HIGH COURT OF UTTARAKHAND AT NAINTIAL (Court’s order whether the case is or not approved for reporting) Description of the case A.O. No. 187 of 2007 Seva Ram and Another Vs. Madan Lal and others. Approved for reporting Not Approved for reporting Dated of Decision: 04-01-2008. Initial of Judge: HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. NO. 187 OF 2007 1. Seva Ram, S/o Puttu Lal, 2. Smt. Soni, W/o Seva ram, Both residents of Shankar Farm (Gotiya), Police Station – Kichha, District – Udham Singh Nagar……….Appellants/Claimant. Vs. 1. Madan Lal, S/o late Tara Chandra, R/o Guresh Rani Compound Malla Gorakhpur, Haldwani, District – Nainital. 2. Umesh Chandra, S/o Rashtri Dutt, R/o Pratappur, No.4 Khatima, District –Udham Singh Nagar. 3. Oriental Insurance Company Ltd., through its Divisional Manager, Divisional Office, Nainital Road, Haldwani, District- Nainital. …….Respondents. Dated: 4.1.2008 Hon’ble Rajesh Tandon, J. Heard Sri U.S. Kalakoti, counsel for the appellant and sri Deepak Rawat, counsel for the respondent no.3. 2. By the present A.O. filed under Section 173 of the Motor Vehicle Act, 1988, appellant has prayed for setting aside the judgment and award dated 28.9-2006 passed by the Motor Accident Claims Tribunal/District Judge, Udham Singh Nagar at Rudrapur in M.A.C.P. No. 75 of 2005 Seva Ram and others Vs. Madan Lal and others, whereby the claimants have been awarded a sum of Rs. 72,000/- towards compensation. 3. Briefly stated, a claim petition was filed by the claimants being M.A.C.P. No. 75 of 2005 Seva Ram and others Vs. Madan Lal others claiming a sum of Rs. 5,00,000/- towards compensation. 4. According to the claimants, on 2.2.2005 at about 8.30 a.m. when Ravi (hereinafter referred to as the ‘deceased’ was going to school by Bicycle, as soon as he reached near Shankar Farm, a truck No. Tata 1109 No. U.A. 04 A-9011, which was coming from the opposite side and being driven rashly and negligently by its driver dashed the Bicycle of the deceased and he succumbed to injuries. At the time of accident, the deceased was 13 years of age and was an student. 5. Respondent no. 1 and 2 have neither contested the claim by filing any written statement nor turned up in the Court. Thus, the matter proceeded ex parte against them. 6. Insurer has contested the claim by filing a written statement stating therein in the additional pleas that all the papers regarding the vehicle in question and driving licence should be valid, otherwise, the Insurer will not be liable to pay any compensation. 7. On the pleadings of the parties, the claims tribunal has framed following issues: “1- D;k fnukad 2&2&2005 dks le; djhc 8&30 cts lqcg] LFkku xzke 'kadj QkeZ esa tc e`rd jfo viuh lkbZfdy ls lko/kkuh iwoZd Ldwy tk jgk Fkk rks D;k iz’uxr okgu okgu ua0 VkVk 1109 la0 ;w0,0&04&9011 ds pkyd us mDr okgu dks rsth o ykijokgh ls pykdj e`rd jfo dh lkbZfdy esa VDdj ekjh ,oa cqjh rjg dqpy fn;k] ftlls jfo dh ekSds ij gh e`R;q gks x;h \ ;fn gka rks izHkko \ 2 D;k iz’uxr okgu ekS0 'kQhd ,oa eqLrkd dks foi{kh ua0 1 us csp fn;k gS\ ;fn gka rks izHkko \ 3& D;k iz’uxr okgu ds pkyd ds ikl nq?kZVuk ds oDr oS/k M~kbfox ykbZlSal miyC/k Fkk \ ;fn gka rks izHkko \ 4& D;k iz’uxr nq?kZVuk e`rd dh ykijokgh ds dkj.k gksus ls lgHkkxh nkf;Ro dk dsl curk gS\ tSlk fd izfrokn Ik= 23 [k ds iSjk ua0 14 esa dgk x;k gS \ ;fn gka rks izHkko \ 5& ;kphx.k] fdl foi{kh ls fdruh izfrdj /kujkf’k izkIr djus ds vf/kdjh gS \” 8. On behalf of the claimant, Sri Seva Ramm, Sri Deepak and Sri Naresh Chauhan S.I. have been examined as P.W.1, P.W.2 and P.W.3 respectively. Towards the documents evidence, the claimants have filed per List 7Ga/1 seven documents, per List 12 Ga three documents and per list 36Ga two documents. 9. On behalf of the defendants, no one has been examined and further no documentary evidence has been filed. 10. While deciding the Issues as to whether on 2.2.2005 at about 8.30. a.m. when deceased Ravi was going to School by Bicycle cautiously, as soon as he reached near Shankar Farm, a truck No. Tata 1109 No. U.A. 04 A –9001, which was coming from the opposite side and being driven rashly and negligently by its driver dashed the Bicycle of the deceased and crushed the deceased, in which Ravi died on the spot and further as to whether on account of own negligence of the deceased, this is a case of contributory negligence as has been mentioned in paragraph 14 of the written statement Paper No. 23 Kha, claims tribunal has relied upon the statement of P.W.2 Deepak Kumar, who is an ocular witness. He has stated that on 2.2.2005, he was going to Government Inter College Bara and a Truck 1109 No. U.A. 04-A-9011, which was coming from the side of the Sitarganj and being driven rashly and negligently by its driver dashed the Bicycle of Master Ravi, in which the Ravi died on the spot. The Insurer has failed to rebut the same. Further reliance has been placed on First Information Report, which supports the case of the claimants. After relying upon the aforesaid documents, the claims tribunal has recorded a finding that on 2.2.2005, due to rash and negligent driving of the driver of Vehicle No. Tata 1109 No. U.A. 04-A-9011 accident took place, in which Ravi died on the spot and this is not a case of contributory negligence. Thus, issues no. 1 and 4 have been decided accordingly. 11. I do not find any illegality or infirmity in the aforesaid finding and the same deserves to be confirmed. 12. Whiel deciding as to whether the vehicle has been sold out to Mohd. Shafiq and Musaq by defendant no. 1, since this point has not been argued, thus, the issue has been rejected. 13. While deciding as to whether at the time of accident the driver of the vehicle in question was holding valid driving licence, claims tribunal has relied upon the photocopy of the licence Paper No. 7Ga/5, which shows that at the time of accident, the driver of the vehicle in question was holding valid driving licence. Relying upon the said documents, this issue has been decided in favour of the claimants. 14. I do not find any illegality or infirmity in the aforesaid finding and the same deserves to be confirmed. 15. While deciding the issue with regard to quantum, the claims tribunal has awarded a sum of Rs. 70,000/- to the claimants towards compensation as a lumpsum amount keeping into consideration the age of the deceased as 13 years and further has awarded a sum of Rs. 2,000/- towards funeral expenses. Thus, the claims tribunal has awarded a total sum of Rs. 72,000/- towards compensation. Since, the truck in question was validly insured with the Oriental Insurance Company at the time of accident, thus, the liability has been fixed of the Insurer to pay the amount of compensation. 16. The findings with regard to rash and negligent driving have not been rebutted, thus, the same are confirmed. 17. So far as the quantum of compensation is concerned, since the deceased was an unmarried person, therefore, the compensation has been claimed by his parents and the claims tribunal has awarded a total sum of Rs. 70,000/- towards compensation and further a sum of Rs. 2,000/- towards funeral expenses. 18. Since, the deceased was 13 years of age and if the age of his parents are taken into consideration, then, the multiplier of 13 should have been used and if the notional income of Rs. 15000/- per annum is taken, then the amount of compensation comes much more then what has been awarded to the claimants. 19. The Apex Court in Tamil Nadu State Transport Corporation Ltd. Vs. S. Rajapriya & Ors. 2005(4) Supreme 87 has observed as under: “8. The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account may 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 the deceased may not have lived or the dependants many 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. 9. 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 in come as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalized by multiplying it by a figure representing the proper number of year’s purchase. 10. 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 the best as it can the loss suffered. 11. There were two methods adopted to determine and for calculation compensation in fatal accident actions, the first the multiplier mentioned in Davies case (supra) and the second in Nance v. British Columbia Electric Railway Co. Ltd. (1951(2) All ER 448). 12. The multiplier method involved 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 calcuartion as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicant by way of annual interest. In ascertaining this, regard should also be hald to the fact that ultimately the capital sum should also be consumed up over the period for which the dependency is expected to last. 1 13. The considerations generally relevant in the selection of multiplicand and multiplier were adverted to by Lord Diplock in his speech in Mallett v. Mc Mongle (1969 (2) All ER 178) where the deceased was aged 25 and left behind his window of about the same age and three minor children. On the question of selection of multiplicand Lord Diplock observed: “The starting point in any estimate of the amount of the dependency is annual value of the material benefits provided for the dependants out of the earnings of the deceased at the date of his death. But……there are many factors which might have led to variations 9up or down in the future. His earnings might have increased and with them the amount provided by him for his dependants. They might have diminished with a recession in trade or he might have had spells or unemployment. As his children grew up and became indpendent the proportion of his earnignds spent on his dependants would have been likely to fall. But ion considering the effect to be given in the award of damages to possible variations in the d3ependency there are two factors to be borne in mind. The firs tis that the more remote in the future is the anticipated change the less confidence there can be in the chance of its occurring and the smaller the allowance to be made for it ion the assessment. The second is that as a matter of the arithmetic of the calculation of present value, the later the toral award of damages. Thus at interest rates of 4-1/2% the present value of an annuity for 20 years of which the first ten years are at $100 per annum and the second ten years at $200 per annum, is about 12 years’ purchase of the arithmetic average annuity of $150 per annum, whereas if the first ten years at $200 per annum and the second ten years at $100 per annum the present value is about 14 years’ purchase of the arithmetical mean of $150 per annum. If therefore the chances of variations in the dependency are to be reflected in the multiplicand of which the years’ purchase is the multiplier, variations in the dependency which are not expected to take place until after ten years should have only a relatively small effect in increasing or diminishing the ‘dependency’ used for the purpose of assessing the damages.” 20. In view of the above, the award in modified to this extent that in place of 70,000/-, the Insurer shall be liable to pay a sum of Rs, 1000,00/- towards compensation and Rs. 2,000/- towards funeral expenses. Thus, the Insurer will be liable to pay a total sum of Rs. 1,02,000/- towards compensation along with the interest, which was awarded by the claims tribunal concerned. 21. Subject to aforesaid, A.O. partly succeeds and is allowed. (Rajesh Tandon, J.) 4.1.2.008 Rathour