Sri Shyamal Gupta, Member
Factual matrix of the complaint case, in brief, is that on 14-04-2017, husband of the Complainant No. 1, Ghanshyam Das Daga, purchased a launch ticket from the ticket counter of the shipping jetty for his journey to Howrah station and he was allowed to enter the jetty on production of ticket before the concerned official. On arrival of launch, said Ghanshyam Das Daga, since deceased, moved forward from the permanent jetty to reach the additional temporary jetty for boarding the launch and while crossing the permanent jetty, he slipped into Hooghly river through the gap. Allegedly, as no serious attempt was made by the authority concerned in time, he could not be rescued and his highly decomposed body was recovered on 16-04-2017. Holding the OPs responsible for the untimely death of her husband, the Complainant No. 1 along with her son, the Complainant No. 2 herein filed this case.
The case was contested by the OPs by filing WV wherein they disputed the status of the Complainants as ‘consumers’. Further case of the OPs was that the incident took place due to negligence on the part of the deceased person and such incident took place despite all necessary precautions been taken by them to ensure the safety and security of all passengers, including the deceased person.
Points for consideration
- Whether the complaint case is maintainable in its present form and prayer?
- Whether there was any deficiency in service on the part of the OPs, as alleged?
- Whether the Complainants deserve any relief?
Decision with reasons
Point No. 1:
Admittedly, the deceased husband of the Complainant No. 1 purchased launch ticket from the OPs on payment of due service charge. Therefore, there can be no manner of doubt that he was a bona fide consumer of the services being rendered by the OPs. Being the legal heir of said bona fide passenger, since deceased, the Complainants reserved every right to initiate the present proceedings.
Point No. 2:
It is the undisputed fact of this case that the husband of the Complainant No. 1 died following his fall into the river through the gap between the jetty and the launch.
Notwithstanding it is alleged by the OPs that the husband of the Complainant No. 1 fell into the river while he jumped to catch the outgoing vessel, no eyewitness account or any cogent documentary proof to that effect is forthcoming before us.
In any case, the standard protocol being devised by the Authority concerned in uncertain terms stipulates that passenger embarkation and dis-embarkation gate of each vessel has to be closed before de-berthing the vessel from the jetty. Thus, if indeed said protocol was duly adhered to by the OPs, assuming that what is alleged by the OPs was indeed the fact; the passenger would not meet the unfortunate fate under any circumstances.
It is astonishing to note that, in flagrant violation of the norms laid down by the Authority concerned, no security gate with locking facilities was made available and no skilled diver was present at the jetty to swing into action to address exigencies like the one being faced by the husband of the Complainant No. 1, since deceased.
It is alleged by the Complainants that the jetty lacked proper lighting and fencing arrangement and no caution line was drawn to alert passengers. The OPs though denied all these allegations, it is noteworthy that, they did not adduce any material proof to refute such allegations either.
Considering all these aspects, we have no qualms holding the OPs squarely responsible for the unfortunate death of Ghanshyam Das Daga.
Point No. 3:
Before considering the question arising for decision, it would be apposite to recall the relevant principles relating to assessment of compensation in cases of accidental death. Earlier, there used to be considerable variation and inconsistency in the decisions of Courts/Tribunals on account of some adopting the Nance method enunciated in Nance v. British Columbia Electric Rly. Co. Ltd. [1951 AC 601] and some adopting the Davies method enunciated in Davies v. Powell Duffryn Associated Collieries Ltd., [1942 AC 601]. The difference between the two methods was considered and explained by the Hon’ble Supreme Court in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas [1994 (2) SCC 176]. After exhaustive consideration, the Hon’ble Court preferred the Davies method to Nance method. We extract below the principles laid down in Susamma Thomas:
"In fatal accident action, the measure of damage is the pecuniary loss suffered and is likely to be suffered by each dependant as a result of the death. The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g., 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 matter 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. Then that should be capitalized by multiplying it by a figure representing the proper number of year's purchase."
"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."
"It is necessary to reiterate that the multiplier method is logically sound and legally well-established. There are some cases which have proceeded to determine the compensation on the basis of aggregating the entire future earnings for over the period the life expectancy was lost, deducted a percentage therefrom towards uncertainties of future life and award the resulting sum as compensation. This is clearly unscientific. For instance, if the deceased was, say 25 year of age at the time of death and the life expectancy is 70 years, this method would multiply the loss of dependency for 45 years - virtually adopting a multiplier of 45 - and even if one-third or one-fourth is deducted therefrom towards the uncertainties of future life and for immediate lump sum payment, the effective multiplier would be between 30 and 34. This is wholly impermissible."
In UP State Road Transport Corporation vs. Trilok Chandra [1996 (4) SCC 362], the Hon’ble Court, while reiterating the preference to Davies method followed in Susamma Thomas, stated thus :
"In the method adopted by Viscount Simon in the case of Nance also, first the annual dependency is worked out and then multiplied by the estimated useful life of the deceased. This is generally determined on the basis of longevity. But then, proper discounting on various factors having a bearing on the uncertainties of life, such as, premature death of the deceased or the dependent, remarriage, accelerated payment and increased earning by wise and prudent investments, etc., would become necessary. It was generally felt that discounting on various imponderables made assessment of compensation rather complicated and cumbersome and very often as a rough and ready measure, one-third to one-half of the dependency was reduced, depending on the life-span taken. That is the reason why courts in India as well as England preferred the Davies' formula as being simple and more realistic. However, as observed earlier and as pointed out in Susamma Thomas' case, usually English courts rarely exceed 16 as the multiplier. Courts in India too followed the same pattern till recently when Tribunals/Courts began to use a hybrid method of using Nance's method without making deduction for imponderables........Under the formula advocated by Lord Wright in Davies, the loss has to be ascertained by first determining the monthly income of the deceased, then deducting therefrom the amount spent on the deceased, and thus assessing the loss to the dependents of the deceased. The annual dependency assessed in this manner is then to be multiplied by the use of an appropriate multiplier." [emphasis supplied]
Taking a cue from the above, we proceed to fix up the quantum of compensation in this case.
According to Sec. 166 of the Motor Vehicles Act, 1988, in regard to accident took place after 14-11-1994, applicable multiplier for persons aged 66 years is 9. It is significant to note that the Complainant has not furnished any income proof certificate in respect of the deceased person. Therefore, we assume a moderate monthly income of Rs. 6,000/- for him. It seems that the deceased person was survived by his wife and son. Therefore we are of the view that interest of justice would be met if one-third is deducted as the personal and living expenses of the deceased. After such deduction, the contribution to the family (dependants) is determined as Rs.48,000/- per annum. Therefore the total loss of dependency would be Rs.48,000 x 9 = Rs.4,32,000/-. In addition, the Complainants are entitled to a sum of Rs.5,000/- under the head of `loss of estate' and Rs.5000/- towards funeral expenses. The widow will be entitled to Rs.10,000/- as loss of consortium. Thus, we fix the total compensation at Rs.4,52,000/-. Besides this, we also allow a sum of Rs. 10,000/- as litigation cost. OPs are directed to pay the entire amount within 40 days hence, i.d., simple interest @ 9% p.a. over the entire decreetal sum shall be payable to the Complainants for the entire period of default.
The complaint case, accordingly, stands allowed in part.
