1,000 people surrounding the venue — most of them are relatives of the dead and injured,” said Nina Yusupova, a Perm reporter for Ural-Inform TV. “Authorities have also sent psychologists to the site.”

Emergency service officials said the explosion took place at about 11 pm. About 24 fire engines and 124 firefighters were immediately deployed. Prime Minister Vladimir Putin had ordered a plane to be sent to Perm with additional doctors and medical workers.

President Dmitry Medvedev has asked the ministers of emergencies, interior and health to fly to Perm and coordinate relief efforts on the ground.

Perm, a city of about 1.3 million, is about 1,000 kilometres east of Moscow.

Just last week, 26 people were killed in a terrorist attack on the rail line between Moscow and St Petersburg.

Most of the victims suffered from burn wounds and carbon monoxide poisoning

Relatives look at a list of the victims outside a local morgue in Perm

ORIENTAL INSURANCE CO. LTD. v. MOHD. NASIR & ANR. [2009] INSC 1039 (12 May 2009)

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3486 OF 2009 (Arising out of SLP (C) No.11215 of 2006) WITH CIVIL APPEAL NOS. 3495,3496,3497 and 3484 OF 2009 (Arising out of SLP (C) No.16171, 21012 of 2006, 74 of 2007 2 and 2854 of 2008)

Oriental Insurance Co. Ltd. ... Appellants


Versus


Mohd. Nasir & Anr. ... Respondents



S.B. Sinha, J.
1. Leave granted.
2. Applicability of the respective provisions of the Workmen Compensation Act, 1923 (1923 Act) and Motor Vehicles Act, 1988 (1988 Act) in respect of the claimants who had suffered disability is the question involved in this appeal.
3. The factual matrix involved in these cases would be noticed by us separately.
SLP (C) NO.11215 OF 2006 First respondent in this appeal was the driver of a truck bearing registration No.UP-21-9636. Respondent No.2 was its owner. An accident took place on 2.10.2004 wherein first respondent suffered an injury in his 3 right leg besides others. He filed an application for award of compensation in terms of the provisions of the 1923 Act before the Commissioner of Workmen Compensation, Moradabad claiming a sum of Rs.1,50,000/- with interest. The Commissioner opined that although the workmen had suffered 15% disability but loss of his earning capacity was 100%. Noticing that he was aged about 35 years and his salary was Rs. 3,200/- per month, a sum of Rs. 3,78,355.20 was awarded with interest at the rate of 12% per annum from the date of accident till payment.
The High Court dismissed the appeal in limine.
SLP (C) NO.16171 OF 2006 Respondent No.1 was a cleaner in a truck. It collided with a tanker on 17.7.2002 resulting in fracture of his femur right thigh. Respondent No.1 was hospitalized from 19.7.2002 to 7.8.2002. He filed claim petition under the 1923 Act for a sum of Rs.3,00,000/-.
By an order dated 8.9.2003, the Commissioner awarded a sum of Rs.93,302/- on the premise that he was aged 22 years and his income was Rs.2003/- per month. Although the disability was determined at 20% to 4 25%, the loss of earning capacity was determined at 35%. The doctor who had treated him, in his deposition, stated that disability of the first respondent was between 20% to 25%.
The High Court, by reason of its impugned judgment dated 14.6.2006 determined his loss of earning capacity at 60% and the amount of compensation, on the said premise, was enhanced to Rs.2,65,865.37.
SLP (C) NO.21012 OF 2006 First respondent was hired as a casual labour for loading and unloading. The truck in which he was working collided with a stationary lorry as a result whereof he sustained injuries. He filed claim petition under the 1923 Act claiming a sum of Rs.1,50,000/- before the Commissioner.
The Commissioner, by an order dated 29.4.2004 assessed his disability at 40%. However, the loss of earning capacity was taken to be 80%. An amount of Rs.2,17,169.83 was awarded as compensation.
An appeal preferred by the insurance company thereagianst has been dismissed by the High Court in terms of the impugned judgment.
SLP (C) NO.74 OF 2007 5 Respondent Nos. 1 and 2 were engaged for loading and unloading broken rice on casual basis in a lorry which collided with a stationary lorry resulting in sustaining injuries to respondent No.1. He filed an application before the Workmen's Compensation Commissioner claiming an amount of Rs.3,00,000/- as compensation. His disability was assessed at 40% but loss of earning capacity was assessed at 80% by the doctor. The Commissioner, by an order dated 29.4.2004 assessed the disability of the respondents at 80% and loss of earning capacity at 100%. A sum of Rs.2,09,123/- was awarded.
By reason of the impugned judgment the High Court affirmed the award.
SLP (C) NO.2854 of 2008 Respondent No.1 on 31.5.1995 was traveling in an Ambassador car which collided with a bus as a result whereof he sustained injuries. He filed an application under Section 166 of the 1988 Act claiming a sum of Rs.18,00,000/- before the Motor Accident Claims Tribunal. He was aged about 65 years. He is a practicing advocate. By an award dated 21.2.2002, the Tribunal assessed the permanent disability suffered by him at 50%. A 6 sum of Rs.1,95,000/- was awarded keeping in view the fact that he was unable to work for 39 months. A sum of Rs.50,000/- was also awarded
towards future loss of income. In total, MACT awarded Rs.7,42,191/- with
9% interest per annum.
On an appeal preferred thereagainst, the High Court, by reason of the impugned judgment, enhanced the amount of compensation to Rs.12,37,191/- with 9% interest per annum.
4. The insurance company contends that its liability is only to the extent of percentage of disability of the person as provided by Section 4 of the 1923 Act and the interest becomes payable with effect from one month after the date of adjudication by the Commissioner.
It was also stated that the insurance company had not filed any appeal before the High Court in the case of K. Srinivas Murthy satisfying the award given by the Tribunal. The appellant has also deposited 50% of the amount of compensation enhanced by the High Court. It was prayed that the said amount may be directed to be recovered.
It is also contended that the amount of compensation could not have exceeded the amount claimed.
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5. A question has been raised as to whether the percentage of loss of earning capacity and the physical disability shall be the same.
A question has furthermore been raised as regards applicability of the multiplier specified in the Second Schedule appended to the 1988 Act on the premise that the same would not be applicable in respect of the claim petition which is filed under Section 166 of the Act.
6. Before adverting to the questions raised before us, we may notice the statutory provisions contained in the 1923 Act and 1988 Act.
The 1923 Act was enacted to provide for the payment by certain classes of employers to their workmen of compensation for injury by accident.
`Compensation' has been defined in Section 2(c) of the 1923 Act to mean `compensation as provided therein.
`Partial disability' has been defined in Section 2(g) as under :
" `Partial disablement' means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a 8 permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time : provided that every injury specified (in Part II of Schedule I] shall be deemed to result in permanent partial disablement;"
`Qualified medical practitioner' has been defined in Section 2(i) to mean :
" `qualified medical practitioner' means any person registered under any Central Act, Provincial Act, or an Act of the Legislature of a State providing for the maintenance of a register of medical practitioners, or, in any area where no such last-mentioned Act is in force, any person declared by the State Government, by notification in the Official Gazette, to be a qualified medical practitioner for the purposes of this Act;"
Section 3 provides for the employer's liability for compensation.
Section 4 deals with the amount of compensation, clauses (a), (b) and (c) of sub-section (1) whereof read as under :
"a) Where death results an amount equal to fifty per cent of from the injury the monthly wages of the deceased workman multiplied by the relevant factor;
or 9 an amount of eighty thousand rupees, whichever is more;
(b) Where permanent an amount equal to sixty per cent of total disablement results the monthly wages of the injured from the injury workman multiplied by the relevant factor;
or an amount of ninety thousand rupees, whichever is more;
Explanation I.--For the purposes of clause (a) and clause (b) "relevant factor" in relation to a workman means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the workman on his last birthday immediately preceding the date on which the compensation fell due.
Explanation II.--Where the monthly wages of a workman exceed four thousand rupees, his monthly wages for the purposes of clause (a) and clause (b) shall be deemed to be four thousand rupees only;
10 (c) Where permanent (i) in the case of an injury specified partial disablement in Part II of Schedule I, such result from the injury percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and (ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury;
Explanation I.--Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries.
Explanation II.--In assessing the loss of earning capacity for the purpose of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I."
11 We may notice that the First Schedule specified under Section 1(g) and Section 4 is in two parts. Part I specifies the list of injuries deemed to result in permanent total disablement and Part II specifies list of injuries deemed to result in permanent partial disablement. The note appended thereto reads as under :
"Note.--Complete and permanent loss of the use of any limb or member referred to in the Schedule shall be deemed to be equivalent of the loss of that limb or member."
The Fourth Schedule appended to the 1923 Act provides for the factors for working out lump sum equivalent of compensation amount in case of permanent disablement and death.
7. The 1988 Act was enacted to consolidate and amend the law relating to motor vehicles. Chapter X provides for the liability without fault in certain cases. Subsection (1) of Section 140, Section 142 and Section 143 read as under :
"140--Liability to pay compensation in certain cases on the principle of no fault--(1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the 12 owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.
XXX XXX XXX 142 - Permanent disablement--For the purposes of this Chapter, permanent disablement of a person shall be deemed to have resulted from an accident of the nature referred to in sub-section (1) of section 140 if such person has suffered by reason of the accident, any injury or injuries involving:- (a) permanent privation of the sight of either eye or the hearing of either ear, or privation of any member or joint; or (b) destruction or permanent impairing of the powers of any member or joint; or (c) permanent disfiguration of the head or face.
143 - Applicability of Chapter to certain claims under Act 8 of 1923--The provisions of this Chapter shall also apply in relation to any claim for compensation in respect of death or permanent disablement of any person under the Workmen's Compensation Act, 1923 resulting from an accident of the nature referred to in subsection (1) of section 140 and for this purpose, the said provisions shall, with necessary modifications, be deemed to form part of that Act."
Section 144 of the Act provides for a non obstante clause.
13 Chapter XI deals with insurance of motor vehicles against third party risks. Chapter XII of the Act provides for constitution of claims tribunal.
Explanation appended to sub-section (1) of Section 165 provides that the expression `claims for compensation in respect of accidents involving death of or bodily injury to persons arising out of the use of motor vehicles' includes claims for compensation under section 140 and Section 163-A of the 1988 Act. The Second Schedule appended thereto framed in terms of Section 163-A thereof provides for compensation for third party fatal accidents/injury cases claims. It specifies the amount of compensation in case of death on the basis of income of the deceased as also the age group.
It also provides for applicability of multiplier. The note appended thereto reads as under :
"5. Disability in non-fatal accidents :
The following compensation shall be payable in case of disability to the victim arising out of non- fatal accidents:
Loss of income, if any, for actual period of disablement not exceeding fifty two weeks.
PLUS either of the following:-- (a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the 14 Multiplier applicable to the age on the date of determining the compensation, or (b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above.
Injuries deemed to result in Permanent Total Disablement /Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen's Compensation Act, 1923.
6. Notional income for compensation to those who had no income prior to accident.-- Fatal and disability in non-fatal accidents: -- (a) Non-earning persons - Rs.15,000 p.a.
(b) Spouse -- Rs. l/3rd of income of the earning/survivi ng spouse.
In case of other injuries only "general damage" as applicable."
8. Both, the 1923 Act and 1988 Act are beneficent legislation insofar as they provide for payment of compensation to the workmen employed by the employers and/or by use of motor vehicle by the owner thereof and/or the insurer to the claimants suffering permanent disability.
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9. The amount of compensation is to be determined in terms of the provisions of the respective Acts. Whereas in terms of the 1923 Act, the Commissioner who is a quasi judicial authority, is bound to apply the principles and the factors laid down in the Act for the purpose of determining the compensation, Section 168 of the 1988 Act enjoins the Tribunal to make an award determining the amount of compensation which appears to be just.
10. Both the Acts aim at providing for expeditious relief to the victims of accident. In these cases, the accidents took place by reason of use of motor vehicles.
Both the statutes are beneficial ones for the workmen as also the third parties. The benefits thereof are available only to the persons specified under the Act besides under the Contract of Insurance.
The statutes, therefore, deserve liberal construction. The legislative intent contained therein is required to be interpreted with a view to give effect thereto.
11. With the aforementioned backdrop, we may analyse the contentions raised before us by the learned counsel for the parties.
16 Both the statutes provide for the mode and manner in which the percentage of laws of earning capacity is required to be calculated. They provide that the amount of compensation in cases of this nature would be directly relatable to the percentage of physical disability suffered by the injured vis-`-vis the injuries specified in the First Schedule of the 1923 Act.
Indisputably where injuries are specified in the First Schedule, the mode and manner provided for the purpose of calculating the amount of compensation would be applicable.
12. The statutes provide for determination of the extent of physical disability suffered by a qualified medical practitioner so as to enable him to assess the loss of earning capacity. Explanation 1 appended to clause (c) of sub-section (1) of Section 4 provides that where there are more injuries than one, the aggregate amount of compensation has to be taken but the same should not exceed the amount which would have been payable in case of permanent total disablement.
It is also beyond any doubt or dispute that while determining the amount of loss of earning capacity, the Tribunal or the High Court must record reasons for arriving at their conclusion.
17 The 1923 Act which would also be the claims applications arising out of use of motor vehicles in terms of the provisions of 1988 Act would for the purpose of determination of the amount of compensation where the victim of the accident suffers from disability in the cases coming within the purview thereof. The Note appended to the Second Schedule of the 1988 Act raises a legal fiction, stating that `injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under the Workmen's Compensation Act, 1923'. Permanent disability, therefore, for certain purposes have been co-related with functional disability.
13. As to what, therefore, in our opinion, would be relevant is to find out the nature of injuries and as to whether the same falls within the purview of Part I or Part II thereof. We have noticed hereinbefore that whereas Part I specifies the injuries which would deem to result in permanent total disablement, Part II specifies injuries which would be deemed to result in permanent partial disablement. The distinction between the `permanent total disablement' and `permanent partial disablement' is that whereas in the former it is 100% disablement, in the latter it is only the disablement to the extent specified in the Schedule.
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14. Similar terms have been used in clauses (a) and (b) of paragraph 5 of the Second Schedule of the Motor Vehicles Act. It, by reference, incorporates the provisions of the First Schedule of the 1923 Act.
Indisputably, therefore, the Note appended thereto would not only be applicable to the cases falling under the 1923 Act but apply to the cases which fall under the 1988 Act as well.
15. Our attention, however, has been drawn to a decision of this Court in National Insurance Co. Ltd. v. Mubasir Ahmed & Anr. [(2007) 2 SCC 349], wherein it was held :
"8. Loss of earning capacity is, therefore, not a substitute for percentage of the physical disablement. It is one of the factors taken into account. In the instant case the doctor who examined the claimant also noted about the functional disablement. In other words, the doctor had taken note of the relevant factors relating to loss of earning capacity. Without indicating any reason or basis the High Court held that there was 100% loss of earning capacity. Since no basis was indicated in support of the conclusion, same cannot be maintained. Therefore, we set aside that part of the High Court's order and restore that of the Commissioner, in view of the facts situation.
Coming to the question of liability to pay interest, Section 4-A(3) deals with that question. The provision has been quoted above."
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16. In determining the amount of compensation, several factors are required to be taken into consideration having regard to the Note.
Functional disability, thus, has a direct relationship with the loss of limb.
Mohd. Nasir was a driver. A driver of a vehicle must be able to make use of both his feet. It was the case of the claimant that he would not be in a position to drive the vehicle and furthermore would not be able to do any other work. He was incapable of taking load on his body. It, however, appears that in his cross-examination, he categorically stated that only Chief Medical Officer had checked him in his office. No disability certificate had been granted. He admitted that he had not suffered any permanent disability. He, even according to the Chief Medical Officer who had not been examined, suffered only 15% disability. The Tribunal has arrived at the following findings :
"On page 16 original of disability certificate the prescription of medicine X-Ray report of Sarvodaya and of Mohan X-Rays have been produced which reveals the fracture of right leg.
CMO certificate O/M 9/2003 dated 21.3.2005 has also been produced which is alleged to be false by insurance Co. I have perused them carefully which bears signature of Deputy CMO officer of disability Board, Moradabad had it shown that the applicant had appeared before them for medical check up and whose examination was done by 20 senior orthopedics surgeon Dr. R.K. Singh on the basis of recommendation of Dr. Bansal operation was done on 2.10.2004 the applicant walk with the help of the support and is not competent to drive the heavy motor vehicle the said certificate was issued with recommendation that after six months his condition is to be reviewed.
That document was filed on 29.3.2005. Insurance company has stated the doctor who has issued disability certificate has not been produced in the court. But looking into the aftermath situation the plea of insurance company that the said certificate is forged and the same has not been issued by any MBBS doctor, carries no force."
17. The learned Tribunal had held that there has been a 15% disability but then there was nothing to show that he suffered 100% loss of earning capacity. The Commissioner has applied the 197-06 as the relevant factor, his age being 35. He, therefore, proceeded on the basis that it was a case of permanent total disablement. However, his income was taken to be at Rs.1,920/- per month. There is nothing on record to show that the qualified medical practitioner opined that there was a permanent and complete loss of use of his right leg or that he became totally unfit to work as a driver. In that situation, the High Court, in our opinion, was not correct in determining the loss of income at 100%.
21 In Ramprasad Balmiki v. Anil Kumar Jain & Ors. [(2008) 9 SCC 492], wherein upon referring to the evidence of the Doctor who did not say that any permanent disability had been caused, this Court held :
"Be that as it may, the High Court, in our opinion, correctly proceeded on the assumption that the extent of permanent disability suffered by the appellant is only 40% and not 100%."
We, therefore, are of the opinion that the extent of disability should have been determined at 15% and not 100%. The appeal is allowed to the aforementioned extent.
CA @ SLP (C) NO.16171 OF 2006 18. Shaik Baji was a cleaner of a truck. He suffered an injury on the leg.
The disability was determined at 20% to 25%. The disablement was partial and not total. There was no basis for the High Court to assess the loss of earning capacity at 60%. Respondent No.1 being a cleaner, a frature in the leg suffered by him would not amount to loss of permanent use of the limb, i.e., the entire foot. The note appended to the Second Schedule, therefore, has no application.
22 Therefore, the judgment of the High Court is set aside and that of the Commissioner, Workmen Compensation is restored. Appeal is allowed accordingly.
CA @ SLP (C) NO.21012 OF 2006
19. Accident occurred in this case by reason of the use of a vehicle. Both the claimants were casual workmen. Whereas in the former case the disability was assessed at 40%, the loss of earning capacity was taken to be 80%. We do not know on what basis, the same was arrived at. According to the doctor, he suffered injury. The doctor having found the disability to the extent of 40% could not have determined the loss of earning capacity to 80%.
Therefore, the judgment and order of the High Court as well as the Commissioner to that extent cannot be sustained. It is set aside accordingly.
Appeal is allowed and the amount of compensation may be calculated on the said basis.
CA @ SLP (C) NO.74 OF 2007
20. In this case, respondent No.1 was engaged as a casual labour for loading and unloading the broken rice from a lorry. The said lorry collided 23 with a stationed lorry as a result whereof respondent No.1 received injuries.
The doctor assessed his physical disability at 40% and the loss of earning capacity as 80%.
The learned Commissioner, in his award, assessed the physical disability at 80% and loss of earning capacity at 100%. The High Court confirmed the award. No reason has been assigned therefor.
The impugned judgment and order of the High Court and award passed by the learned Commissioner, thus, cannot be sustained and set aside accordingly. Appeal is allowed to the said extent CA @ SLP (C) NO.2854 of 2008 OF 2008
21. Respondent No.1 in this case met with an accident while traveling in an Ambassador Car which collided with a bus. He sustained injuries. He was a practicing advocate. Whereas his income was determined at Rs.5,000/- per month. For the purpose of awarding compensation as he had been out of practice for 39 months, the High Court determined it at Rs.10,000/- per month. It is on that basis multiplier of 5 had been applied.
On what basis, the High Court came to the said conclusion has not been disclosed. No reason has been assigned in support thereof.
24 Furthermore, if the principle laid down in the Second Schedule was to be applied, the loss of income could not have exceeded 52 weeks.
He had suffered 50% disability. The amount of compensation, therefore, should have been calculated by applying the multiplier of 5.
We, therefore, are of the opinion that the matter should go back to the Tribunal for determination of the matter afresh. The judgment of the High Court is set aside.
The matter, therefore, is remitted back to the Tribunal for deciding the matter afresh.
22. The second question which arises for consideration is with regard to the payment of interest. There cannot be any doubt whatsoever that interest would be from the date of default and not from the date of award of compensation.
Section 4A(3) of the 1923 Act reads as under :
"4A. Compensation to be paid when due and penalty for default.--(1) and (2) ...
(3) Where any employer is in default in paying the compensation due under this Act within one 25 month from the date it fell due, the Commissioner shall-- (a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette, on the amount due;
and (b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears, and interest thereon pay a further sum not exceeding fifty per cent of such amount by way of penalty:
Provided that an order for the payment of penalty shall not be passed under clause (b) without giving a reasonable opportunity to the employer to show cause why it should not be passed.
Explanation.--For the purposes of this sub-section, "scheduled bank" means a bank for the time being included in the Second Schedule to the Reserve Bank of India Act, 1934 (2 of 1934)."
23. The said provision, as it appears from a plain reading, is penal in nature. It, however, does not take into consideration the chargeability of interest on various other grounds including the amount which the claimant would have earned if the amount of compensation would have been determined as on the date of filing of the claim petition. Workmen 26 Compensation Act does not prohibit grant of interest at a reasonable rate from the date of filing of the claim petition till an order is passed. Only when sub-section (3) of Section 4A would be attracted, a higher rate of interest would be payable wherefor a finding of fact as envisaged therein has to be arrived at. Only because in a given case, penalty may not be held to be leviable, by itself may not be a ground not to award reasonable interest.
Reliance has been placed on Mubasir Ahmed (surpa), wherein it was held :
"8. Interest is payable under Section 4-A(3) if there is default in paying the compensation due under this Act within one month from the date it fell due. The question of liability under Section 4A was dealt with by this Court in Maghar Singh v.
Jashwant Singh [(998) 9 SCC 134]. By Amending Act, 14 of 1995, Section 4A of the Act was amended, inter alia, fixing the minimum rate of interest to be simple interest @ 12%. In the instant case, the accident took place after the amendment and, therefore, the rate of 12% as fixed by the High Court cannot be faulted. But the period as fixed by it is wrong. The starting point is on completion of one month from the date on which it fell due. Obviously it cannot be the date of accident. Since no indication is there as when it becomes due, it has to be taken to be the date of adjudication of the claim. This appears to be so because Section 4A(1) prescribes that 27 compensation under Section 4 shall be paid as soon as it falls due. The compensation becomes due on the basis of adjudication of the claim made.
The adjudication under Section 4 in some cases involves the assessment of loss of earning capacity by a qualified medical practitioner. Unless adjudication is done, question of compensation becoming due does not arise. The position becomes clearer on a reading of Sub-section (2) of Section 4A. It provides that provisional payment to the extent of admitted liability has to be made when employer does not accept the liability for compensation to the extent claimed. The crucial expression is "falls due". Significantly, legislature has not used the expression "from the date of accident". Unless there is an adjudication, the question of an amount falling due does not arise."
As threin this aspect of the matter has not been considered, we are of the opinion that interest will also payable at the rate of 7= % per annum from the date of filing of the application till the date of award. The rate of interest thereafter shall be payable in terms of the order passed by the Commissioner.
24. However, in the cases determined under the Motor Vehicles Act, interest stipulated therein shall become payable.
25. The third question which had been raised is as to whether any amount could be directed to be paid in excess of the amount claimed. We have 28 noticed hereinbefore that the Act is a beneficent legislation. It imposes a statutory duty upon the Commissioner and/or the Tribunal.
Reliance has been placed in this behalf on a decision of this Court in Shyama Devi v. Union of India & Anr. [(2005) 12 SCC 217], wherein it was held :
"6. So far as quantum of compensation is concerned, the Presiding Officer has recorded a finding that the deceased was earning Rs 1600 and was aged 56 years at the time of his death. On the basis of his last wages and age, according to Schedule IV of the Workmen's Compensation Act, 1923, a total sum of Rs 1,05,560 was payable as compensation on the death of the deceased but since the claim was made for Rs 84,448, we will restrict the award for the aforesaid sum as has been claimed in the claim petition. Apart from the above quantum of compensation, the appellant would be entitled to statutory interest payable on this sum. The appeal is accordingly allowed. The appellant is awarded compensation in the sum of Rs 84,448 with statutory interest under Section 4-A(3) of the Workmen's Compensation Act. The amount shall be paid by the Railways within a period of eight weeks."
26. No principle of law has been laid down therein. No reason has been assigned in support of the said conclusion. The said decision, therefore, must be held to have been rendered in the facts and circumstance of the case 29 and not as a law laid down in terms of Article 141 of the Constitution of India.
27. The function of Commissioner is to determine the amount of compensation as laid down under the Act. Even if no amount is claimed, the Commissioner must determine the amount which is found payable to the workman. Even in the cases arising out of the 1988 Act, it is the duty of the Tribunal to arrive at a just compensation having regard to the provisions contained in Section 168 thereof.
In Nagappa v. Gurudayal Singh & Ors. [(2003) 2 SCC 274], it is held:
"20. Similarly, the High Court of Punjab and Haryana in Devki Nandan Bangur and Ors. v.
State of Haryana and Ors. [1995 ACJ 1288] observed that the grant of just and fair compensation is statutory responsibility of the Court and if, on the facts, the Court finds that the claimant is entitled to higher compensation, the Court should allow the claimant to amend his prayer and allow proper compensation.
21. For the reasons discussed above, in our view, under the M.V. Act, there is no restriction that Tribunal/Court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/Court is to award 'Just' compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time 30 barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under Sub-section (4) to Section 166, even report submitted to the Claims Tribunal under Sub- section (6) of Section 158 can be treated as an application for compensation under the M.V. Act.
If required, in appropriate cases, Court may permit amendment to the Claim Petition."
In Syed Basheer Ahmed & Ors. v. Mohd. Jameel & Anr. [(2009) 2 SCC 225], this Court held :
"9. Section 168 of the Act enjoins the Tribunal to make an award determining "the amount of compensation which appears to be just." However, the objective factors, which may constitute the basis of compensation appearing as just, have not been indicated in the Act. Thus, the expression "which appears to the just" vests a wide discretion in the Tribunal in the matter of determination of compensation. Nevertheless, the wide amplitude of such power does not empower the Tribunal to determine the compensation arbitrarily, or to ignore settled principles relating to determination of compensation."
In National Insurance Co. Ltd. v. Laxmi Narain Dhut [(2007) 3 SCC 700], this Court held :
"24. In the background of the statutory provisions, one thing is crystal clear i.e. the statute is beneficial one qua the third party. But that benefit 31 cannot be extended to the owner of the offending vehicle. The logic of fake licence has to be considered differently in respect of the third party and in respect of own damage claims."
In Punjab State Electricity Board Ltd. v. Zora Singh and Others [(2005) 6 SCC 776], this Court held:
"22. The administrative circulars as thence existed as also the regulations indisputably require supply of electrical energy to the agriculturists within a period of two months from the date of receipt of the amount asked for in terms of the demand notice. It may be true that the note appended thereto provides that the period specified therein shall be subject to availability of requisite material but the same does not absolve the appellant from performing its statutory duties.
23. In A.P. SRTC v. STAT a Full Bench of the Andhra Pradesh High Court has noticed thus: (An LT p.544, para 31) "31[24]. The meaning of `note' as per P.
Ramanatha Aiyar's Law Lexicon, 1997 Edn. is `a brief statement of particulars of some fact', a passage or explanation."
24. The note, therefore, was merely explanatory in nature and thereby the rigour of the main provision was not diluted."
{[See also State of Haryana & Ors. v. Shakuntla Devi [2008 (13) SCALE 621]}.
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28. For the reasons aforementioned, the Commissioner/Tribunal should determine the amount of compensation in the respective cases in the light of the observations made herein.
29. The appeals are accordingly disposed of. In the facts and circumstances of the case, there shall be no order as to costs.
.....................................J.
[S.B. Sinha] .....................................J.
[Dr. Mukundakam Sharma] New Delhi;