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CASE NO.:

Writ Petition (civil) 232 of 1991

PETITIONER:

LATA WADHWA & ORS.

Vs.

RESPONDENT:

STATE OF BIHAR & ORS.

DATE OF JUDGMENT: 16/08/2001

BENCH:

G.B. Pattanaik, U.C. Banerjee & S.N. Variava

JUDGMENT:

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

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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

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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

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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

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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

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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

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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

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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,

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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

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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

Vale Ry. Vs. Jenkins [1913] A.C.1, and Lord Atkinson said

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

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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

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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

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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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