Mohammed Siddique vs National Insurance Company Ltd on 8 January, 2020


Supreme Court of India

Mohammed Siddique vs National Insurance Company Ltd on 8 January, 2020

Author: V. Ramasubramanian

Bench: N.V. Ramana, V. Ramasubramanian

                                                                                     REPORTABLE


                                   IN THE SUPREME COURT OF INDIA
                                    CIVIL APPELLATE JURISDICTION

                                          CIVIL APPEAL No.79 OF 2020
                              (arising out of Special Leave Petition (C) No.9618 of 2018)


         MOHAMMED SIDDIQUE & ANR.                                                     … APPELLANTS


                                                         Versus

         NATIONAL INSURANCE COMPANY LTD. & ORS.                                       … RESPONDENTS


                                             JUDGMENT

V. Ramasubramanian, J.

1. Leave granted.

2. Aggrieved by the order of the High Court reducing the

compensation awarded by the Motor Accident Claims Tribunal from

the sum of Rs.11,66,800/­ to Rs.4,14,000/­, the parents of the

deceased­accident victim have come up with the above appeal.

3.
Signature Not Verified
We have heard the learned counsel for the appellants and the
Digitally signed by
SATISH KUMAR YADAV
Date: 2020.01.13
17:12:52 IST

learned counsel for the Insurance Company.

Reason:

4. Admittedly, the son of the appellants who was aged about 23

years, died on 7.09.2008 as a result of the injuries sustained in a road

traffic accident that took place on 5.09.2008. It appears that the

victim was one of the 2 pillion riders on a motor cycle and he was

thrown off the vehicle when a car hit the motor cycle from behind.

The Motor Accident Claims Tribunal found that the accident was

caused due to the rash and negligent driving of the car. This finding

was confirmed by the High Court, though with a rider that the victim

was also guilty of contributory negligence, in as much as there were 3

persons on the motor cycle at the time of the accident, requiring a

reduction of 10% of the compensation awarded.

5. On the question of quantum of compensation, the appellants

claimed that their son was aged 23 years at the time of the accident

and that he was employed in a proprietary concern on a monthly

salary of Rs.9600/­. The employer was examined as PW­2 and the

certificate issued by him was marked as Ex.P­1/8. Finding no reason

to disbelieve the testimony of PW­2, the Tribunal applied a multiplier

of 18 and arrived at a sum of Rs.10,36,800/­ towards loss of

dependency, after deducting 50% of the salary towards personal

expenses, as the deceased victim was a bachelor. In addition, the

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Tribunal also allowed a sum of Rs.1,00,000/­ for loss of love and

affection; Rs.20,000/­ for the performance of last rites and

Rs.10,000/­ towards loss of Estate. Accordingly, the Tribunal arrived

at an amount of Rs.11,66,800/­ as the total compensation payable.

6. As against the said award, the Insurance Company filed a

statutory appeal under Section 173 of the Motor Vehicles Act, 1988.

The appeal was primarily on two grounds namely (i) that the deceased

was guilty of contributory negligence inasmuch as he was riding on

the pillion of the motor cycle with two other persons and (ii) that the

employment and income of the deceased were not satisfactorily

established.

7. On the first ground, the High Court held that though the motor

cycle in which the deceased victim was riding was hit by the speeding

car from behind, the deceased was also guilty of contributory

negligence, as he was riding a motor cycle with two other persons.

Therefore, the High Court came to the conclusion that an amount

equivalent to 10% has to be deducted towards contributory

negligence.

8. On the second issue, the High Court held that the employer did

not produce any records to substantiate the quantum of salary paid to
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the deceased and that therefore the income of the deceased may have

to be assessed only on the basis of minimum wages, payable to

unskilled workers at the relevant point of time. Accordingly the High

Court fixed the income of the deceased at the time of the accident as

Rs.3683/­ per month, which was the minimum wages for unskilled

workers at that time.

9. Insofar as the issue of multiplier is concerned, the High Court

applied the multiplier of 14 instead of the multiplier of 18, on the

basis of the ratio laid down by this Court in UPSRTC Vs. Trilok

Chandra1, to the effect that the choice of the multiplier should go by

the age of the deceased or that of the claimants, whichever is higher.

As a result, the High Court took Rs.3,683/­ as the monthly income,

allowed a deduction of 50% on the same towards personal expenses,

applied a multiplier of 14 and arrived at an amount of Rs.3,10,000/­.

The award of Rs.1,00,000/­ towards loss of love and affection granted

by the Tribunal was confirmed by the High Court but the amount of

Rs.10,000/­ each awarded towards funeral expenses and loss of

Estate were enhanced to Rs.25,000/­ each.

1 (1996) 4 SCC 362
4

10. Thus, the High Court arrived at a total amount of Rs.4,60,000/­

(Rs.3,10,000/­ towards loss of dependency; Rs.1,00,000/­ towards

loss of love and affection; Rs.25000/­ towards funeral expenses and

Rs.25,000/­ towards loss of Estate). Out of the said amount, the High

Court deducted 10% towards contributory negligence and fixed the

compensation payable at Rs.4,14,000/­ (Rs.4,60,000/­ minus

Rs.46,000/­). Aggrieved by this drastic reduction in the quantum of

compensation, the claimants are before us.

11. As could be seen from the above narration, the High Court

interfered with the award of the Tribunal, on 3 counts, namely (i)

contributory negligence; (ii) monthly income of the deceased and (iii)

the multiplier to be applied. Therefore, let us see whether the High

Court was right in respect of each of these counts.

12. It is seen from the material on record that the accident occurred

at about 2:00 a.m. on 5.09.2008. Therefore, there was no possibility

of heavy traffic on the road. The finding of fact by the Tribunal, as

confirmed by the High Court, was that the motor cycle in which the

deceased was travelling, was hit by the car from behind and that

therefore it was clear that the accident was caused by the rash and

negligent driving of the car. In fact, the High Court confirms in

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paragraph 4 of the impugned order that the motor cycle was hit by the

car from behind. But it nevertheless holds that 3 persons on a motor

cycle could have added to the imbalance. The relevant portion of

paragraph 4 of the order of the High Court reads as follows:

“On careful assessment of the evidence led, this Court
finds substance in the plea of the insurance company.
While it is correct that the offending car had no
business to strike from behind against the motor­cycle
moving ahead of it, even if the motor cycle was
changing lane to allow another vehicle to overtake, the
fact that a motor vehicle meant for only two persons to
ride was carrying, besides the driver, two persons on
the pillion would undoubtedly have added to the
imbalance.”

13. But the above reason, in our view, is flawed. The fact that the

deceased was riding on a motor cycle along with the driver and

another, may not, by itself, without anything more, make him

guilty of contributory negligence. At the most it would make him

guilty of being a party to the violation of the law. Section 128 of the

Motor Vehicles Act, 1988, imposes a restriction on the driver of a two­

wheeled motor cycle, not to carry more than one person on the motor

cycle. Section 194­C inserted by the Amendment Act 32 of 2019,

prescribes a penalty for violation of safety measures for motor cycle

drivers and pillion riders. Therefore, the fact that a person was a

pillion rider on a motor cycle along with the driver and one more
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person on the pillion, may be a violation of the law. But such violation

by itself, without anything more, cannot lead to a finding of

contributory negligence, unless it is established that his very act of

riding along with two others, contributed either to the accident or to

the impact of the accident upon the victim. There must either be a

causal connection between the violation and the accident or a

causal connection between the violation and the impact of the

accident upon the victim. It may so happen at times, that the

accident could have been averted or the injuries sustained could have

been of a lesser degree, if there had been no violation of the law by the

victim. What could otherwise have resulted in a simple injury, might

have resulted in a grievous injury or even death due to the violation of

the law by the victim. It is in such cases, where, but for the

violation of the law, either the accident could have been averted

or the impact could have been minimized, that the principle of

contributory negligence could be invoked. It is not the case of the

insurer that the accident itself occurred as a result of three persons

riding on a motor cycle. It is not even the case of the insurer that the

accident would have been averted, if three persons were not riding on

the motor cycle. The fact that the motor cycle was hit by the car from

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behind, is admitted. Interestingly, the finding recorded by the Tribunal

that the deceased was wearing a helmet and that the deceased was

knocked down after the car hit the motor cycle from behind, are all

not assailed. Therefore, the finding of the High Court that 2 persons

on the pillion of the motor cycle, could have added to the imbalance, is

nothing but presumptuous and is not based either upon pleading or

upon the evidence on record. Nothing was extracted from PW­3 to the

effect that 2 persons on the pillion added to the imbalance.

14. Therefore, in the absence of any evidence to show that the

wrongful act on the part of the deceased victim contributed either to

the accident or to the nature of the injuries sustained, the victim

could not have been held guilty of contributory negligence. Hence the

reduction of 10% towards contributory negligence, is clearly

unjustified and the same has to be set aside.

15. The second issue on which the High Court reversed the finding

of the tribunal, related to the employment of the deceased and the

monthly income earned by him. According to the claimants, the

deceased was aged 23 years at the time of the accident and he was not

even a matriculate. But he was stated to have been employed in a

proprietary concern named M/s Chandra Apparels on a monthly

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salary of Rs.9600/­. The sole proprietor of the concern was examined

as PW­2 and the salary certificate was marked as Ex.PW­1/8. The

Tribunal which had the benefit of recording the evidence and which

consequently had the benefit of observing the demeanour of the

witness, specifically recorded a finding that there was no reason to

discard the testimony of PW­2.

16. But unfortunately the High Court thought that the employer

should have produced salary vouchers and other records including

income tax returns, to substantiate the nature of the employment and

the monthly income. On the ground that in the absence of other

records, the salary certificate and the oral testimony of the employer

could not be accepted, the High Court proceeded to take the minimum

wages paid for the unskilled workers at the relevant point of time as

the benchmark.

17. But we do not think that the approach adopted by the High

court could be approved. To a specific question in cross­examination,

calling upon PW­2 to produce the salary vouchers, he seems to have

replied that his business establishment had been wound up and that

the records are not available. This cannot be a ground for the High

Court to hold that the testimony of PW­2 is unacceptable.

9

18. The High Court ought to have appreciated that the Court of first

instance was in a better position to appreciate the oral testimony. So

long as the oral testimony of PW­2 remained unshaken and hence

believed by the Court of first instance, the High Court ought not to

have rejected his evidence. After all, there was no allegation that PW­2

was set up for the purposes of this case. There were also no

contradictions in his testimony. As against the testimony of an

employer supported by a certificate issued by him, the High Court

ought not to have chosen a theoretical presumption relating to the

minimum wages fixed for unskilled employment. Therefore, the

interference made by the High Court with the findings of the Tribunal

with regard to the monthly income of the deceased, was uncalled for.

19. Coming to the last issue relating to the multiplier, the Tribunal

applied the multiplier of 18, on the basis of the age of the deceased at

the time of the accident. But the High Court applied a multiplier of 14

on the ground that the choice of the multiplier should depend either

upon the age of the victim or upon the age of the claimants, whichever

is higher. According to the High court, this was the ratio laid down in

General Manager, Kerala SRTC Vs Susamma Thomas2 , and that

2 (1994) 2 SCC 176,
10
the same was also approved by a three Member Bench of this Court in

UPSRTC Vs. Trilok Chandra (supra).

20. The High Court also noted that the choice of the multiplier with

reference to the age of the deceased alone, approved in Sarla Verma

& Ors. Vs. Delhi Transport Corporation & Anr. 3, was found

acceptance in two subsequent decisions namely (1) Reshmi Kumari

& Ors. Vs. Madan Mohan & Anr.4 and (2) Munna Lal Jain Vs.

Vipin Kumar Sharma5. But the High court thought that the

decisions in Susamma Thomas and Trilok Chandra were directly on

the point in relation to the choice of the multiplier and that the issue

as envisaged in those 2 decisions was neither raised nor considered

nor adjudicated upon in Sarla Verma. According to the High court, the

impact of the age of the claimants, in cases where it is found to be

higher than that of the deceased, did not come up for consideration in

Reshma Kumari and Munnal Lal Jain. Therefore, the High court

thought that it was obliged to follow the ratio laid down in Trilok

Chandra.

3 (2009) 6 SCC 121
4 (2013) 9 SCC 65
5 JT 2015 (5) SC 1
11

21. But unfortunately the High Court failed to note that the decision

in Susamma Thomas was delivered on 06­01­1993, before the

insertion of the Second Schedule under Act 54 of 1994. Moreover

what the Court was concerned in Susamma Thomas was whether the

multiplier method involving the ascertainment of the loss of

dependency propounded in Davies v. Powell (1942) AC 601 or the

alternative method evolved in Nance v. British Columbia Electric

Supply Co. ltd (1951) AC 601 should be followed.

22. Trilok Chandra merely affirmed the principle laid down in

Susamma Thomas that the multiplier method is the sound method of

assessing compensation and that there should be no departure from

the multiplier method on the basis of section 110B of the 1939 Act.

Trilok Chandra also noted that the Act stood amended in 1994 with

the introduction of section 163A and the second schedule. Though it

was indicated in Trilok Chandra (in the penultimate paragraph) that

the selection of the multiplier cannot in all cases be solely dependent

on the age of the deceased, the question of choice between the age of

the deceased and the age of the claimant was not the issue that arose

directly for consideration in that case.

12

23. But Sarla Verma, though of a two member Bench, took note of

Susamma as well as Trilok Chandra and thereafter held in paragraphs

41 and 42 as follows:

“41. Tribunals/ courts adopt and apply different
operative multipliers. Some follow the multiplier with
reference to Susamma Thomas [set out in Column (2) of
the table above]; some follow the multiplier with
reference to Trilok Chandra, [set out in Column (3) of the
above]; some follow the multiplier with reference to
Charlie [set out in Column (4) of the table above]; many
follow the multiplier given in the second column of the
table in the Second Schedule of the MV Act [extracted in
column (5) of the table above]; and some follow the
multiplier actually adopted in the Second schedule
while calculating the quantum of compensation [set out
in column (6) of the table above]. For example, if the
deceased is aged 38 years, the multiplier would be 12
as per Susamma Thomas, 14 as per Trilok Chandra, 15
as per Charlie, or 16 as per the multiplier given in
Column (2) of the Second schedule to the MV Act or 15
as per the multiplier actually adopted in the second
schedule to the MV Act. some Tribunals as in this case,
apply the multiplier of 22 by taking the balance years of
service with reference to the retiring age. It is necessary
to avoid this kind of inconsistency. We are concerned
with cases falling under section 166 and not under
section 163A of the MV Act. in cases falling under
section 166 of the MV Act Davies methods is applicable.

42. We therefore hold that the multiplier to be used
should be as mentioned in Column (4) of the Table
above (prepared by applying Susamma Thomas, Trilok
Chandra and Charlie), which starts with an operative
multiplier of 18 (for the age groups of 15 to 20 and 21 to
25 years), reduced by one unit for every 5 years, that is
M­17 for 26 to 30 years, M­16 to 31 to 35 years, M­15
for 36 to 40 years, M­14 for 41 to 45 years and M­13 for
46 to 50 years, then reduced by 2 units for every 5

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years, i.e., M­11 for 51 to 55 years, M­9 for 56 to 60
years, M­7 for 61 to 65 years, M­5 for 66 to 70 years.”

24. What was ultimately recommended in Sarla Verma, as seen

from para 40 of the judgment, was a multiplier, arrived at by

juxtaposing Susamma Thomas, Trilok Chandra and Charlie6 with the

multiplier mentioned in the Second Schedule.

25. However when Reshma Kumari v. Madan Mohan came up for

hearing before a two member Bench, the Bench thought that the

question whether the multiplier specified in the second schedule

should be taken to be a guide for calculation of the amount of

compensation in a case falling under section 166, needed to be

decided by a larger bench, especially in the light of the defects pointed

out in Trilok Chandra in the Second Schedule. The three member

Bench extensively considered Trilok Chandra and the subsequent

decisions and approved the Table provided in Sarla Verma. It was held

in para 37 of the report in Reshma Kumari that the wide variations in

the selection of multiplier in fatal accident cases can be avoided if

Sarla Verma is followed.

6 (2005) 10 SCC 720
14

26. In Munna Lal Jain, which is also by a bench of three Hon’ble

judges, the Court observed in para 11 as follows:

“ Whether the multiplier should depend on the age
of the dependents or that of the deceased has
been hanging fire for sometime: but that has been
given a quietus by another three judge bench in
Reshma Kumari. It was held that the multiplier is to
be used with reference to the age of the deceased. One
reason appears to be that there is certainty with regard
to the age of the deceased, but as far as that of
dependents is concerned, there will always be room for
dispute as to whether the age of the eldest or youngest
or even the average etc is to be taken.”

27. In the light of the above observations, there was no room for any

confusion and the High Court appears to have imagined a conflict

between Trilok Chandra on the one hand and the subsequent

decisions on the other hand.

28. It may be true that an accident victim may leave a 90 year old

mother as the only dependent. It is in such cases that one may

possibly attempt to resurrect the principle raised in Trilok Chandra.

But as on date, Munna Lal Jain, which is of a larger Bench, binds us

especially in a case of this nature.

29. Thus, we find that the High Court committed a serious error

(i) in holding the victim guilty of contributory negligence (ii) in rejecting

15
the evidence of PW­2 with regard to the employment and monthly

income of the deceased and (ii) in applying the multiplier of 14 instead

of 18. Therefore, the appeal is allowed and the impugned order of the

High Court is set aside. The award of the Tribunal shall stand

restored. There shall be no order as to costs.

…..…………………………..J
(N.V. Ramana)

.…..………………………….J
(V. Ramasubramanian)

New Delhi
January 08, 2020.

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