Lata Wadhwa
& Ors Vs. State of Bihar & Ors [2001] Insc 394 (16 August 2001)
G.B.
Pattanaik, U.C. Banerjee & S.N. Variava Pattanaik,J.
This
writ petition was filed by the three petitioners, invoking the jurisdiction of
this Court under Articles 21 and 32 of the Constitution of India for issuance
of a writ of mandamus or any other writ or directions, ordering prosecution of
the officers of the Tata Iron and Steel Company and their agents and servants,
for the alleged negligence in organising the function, held on 3rd of March,
1989 in Jamshedpur and direct that appropriate compensation be provided to the
victims by the State Government as well as the Company. It was also prayed that
a writ or direction be issued to the State Government to provide security and
safety of the families, as it is apprehended that the company may use its
influence to harass the petitioners and their relations, who happen to be the
victims of the circumstances.
The
petitioners had also prayed for a direction that legal assistance be given to
the victims of the circumstances to pursue the cases before the criminal and
civil courts. It has been alleged in the writ petition that while 150th Birth
Anniversary of Sir Jamshedji Tata, was being celebrated on 3rd of March, 1989
within the factory premises and a large number of employees, their families
including small children had been invited, but the organisers had not taken
adequate safety measures and on the other hand, several provisions of the
Factories Rules and Factories Act had been grossly violated. A devastating fire
engulfed the VIP Pandal and area surrounding and by the time the fire was
extinguished, a number of persons lay dead and many were suffering with burn
injuries. Some of the injured also died on the way to the hospital or while
being treated at the hospital. The death toll reached 60 and the total number
of persons injured were 113.
Amongst
the persons dead, there are 26 children, 25 women and 9 men. It was also stated
that out of the 60 persons, who died, 55 were either employees or relations of
employees of the Tata Iron and Steel Company and similarly, out of 113 persons
injured, 91 were either employees or their relations.
Smt. Lata
Wadhwa, the petitioner No. 1, lost her both the children, a boy and a girl and
her parents. Her husband was an employee of the company. It was alleged in the
writ petition that the State of Bihar had been colluding with the company and
there has been total inaction on the part of the State in taking appropriate
action against the negligent officers for whose negligence, the tragedy
occurred. The State in its counter affidavit, however denied the allegations
made and further averred that inquiries had been conducted by a Committee
constituted by the Government of Bihar, Department of Labour, Employment and
Training and report was submitted to the company, indicating the negligence of
the personnel and on that basis, criminal prosecution had been launched. The
company also filed counter affidavit, denying the charge of negligence and lack
of care and sympathy for the injured as well as for the kith and kin of the
deceased. The company in its counter affidavit further indicated the steps
taken by several employees and how the doctors in the hospital worked round the
clock. It was also averred that costly medicines from all over the world were
brought for prompt and appropriate treatment. It is the positive case of the
company that it is because of the steps taken by it, none of the relatives of
the deceased approached any Court or authority for any compensation or damages,
except the present petitioners, who were in fact acting on their own. In course
of hearing of this petition and pursuant to the interim orders passed by this
Court, the company furnished the particulars of the persons injured as well as
the particulars of the persons, who died. When the writ petition came up for
disposal, Mr. F.S.Nariman, the learned senior counsel appearing for the company
stated to the Court that notwithstanding several objections, which have been
raised in the counter affidavit, the company does not wish to treat the
litigation as an adversarial one, and on the other hand, the matter is left to
the Court for determining what monetary compensation should be paid, according
to law, after taking into consideration all the benefits and facilities already
extended and continuing as summarised in the affidavit dated 3rd of February,
1993. This Court on 15th of December, 1993, came to the conclusion that the
question of grant of compensation should be looked into by a person, having
expertise and ultimately requested Shri Y.V. Chandrachud, former Chief Justice
of India to look into the matter and determine the compensation, payable to the
legal heirs of the deceased as well as compensation payable to the injured
persons. It was also indicated on the basis of an agreement between the parties
that in determining the compensation, principles indicated by the Andhra
Pradesh High Court in its decisions in Chairman, A.P.S.R.T.C. vs. Safiya Khatoon
[1985 Accident Claims Journal (A.C.J.)212], Bhagwan Das vs. Mohd. Arif [1987
A.C.J.1052], and A.P.S.R.T.C. vs. G. Ramanaiya (1988 A.C.J.223) should be borne
in mind. The Court also further observed that while determining compensation,
the benefits and advantages conferred on the injured persons or upon the legal
heirs of the deceased persons by the company, need not be taken into account
and that factor would be taken into consideration, while passing the final
orders. The Court, also by the aforesaid order dated 15th December, 1993, stayed the criminal proceedings,
pending in the Court of Sub-Divisional Magistrate, Jamshedpur as well as the Criminal Revisional
Application, pending before the Ranchi Bench of the Patna High Court. It was
directed further, that the matter should be placed for orders, after receipt of
the report from Shri Y.V. Chandrachud.
Shri
Y. V. Chandrachud, had been intimating from time to time to this Court as to
why it has not been possible to conclude the proceedings before him and when
the matter was listed before the Court on 28th September, 2000, it transpired that the proceedings
are moving with a snails pace. The Court, therefore, requested Shri Chandrachud,
to conclude the proceedings and intimate the Court by 2nd week of November, as
to the results of the same. Shri Y.V. Chandrachud, thereafter, took expeditious
and effective steps and passed an order, granting compensation to the tune of
Rs.1,19,58,320/- in favour of the dependants of the deceased persons and Rs.
288 lakh as interim compensation in the injured cases. Finally, Shri Chandrachud
had also submitted his report, quantifying the compensation payable in the
injury cases too.
On
behalf of the petitioners, an objection has been filed to the aforesaid report
of Shri Y. V. Chandrachud and on behalf of the respondent-company, an affidavit
in opposition to the said objection has been filed. The matter was ultimately
heard at length and Ms. Rani Jethmalani argued on behalf of the writ
petitioners and Mr. F.S. Nariman, the learned senior counsel, argued on behalf
of the company.
The
Report consists of two parts, Part I dealing with cases of death and Part II
dealing with cases of burn injury.
In
view of the indications in the order of this Court, referring the matter to Shri
Chandrachud that in deciding the quantum of compensation, the principles
evolved in Safia Khatoons case as well as two other cases of Andhra Pradesh
High Court, in the Report, the principles evolved in the aforesaid Judgments
have been analysed at the first instance. It has been held that the multiplier
method having been consistently applied by the Supreme Court to decide the
question of compensation in the cases arising out of Motor Vehicles Act, the
said multiplier method has been adopted in the present case. In the report,
even the view of British Law Commission has been extracted, which indicates:
the multiplier has been, remains and should continue to remain, the ordinary,
the best and only method of assessing the value of a number of future annual
sums. It has also been stated in the aforesaid report that though Lord Denning
advocated the use of the annuity tables and the actuarys assistance in Hodges
vs. Harland & Wolff Limited (1965) 1 ALL ER 1086, but the British Law
Commission accepted the use and relevancy of the annuity tables in its Working
Paper No. 27 by observing : The actuarial method of calculation, whether from
expert evidence or from tables, continues to be technically relevant and
technically admissible but its usefulness is confined, except perhaps in very
unusual cases, to an ancillary means of checking a computation already made by
the multiplier method. Even Kemp & Kemp on Quantum of Damages after
comparing the multipliers chosen by judges from their experience found a close
proximity between the said multiplier method and those arrived at from the
annuity tables in the American Restatement of the Law of Torts. After a
thorough analysis of the different methods of computation of the compensation
to be paid to the dependants of the deceased and what are the different methods
of computing loss of future earnings, Shri Chandrachud has come to the
conclusion that the multiplier method is of universal application and is being
accepted and adopted in India by Courts, including the Supreme Court and as
such, it would be meet and proper to apply the said method for determining the
quantum of compensation. The counsel, appearing for the claimants as well as
the company also agreed before Shri Chandrachud that the decision should be
based on the principles enunciated in the three judgments mentioned in the
order of the Supreme Court as well as the cases relied upon in those judgments.
Amongst the deceased, there were many housewives and they have been classified
in two categories, one those, whose husbands were employees of the company and
as such whose income is known, and others who were outsiders, whose husbands
income is not known at all. The deceased housewives have been grouped into
four, on the basis of their age and different multiplier has been applied on
the basis of their age. Shri Chandrachud also has considered the income of the
husbands of those housewives, who are employees of the company and then on that
basis, has tried to determine the loss on the death of the wife and after
applying the multiplier and determining the total amount of compensation, an
addition of Rs.25,000/- has been made as a conventional figure and the total
amount of compensation has been arrived at. So far as the employees of the Tata
Iron and Steel Company are concerned, who died in the tragedy, their annual
income has been arrived at and thereafter 60% of the income has been held to be
dependency and then, a multiplier has been applied and on finding out the total
amount of compensation, a conventional amount of Rs.25,000/- has been added. So
far as the children are concerned, in the absence of any material, a uniform
amount has been fixed at Rs.50,000/- to which again, a conventional figure of
Rs.25,000/- has been added for determining the total amount of compensation
payable. So far as the children above 10 years of age are concerned, the
contribution of those children to their parents have been assessed at
Rs.12,000/- per year, taking all imponderables into account and multiplier of
11 has been applied and the conventional amount of Rs.25,000/- has been added.
Two of the children in the said age group, whose father did not claim any
compensation as they were negotiating with the employer, for getting a piece of
land and as such no compensation has been determined in their case. In the case
of death of known employees of the company, the annual income has been arrived
at, and then taking into account the age of the deceased and finding the
dependency at 60% of the annual income and then by application of different
multipliers, the compensation has been arrived at. As stated earlier, a
conventional compensation of Rs.25,000/- has been added in each case. While
determining the compensation, the benefits already granted to the dependants of
the deceased as well as to the injured persons or their relatives have not been
taken into account in view of the specific orders of this Court dated 15th of
December, 1993, though it would be a relevant consideration for us, while
disposing of the matter finally.
No
interest however has been granted, as the question of interest has been left
for consideration of this Court. So far as the costs of the proceedings are
concerned, this Court had directed the Tata Iron & Steel Company to bear
the entire cost of the proceedings.
In
case of persons injured with burn injury, it had been contended before Shri Chandrachud,
on behalf of claimants that the organisers committed serious act of negligence
in choosing the place for celebration in a sensitive area of the company where
around the pandal, hazardous installations were there with hot and molten
substances at temperatures ranging from 1200 to 1800 degrees and further
notwithstanding the promulgation of an order under Section 144 of the Code of
Criminal Procedure by the Local Administration on 3rd of March, 1989, the
company had organised the celebrations in defiance of the same. It was also
contended that the company ignored all standards of normal safety measures and
such negligence ultimately lead to the trapping of several persons, getting
burn injury. According to the claimants counsel, permitting the bursting of
fire crackers in the hazardous area per se is a gross act of negligence and for
such disaster, when the fire fighting equipments could not be readily
available, the company must bear the consequences and is liable to pay adequate
compensation to the injured persons, taking into account the very nature of
injuries sustained and the amount of pain and suffering these injured have
sustained and also the psychological stress these injured have sustained. It
had also been urged that on account of such burn injury, many persons have
suffered from social isolation and all of them suffered from constant physical
suffering and emotional turmoil and as such, all these factors should be borne
in mind, while determining the compensation. The learned counsel also urged
that due care should be taken to provide sufficient amount to bear the
expenditure of future course of treatment, so that the injured persons could at
least be able to maintain themselves. Shri Chandrachud in his report in
paragraph
15.1
had indicated the difficulties which he had to face in assessing the quantum of
compensation on several heads, claimed by the claimants inasmuch as there was
not an iota of material/data in support of different heads of claims made by the
claimants. Even there was no pleading on the basis of which any adjudicating
authority could rely upon for granting special damages on different heads, as
claimed. Shri Chandrachud has indicated that though compensation have been
claimed for cosmetic surgery, for psychotherapeutic treatment and towards the
cost of massage of masseurs, but not even a scrap of paper is produced to
substantiate the claim. In the absence of any data and figures by the
claimants, Shri Chandrachud had referred to certain textual statements on burn
injuries and their treatment, contained in well known treaties, and ultimately
held that there is no hard and fast rule in cases of burn injuries that
cosmetic surgery or massage or air-conditioning is an absolute necessity in
every case and every case depends upon its own facts. There being no pleadings
in the statement of claim, regarding the nature of burn injury suffered, the
nature, duration and quality of treatment received by the burn victims, the
requirement of future treatment prescribed by any Doctor, the state or
condition of burn injuries when the Statement of Claim was filed, the
disability suffered by any burn victim, the expenditure if any, incurred by any
burn victim until the Statement of Claim was filed and the loss of earning
capacity in any individual case, it is not possible to grant such fanciful
claim, without any basis. Shri Chandrachud however, has hastened to add : I
might add that TISCO gave me a solemn assurance that, even as of today, if any
burn victim produces the advice of a Burn-Expert Doctor for further medical or
surgical treatment in India, TISCO is prepared to bear the expenses of the said
treatment. Having rejected the claim on the special heads on which claimants
had made and thereafter taking an overall view of the matter, depending upon
the extent of burn injury suffered, the compensation has been arrived at
ranging from Rs. 3 lakh to Rs. 10 lakh in case of girls and compensation to the
tune of Rs. 3 lakh and Rs. 5 lakh has been awarded in case of boys, in which
the claimants themselves have claimed. So far as the Non-pecuniary losses are
concerned, Shri Chandrachud has found the same to be reasonable and
accordingly, directed the payment of compensation on that score, ranging from
Rs.1.5 lakhs to Rs.5.00 lakhs for the 29 housewives, Rs.2.5 lakhs to Rs.6.00 lakhs
for 18 young girls, Rs.2.5 lakhs to Rs. 6.00 lakhs for 9 young boys and Rs.1.50
lakhs to Rs.5.00 lakhs for 16 other persons. It has been stated that the
interim compensation already awarded has to be adjusted as against the final
amount of compensation.
Mrs. Rani
Jethmalani, appearing for the claimants vehemently argued that the
determination of compensation by applying the multiplier itself is incorrect
and, therefore, the compensation amount determined cannot be sustained.
The
counsel also urged that the determination made is vitiated, as guiding
principles have not been considered.
Mrs. Jethmalani
further urged that the refusal to award punitive or exemplary compensation
itself is grossly erroneous, particularly, when the hazard took place, solely
on account of negligence on the part of the organisers and for such negligence,
the company must be held responsible.
According
to Mrs. Jethmalani, Shri Chandrachud has not followed the settled principles
for determination of compensation and committed serious error in not taking
into account the future prospects of earning.
According
to Mrs. Jethmalani, the compensation awarded for death of housewives is wholly
arbitrary and therefore, the determination should be set aside and the matter be
referred for a fresh determination. According to Mrs. Jethmalani, the entire
sufferings being the outcome of a celebration in a ultra-hazardous conditions,
adequate care ought to have been taken in determining the compensation, even in
the absence of any positive data on broad principles and as such, a fresh
determination is necessary.
Mr.
F.S. Nariman, the learned senior counsel, appearing for the company, on the
other hand contended that in a compendious Public Interest Litigation, filed by
three individuals on behalf of all those, who died and were injured in the
tragic incident, the company itself was of the view that whatever amount of
compensation is determined to be reasonable, the company will bear the same. It
is in fact, he who came forward to make the offer and when the name of Shri Chandrachud
was suggested, he had also agreed that the entire expenses could be borne by
the company. But according to Mr. Nariman, in the absence of any data and
figures for different heads of claim made by the claimants, the only option
that was left for determination was some broad principles and in arriving at
his ultimate conclusion, Shri Chandrachud has relied upon those broad
principles and consequently, no error can be said to have been committed in the
determination in question. According to Mr. Nariman, the principles evolved in Khatoons
case have been duly analysed and applied and the contention of Mrs. Jethmalani
that principles enunciated therein had not been followed, is not correct. Mr. Nariman,
on his own, agreed that the compensation amount determined for the children
could be doubled by this Court. Mr. Nariman, however seriously objected for the
matter being remitted for re-determination, essentially, on the ground that it
would be against the interest of the dependants of those who are dead as well
as the injured and urged that if this Court is of the opinion that compensation
awarded in respect of any of the claimants of the deceased persons or the
injured is inappropriate, then this Court may arrive at the same and it would
be a travesty of justice, if the matter would be prolonged by directing a
further inquiry into the matter for re-determination.
Mr. Nariman,
emphatically urged that there has been no error committed by Shri Chandrachud
in applying the broad principles and in fact, he had no other option in the
absence of any data, being furnished by the claimants and the compensation
awarded cannot be held to be arbitrary or meager, requiring any further interference
by this Court. He also suggested that the benefits already given by the company
itself could be taken into consideration, as was observed by the Court in its
order dated 15th of December, 1993.
So far
as the determination of compensation in death cases are concerned, apart from
the three decisions of Andhra Pradesh High Court, which had been mentioned in
the order of this Court dated 15th December, 1993, this Court in the case of
General Manager, Kerala State Road Transport Corporation, Trivandrum vs. Susamma
Thomas and Ors., 1994(2) S.C.C. 176, exhaustively dealt with the question. It
has been held in the aforesaid case that for assessment of damages to
compensate the dependants, it has to take into account many imponderables, as
to the life expectancy of the deceased and the dependants, the amount that the
deceased would have earned during the remainder of his life, the amount that he
would have contributed to the dependants during that period, the chances that
the deceased may not have lived or the dependants may not live up to the
estimated remaining period of their life expectancy, the chances that the
deceased might have got better employment or income or might have lost his
employment or income altogether. The Court further observed that the manner of
arriving at the damages is to ascertain the net income of the deceased
available for the support of himself and his dependants, and to deduct therefrom
such part of his income as the deceased was accustomed to spend upon himself,
as regards both self-maintenance and pleasure, and to ascertain what part of
his net income the deceased was accustomed to spend for the benefit of the
dependants, and thereafter it should be capitalised by multiplying it by a
figure representing the proper number of years purchase. It was also stated
that much of the calculation necessarily remains in the realm of hypothesis and
in that region arithmetic is a good servant but a bad master, since there are
so often many imponderables. In every case, it is the overall picture that matters,
and the court must try to assess as best as it can, the loss suffered. On the
acceptability of the multiplier method, the Court observed:
The
multiplier method is logically sound and legally well-established method of
ensuring a just compensation which will make for uniformity and certainty of
the awards. A departure from this method can only be justified in rare and
extraordinary circumstances and very exceptional cases.
The
Court also further observed that the proper method of computation is the
multiplier method and any departure, except in exceptional and extraordinary
cases, would introduce inconsistency of principle, lack of uniformity and an
element of unpredictability for the assessment of compensation. The Court
disapproved the contrary views taken by some of the High Courts and explained
away the earlier view of the Supreme Court on the point. After considering a
series of English decisions, it was held that the multiplier method involves
the ascertainment of the loss of dependency or the multiplicand having regard
to the circumstances of the case and capitalizing 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. In view of the aforesaid authoritative
pronouncement of this Court and having regard to the determination made in the
Report by Shri Justice Chandrachud, on the basis of the aforesaid multiplier
method, it is difficult for us to accept the contention of Mrs. Rani Jethmalani,
that the settled principle for determination of compensation, has not been
followed in the present case.
The
further submission of the learned counsel that the determination made is arbitrary,
is devoid of any substance, as Shri Justice Chandrachud has correctly applied
the multiplier, on consideration of all the relevant factors.
Damages
are awarded on the basis of financial loss and the financial loss is assessed
in the same way, as prospective loss of earnings. The basic figure, instead of
being the net earnings, is the net contribution to the support of the
defendants, which would have been derived from the future income of the
deceased. When the basic figure is fixed, then an estimate has to be made of
the probable length of time for which the earnings or contribution would have
continued and then a suitable multiple has to be determined (a number of years
purchase), which will reduce the total loss to its present value, taking into
account the proved risks of rise or fall in the income. In the case of Mallett
vs. McMonagle 1970(AC) 166, Lord Diplock gave a full analysis of the
uncertainties, which arise at various stages in the estimate and the practical
ways of dealing with them. In the case of Davies vs. Taylor (1974) AC 207, it
was held that the Court, in looking at future uncertain events, does not decide
whether on balance one thing is more likely to happen than another, but merely
puts a value on the chances. A possibility may be ignored if it is slight and
remote. Any method of calculation is subordinate to the necessity for
compensating the real loss. But a practical approach to the calculation of the
damages has been stated by Lord Wright, in a passage which is frequently
quoted, in Davies vs. Powell Duffryn Associated Collieries Ltd. [1942] All ER
657, to the following effect:- 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.
It is
not necessary for us to further delve into the matter, as in our opinion, Shri
Justice Chandrachud, has correctly arrived at the basic figure as well as in
applying the proper multiplier, so far as the employees of the TISCO are
concerned, but the addition of conventional figure to the tune of Rs.25,000/-
appears to us to be inadequate and instead, we think the conventional figure to
be added should be Rs.50,000/-.
So far
as the deceased housewives are concerned, in the absence of any data and as the
housewives were not earning any income, attempt has been made to determine the
compensation, on the basis of services rendered by them to the house. On the
basis of the age group of the housewives, appropriate multiplier has been
applied, but the estimation of the value of services rendered to the house by
the housewives, which has been arrived at Rs.12,000/- per annum in cases of
some and Rs.10,000/- for others, appears to us to be grossly low. It is true
that the claimants, who ought to have given datas for determination of
compensation, did not assist in any manner by providing the datas for
estimating the value of services rendered by such housewives. But even in the
absence of such datas and taking into consideration, the multifarious services
rendered by the housewives for managing the entire family, even on a modest
estimation, should be Rs.3000/- per month and Rs.36,000/- per annum. This would
apply to all those housewives between the age group of 34 to 59 and as such who
were active in life. The compensation awarded, therefore should be
re-calculated, taking the value of services rendered per annum to be
Rs.36,000/- and thereafter applying the multiplier, as has been applied
already, and so far as the conventional amount is concerned, the same should be
Rs.50,000/- instead of Rs.25,000/- given under the Report.
So far
as the elderly ladies are concerned, in the age group of 62 to 72, the value of
services rendered has been taken at Rs.10,000/- per annum and multiplier
applied is eight.
Though,
the multiplier applied is correct, but the values of services rendered at Rs.10,000/-
per annum, cannot be held to be just and, we, therefore, enhance the same to
Rs.20,000/- per annum. In their case, therefore, the total amount of
compensation should be re-determined, taking the value of services rendered at
Rs.20,000/- per annum and then after applying the multiplier, as already
applied and thereafter adding Rs.50,000/- towards the conventional figure.
So far
as the award of compensation in case of children are concerned, Shri Justice Chandrachud,
has divided them into two groups, first group between the age group of 5 to 10
years and the second group between the age group of 10 to 15 years. In case of
children between the age group of 5 to 10 years, a uniform sum of Rs.50,000/-
has been held to be payable by way of compensation, to which the conventional
figure of Rs.25,000/- has been added and as such to the heirs of the 14
children, a consolidated sum of Rs.75,000/- each, has been awarded. So far as
the children in the age group of 10 to 15 years, there are 10 such children,
who died on the fateful day and having found their contribution to the family
at Rs.12,000/- per annum, 11 multiplier has been applied, particularly, depending
upon the age of the father and then the conventional compensation of
Rs.25,000/- has been added to each case and consequently, the heirs of each of
the deceased above 10 years of age, have been granted compensation to the tune
of Rs.1,57,000/- each. In case of the death of an infant, there may have been
no actual pecuniary benefit derived by its parents during the child's life-
time. But this will not necessarily bar the parents claim and prospective loss
will found a valid claim provided that the parents establish that they had a
reasonable expectation of pecuniary benefit if the child had lived. This
principle was laid down by the House of Lords in the famous case of Taff thus:
........all
that is necessary is that a reasonable expectation of pecuniary benefit should
be entertained by the person who sues. It is quite true that the existence of
this expectation is an inference of fact there must be a basis of fact from
which the inference can reasonably be drawn; but I wish to express my emphatic
dissent from the proposition that it is necessary that two of the facts without
which the inference cannot be drawn are, first, that the deceased earned money
in the past, and, second, that he or she contributed to the support of the
plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only
pieces of evidence; and the necessary inference can I think be drawn from
circumstances other than and different from them.
At the
same time, it must be held that a mere speculative possibility of benefit is
not sufficient. Question whether there exists a reasonable expectation of
pecuniary advantage is always a mixed question of fact and law. There are
several decided cases on this point, providing the guidelines for determination
of compensation in such cases but we do not think it necessary for us to
advert, as the claimants had not adduced any materials on the reasonable
expectation of pecuniary benefits, which the parents expected. In case of a
bright and healthy boy, his performances in the school, it would be easier for
the authority to arrive at the compensation amount, which may be different from
another sickly, unhealthy, rickety child and bad student, but as has been
stated earlier, not an iota of material was produced before Shri Justice Chandrachud
to enable him to arrive at just compensation in such cases and, therefore, he
has determined the same on an approximation. Mr. Nariman, appearing for the
TISCO on his own, submitted that the compensation determined for the children
of all age groups could be doubled, as in his views also, the determination
made is grossly inadequate. Loss of a child to the parents is irrecoupable, and
no amount of money could compensate the parents. Having regard to the
environment from which these children were brought, their parents being
reasonably well placed officials of the Tata Iron and Steel Company, and on
considering the submission of Mr. Nariman, we would direct that the
compensation amount for the children between the age group of 5 to 10 years
should be three times. In other words, it should be Rs.1.5 lakhs, to which the
conventional figure of Rs.50,000/- should be added and thus the total amount in
each case would be Rs. 2.00 lakhs. So far as the children between the age group
of 10 to 15 years, they are all students of Class VI to Class X and are
children of employees of TISCO. The TISCO itself has a tradition that every
employee can get one of his child employed in the company. Having regard to
these facts, in their case, the contribution of Rs.12,000/- per annum appear to
us to be on the lower side and in our considered opinion, the contribution
should be Rs.24,000/- and instead of 11 multiplier, the appropriate multiplier
would be 15. Therefore, the compensation, so calculated on the aforesaid basis
should be worked out to Rs. 3.60 lakhs, to which an additional sum of
Rs.50,000/- has to be added, thus making the total amount payable at Rs.4.10 lakhs
for each of the claimants of the aforesaid deceased children.
So far
as the eight other persons, who died belonging to the other category, Shri
Justice Chandrachud had arrived at the compensation on the basis of dependency
at 60% of the annual income and thereafter has applied the different
multipliers, depending upon the age, and we see no infirmity with the determination
thus made. In their case, however, we would enhance the conventional figure
from Rs.25,000/- to Rs.50,000/-.
So far
as the compensation to the injured persons are concerned, before Shri Justice Chandrachud,
though on behalf of the claimants, compensation on several heads had been
claimed, but unfortunately, no materials had been placed, which could have been
placed. On the basis of meager datas available, the compensation has been
determined ranging from Rs.38 lakhs to Rs. 5 lakhs. In arriving at this figure,
the percentage of burn has been taken into account, daily expenses have been
taken into account, as indicated in Table-I, cost of medical treatment has been
taken into account, as indicated in Table-II, Expenses for Psychotherapy has
been taken into account, as indicated in Table-III, Effect on Marriage
prospects have been taken into account, as indicated in Table-IV, Non-Pecuniary
Losses have been taken into account, as indicated in Table-VII and even
Punitive Damages have been taken into account, and finally the total amount of
compensation has been arrived at.
It may
be stated that the injured persons with burn injury of 10% and below have not
been awarded any compensation. It may also be stated that while discussing the
claim on daily expenses, cost of medical treatment and expenses for
psychotherapy as well as punitive damages have been rejected, but in the
ultimate tabular form, compensation has been awarded on that score also and
since the company has not raised any objection on that score, we do not intend
to consider and nullify the said compensation amount, as indicated in the
tabular form. It transpires from the report of Shri Justice Chandrachud that in
the Statement of Claim, even there has been no indication as to the nature of
burn injury suffered, the nature, duration and quality of treatment received,
the requirement of future treatment prescribed by any Doctor, the state of
condition of burn injuries, when the Statement of Claim was filed, the
disability suffered by any burn victim and the expenditure, if any, incurred by
any burn victim until the Statement of Claim was filed and last but not the
least, the loss of earning capacity in any individual case.
Shri
Justice Chandrachud has also noted the statement of the counsel, appearing for
the Tata Iron and Steel Company, that if any burn victim produces the advice of
a Burn-Expert Doctor for any further medical or surgical treatment in India,
TISCO is prepared to bear the expenses of the said treatment.
The
materials produced, indicate the anxiety and steps taken by the company
officials in making available the services of doctors from Delhi, Bombay, U.K.,
USA and Italy and the injured patients were referred to hospitals in Delhi,
Bombay, Madras and Bangalore. Even some of the injured patients were sent to
U.K., U.S.A., and Paris for cosmetic surgery at the companys expense. In
examining the question of damages for personal injury, it is axiomatic that
pecuniary and non-pecuniary heads of damages are required to be taken into
account. In case of pecuniary damages, loss of earning or earning capacity,
medical, hospital and nursing expenses, the loss of matrimonial prospects, if
proved, are required to be considered. In the case of Non-Pecuniary losses,
loss of expectation of life, loss of amenities or capacity for enjoying life,
loss or impairment of physiological functions, impairment or loss of anatomical
structures or body tissues, pain and suffering and mental suffering are to be
considered.
But
for arriving at a particular figure on each of the aforesaid head, the claimant
is duty bound to produce relevant materials, on the basis of which, a
determination could be made, as to what would be the best compensation. A bare
perusal of the Report of Shri Justice Chandrachud, bear testimony to the fact
that the claimants did not discharge their obligations by putting the relevant
materials to enable Shri Justice Chandrachud to arrive at the quantum of
compensation. Determination of compensation in such cases is an upheaval task,
more so, when no material is produced at all. In such circumstances, we must
say that Shri Justice Chandrachud has shown maximum sympathy and has determined
the compensation to the maximum extent possible, which is also not objected to
by the company. We, therefore, do not find any justification for our
interference with the quantum arrived at and enhancing the compensation, in
respect of the injured persons, who suffered the burn injury on account of the
tragic incident. It is true that persons having burn injury to the extent of
10% and below, have not been awarded any compensation and, therefore, we, as a
matter of compassion, award a lump-sum of Rs. two lakhs in favour of each of
those persons.
At the
end, we express our gratitude for the services rendered by Shri Justice Chandrachud,
ungrudgingly in tackling the problems of determining the compensation, almost
single handedly, without any assistance from the claimants by way of putting
any materials for determination of the compensation. We take note of the fact,
as indicated in the affidavit of the company, as to several benefits given by
the company to the heirs and dependants of the deceased and/or injured persons
and though, we could have taken that into account in ultimate assessment of the
compensation, but we do not think it appropriate to take that into
consideration, after this length of time. The compensation awarded in favour of
different claimants by Shri Justice Chandrachud be re-determined by the
Registry of this Court, taking into account the enhancement made by us in this
Judgment and then the balance amount, after taking into account the amount
already in deposit, may be deposited by the company within a period of three
months from today. The compensation amount could be disbursed in favour of each
of the claimants by way of Account Payee Cheques, and the claimants, on being
identified by the counsel, the same should be handed- over to them. In the
event, any claimant would require that the compensation should be paid by Bank
Draft, then the money could be sent to the claimant by A/c Payee Bank Draft,
after deducting the commission of the bank from the amount in question. If any
of the claimants are not in a position to come to this Court for receiving the
compensation amount, then they should intimate the Registry of this Court, the
address to which the amount could be sent and on being properly attested by the
counsel, appearing for them and on receipt of such intimation, the amount in
question could be sent by A/c Payee Cheque, by Registered Post.
We also
keep on record the valuable services rendered by Ms. Rani Jethmalani, in
putting forth the grievances of the claimants and arguing the matter with great
ability and clarity of thoughts. We also keep on record the able assistance of Shri
F.S. Nariman, the learned senior counsel, appearing for the company for his
advice to his clients, not to pursue this litigation, as an adversarial one,
but to come forward to pay the determined compensation with an helping
attitude, which advice has been duly accepted by the company. We also
appreciate the stand of Shri Nariman that the compensation for the children
could be doubled outright and for others, the Court may determine, as to what
would be the just sum. We are indeed sorry, that this matter has dragged on for
this length of time, but there was no way out and the circumstances indicated
by Shri Justice Chandrachud in his Report, are sufficient to hold that there
has been no latches on his part, in determining the compensation.
This
writ petition is accordingly disposed of. There will however be no order as to
costs.
..........................J.
(G.B.
PATTANAIK) .........................J.
(U.C.
BANERJEE) .........................J.
(S.N.
VARIAVA) August 16, 2001.
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