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(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 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.
(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.
National Insurance Company Limited Vs. Pranay Sethi and Ors.
1. Perceiving cleavage of opinion between Reshma Kumari and Ors. v. Madan Mohan and Anr. MANU/SC/0287/2013 : (2013) 9 SCC 65 and Rajesh and Ors. v. Rajbir Singh and Ors. MANU/SC/0480/2013 : (2013) 9 SCC 54, both three-Judge Bench decisions, a two-Judge Bench of this Court in National Insurance Co. Limited v. Pushpa and Ors. MANU/SC/1246/2014 : (2015) 9 SCC 166 thought it appropriate to refer the matter to a larger Bench for an 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 Ors. v. Delhi Transport Corporation and Anr. MANU/SC/0606/2009 : (2009) 6 SCC 121 wherein the two-Judge Bench made a sanguine endeavour to simplify the determination of claims by specifying certain parameters.
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 MANU/SC/7157/2008 : (2008) 4 SCC 162 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.
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.
(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?
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 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.
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 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 MANU/SC/0389/1994 : (1994) 2 SCC 176 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 x 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 awareness of the background of the multiplier system in Davies case.
8. The Court also referred to Supe Dei v. National Insurance Co. Limited (2009) 4 SCC 513 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 MANU/SC/0563/2002 : (2002) 6 SCC 281, Deepal Girishbhai Soni v. United India Insurance Co. Ltd. MANU/SC/0246/2004 : (2004) 5 SCC 385, 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 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.
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.
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.
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.
This is how the first question the Court had posed stood answered.
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. 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 naive 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 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 who 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 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.
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 Ors. MANU/SC/1021/2013 : (2014) 13 SCC 759, 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. MANU/SC/0036/1986 : (1985) 4 SCC 369, Sundarjas Kanyalal Bhatija v. Collector, Thane, Maharashtra MANU/SC/0040/1990 : (1989) 3 SCC 396 and Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel MANU/SC/0345/1967 : AIR 1968 SC 372. It may be noted here that the Constitution Bench in Madras Bar Association v. Union of India and Anr. MANU/SC/0610/2015 : (2015) 8 SCC 583 has clearly stated that the prior Constitution Bench judgment in Union of India v. Madras Bar Association MANU/SC/0378/2010 : (2010) 11 SCC 1 is a binding precedent. Be it clarified, the issues that were put to rest in the earlier Constitution Bench judgment were treated as precedents by latter Constitution Bench.
"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."
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.
23. Be it noted, Chandra Prakash concurred with the view expressed in Raghubir Singh and Pradip Chandra Parija.
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 as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter.
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.
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 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 Anr. MANU/SC/0239/2014 : (2014) 16 SCC 623 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 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.
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 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 of 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 permissible only in rare and exceptional cases involving special circumstances.
34. First, we shall deal with the reasoning of straitjacket 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 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.
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 one category of cases, there is no necessity to compel the other category to adduce evidence to establish the foundation 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 (2003) 3 SLR (R) 601. 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.
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 Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this 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 (1/2rd) 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.
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. 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 circumstances noted in the preceding paragraph is made out.
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 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.
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 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.
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.
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 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.
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.
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.
... 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.
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 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 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 sectors 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 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 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 principle 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 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 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 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% 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.
62. The reference is answered accordingly. Matters be placed before the appropriate Bench.

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The Complainant is Carrefour, Levallois Perret, of France, represented by J.-P. KARSENTY & Associés, France.
The Respondent is groupe carrefour, Izmir, of Turkey.
The disputed domain name <carrefourgroupe.com> is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 30, 2008. On December 31, 2008, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com a request for registrar verification in connection with the disputed domain name. On January 1, 2009, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 8, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was January 28, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on January 29, 2009.
The Center appointed J. Nelson Landry as the sole panelist in this matter on January 2, 2009. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Complainant Carrefour is a company founded in France in 1959 and has operated, since 1960, retail stores, distributed products in classes 1 to 34 and offered services under classes 35 to 42 of the classes of goods and services under the trademark CARREFOUR registered in France and as an international trademark in both instances in association with the classes mentioned above (herein the “Trademark” or the CARREFOUR Trademark).
The Complainant has in the same period promoted and advertised its products and services under the said Trademark and, to a lesser extent, under another trademark CARREFOUR GROUP. This promotion was also done through the Internet in operating a website at “www.carrefour.com” and in more than 300 domain names, many of which incorporated the common term “carrefour” and some associated with the term “group” along with various top level domain names as “.com” and “.net”.
Furthermore, the Complainant has engaged in seven UDRP cases wherein the domain names incorporated its Trademark CARREFOUR with other terms such as “voyage”, “finance” within which four domain names were incorporating CARREFOUR along with the term “group” or “groupe” (annexes 21 to 26). In each instance, the panel has ordered the transfer of the domain name involved to the Complainant.
In its marketing activities such as on its website the Complainant has frequently referred to itself as Carrefour Group.
The Complainant has evolved and progressed so that it now operates directly or indirectly over 15 000 stores under the Trademark CARREFOUR banners in dozens of countries in the world including 20 hypermarkets in Turkey where the Respondent resides.
The disputed domain name was registered on November 22, 2007.
The Respondent has no legal relationship with the Complainant and the later has neither consented to nor acquiesced in the registration and the use of the disputed domain name.
Upon becoming aware of the disputed domain name when the Respondent, on June 11, 2008, sent an e-mail to the Complainant, the latter, through its counsel, sent a cease and desist letter to the Respondent on June 20, 2008. The Respondent answered and declared being aware of the Complainant, its activities and presumably it's Trademark in stating “we know to Carrefour Company is a very big company on the world wide”.
Prior to the reception of this said letter the Respondent had redirected Internet visitors to its website to the website of Walmart, the Complainant's main competitor. Subsequent to June 2008, the Respondent cancelled the redirection of visitors to Walmart and then indicated that the website to which the disputed domain name resolved was under construction and thereafter redirected the visitors to another website “www.buydomain.com”.
The Complainant contends that by reason of the registrations of its Trademark CARREFOUR and its use and promotion in association with the products in the 34 classes and services in the 8 classes, its Trademark CARREFOUR has become most distinctive and was recently ranked second amongst the most valuable European trademarks in retail services. With the support of an earlier UDRP panel decision which held that the addition of the word “group” to the distinctive element does not rebut the confusion similarity, the Complainant further contends that this word “group” cannot be taken into consideration when judging confusing similarity. See Carrefour SA contre Eric Langlois, WIPO Case No. D2007-0067.
Relying on another UDRP decision, Carrefour v. Field, Lake & Sky, WIPO Case No. D2007-0563, the Complainant quotes the panel who stated that “(i) the incorporation in the domain name of a distinctive trademark in its entirety creates sufficient similarity between that trademark and the domain name to create a likelihood of confusion and (ii) the addition of generic terms to a domain name (such as “finance” and “voyage”) incorporating a well-known trademark in its entirety, not only does not eliminate a likelihood of confusion but may even reinforce the impression of an affiliation amongst the domain name and the complainant”. In that instance, the panel had ordered the transfer of the domain names <carrefourfinance.com> and <voyage-carrefour.com> to the Complainant. Therefore, the Complainant submits that the disputed domain name is confusingly similar with its distinctive and well-known Trademark.
The Complainant states that there is no legal relationship with the Respondent and that it did not consent to nor acquiesce in the registration and use of the disputed domain name. Furthermore it states that it has expanded considerably its activities in France and all over the world with more than 15 000 stores under the CARREFOUR Trademark including 20 stores in Turkey, and that its presence and awareness was acknowledged by the Respondent when the latter stated in its e-mail correspondence with the Complainant his knowledge that Carrefour Company is a very big company on the worldwide. Therefore the Complainant, relying on this correspondence and on earlier UDRP decisions involving the CARREFOUR Trademark, submits that the Respondent must have been aware of the Trademark and did not have any legitimate interest nor rights in the disputed domain name, particularly upon considering that the Respondent was routing visitors to its website to a competitor of the Complainant, namely Walmart. See Carrefour v. Richard Mandanice, WIPO Case No. D2002-0623; Carrefour SA contre Eric Langlois, supra; Carrefour S.A. v. Damian Macafee, WIPO Case No. D2002-1060; Eurobet UK Limited v. Grand Slam Co, WIPO Case No. D2003-0745; Baudville, Inc. v. Henry Chan, WIPO Case No. D2004-0059 and Marconi Data Systems, Inc. v. IRG Coins and Ink Source, Inc., WIPO Case No. D2000-0090. On the basis of these facts and UDRP decisions, the Complainant concludes that the Respondent has no rights or legitimate interests in the disputed domain name.
Relying on the Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003, wherein the administrative panel acknowledged that “ the complainant had numerous trademark registrations and a wide reputation” and concluded that the disputed domain name had been registered by the respondent in bad faith, the Complainant, herein, alleges a similar worldwide well-known Trademark including Turkey in addition to its ownership of more than 300 domain names, many including the Trademark CARREFOUR within which some incorporated the term “group” and others which had been challenged by the Complainant and transferred to it pursuant to panel decisions. The Complainant contends that the disputed domain name was registered in bad faith by the Respondent who was undoubtedly aware of the Complainant, its Trademarks and activities when it registered the disputed domain name.
The Complainant suggests that in view of the well-known status of its Trademark around the world and in Turkey and the awareness of the Complainant's markets and Trademark acknowledged by the Respondent in the e-mail exchange, the Respondent engaged in an opportunistic bad faith as held by the panel in the Parfums Christian Dior v. Javier Gardia Quintas and Christiandior.net, WIPO Case No. D2000-0226. The adoption by the Respondent of an obvious typo squatter's behaviour by registering one of the rare domain names not registered by the Complainant confirms this conclusion. Furthermore, according to the Complainant, the false name and address of the Respondent supports the deceptive nature of its entire modus operandi supplying false information to hide his identity and this is itself evidence of bad faith.
Therefore, in view of the above, the Complainant submits that the disputed domain name was not only registered in bad faith but is also used in bad faith as it appears from the following representations.
The Complainant represents that the e-mail of June 11, 2008, from the Respondent to the Complainant to contact him amounts to an offer to sell the disputed domain name even though no specific amount of money was mentioned as held by the panel. See Bank of Ireland Securities Services Limited v. David Boissonnault, WIPO Case No. D2004-0352 and Zurich Insurance Company v. Domains For Sale, WIPO Case No. D2001-1423.
The Complainant alleges that the Respondent registered the disputed domain name primarily for the purpose of disrupting the business of the Complainant in routing the said disputed domain name to Walmart's website, a competitor of the Complainant and then to suspend such routing pursuant to the reception of the cease and desist letter from the Complainant. The Complainant relies on the panel decision in Mediacrop Radio Singapore Pte Ltd v. HL Lima aka Hwee Lee Lim, WIPO Case No. D2004-0291, to support its contention that the “subsequent lack of substantive use of the site” and “intent on the part of the Respondent to disrupt the Complainant's business” amounts to use in bad faith.
The Complainant represents that a further illustration of the Respondent's bad faith use resides in the fact that the Respondent has intentionally attempted to attract for commercial gain Internet users to an online location by creating a likelihood confusion with the Complainant's Trademarks as to the source sponsorship, affiliation or endorsement of the location.
Finally the inaction of the Respondent subsequent to the reception of the cease and desist letter from the Complainant in cancelling the routing to Walmart's website amounts to passive holding and the Complainant again relying on earlier UDRP panel decisions represents that the disputed domain name will better serve the community of Internet users by transferring it to a legitimate user, namely itself. See Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy's Antiques, WIPO Case No. D2000-0004 and Educational Testing Service v. TOEFL, WIPO Case No. D2000-0044.
Prior to engaging into the discussion, the Panel considers appropriate to comment on the quality and sufficiency of the evidence in this case.
The Complainant has provided ample and detailed evidence of the facts in this case as well as explained with numerous representations and reliance on earlier UDRP decisions including its seven earlier proceedings in respect of its Trademark CARREFOUR and the transfer of each domain name it was challenging. It is no surprise to this Panel that the Respondent who exchanged e-mail with the Complainant and acknowledges his awareness of the world wide presence of the Complainant's Trademark, did not file any response.
The Complainant is the registered owner of the CARREFOUR Trademark and has used it in association with several classes of products and services as mentioned in it French and international registrations as well as further registrations in 74 countries. Furthermore, it has used the said Trademark for over 45 years and has shown how it is now considered as ranking second at least in Europe. The documentary evidence adduced shows how its sales are in billions per year (“102.442 billion euros under banners in 2007”, Annex 10) generated in over 15,000 stores, including 20 in Turkey where the Respondent is located.
The promotional and advertising program of the Complainant is also an elaborate one in relying strongly on the Internet with its main website and domain name coupled and supported by more than 300 other domain names, of which about half do comprise the most distinctive term “Carrefour”.
The distinctive character of the Trademark does arise from the evidence presented in this case but has also been acknowledged by other panels in the several UDRP cases in which the Complainant was a successful party and obtained the transfer of the disputed domain name.
The Complainant has also represented that it has rights in the Trademark GROUPE CARREFOUR and CARREFOUR GROUP which, according to the evidence is not registered, but is used by the Complainant in its advertising and promotional campaign. The documentary evidence does show the use of GROUPE CARREFOUR as part of a logo which is used as a trademark, even though the words “groupe” and “Carrefour” are not of the same colour intensity as in the graphic of this logo trademark. The Panel considers this use of the said logo as the use of a trademark. The Complainant also uses GROUPE CARREFOUR and CARREFOUR GROUP as a trade name for the Complainant in sentences such as “The Carrefour group: a world leader in distribution” (Annex 10) which this Panel cannot consider as use as a trademark under the Policy.
This Panel has no hesitation in finding that the Complainant has rights in the CARREFOUR Trademark which the Panel finds highly distinctive so that the addition of descriptive term “groupe” and the gLTD suffix “.com” does not diminish in any way the distinctive character of the Trademark nor the confusing similarity between the Trademark and the disputed domain name.
The Respondent has not filed any Response in this proceeding. Therefore the Panel may accept all reasonable inferences and allegations included in the Complaint as true. The Complainant has made a prima facie case that the Respondent lacks right or legitimate interest in the disputed domain name by stating that the Respondent has never been known by the name CARREFOUR or CARREFOUR GROUPE or the domain name in dispute, and that its use by the Respondent is not legitimate noncommercial or fair use of the disputed domain name.
The Complainant has never given a license nor in any way authorized the Respondent to make use of the Complainant's Trademark nor to register the disputed domain name. There is no evidence that Respondent has ever engaged is any legitimate business under the Complainant's Trademark. While there is no clear or explicit evidence that the Respondent's action constitutes an attempt to extort money from the Complainant, it is certainly fair to conclude that the holding of the disputed domain name in dispute denies the Complainant access to the use of the disputed domain name corresponding to its Trademark.
Furthermore the evidence is clear and conclusive that the Respondent was trying to benefit from the routing of Internet visitors to its website to the Walmart website at least until the Complainant sent its cease and desist letter in June 2008 which acts have been considered contrary to a legitimate and fair commercial use by many panels before.
With the support of UDRP decisions cited by the Complainant and mentioned in the representations herein, the Complainant as this Panel finds has amply demonstrated that the Respondent has no rights or legitimate interest in the disputed domain name.
The second criterion has been met.
The Complainant contends that the disputed domain name was registered and used in bad faith.
The Respondent has in its e-mail to the Complainant stated its awareness of the world wide reputation of the Complainant and invited the Complainant to do business with him and illustrated the potential merit of the disputed domain name for the Complainant in inviting the Complainant to do business with the Respondent in listing its products on the website but not in selling the said disputed domain name (Annexes 2, 3, 4 and 5, all e-mails in June 2008 from the Respondent).
To this Panel, in agreement with the representation of the Complainant, the Respondent was well aware of the existence of the Complainant and its highly distinctive CARREFOUR Trademark when it registered the disputed domain name on November 22, 2007 without any authorization from the Complainant.
In so registering the disputed domain name, the Respondent knowingly registered a domain name that was confusingly similar to the most distinctive Trademark of the Complainant, prevented the Complainant from adding this domain name to its elaborate family of domain names. As it has been held by the panel in Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, supra, the present facts do show on the part of the Respondent who has no connection with the products or services of the Complainant, an opportunistic bad faith upon registering the disputed domain name.
As correctly alleged by the Complainant, the Respondent has engaged in further bad faith behavior in providing false information, address, telephone and fax numbers upon registering the disputed domain name, which behavior does show the deceptive nature of the modus operandi of the Respondent in supplying false information to hide his identity. This Panel adopts and makes his the conclusion of the panel in Chung, Mong Koo and Hyundai Motor Company v. Individual, WIPO Case No. D2005-1068, in stating that this way of operating is evidence of bad faith. .
The Panel finds that the disputed domain name was registered in bad faith.
Subsequent to the registration of the disputed domain name in November 2007, at a date unknown at the present time, the Respondent started to redirect Internet visitors to the website associated with the said disputed domain name to the website of Walmart, a main competitor of the Complainant. This troubling fact was boldly mentioned by the Respondent in his e-mail correspondence with the Complainant in June 2008, but this improper redirection was stopped by the Respondent upon receiving the cease and desist letter from the Complainant.
While, in the view of this Panel, the Respondent was not offering the disputed domain name for sale to the Complainant, it was clearly trying to generated income from its use, and this said use was that of a domain name confusingly similar to the most distinctive Trademark of the Complainant, an objectionable behavior clearly contemplated under paragraph 4(b)(iv) of the Policy. As represented by the Complainant with the support of earlier UDRP panel decisions, the inactive or passive holding of the disputed domain name in the circumstances of the present case also amounts to use thereof in bad faith.
This Panel finds that the disputed domain name has been used in bad faith by the Respondent.
The third criterion has been met.
(c) the disputed domain name in dispute has been registered and is being used in bad faith.
Therefore, in accordance with Paragraphs 4(a) and 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <carrefourgroupe.com> be transferred to the Complainant, Carrefour S.A.

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This data protection declaration applies to data processing by GMT-Gesellschaft für Maschinentechnik mbH, Wilhelmstraße 46, 44649 Herne / Germany.
the browser used and, if applicable, the operating system of your computer as well as the name of your internet provider.
We do not carry out so-called “profiling” on the basis of your data.
The legal basis for data processing is Art. 6 Para. 1 S. 1 lit. f DSGVO. Our justified interest follows from the purposes listed above for the collection of data. Under no circumstances do we use the collected data for the purpose of drawing conclusions about your person.
we offer you the opportunity to contact us with any questions you may have. A valid e-mail address must be provided so that we know who sent the request and can answer it. Further information can be provided voluntarily. Data processing for the purpose of contacting us is carried out in accordance with Art. 6 Para. 1 S. 1 lit. a DSGVO on the basis of your voluntary consent. The personal data collected by us for the use of the contact form will be automatically deleted after you have completed your request.
in the event that there is a legal obligation to pass on data pursuant to Art. 6 (1) sentence 1 lit. c DSGVOthis is legally permissible and required for the execution of contractual relationships with you pursuant to Art. 6 para. 1 sentence 1 lit. b DSGVO.
The use of so-called session cookies serves on the one hand to make the use of our offer more pleasant for you, e.g. to recognize that you have already visited individual pages of our website. The cookies are automatically deleted after leaving our site.
In addition, we also use temporary cookies to optimise user-friendliness, which are stored on your terminal for a specific period of time. If you visit our site again to make use of our services, it is automatically recognised that you have already been with us and which entries and settings you have made so that you do not have to enter them again.
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You can also prevent the collection of data generated by the cookie and relating to your use of the website (including your IP address) and the processing of this data by Google by downloading and installing a browser add-on, which you can find here.
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to request information about your personal data processed by us in accordance with Art. 15 DSGVO. In particular, you may request information on the processing purposes, the category of personal data, the categories of recipients to whom your data have been or will be disclosed, the planned storage period, the existence of a right of rectification, deletion, restriction of processing or objection, the existence of a right of complaint, the origin of your data, unless it has been collected from us, as well as the existence of an automated decision-making process including profiling and, where applicable, meaningful information on its details.
The legal basis for the processing of the data is Art. 6 para. 1 lit. a DSGVO if the user has given his consent. The legal basis for the processing of data transmitted in the course of sending an e-mail is Art. 6 para. 1 lit. f DSGVO. If the purpose of the e-mail contact is to conclude a contract, the additional legal basis for the processing is Art. 6 para. 1 lit. b DSGVO.
The other personal data processed during the sending process serve to prevent misuse of the contact form and to ensure the security of our information technology systems.The data will not be passed on to third parties in this context. The data will be used exclusively for the processing of the conversation.
The data will be deleted as soon as it is no longer required to achieve the purpose for which it was collected. For the personal data from the input mask of the contact form and those sent by e-mail, this is the case when the respective conversation with the user has ended. The conversation is terminated when it can be inferred from the circumstances that the relevant facts have been conclusively clarified. The additional personal data collected during the sending process will be deleted after a period of seven days at the latest.
The user has the possibility to revoke his consent to the processing of personal data at any time. If the user contacts us by e-mail, he can object to the storage of his personal data at any time. In such a case, the conversation cannot be continued. The revocation can be made at any time by e-mail or by post to the responsible office (see above). All personal data stored in the course of contacting us will be deleted in this case.
If your personal data are processed on the basis of legitimate interests pursuant to Art. 6 para. 1 sentence 1 lit f DSGVO, you have the right to object to the processing of your personal data pursuant to Art. 21 DSGVO if there are reasons for doing so which result from your particular situation or if the objection is raised against direct advertising. In the latter case, you have a general right of objection, which is implemented by us without stating a particular situation.
If you would like to make use of your right of revocation or objection, simply send an e-mail to gmt-maschinentechnik@t-online.de.

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Marion Bachrach has extensive experience as a litigator in white-collar criminal investigations, trials and appeals as well as complex civil suits. She is a partner in the law firm of Thompson & Knight LLP, where she is part of the firm’s fraud, litigation and cybersecurity practice. She has an active practice on behalf of institutional and individual clients and has had considerable experience counseling professionals, particularly lawyers.
After graduating from the Cornell Law School, she clerked for the Honorable Joseph L. Tauro, United States District Judge for the District of Massachusetts. She then joined Paul, Weiss, Rifkind, Wharton & Garrison, where she worked as a litigator. Thereafter, she served as an Assistant U.S. Attorney in the Eastern District of New York for six years. During that time, she tried and supervised significant criminal prosecutions and held the additional positions of Chief of General Crimes and Deputy Chief of the Criminal Division. In 1986, she returned to private practice, specializing in white-collar criminal and fraud-related matters. She co-founded and built the law firm of DePetris & Bachrach, LP, where she practiced for more than 20 years.
She is a founding member of the New York Council of Defense Lawyers as well as a former member of its Board of Directors and the former co-chair of its Sentencing Guidelines Committee. She serves as an appointed member of the Second Circuit CJA Committee. She teaches a course on Legal and Ethical Obligations in Complex Litigation as an adjunct faculty member at Columbia Law School. She has taught trial advocacy as part of the Intensive Trial Advocacy Program at Cardozo Law School, and has served on numerous panels on white-collar crime issues, including on cybersecurity. She is the author of a chapter on False Testimony by Government Witnesses in the book Defending Federal Criminal Cases (Law Journal Press).
Significant cases she has litigated or argued in private practice and in government service include: United States v. Watts, 786 F.3d 152 (2d Cir. 2015); United States v. Stein, 435 F. Supp.2d 330 (S.D.N.Y. 2006) and 495 F.Supp.2d 390 (S.D.N.Y. 2007), aff’d United States v. Stein, 541 F.3d 130 (2d Cir. 2008); United States v. Tenzer, 213 F.3d 34 (2d Cir. 2000); United States v. Manko, 979 F.2d 900 (2d Cir. 1992); United States v. Lizza Industries, Inc., 775 F.2d 492 (2d Cir. 1985); and United States v. McKeon, 738 F.2d 26 (2d Cir. 1984).

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What Bharti AXA offers for Yamaha Fazer F1 V. 2.0 Two-Wheeler Insurance?
Yamaha Fazer F1 V. 2.0 is the successor of the popular FZ bike. Fazer is a sports bike and now the version 2.0 has a 149cc, single-cylinder, 4-stroke engine. It has a gearbox that can produce five speeds. It is a performance-oriented vehicle. Being a powerful bike, it is liked by people who like rustic riding and going for frequent getaways to various places. Roads and paths don’t matter to them as the bike makes the ride smooth and comfortable. It comes with disc brakes and alloy wheels. Yamaha Fazer F1 V. 2.0 is available in three ravishing colors to pick from; Ravine Black, Volcano Red and Snowstorm White. The displacement of the Two-Wheeler is 149 CC and runs on petrol. Maximum power that it can produce is 13 bhp @ 8000 rpm.
Bharti AXA has some of the best picks for your Yamaha Fazer Ver. 2.0 as it needs more protection than any other. The damage caused to this bike or a Third-Party can cost one a fortune. Keeping these factors in mind, the following Yamaha Fazer F1 V. 2.0 Insurance Plans have been designed.
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The policy provider will insure you and a sum of up to INR 2 lakh will be provided in case of total disablement of the limbs or permanent vision loss when the incident takes place. Moreover, for the policy provider to pay on behalf of you, the person riding the bike should be the owner. The CC of your bike plays a vital role in determining the premium for the vehicle.
Comprehensive Insurance Plan: When you have this Two-Wheeler Insurance Plan in place, you are compensated in most of the cases which are not covered in Third-Party Liability insurance too. It is one of the most popular Yamaha Fazer F1 V. 2.0 Insurance Plans that can make you feel at ease for the protection features it provides. You get compensated for any injury to self, damage to your bike and also Third-Party Liabilities. Damage to the bike by natural calamities and man-made disaster are compensated. Death is also covered while 100% is paid for permanent disability to the limbs and vision loss.
Bharti AXA has two Add-On Covers for your Yamaha Fazer F1 V. 2.0 and you will want to have the two instantly after you get to know about them.
Personal Accident Cover for Occupants: Bike accidents can happen anytime. You may suffer major injury and accident can also be fatal. For these factors to be covered, this Add-On Cover can be bought together with the conventional insurance plan. The compensation will be for both the rider/owner and the pillion rider.
Zero-Depreciation Cover: Depreciation cost is measured by calculating the cost that was spent on getting the accessory parts replaced as well as repaired. Yamaha Fazer F1 V. 2.0 Insurance can get enhanced with this Add-On Cover. The depreciation cost of the accessory parts made of plastic, glass or fiber won’t be deducted and you get the actual sum assured.

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