IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. FAO No.262 of 2004 Date of Decision : September 4, 2008 Nathu Singh and another …Appellants. Versus: The New India Assurance Co. Ltd., & others …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellants: Mr. Ramesh Sharma, Advocate For respondent No. 1 : Mr. B. M. Chauhan, Advocate. Sanjay Karol, J.(Oral) The present appeal arises out of the impugned Award dated 21.5.2004 passed by the Motor Accident Claims Tribunal-II, Kangra at Dharamshala, H. P. in M. A. C. T. No. 36/02 titled as Nathu Singh & another. vs. The New India Assurance Co. Ltd., & others, awarding a sum of Rs.93,820/- plus interest @ 6% as compensation payable to the claimants. On 12.4.2002, the vehicle in which the deceased Shri Narinder Kumar was travelling met with an accident near District Hamirpur, H.P. in which he received multiple injuries and had to undergo treatment at Civil Hospital, Nadaun and Zonal Hospital, Dharamshala, where he succumbed to his injuries on 1.5.2002. He was 22 years of age and his parents filed a claim petition 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) seeking compensation of a sum of Rs.10 lacs. Respondent No.1, The New India Assurance Company Ltd., opposed the petition on the ground that the deceased who was an unauthorized passenger was travelling in Goods Carrier vehicle and that the driver of the vehicle was not carrying a valid and effective driving licence. Vide joint written statement, owner and driver, respondents No. 2 & 3 respectively opposed the petition on the ground that the accident did not take place due to the rash and negligent driving on the part of respondent No.3. The averments with regard to the income and the age were not disputed by the respondents. Appreciating the material on record, the Tribunal concluded that the accident occurred due to the rash and negligent driving on the part of respondent No.3 in which the deceased received injuries and died as a result of the same. On the amount of compensation, the Tribunal found that there was no material evidence on record to prove the income of the deceased who was 22 years of age at the time of accident but however, considering that Rs.2000/- was the minimum wages payable by the State to the labourers, the same was taken to be income of the deceased and since the deceased was unmarried, the dependency was determined at 1/3rd of the same. The Tribunal found the age of the claimants to be 60 years and 63 years respectively and, therefore, by applying 3 multiplier of 8, concluded that the total sum payable to the claimants was Rs.64,320/- in addition to Rs.9,500/- incurred towards medical expense and Rs.20,000/- payable as compensation for loss of love and affection, consortium and loss of estate. Thus, a total sum of Rs.93,820/- along with interest @ 6% per annum was determined as compensation payable by the Assurance Company. The pleas taken by the Assurance Company were rejected and the liability was fastened on the insurer. The present appeal has been filed by the claimants seeking enhancement of the compensation awarded by the Tribunal. Importantly, no appeal has been filed by any of the respondents. The appeal was admitted on 2.8.2004 and the Registry had issued actual date intimation for hearing of the appeal but however, respondents No. 2 & 3 have chosen not to cause appearance and contest the present appeal. I have heard learned counsels for the parties and also perused the record. The Apex Court in Oriental Insurance Company Limited vs. Jashuben and others, (2008) 4 SCC 162, after considering its earlier decisions in N.Sivammal v. Pandian Roadways Corpn, (1985) 1 SCC 18, GM, Kerala SRTC vs. Susamma Thomas, (1994) 2 SCC 176, Sarla Dixit v. Balwant Yadav (1996) 3 SCC 179, Rathi Menon v. Union of India (2001) 3 SCC 714, T. N. State Transport Corpn. Ltd. v. S. Rajapriya (2005) 6 SCC 236, New India Assurance Co. Ltd. V. Charlie 4 (2005) 10 SCC 720, U.P.SRTC v. Krishna Bala (2006) 6 SCC 249, MD, T.N. STC v. Sripriya, (2007) 13 SCC 641 and National Insurance Co. Ltd. vs. Indira Srivastava and others, (2008) 2 SCC 763, has held that the amount of compensation undisputably should be determined having regard to the pecuniary loss caused to the dependants by reason of the death of the victim. The earning of the deceased at the time of the accident including future prospects within the legal principals have to be considered. The Court has approved its earlier views, which are reproduced as under:- “The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last” “In Black's Law Dictionary, "compensation" is shown as ‘equivalent in money for a loss sustained; or giving back an equivalent in either money which is but the measure of value, or in actual value otherwise conferred; or recompense in value for some loss, injury or service especially when it is given by statute’ 5 “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 together. The manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalised by multiplying it by a figure representing the proper number of years' purchase. Much of the calculation necessarily remains in the realm of hypothesis "and in that region arithmetic is a good servant but a bad master" since there are so often many imponderables. In every case "it is the overall picture that matters", and the court must try to assess as best as it can the loss suffered.” “If the dictionary meaning of the word 'income' is taken to its logical conclusion, it should include those benefits, either in terms of money or otherwise, which are taken into consideration for the purpose of payment of income-tax or profession tax although 6 some elements thereof may or may not be taxable or would have been otherwise taxable but for the exemption conferred thereupon under the statute.” The issue for consideration before this Court is limited to the enhancement of the compensation. The Tribunal held the age of the claimant to be 63 years and 60 years, on the basis of particulars mentioned at the time of giving oath and recorded immediately above the statement of claimant Shri Nathu Singh (PW-3). In the memo of parties to the claim petition, the claimants have specifically mentioned the age of the claimant Shri Nathu Singh to be 47 years and that of claimant Smt. Bimla Devi to be 45 years. Importantly, in the pleadings, this fact has not been denied by any of the respondents. However, it is evident that while recording the particulars of the claimant Shri Nathu Singh, initially the age was to be “48” years, which was however smudged and figure “63” was written on the side. The same did not bear the initials of the Presiding Officer. I am convinced that there is an error in recording the age for the reason that from his statement recorded on oath, claimant Nathu Singh has deposed that the age of claimant No.2, his wife is 47-48 years. This only corroborates what has been mentioned in the pleadings. Thus, from the record, it is apparent that the Tribunal has wrongly determined the age of the claimant to be 63 years and 60 years, the age actually is 47 years and 45 years. The time gap between the filing of the petition and recording of the statement is two 7 years. Therefore, the deposition of PW-3 appears to be correct and the age is held to be 47 years and 45 years. I find no error in the Tribunal’s Award taking the income of the deceased to be Rs.2000/- for determining the dependency. While taking the age of the claimants to be 60/63 years, the Tribunal has applied the multiplier of 8. Since the age of the claimant has been determined to be 45 and 47 years respectively, in my view, the multiplier of 11 would be just and proper. Therefore, the claimants shall be entitled to the following compensation for the loss of income:- Rs.2000/- minus 2/3rd = Rs.667/- or say Rs.670/- Rs.670 x 12 x 11 = Rs.88,440/- It has been proved by Dr. A. K. Sharma (PW-1) that the deceased was admitted in the Hospital and had undertaken medical treatment from the date of accident i.e. 12.4.2002 till the date of his death i.e. 1.5.2002. Shri Bhagat Ram (PW-2) has deposed that he incurred an expenditure of Rs.70,000/- on the treatment of his son. There is nothing on record to prove the same but however, the fact of the matter is that the accident took place in Hamirpur, and the injured was taken to the hospital at Nadaun where he was further referred to Zonal Hospital, Dharamshala, and given treatment there. The parents of the deceased were with him all the time. The claimants must have incurred expenditure for the same, therefore, in my view, instead of Rs.9,500/- a lump sum amount of Rs.20,000/- could be 8 awarded in favour of the claimants towards medical, travelling and other expenses incurred for the treatment of the deceased. The Tribunal has awarded interest @ 6% per annum. I am of the view that it is on the lower side. Even in the year 2002 banking rate of interest was ranging between 9% to 11%. The Apex Court has also been awarding interest ranging from 9% to 12%. In my view, instead of 6% as awarded by the Tribunal, the claimants would be entitled to interest @ 9% per annum from the date of filing of the petition till the date of payment. Thus, the claimants in all shall be entitled to following compensation along with interest @ 9% per annum :- Under the head of dependency : Rs.88,440/- Travelling expenditure/medical : Rs.20,000/- Expenditure and special diet expenditure etc. Loss of consortium on account : Rs.20,000/- of death of the deceased ------------- Rs. 1,28,440/- ------------- The Award is modified to the aforesaid extent and the appeal is allowed and disposed of as such. ( Sanjay Karol ), Judge. September 4, 2008. (rana)