1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELALTE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO. 25590 OF 2014

National Insurance Company Limited …Petitioner(s)

Versus

Pranay Sethi and Ors. …Respondent(s)

WITH

Special Leave Petition (Civil) No. 16735 of 2014

Civil Appeal No. 6961 of 2015

Special Leave Petition (Civil) No. 163 of 2016

Special Leave Petition (Civil) No. 3387of 2016

Special Leave Petition (Civil) No. 7076 of 2016

Special Leave Petition (Civil) No. 32844 of 2016

Special Leave Petition (Civil) No. 16056 of 2016

Special Leave Petition (Civil) No. 22134 of 2016

Special Leave Petition (Civil) No. 24163 of 2016

Civil Appeal No. 8770 of 2016

Civil Appeal Nos. 8045-8046 of 2016

Special Leave Petition (Civil) No. 26263 of 2016

Special Leave Petition (Civil) No. 25818 of 2016

Special Leave Petition (Civil) No. 26227 of 2016

2

Special Leave Petition (Civil) Nos. 29520-29521 of 2016

Special Leave Petition (Civil) No. 35679 of 2016

Special Leave Petition (Civil) No. 34237 of 2016

Special Leave Petition (Civil) No. 36072 of 2016

Special Leave Petition (Civil) No. 35371 of 2016

Special Leave Petition (Civil) No. 34395 of 2016

Special Leave Petition (Civil) No. 36027 of 2016

Special Leave Petition (Civil) No. 8306 of 2017

Special Leave Petition (Civil) No. 37617 of 2016

Special Leave Petition (Civil) No. 7241 of 2017

Civil Appeal No.12046 of 2017

Special Leave Petition (Civil) No. 17436 of 2017

Civil Appeal No. 8611 of 2017

J U D G M E N T

Dipak Misra, CJI.

Perceiving cleavage of opinion between Reshma Kumari

and others v. Madan Mohan and another

1 and Rajesh and

others v. Rajbir Singh and others

2, both three-Judge Bench

decisions, a two-Judge Bench of this Court in National

Insurance Company Limited v. Pushpa and others

3 thought it

appropriate to refer the matter to a larger Bench for an

1

(2013 ) 9 SCC 65

2

(2013) 9 SCC 54

3

(2015) 9 SCC 166

3

authoritative pronouncement, and that is how the matters have

been placed before us.

2. In the course of deliberation we will be required to travel

backwards covering a span of two decades and three years and

may be slightly more and thereafter focus on the axis of the

controversy, that is, the decision in Sarla Verma and others v.

Delhi Transport Corporation and another

4 wherein the two-

Judge Bench made a sanguine endeav our to simplify the

determination of claims by specifying certain parameters.

3. Before we penetrate into the past, it is necessary to note

what has been stated in Reshma Kumari (supra) and Rajesh’s

case. In Reshma Kumari the three-Judge Bench was answering

the reference made in Reshma Kumari and others v. Madan

Mohan and another

5. The reference judgment noted divergence

of opinion with regard to the computation under Sections 163-A

and 166 of the Motor Vehicles Act, 1988 (for brevity, “the Act”)

and the methodology for computation of future prospects.

Dealing with determination of future prospects, the Court

referred to the decisions in Sarla Dixit v. Balwant Yadav

6,

4

(2009) 6 SCC 121

5

(2009) 13 SCC 422

6

(1996) 3 SCC 179

4

Abati Bezbaruah v. Dy. Director General, Geological Survey

of India

7 and the principle stated by Lord Diplock in Mallett v.

McMonagle

8 and further referring to the statement of law in

Wells v. Wells

9 observed:-

“46. In the Indian context several other factors

should be taken into consideration including

education of the dependants and the nature of job.

In the wake of changed societal conditions and

global scenario, future prospects may have to be

taken into consideration not only having regard to

the status of the employee, his educational

qualification; his past performance but also other

relevant factors, namely, the higher salaries and

perks which are being offered by the private

companies these days. In fact while determining the

multiplicand this Court in Oriental Insurance Co.

Ltd. v. Jashuben

10 held that even dearness

allowance and perks with regard thereto from which

the family would have derived monthly benefit,

must be taken into consideration.

47. One of the incidental issues which has also to

be taken into consideration is inflation. Is the

practice of taking inflation into consideration wholly

incorrect? Unfortunately, unlike other developed

countries in India there has been no scientific

study. It is expected that with the rising inflation

the rate of interest would go up. In India it does not

happen. It, therefore, may be a relevant factor which

may be taken into consideration for determining the

actual ground reality. No hard-and-fast rule,

however, can be laid down therefor.

7

(2003) 3 SCC 148

8

1970 AC 166: (1969) 2 WLR 767

9

(1999) 1 AC 345

10

(2008) 4 SCC 162

5

48. A large number of English decisions have been

placed before us by Mr Nanda to contend that

inflation may not be taken into consideration at all.

While the reasonings adopted by the English courts

and its decisions may not be of much dispute, we

cannot blindly follow the same ignoring ground

realities.

49. We have noticed the precedents operating in the

field as also the rival contentions raised before us

by the learned counsel for the parties with a view to

show that law is required to be laid down in clearer

terms.”

4. In the said case, the Court considered the common

questions that arose for consideration. They are:-

“(1) Whether the multiplier specified in the Second

Schedule appended to the Act should be

scrupulously applied in all the cases?

(2) Whether for determination of the multiplicand,

the Act provides for any criterion, particularly as

regards determination of future prospects?”

5. Analyzing further the rationale in determining the laws

under Sections 163-A and 166, the Court had stated thus:-

“58. We are not unmindful of the Statement of

Objects and Reasons to Act 54 of 1994 for

introducing Section 163-A so as to provide for a new

predetermined formula for payment of

compensation to road accident victims on the basis

of age/income, which is more liberal and rational.

That may be so, but it defies logic as to why in a

similar situation, the injured claimant or his

heirs/legal representatives, in the case of death, on

proof of negligence on the part of the driver of a

motor vehicle would get a lesser amount than the

6

one specified in the Second Schedule. The courts, in

our opinion, should also bear that factor in mind.”

6. Noticing the divergence of opinion and absence of any

clarification from Parliament despite the recommendations by

this Court, it was thought appropriate that the controversy

should be decided by the larger Bench and accordingly it directed

to place the matter before Hon’ble the Chief Justice of India for

appropriate orders for constituting a larger Bench.

7. The three-Judge Bench answering the reference referred to

the Scheme under Sections 163-A and 166 of the Act and took

note of the view expressed by this Court in U.P. State Road

Transport Corporation and others v. Trilok Chandra and

others

11, wherein the Court had stated:-

“17. The situation has now undergone a change

with the enactment of the Motor Vehicles Act, 1988,

as amended by Amendment Act 54 of 1994. The

most important change introduced by the

amendment insofar as it relates to determination of

compensation is the insertion of Sections 163-A and

163-B in Chapter XI entitled ‘Insurance of motor

vehicles against third-party risks’. Section 163-A

begins with a non obstante clause and provides for

payment of compensation, as indicated in the

Second Schedule, to the legal representatives of the

deceased or injured, as the case may be. Now if we

turn to the Second Schedule, we find a Table fixing

the mode of calculation of compensation for third-

party accident injury claims arising out of fatal

11

(1996) 4 SCC 362

7

accidents. The first column gives the age group of

the victims of accident, the second column indicates

the multiplier and the subsequent horizontal figures

indicate the quantum of compensation in thousand

payable to the heirs of the deceased victim.

According to this Table the multiplier varies from 5

to 18 depending on the age group to which the

victim belonged. Thus, under this Schedule the

maximum multiplier can be up to 18 and not 16 as

was held in Susamma Thomas

12 case.

18. We must at once point out that the calculation

of compensation and the amount worked out in the

Schedule suffer from several defects. For example,

in Item 1 for a victim aged 15 years, the multiplier

is shown to be 15 years and the multiplicand is

shown to be Rs 3000. The total should be 3000 × 15

= 45,000 but the same is worked out at Rs 60,000.

Similarly, in the second item the multiplier is 16

and the annual income is Rs 9000; the total should

have been Rs 1,44,000 but is shown to be Rs

1,71,000. To put it briefly, the Table abounds in

such mistakes. Neither the tribunals nor the courts

can go by the ready reckoner. It can only be used as

a guide. Besides, the selection of multiplier cannot

in all cases be solely dependent on the age of the

deceased. For example, if the deceased, a bachelor,

dies at the age of 45 and his dependants are his

parents, age of the parents would also be relevant in

the choice of the multiplier. But these mistakes are

limited to actual calculations only and not in

respect of other items. What we propose to

emphasise is that the multiplier cannot exceed 18

years’ purchase factor. This is the improvement over

the earlier position that ordinarily it should not

exceed 16. We thought it necessary to state the

correct legal position as courts and tribunals are

using higher multiplier as in the present case where

the Tribunal used the multiplier of 24 which the

High Court raised to 34, thereby showing lack of

12

(1994) 2 SCC 176

8

awareness of the background of the multiplier

system in Davies case.”

[Underlining is ours]

8. The Court also referred to Supe Dei v. National Insurance

Company Limited

13 wherein it has been opined that the position

is well settled that the Second Schedule under Section 163-A to

the Act which gives the amount of compensation to be

determined for the purpose of claim under the section can be

taken as a guideline while determining the compensation under

Section 166 of the Act.

9. After so observing, the Court also noted the authorities in

United India Insurance Co. Ltd v. Patricia Jean Mahajan

14,

Deepal Girishbhai Soni v. United India Insuran ce Co. Ltd.

15,

and Jashuben (supra). It is perceivable from the pronouncement

by the three-Judge Bench that it has referred to Sarla Verma and

observed that the said decision reiterated what had been stated

in earlier decisions that the principles relating to determination of

liability and quantum of compensation were different for claims

made under Section 163-A and claims made under Section 166.

It was further observed that Section 163-A and the Second

Schedule in terms did not apply to determination of

13

(2009) 4 SCC 513

14

(2002) 6 SCC 281

15

(2004) 5 SCC 385

9

compensation in applications under Section 166. In Sarla

Verma (supra), as has been noticed further in Reshma Kumari

(supra), the Court found discrepancies/errors in the multiplier

scale given in the Second Schedule Table and also observed that

application of Table may result in incongruities.

10. The three-Judge Bench further apprised itself that in Sarla

Verma (supra) the Court had under taken the exercise of

comparing the multiplier indicated in Susamma Thomas

(supra), Trilok Chandra (supra), and New India Assurance Co.

Ltd v. Charlie and another

16 for claims under Section 166 of

the Act with the multiplier mentioned in the Second Schedule for

claims under Section 163-A and compared the formula and held

that the multiplier shall be used in a given case in the following

manner:-

“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 five years, that is, M-17 for 26 to 30 years, M-

16 for 31 to 35 years, M-15 for 36 to 40 years, M-14

for 41 to 45 years, and M-13 for 46 to 50 years,

then reduced by two units for every five years, that

is, M-11 for 51 to 55 years, M-9 for 56 to 60 years,

M-7 for 61 to 65 years and M-5 for 66 to 70 years.”

16

(2005) 10 SCC 720

10

11. After elaborately analyzing what has been stated in Sarla

Verma (supra), the three-Judge Bench referred to the language

employed in Section 168 of the Act which uses the expression

“just”. Elucidating the said term, the Court held that it conveys

that the amount so determined is fair, reasonable and equitable

by accepted legal standard and not on forensic lottery. The Court

observed “just compensation” does not mean “perfect” or

“absolute compensation” and the concept of just compensation

principle requires examination of the particular situation

obtaining uniquely in an individual case. In that context, it

referred to Taff Vale Railway Co. v. Jenkins

17 and held:-

“36. In Sarla Verma, this Court has endeavoured to

simplify the otherwise complex exercise of

assessment of loss of dependency and

determination of compensation in a claim made

under Section 166. It has been rightly stated in

Sarla Verma that the claimants in case of death

claim for the purposes of compensation must

establish (a) age of the deceased; (b) income of the

deceased; and (c) the number of dependants. To

arrive at the loss of dependency, the Tribunal must

consider (i) additions/deductions to be made for

arriving at the income; (ii) the deductions to be

made towards the personal living expenses of the

deceased; and (iii) the multiplier to be applied with

reference to the age of the deceased. We do not

think it is necessary for us to revisit the law on the

point as we are in full agreement with the view in

Sarla Verma.”

[Emphasis is added]

17

1913 AC 1 : (1911-13) All ER Rep 160 (HL)

11

12. And further:-

“It is high time that we move to a standard method

of selection of multiplier, income for future

prospects and deduction for personal and living

expenses. The courts in some of the overseas

jurisdictions have made this advance. It is for these

reasons, we think we must ap prove the Table in

Sarla Verma for the selection of multiplier in claim

applications made under Section 166 in the cases of

death. We do accordingly. If for the selection of

multiplier, Column (4) of the Table in Sarla Verma is

followed, there is no likelihood of the claimants who

have chosen to apply under Section 166 being

awarded lesser amount on proof of negligence on

the part of the driver of the motor vehicle than those

who prefer to apply under Section 163-A. As regards

the cases where the age of the victim happens to be

up to 15 years, we are of the considered opinion

that in such cases irrespective of Section 163-A or

Section 166 under which the claim for

compensation has been made, multiplier of 15 and

the assessment as indicated in the Second Schedule

subject to correction as pointed out in Column (6) of

the Table in Sarla Verma should be followed. This is

to ensure that the claimants in such cases are not

awarded lesser amount when the application is

made under Section 166 of the 1988 Act. In all

other cases of death where the application has been

made under Section 166, the multiplier as indicated

in Column (4) of the Table in Sarla Verma should be

followed.”

This is how the first question the Court had posed stood

answered.

12

13. With regard to the addition of income for future prospects,

this Court in Reshma Kumari (supra) adverted to Para 24 of the

Sarla Verma’s case and held:-

“39. The standardisation of addition to income for

future prospects shall help in achieving certainty in

arriving at appropriate compensation. We approve

the method that an addition of 50% of actual salary

be made to the actual salary income of the deceased

towards future prospects where the deceased had a

permanent job and was below 40 years and the

addition should be only 30% if the age of the

deceased was 40 to 50 years and no addition should

be made where the age of the deceased is more than

50 years. Where the annual income is in the taxable

range, the actual salary shall mean actual salary

less tax. In the cases where the deceased was self-

employed or was on a fixed salary without provision

for annual increments, the actual income at the

time of death without any addition to income for

future prospects will be appropriate. A departure

from the above principle can only be justified in

extraordinary circumstances and very exceptional

cases.”

The aforesaid analysis vividly exposits that standardization

of addition to income for future prospects is helpful in achieving

certainty in arriving at appropriate compensation. Thus , the

larger Bench has concurred with the view expressed by Sarla

Verma (supra) as per the determination of future income.

14. It is interesting to note here that while the reference was

pending, the judgment in Santosh Devi v. National Insurance

13

Company Limited and others

18 was delivered by a two-Judge

Bench which commented on the principle stated in Sarla Verma.

It said:-

“14. We find it extremely difficult to fathom any

rationale for the observation made in para 24 of the

judgment in Sarla Verma case that where the

deceased was self-employed or was on a fixed salary

without provision for annual increment, etc. the

courts will usually take only the actual income at

the time of death and a departure from this rule

should be made only in rare and exceptional cases

involving special circumstances. In our view, it will

be naïve to say that the wages or total

emoluments/income of a person who is self -

employed or who is employed on a fixed salary

without provision for annual increment, etc. would

remain the same throughout his life.

15. The rise in the cost of living affects everyone

across the board. It does not make any distinction

between rich and poor. As a matter of fact, the effect

of rise in prices which directly impacts the cost of

living is minimal on the rich and maximum on those

who are self -employed or who get fixed

income/emoluments. They are the worst affected

people. Therefore, they put in extra efforts to

generate additional income necessary for sustaining

their families.

16. The salaries of those employed under the

Central and State Governments and their

agencies/instrumentalities have been revised from

time to time to provide a cushion against the rising

prices and provisions have been made for providing

security to the families of the deceased employees.

The salaries of those employed in private sectors

have also increased manifold. Till about two

decades ago, nobody could have imagined that

18

(2012) 6 SCC 421

14

salary of Class IV employee of the Government

would be in five figures and total emoluments of

those in higher echelons of service will cross the

figure of rupees one lakh.

17. Although the wages/income of those employed

in unorganised sectors has not registered a

corresponding increase and has not kept pace with

the increase in the salaries of the government

employees and those employed in private sectors,

but it cannot be denied that there has been

incremental enhancement in the income of those

who are self-employed and even those engaged on

daily basis, monthly basis or even seasonal basis.

We can take judicial notice of the fact that with a

view to meet the challenges posed by high cost of

living, the persons falling in the latter category

periodically increase the cost of their labour. In this

context, it may be useful to give an example of a

tailor who earns his livelihood by stitching clothes.

If the cost of living increases and the prices of

essentials go up, it is but natural for him to

increase the cost of his labour. So will be the cases

of ordinary skilled and unskilled labour like barber,

blacksmith, cobbler, mason, etc.

18. Therefore, we do not think that while making

the observations in the last three lines of para 24 of

Sarla Verma judgment, the Court had intended to

lay down an absolute rule that there will be no

addition in the income of a person w ho is self-

employed or who is paid fixed wages. Rather, it

would be reasonable to say that a person who is

self-employed or is engaged on fixed wages will also

get 30% increase in his total income over a period of

time and if he/she becomes victim of an accident

then the same formula deserves to be applied for

calculating the amount of compensation.”

15. The aforesaid analysis in Santosh Devi (supra) may prima

facie show that the two-Judge Bench has distinguished the

15

observation made in Sarla Verma’s case but on a studied

scrutiny, it becomes clear that it has really expressed a different

view than what has been laid down in Sarla Verma (supra). If

we permit ourselves to say so, the different view has been

expressed in a distinctive tone, for the two-Judge Bench had

stated that it was extremely difficult to fathom any rationale for

the observations made in para 24 of the judgment in Sarla

Verma’s case in respect of self-employed or a person on fixed

salary without provision for annual increment, etc. This is a

clear disagreement with the earlier view, and we have no

hesitation in saying that it is absolutely impermissible keeping in

view the concept of binding precedents.

16. Presently, we may refer to certain decisions which deal with

the concept of binding precedent.

17. In State of Bihar v. Kalika Kuer alias Kalika Singh and

others

19, it has been held:-

“10. … an earlier decision may seem to be incorrect

to a Bench of a coordinate jurisdiction considering

the question later, on the ground that a possible

aspect of the matter was not considered or not

raised before the court or more aspects should have

been gone into by the court deciding the matter

earlier but it would not be a reason to say that the

19

(2003) 5 SCC 448

16

decision was rendered per incuriam and liable to be

ignored. The earlier judgment may seem to be not

correct yet it will have the binding effect on the later

Bench of coordinate jurisdiction. …”

The Court has further ruled:-

“10. … Easy course of saying that earlier decision

was rendered per incuriam is not permissible and

the matter will have to be resolved only in two ways

— either to follow the earlier decision or refer the

matter to a larger Bench to examine the issue, in

case it is felt that earlier decision is not correct on

merits.”

18. In G.L. Batra v. State of Haryana and others

20, the Court

has accepted the said principle on the basis of judgments of this

Court rendered in Union of India v. Godfrey Philips India

Ltd.

21, Sundarjas Kanyalal Bhatija v. Collector , Thane,

Maharashtra

22 and Tribhovandas Purshottamdas Thakkar v.

Ratilal Motilal Patel

23. It may be noted here that the

Constitution Bench in Madras Bar Association v. Union of

India and another

24 has clearly stated that the prior

Constitution Bench judgment in Union of India v. Madras Bar

Association

25 is a binding precedent. Be it clarified, the issues

20

(2014) 13 SCC 759

21

(1985) 4 SCC 369

22

(1989) 3 SCC 396

23

AIR 1968 SC 372

24

(2015) 8 SCC 583

25

(2010) 11 SCC 1

17

that were put to rest in the earlier Constitution Bench judgment

were treated as precedents by latter Constitution Bench.

19. In this regard, we may refer to a passage from Jaisri Sahu

v. Rajdewan Dubey

26:-

“11. Law will be bereft of all its utility if it should be

thrown into a state of uncertainty by reason of

conflicting decisions, and it is therefore desirable

that in case of difference of opinion, the question

should be authoritatively settled. It sometimes

happens that an earlier decision given by a Bench is

not brought to the notice of a Bench hearing the

same question, and a contrary decision is given

without reference to the earlier decision. The

question has also been discussed as to the correct

procedure to be followed when two such conflicting

decisions are placed before a later Bench. The

practice in the Patna High Court appears to be that

in those cases, the earlier decision is followed and

not the later. In England the practice is, as noticed

in the judgment in Seshamma v. Venkata

Narasimharao that the decision of a court of appeal

is considered as a general rule to be binding on it.

There are exceptions to it, and one of them is thus

stated in Halsbury’s Laws of England, 3rd Edn., Vol.

22, para 1687, pp. 799-800:

“The court is not bound to follow a decision of

its own if given per incuriam. A decision is given

per incuriam when the court has acted in

ignorance of a previous decision of its own or of

a Court of a co-ordinate jurisdiction which

covered the case before it, or when it has acted

in ignorance of a decision of the House of Lords.

In the former case it must decide which decision

to follow, and in the latter it is bound by the

decision of the House of Lords.”

26

AIR 1962 SC 83

18

In Virayya v. Venkata Subbayya it has been held by

the Andhra High Court that under the

circumstances aforesaid the Bench is free to adopt

that view which is in accordance with justice and

legal principles after taking into consideration the

views expressed in the two conflicting Benches, vide

also the decision of the Nagpur High Court in

Bilimoria v. Central Bank of India. The better course

would be for the Bench hearing the case to refer the

matter to a Full Bench in view of the conflicting

authorities without taking upon itself to decide

whether it should follow the one Bench decision or

the other. We have no doubt that when such

situations arise, the Bench hearing cases would

refer the matter for the decision of a Full Court.”

20. Though the aforesaid was articulated in the context of the

High Court, yet this Court has been following the same as is

revealed from the aforestated pronouncements including that of

the Constitution Bench and, therefore, we entirely agree with the

said view because it is the precise warrant of respecting a

precedent which is the fundamental norm of judicial discipline.

21. In the context, we may fruitfully note what has been stated

in Pradip Chandra Parija and others v. Pramod Chandra

Patnaik and others

27. In the said case, the Constitution Bench

was dealing with a situation where the two -Judge Bench

disagreeing with the three-Judge Bench decision directed the

27

(2002) 1 SCC 1

19

matter to be placed before a larger Bench of five Judges of this

Court. In that scenario, the Constitution Bench stated:-

“6. … In our view, judicial discipline and propriety

demands that a Bench of two learned Judges should

follow a decision of a Bench of three learned Judges.

But if a Bench of two learned Judges concludes that

an earlier judgment of three learned Judges is so very

incorrect that in no circumstances can it be followed,

the proper course for it to adopt is to refer the matter

before it to a Bench of three learned Judges setting

out, as has been done here, the reasons why it could

not agree with the earlier judgment. …”

22. In Chandra Prakash and others v. State of U.P. and

another

28, another Constitution Bench dealing with the concept

of precedents stated thus:-

“22. … The doctrine of binding precedent is of utmost

importance in the administration of our judicial

system. It promotes certainty and consistency in

judicial decisions. Judicial consistency promotes

confidence in the system, therefore, there is this need

for consistency in the enunciation of legal principles in

the decisions of this Court. It is in the above context,

this Court in the case of Raghubir Singh

29 held that a

pronouncement of law by a Division Bench of this

Court is binding on a Division Bench of the same or

smaller number of Judges. …”

23. Be it noted, Chandra Prakash concurred with the view

expressed in Raghubir Singh and Pradip Chandra Parija.

28

(2002) 4 SCC 234

29

(1989) 2 SCC 754

20

24. In Sandhya Educational Society and another v. Union

of India and others

30, it has been observed that judicial

decorum and discipline is paramount and, therefore, a coordinate

Bench has to respect the judgments and orders passed by

another coordinate Bench. In Rattiram and others v. State of

Madhya Pradesh

31, the Court dwelt upon the issue what would

be the consequent effect of the latter decision which had been

rendered without noticing the earlier decisions. The Court noted

the observations in Raghubir Singh (supra) and reproduced a

passage from Indian Oil Corporation Ltd. v. Municipal

Corporation

32 which is to the following effect:-

“8. … The Division Bench of the High Court in

Municipal Corpn., Indore v. Ratnaprabha Dhanda

was clearly in error in taking the view that the

decision of this Court in Ratnaprabha was not

binding on it. In doing so, the Division Bench of the

High Court did something which even a later co -

equal Bench of this Court did not and could not

do. …”

25. It also stated what has been expressed in Raghubir Singh

(supra) by R.S. Pathak, C.J. It is as follows:-

“28. We are of opinion that a pronouncement of law

by a Division Bench of this Court is binding on a

Division Bench of the same or a smaller number of

Judges, and in order that such decision be binding,

30

(2014) 7 SCC 701

31

(2012) 4 SCC 516

32

(1995) 4 SCC 96

21

it is not necessary that it should be a decision

rendered by the Full Court or a Constitution Bench

of the Court. …”

26. In Rajesh (supra) the three-Judge Bench had delivered the

judgment on 12.04.2013. The purpose of stating the date is that

it has been delivered after the pronouncement made in Reshma

Kumari’s case. On a perusal of the decision in Rajesh (supra),

we find that an attempt has been made to explain what the two-

Judge Bench had stated in Santosh Devi (supra). The relevant

passages read as follows:-

“8. Since, the Court in Santosh Devi case actually

intended to follow the principle in the case of

salaried persons as laid down in Sarla Verma case

and to make it applicable also to the self-employed

and persons on fixed wages, it is clarified that the

increase in the case of those groups is not 30%

always; it will also have a reference to the age. In

other words, in the case of self-employed or persons

with fixed wages, in case, the deceased victim was

below 40 years, there must be an addition of 50% to

the actual income of the deceased while computing

future prospects. Needless to say that the actual

income should be income after paying the tax , if

any. Addition should be 30% in case the deceased

was in the age group of 40 to 50 years.

9. In Sarla Verma case, it has been stated that in

the case of those above 50 years, there shall be no

addition. Having regard to the fact that in the case

of those self-employed or on fixed wages, where

there is normally no age of superannuation, we are

of the view that it will only be just and equitable to

provide an addition of 15% in the case where the

victim is between the age group of 50 to 60 years so

22

as to make the compensation just, equitable, fair

and reasonable. There shall normally be no addition

thereafter.”

27. At this juncture, it is necessitous to advert to another three-

Judge Bench decision in Munna Lal Jain and another v. Vipin

Kumar Sharma and o thers

33 . In the said case, the three-Judge

Bench commenting on the judgments stated thus:-

“2. In the absence of any statutory and a

straitjacket formula, there are bound to be grey

areas despite several attempts made by this Court

to lay down the guidelines. Compensation would

basically depend on the evidence available in a case

and the formulas shown by the courts are only

guidelines for the computation of the compensation.

That precisely is the reason the courts lodge a

caveat stating “ordinarily”, “normally”, “exceptional

circumstances”, etc., while suggesting the formula.”

28. After so stating, the Court followed the principle stated in

Rajesh. We think it appropriate to reproduce what has been

stated by the three-Judge Bench:-

“10. As far as future prospects are concerned, in

Rajesh v. Rajbir Singh, a three-Judge Bench of this

Court held that in case of self-employed persons

also, if the deceased victim is below 40 years, there

must be addition of 50% to the actual income of the

deceased while computing future prospects.”

29. We are compelled to state here that in Munna Lal Jain

(supra), the three-Judge Bench should have been guided by the

33

(2015) 6 SCC 347

23

principle stated in Reshma Kumari which has concurred with the

view expressed in Sarla Devi or in case of disagreement, it should

have been well advised to refer the case to a larger Bench. We

say so, as we have already expressed the opinion that the dicta

laid down in Reshma Kumari being earlier in point of time would

be a binding precedent and not the decision in Rajesh.

30. In this context, we may also refer to Sundeep Kumar

Bafna v. State of Maharashtra and another

34 which correctly

lays down the principle that discipline demanded by a precedent

or the disqualification or diminution of a decision on the

application of the per incuriam rule is of great importance, since

without it, certainty of law, consistency of rulings and comity of

courts would become a costly casualty. A decision or judgment

can be per incuriam any provision in a statute, rule or regulation,

which was not brought to the notice of the court. A decision or

judgment can also be per incuriam if it is not possible to reconcile

its ratio with that of a previously pronounced judgment of a co-

equal or larger Bench. There can be no scintilla of doubt that an

earlier decision of co-equal Bench binds the Bench of same

strength. Though the judgment in Rajesh’s case was delivered on

a later date, it had not apprised itself of the law stated in

34

(2014) 16 SCC 623

24

Reshma Kumari (supra) but had been guided by Santosh Devi

(supra). We have no hesitation that it is not a binding precedent

on the co-equal Bench.

31. At this stage, a detailed analysis of Sarla Verma (supra) is

necessary. In the said case, the Court recapitulated the relevant

principles relating to assessment of compensation in case of

death and also took note of the fact that there had been

considerable variation and inconsistency in the decision for

Courts and Tribunals on account of adopting the method stated

in Nance v. British Columbia Electric Railway Co. Ltd .

35 and

the method in Davies v. Powell Duffryn Associated Collieries

Ltd.

36. It also analysed the difference between the considerations

of the two different methods by this Court in Susamma Thomas

(supra) wherein preference was given to Davies method to the

Nance method. Various paragraphs from Susamma Thomas

(supra) and Trilok Chandra (supra) have been reproduced and

thereafter it has been observed that lack of uniformity and

consistency in awarding the compensation has been a matter of

grave concern. It has stated that when different tribunals

35

1951 SC 601 : (1951) 2 All ER 448 (PC)

36

1942 AC 601 : (1942) 1 All ER 657 (HL)

25

calculate compensation differently on the same facts, the

claimant, the litigant and the common man are bound to be

confused, perplexed and bewildered. It adverted to the

observations made in Trilok Chandra (supra) which are to the

following effect:-

“15. We thought it necessary to reiterate the method

of working out ‘just’ compensation because, of late,

we have noticed from the awards made by tribunals

and courts that the principle on which the

multiplier method was developed has been lost sight

of and once again a hybrid method based on the

subjectivity of the Tribunal/court has surfaced,

introducing uncertainty and lack of reasonable

uniformity in the matter of determination of

compensation. It must be realised that the

Tribunal/court has to determine a fair amount of

compensation awardable to the victim of an

accident which must be proportionate to the injury

caused. …”

32. While adverting to the addition of income for future

prospects, it stated thus:-

“24. In Susamma Thomas this Court increased the

income by nearly 100%, in Sarla Dixit the income

was increased only by 50% and in Abati Bezbaruah

the income was increased by a mere 7%. In view of

the imponderables and uncertainties, we are in

favour of adopting as a rule of thumb, an addition of

50% of actual salary to the actual salary income of

the deceased towards future prospects, where the

deceased had a permanent job and was below 40

years. (Where the annual income is in the taxable

range, the words “actual salary” should be read as

“actual salary less tax”). The addition should be

26

only 30% if the age of the deceased was 40 to 50

years. There should be no addition, where the age of

the deceased is more than 50 years. Though the

evidence may indicate a different percentage o f

increase, it is necessary to standardise the addition

to avoid different yardsticks being applied or

different methods of calculation being adopted.

Where the deceased was self-employed or was on a

fixed salary (without provision for annual

increments, etc.), the courts will usually take only

the actual income at the time of death. A departure

therefrom should be made only in rare and

exceptional cases involving special circumstances.”

33. Though we have devoted some space in analyzing the

precedential value of the judgments, that is not the thrust of the

controversy. We are required to keenly dwell upon the heart of

the issue that emerges for consideration. The seminal

controversy before us relates to the issue where the deceased was

self-employed or was a person on fixed salary without provision

for annual increment, etc., what should be the addition as

regards the future prospects. In Sarla Verma, the Court has

made it as a rule that 50% of actual salary could be added if the

deceased had a permanent job and if the age of the deceased is

between 40 – 50 years and no addition to be made if the deceased

was more than 50 years. It is further ruled that where deceased

was self-employed or had a fixed salary (without provision for

annual increment, etc.) the Courts will usually take only the

actual income at the time of death and the departure is

27

permissible only in rare and exceptional cases involving special

circumstances.

34. First, we shall deal with the reasoning of strai tjacket

demarcation between the permanent employed persons within

the taxable range and the other category where deceased was

self-employed or employed on fixed salary sans annual

increments, etc.

35. The submission, as has been advanced on behalf of the

insurers, is that the distinction between the stable jobs at one

end of the spectrum and self-employed at the other end of the

spectrum with the benefit of future prospects being extended to

the legal representatives of the deceased having a permanent job

is not difficult to visualize, for a comparison between the two

categories is a necessary ground reality. It is contended that

guaranteed/definite income every month has to be treated with a

different parameter than the person who is self -employed

inasmuch as the income does not remain constant and is likely

to oscillate from time to time. Emphasis has been laid on the date

of expected superannuation and certainty in permanent job in

contradistinction to the uncertainty on the part of a self-

employed person. Additionally, it is contended that the

28

permanent jobs are generally stable and for an assessment the

entity or the establishment where the deceased worked is

identifiable since they do not suffer from the inconsistencies and

vagaries of self-employed persons. It is canvassed that it may not

be possible to introduce an element of standardization as

submitted by the claimants because there are many a category in

which a person can be self-employed and it is extremely difficult

to assimilate entire range of self -employed categories or

professionals in one compartment. It is also asserted that in

certain professions addition of future prospects to the income as

a part of multiplicand would be totally an unacceptable concept.

Examples are cited in respect of categories of professionals who

are surgeons, sports persons, masons and carpenters, etc. It is

also highlighted that the range of self-employed persons can

include unskilled labourer to a skilled person and hence, they

cannot be put in a holistic whole. That apart, it is propounded

that experience of certain professionals brings in disparity in

income and, therefore, the view expressed in Sarla Verma

(supra) that has been concurred with Reshma Kumari (supra)

should not be disturbed.

29

36. Quite apart from the above, it is contended that the

principle of standardization that has been evolved in Sarla

Verma (supra) has been criticized on the ground that it grants

compensation without any nexus to the actual loss. It is also

urged that even if it is conceded that the said view is correct,

extension of the said principle to some of the self-employed

persons will be absolutely unjustified and untenable. Learned

counsel for the insurers further contended that the view

expressed in Rajesh (supra) being not a precedent has to be

overruled and the methodology stood in Sarla Verma (supra)

should be accepted.

37. On behalf of the claimants, emphasis is laid on the concept

of “just compensation” and what should be included within the

ambit of “just compensation”. Learned counsel have emphasized

on Davies method and urged that the grant of pecuniary

advantage is bound to be included in the future pecuniary

benefit. It has also been put forth that in right to receive just

compensation under the statute, when the method of

standardization has been conceived and applied, there cannot be

any discrimination between the person salaried or self-employed.

It is highlighted that if evidence is not required to be adduced in

30

one category of cases, there is no necessity to compel the other

category to adduce evidence to establish the found ation for

addition of future prospects.

38. Stress is laid on reasonable expectation of pecuniary

benefits relying on the decisions in Tafe Vale Railway Co .

(supra) and the judgment of Singapore High Court in Nirumalan

V Kanapathi Pillay v. Teo Eng Chuan

37. Lastly, it is urged that

the standardization formula for awarding future income should

be applied to self-employed persons and that would be a

justifiable measure for computation of loss of dependency.

39. Before we proceed to analyse the principle for addition of

future prospects, we think it seemly to clear the maze which is

vividly reflectible from Sarla Verma, Reshma Kumari , Rajesh

and Munna Lal Jain. Three aspects need to be clarified. The

first one pertains to deduction towards personal and living

expenses. In paragraphs 30, 31 and 32, Sarla Verma lays

down:-

“30. Though in some cases the deduction to be made

towards personal and living expenses is calculated on

the basis of units indicated in Trilok Chandra4, the

general practice is to apply standardised deductions.

Having considered several subsequent decisions of this

37

(2003) 3 SLR (R) 601

31

Court, we are of the view that where the deceased was

married, the deduction towards personal and living

expenses of the deceased, should be one-third (1/3rd)

where the number of dependent family members is 2

to 3, one-fourth (1/4th) where the number of

dependent family members is 4 to 6, and one -fifth

(1/5th) where the number of dependent family

members exceeds six.

31. Where the deceased was a bachelor and the

claimants are the parents, the deduction follows a

different principle. In regard to bachelors, normally,

50% is deducted as personal and living expenses,

because it is assumed that a bachelor would tend to

spend more on himself. Even otherwise, there is also

the possibility of his getting married in a short time, in

which event the contribution to the parent(s) and

siblings is likely to be cut drastically. Further, subject

to evidence to the contrary, the father is likely to have

his own income and will not be considered as a

dependant and the mother alone will be considered as

a dependant. In the absence of evidence to the

contrary, brothers and sisters will not be considered as

dependants, because they will either be independent

and earning, or married, or be dependent on the

father.

32. Thus even if the deceased is survived by parents

and siblings, only the mother would be considered to

be a dependant, and 50% would be treated as the

personal and living expenses of the bachelor and 50%

as the contribution to the family. However, where the

family of the bachelor is large and dependent on the

income of the deceased, as in a case where he has a

widowed mother and large number of younger non -

earning sisters or brothers, his personal and living

expenses may be restricted to one -third and

contribution to the family will be taken as two-third.”

40. In Reshma Kumari , the three-Judge Bench agreed with the

multiplier determined in Sarla Verma and eventually held that

32

the advantage of the Table prepared in Sarla Verma is that

uniformity and consistency in selection of multiplier can be

achieved. It has observed:-

“35. … The assessment of extent of dependency

depends on examination of the unique situation of the

individual case. Valuing the dependency or the

multiplicand is to some extent an arithmetical

exercise. The multiplicand is normally based on the

net annual value of the dependency on the date of the

deceased’s death. Once the net annual loss

(multiplicand) is assessed, taking into account the age

of the deceased, such amount is to be multiplied by a

“multiplier” to arrive at the loss of dependency.”

41. In Reshma Kumari , the three-Judge Bench, reproduced

paragraphs 30, 31 and 32 of Sarla Verma and approved the

same by stating thus:-

“41. The above does provide guidance for the

appropriate deduction for personal and living

expenses. One must bear in mind that the proportion

of a man’s net earnings that he saves or spends

exclusively for the maintenance of others does not

form part of his living expenses but what he spends

exclusively on himself does. The percentage of

deduction on account of personal and living expenses

may vary with reference to the number of dependent

members in the family and the personal living

expenses of the deceased need not exactly correspond

to the number of dependants.

42. In our view, the standards fixed by this Court in

Sarla Verma on the aspect of deduction for personal

living expenses in paras 30, 31 and 32 must ordinarily

be followed unless a case for departure in the

33

circumstances noted in the preceding paragraph is

made out.”

42. The conclusions that have been summed up in Reshma

Kumari are as follows:-

“43.1. In the applications for compensation made

under Section 166 of the 1988 Act in death cases

where the age of the deceased is 15 years and above,

the Claims Tribunals shall select the multiplier as

indicated in Column (4) of the Table prepared in Sarla

Verma read with para 42 of that judgment.

43.2. In cases where the age of the deceased is up to

15 years, irrespective of Section 166 or Section 163-A

under which the claim for compensation has been

made, multiplier of 15 an d the assessment as

indicated in the Second Schedule subject to correction

as pointed out in Column (6) of the Table in Sarla

Verma should be followed.

43.3. As a result of the above, while considering the

claim applications made under Section 166 in death

cases where the age of the deceased is above 15 years,

there is no necessity for the Claims Tribunals to seek

guidance or for placing reliance on the Second

Schedule in the 1988 Act.

43.4. The Claims Tribunals shall follow the steps and

guidelines stated in para 19 of Sarla Verma for

determination of compensation in cases of death.

43.5. While making addition to income for future

prospects, the Tribunals shall follow para 24 of the

judgment in Sarla Verma.

43.6. Insofar as deduction for personal and living

expenses is concerned, it is directed that the Tribunals

shall ordinarily follow the standards prescribed in

paras 30, 31 and 32 of the judgment in Sarla Verma

34

subject to the observations made by us in para 41

above.”

43. On a perusal of the analysis made in Sarla Verma which has

been reconsidered in Reshma Kumari, we think it appropriate to

state that as far as the guidance provided for appropriate

deduction for personal and living expenses is concerned, the

tribunals and courts should be guided by conclusion 43.6 of

Reshma Kumari. We concur with the same as we have no

hesitation in approving the method provided therein.

44. As far as the multiplier is concerned, the claims tribunal

and the Courts shall be guided by Step 2 that finds place in

paragraph 19 of Sarla Verma read with paragraph 42 of the said

judgment. For the sake of completeness, paragraph 42 is

extracted below :-

“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 five years, that is M-17 for 26 to 30 years, M-

16 for 31 to 35 years, M-15 for 36 to 40 years, M-14

for 41 to 45 years, and M-13 for 46 to 50 years,

then reduced by two units for every five years, that

is, M-11 for 51 to 55 years, M-9 for 56 to 60 years,

M-7 for 61 to 65 years and M-5 for 66 to 70 years.”

35

45. In Reshma Kumari, the aforesaid has been approved by

stating, thus:-

“It is high time that we move to a standard method

of selection of multiplier, income for future

prospects and deduction for personal and living

expenses. The courts in some of the overseas

jurisdictions have made this advance. It is for these

reasons, we think we must approve the Table in

Sarla Verma for the selection of multiplier in claim

applications made under Section 166 in the cases of

death. We do accordingly. If for the selection of

multiplier, Column (4) of the Table in Sarla Verma is

followed, there is no likelihood of the claimants who

have chosen to apply under Section 166 being

awarded lesser amount on proof of negligence on

the part of the driver of the motor vehicle than those

who prefer to apply under Section 163-A. As regards

the cases where the age of the victim happens to be

up to 15 years, we are of the considered opinion

that in such cases irrespective of Section 163-A or

Section 166 under which the claim for

compensation has been made, multiplier of 15 and

the assessment as indicated in the Second Schedule

subject to correction as pointed out in Column (6) of

the Table in Sarla Verma should be followed. This is

to ensure that the claimants in such cases are not

awarded lesser amount when the application is

made under Section 166 of the 1988 Act. In all

other cases of death where the application has been

made under Section 166, the multiplier as indicated

in Column (4) of the Table in Sarla Verma should be

followed.”

46. At this stage, we must immediately say that insofar as the

aforesaid multiplicand/multiplier is concerned, it has to be

accepted on the basis of income established by the legal

representatives of the deceased. Future prospects are to be

36

added to the sum on the percentage basis and “income” means

actual income less than the tax paid. The multiplier has already

been fixed in Sarla Verma which has been approved in Reshma

Kumari with which we concur.

47. In our considered opinion, if the same is followed, it shall

subserve the cause of justice and the unnecessary contest before

the tribunals and the courts would be avoided.

48. Another aspect which has created confusion pertains to

grant of loss of estate, loss of consortium and funeral expenses.

In Santosh Devi (supra), the two-Judge Bench followed the

traditional method and granted Rs. 5,000/- for transportation of

the body, Rs. 10,000/- as funeral expenses and Rs. 10,000/- as

regards the loss of consortium. In Sarla Verma, the Court granted

Rs. 5,000/- under the head of loss of estate, Rs. 5,000/- towards

funeral expenses and Rs. 10,000/- towards loss of Consortium.

In Rajesh, the Court granted Rs. 1,00,000/- towards loss of

consortium and Rs. 25,000/- towards funeral expenses. It also

granted Rs. 1,00,000/- towards loss of care and guidance for

minor children. The Court enhanced the same on the principle

that a formula framed to achieve uniformity and consistency on a

socio-economic issue has to be contrasted from a legal principle

37

and ought to be periodically revisited as has been held in Santosh

Devi (supra). On the principle of revisit, it fixed different amount

on conventional heads. What weighed with the Court is factum

of inflation and the price index. It has also been moved by the

concept of loss of consortium. We are inclined to think so, for

what it states in that regard. We quote:-

“17. … In legal parlance, “consortium” is the right of

the spouse to the company, care, help, comfort,

guidance, society, solace, affection and sexual

relations with his or her mate. That non-pecuniary

head of damages has not been properly understood by

our courts. The loss of companionship, love, care and

protection, etc., the spouse is entitled to get, has to be

compensated appropriately. The concept of non -

pecuniary damage for loss of consortium is one of the

major heads of award of compensation in other parts

of the world more particularly in the United States of

America, Australia, etc. English courts have also

recognised the right of a spouse to get compensation

even during the period of temporary disablement. By

loss of consortium, the courts have made an attempt

to compensate the loss of spouse’s affection, comfort,

solace, companionship, society, assistance, protection,

care and sexual relations during the future years.

Unlike the compensation awarded in other countries

and other jurisdictions, since the legal heirs are

otherwise adequately compensated for the pecuniary

loss, it would not be proper to award a major amount

under this head. Hence, we are of the view that it

would only be just and reasonable that the courts

award at least rupees one lakh for loss of consortium.”

38

49. Be it noted, Munna Lal Jain (supra) did not deal with the

same as the notice was confined to the issue of application of

correct multiplier and deduction of the amount.

50. This aspect needs to be clarified and appositely stated. The

conventional sum has been provided in the Second Schedule of

the Act. The said Schedule has been found to be defective as

stated by the Court in Trilok Chandra (supra). Recently in

Puttamma and others v. K.L. Narayana Reddy and another

38

it has been reiterated by stating:-

“… we hold that the Second Schedule as was

enacted in 1994 has now become redundant,

irrational and unworkable due to changed scenario

including the present cost of living and current rate

of inflation and increased life expectancy.”

51. As far as multiplier or multiplicand is concerned, the same

has been put to rest by the judgments of this Court. Para 3 of

the Second Schedule also provides for General Damages in case

of death. It is as follows:-

“3. General Damages (in case of death):

The following General Damages shall be payable in

addition to compensation outlined above:-

(i) Funeral expenses - Rs. 2,000/-

(ii) Loss of Consortium, if beneficiary is the

spouse – Rs. 5,000/-

38

(2013) 15 SCC 45

39

(iii) Loss of Estate - Rs. 2,500/-

(iv) Medical Expenses – actual expenses incurred

before death supported by bills/vouchers but not

exceeding – Rs. 15,000/-”

52. On a perusal of various decisions of this Court, it is

manifest that the Second Schedule has not been followed starting

from the decision in Trilok Chandra (supra) and there has been

no amendment to the same. The conventional damage amount

needs to be appositely determined. As we notice , in different

cases different amounts have been granted. A sum of Rs.

1,00,000/- was granted towards consortium in Rajesh. The

justification for grant of consortium, as we find from Rajesh, is

founded on the observation as we have reproduced hereinbefore.

53. On the aforesaid basis, the Court has revisited the practice

of awarding compensation under conventional heads.

54. As far as the conventional heads are concerned, we find it

difficult to agree with the view expressed in Rajesh. It has granted

Rs. 25,000/- towards funeral expenses, Rs. 1,00,000/- loss of

consortium and Rs. 1,00,000/- towards loss of care and guidance

for minor children. The head relating to loss of care and minor

children does not exist. Though Rajesh refers to Santosh Devi,

it does not seem to follow the same. The conventional and

40

traditional heads, needless to say, cannot be determined on

percentage basis because that would not be an acceptable

criterion. Unlike determination of income, the said heads have to

be quantified. Any quantification must have a reasonable

foundation. There can be no dispute over the fact that price

index, fall in bank interest, escalation of rates in many a field

have to be noticed. The court cannot remain oblivious to the

same. There has been a thumb rule in this aspect. Otherwise,

there will be extreme difficulty in determination of the same and

unless the thumb rule is applied, there will be immense variation

lacking any kind of consistency as a consequence of which, the

orders passed by the tribunals and courts are likely to be

unguided. Therefore, we think it seemly to fix reasonable sums.

It seems to us that reasonable figures on conventional heads,

namely, loss of estate, loss of consortium and funeral expenses

should be Rs. 15,000/ -, Rs. 40,000/- and Rs. 15,000/-

respectively. The principle of revisiting the said heads is an

acceptable principle. But the revisit should not be fact-centric or

quantum-centric. We think that it would be condign that the

amount that we have quantified should be enhanced on

percentage basis in every three years and the enhancement

should be at the rate of 10% in a span of three years. We are

41

disposed to hold so because that will bring in consistency in

respect of those heads.

55. Presently, we come to the issue of addition of future

prospects to determine the multiplicand.

56. In Santosh Devi the Court has not accepted as a principle

that a self-employed person remains on a fixed salary throughout

his life. It has taken note of the rise in the cost of living which

affects everyone without making any distinction between the rich

and the poor. Emphasis has been laid on the extra efforts made

by this category of persons to generate additional income. That

apart, judicial notice has been taken of the fact that the salaries

of those who are employed in private sector s also with the

passage of time increase manifold. In Rajesh’s case, the Court

had added 15% in the case where the victim is between the age

group of 15 to 60 years so as to make the compensation just,

equitable, fair and reasonable. This addition has been made in

respect of self-employed or engaged on fixed wages.

57. Section 168 of the Act deals with the concept of “just

compensation” and the same has to be determined on the

foundation of fairness, reasonableness and equitability on

acceptable legal standard because such determination can never

42

be in arithmetical exactitude. It can never be perfect. The aim is

to achieve an acceptable degree of proximity to arithmetical

precision on the basis of materials brought on record in an

individual case. The conception of “just compensation” has to be

viewed through the prism of fairness, reasonableness and non-

violation of the principle of equitability. In a case of death, the

legal heirs of the claimants cannot expect a windfall.

Simultaneously, the compensation granted cannot be an apology

for compensation. It cannot be a pittance. Though the discretion

vested in the tribunal is quite wide, yet it is obligatory on the part

of the tribunal to be guided by the expression, that is, “just

compensation”. The determination has to be on the foundation of

evidence brought on record as regards the age and income of the

deceased and thereafter the apposite multiplier to be applied. The

formula relating to multiplier has been clearly stated in Sarla

Verma (supra) and it has been approved in Reshma Kumari

(supra). The age and income, as stated earlier, have to be

established by adducing evidence. The tribunal and the Courts

have to bear in mind that the basic principle lies in pragmatic

computation which is in proximity to reality. It is a well accepted

norm that money cannot substitute a life lost but an effort has to

be made for grant of just compensation having uniformity of

43

approach. There has to be a balance between the two extremes,

that is, a windfall and the pittance, a bonanza and the modicum.

In such an adjudication, the duty of the tribunal and the Courts

is difficult and hence, an endeavour has been made by this Court

for standardization which in its ambit includes addition of future

prospects on the proven income at present. As far as future

prospects are concerned, there has been standardization keeping

in view the principle of certainty, stability and consistency. We

approve the principle of “standardization” so that a specific and

certain multiplicand is determined for applying the multiplier on

the basis of age.

58. The seminal issue is the fixation of future prospects

in cases of deceased who is self-employed or on a fixed salary.

Sarla Verma (supra) has carved out an exception permitting the

claimants to bring materials on record to get the benefit of

addition of future prospects. It has not, per se, allowed any future

prospects in respect of the said category.

59. Having bestowed our anxious consideration, we are

disposed to think when we accept the pr inciple of

standardization, there is really no rationale not to apply the said

principle to the self-employed or a person who is on a fixed

44

salary. To follow the doctrine of actual income at the time of

death and not to add any amount with regard to future prospects

to the income for the purpose of determination of multiplicand

would be unjust. The determination of income while computing

compensation has to include future prospects so that the method

will come within the ambit and sweep of just compensation as

postulated under Section 168 of the Act. In case of a deceased

who had held a permanent job with inbuilt grant of annual

increment, there is an acceptable certainty. But to state that the

legal representatives of a deceased who was on a fixed salary

would not be entitled to the benefit of future prospects for the

purpose of computation of compensation would be inapposite. It

is because the criterion of distinction between the two in that

event would be certainty on the one hand and staticness on the

other. One may perceive that the comparative measure is

certainty on the one hand and uncertainty on the other but such

a perception is fallacious. It is because the price rise does affect

a self-employed person; and that apart there is always an

incessant effort to enhance one’s income for sustenance. The

purchasing capacity of a salaried person on permanent job when

increases because of grant of increments and pay revision or for

some other change in service conditions, there is always a

45

competing attitude in the private sector to enhance the salary to

get better efficiency from the employees. Similarly, a person who

is self-employed is bound to garner his resources and raise his

charges/fees so that he can live with same facilities. To have the

perception that he is likely to remain static and his income to

remain stagnant is contrary to the fundamental concept of

human attitude which always intends to live with dynamism and

move and change with the time. Though it may seem appropriate

that there cannot be certainty in addition of future prospects to

the existing income unlike in the case of a person having a

permanent job, yet the said perception does not really deserve

acceptance. We are inclined to think that there can be some

degree of difference as regards the percentage that is meant for or

applied to in respect of the legal representatives who claim on

behalf of the deceased who had a permanent job than a person

who is self-employed or on a fixed salary. But not to apply the

principle of standardization on the foundation of perceived lack of

certainty would tantamount to remaining oblivious to the

marrows of ground reality. And, therefore, degree -test is

imperative. Unless the degree-test is applied and left to the

parties to adduce evidence to establish, it would be unfair and

inequitable. The degree-test has to have the inbuilt concept of

46

percentage. Taking into consideration the cumulative factors,

namely, passage of time, the changing society, escalation of price,

the change in price index, the human attitude to follow a

particular pattern of life, etc., an addition of 40% of the

established income of the deceased towards future prospects and

where the deceased was below 40 years an addition of 25% where

the deceased was between the age of 40 to 50 years would be

reasonable.

60. The controversy does not end here. The question still

remains whether there should be no addition where the age of the

deceased is more than 50 years. Sarla Verma thinks it

appropriate not to add any amount and the same has been

approved in Reshma Kumari. Judicial notice can be taken of the

fact that salary does not remain the same. When a person is in a

permanent job, there is always an enhancement due to one

reason or the other. To lay down as a thumb rule that there will

be no addition after 50 years will be an unacceptable concept.

We are disposed to think, there should be an addition of 15% if

the deceased is between the age of 50 to 60 years and there

should be no addition thereafter. Similarly, in case of self-

employed or person on fixed salary, the addition should be 10%

47

between the age of 50 to 60 years. The aforesaid yardstick has

been fixed so that there can be consistency in the approach by

the tribunals and the courts.

61. In view of the aforesaid analysis, we proceed to record our

conclusions:-

(i) The two-Judge Bench in Santosh Devi should have been well

advised to refer the matter to a larger Bench as it was

taking a different view than what has been stated in Sarla

Verma, a judgment by a coordinate Bench. It is because a

coordinate Bench of the same strength cannot take a

contrary view than what has been held by another

coordinate Bench.

(ii) As Rajesh has not taken note of the decision in Reshma

Kumari, which was delivered at earlier point of time, the

decision in Rajesh is not a binding precedent.

(iii) While determining the income, an addition of 50% of actual

salary to the income of the deceased towards future

prospects, where the deceased had a permanent job and

was below the age of 40 years, should be made. The

addition should be 30%, if the age of the deceased was

48

between 40 to 50 years. In case the deceased was between

the age of 50 to 60 years, the addition should be 15%.

Actual salary should be read as actual salary less tax.

(iv) In case the deceased was self-employed or on a fixed salary,

an addition of 40% of the established income should be the

warrant where the deceased was below the age of 40 years.

An addition of 25% where the deceased was between the age

of 40 to 50 years and 10% where the deceased was between

the age of 50 to 60 years should be regarded as the

necessary method of computation. The established income

means the income minus the tax component.

(v) For determination of the multiplicand, the deduction for

personal and living expenses, the tribunals and the courts

shall be guided by paragraphs 30 to 32 of Sarla Verma

which we have reproduced hereinbefore.

(vi) The selection of multiplier shall be as indicated in the Table

in Sarla Verma read with paragraph 42 of that judgment.

(vii) The age of the deceased should be the basis for applying the

multiplier.

49

(viii) Reasonable figures on conventional heads, namely, loss of

estate, loss of consortium and funeral expenses should be

Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively.

The aforesaid amounts should be enhanced at the rate of

10% in every three years.

62. The reference is answered accordingly. Matters be placed

before the appropriate Bench.

…………………………….CJI .

(Dipak Misra )

…………………………………J.

(A.K. Sikri )

…………………………………J.

(A.M. Khanwilkar )

…………………………………J.

(Dr. D.Y. Chandrachud )

…………………………………J.

(Ashok Bhushan )

New Delhi;

October 31, 2017