Full Judgment Text
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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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