HIGH COURT OF UTTARANKHAND AT NAINITAL A.O. NO. 155 of 2007 The New India Assurance Company Limited through its Senior Divisional Manager, Nainital Road, Haldwani, Nainital. …..Appellant Versus 1. Sri Kamal Shah, S/o Rumal Shah. 2. Smt. Mukhtari Shah, W/o Sri Kamal Shah, R/o Tehsil and Police Station – Kichcha, District – Udham Singh Nagar. ……….Claimants / Respondents. 3. Sri Atibal Singh, S/o Sri Shambhu Singh, R/o Jagnipurva Surjanpur, Police Station – Gajnare, District – Kanpur Dehat. …..Respondents Hon’ble Rajesh Tandon, J. Heard Sri R. B. Agarwal, learned counsel for the appellant and Sri H.M. Bhatia, learned counsel for the respondents. 2. By the present appeal, the appellant has prayed for setting aside the judgement and award dated 27.02.2007 by which a sum of Rs. 3,14,000/- has been awarded by the Claims Tribunal on the claim petition filed by the respondent nos. 1 and 2 under section 166/140 of the Motor Vehicles Act. 3. Briefly stated, respondents no. 1 and 2 have filed claim petition under section 140 / 166 of Motor Vehicles Act claiming compensation of Rs. 5,00,000/- from the Insurer of the offending vehicle Tata Spacio Gold Jeep No. UP – 77 / C 6711. 4. Briefly stated, according to the claimants on 20.03.2006 at about 2.00 p.m. the deceased was standing with his rickshaw and was waiting for someone near Geetanjali Public School at village Amaoun on his left side. At the same time offending 2 vehicle Tata Spacio Gold Jeep No. UP – 77 / C 6711 which was coming from Tanakpur being driven rashly and negligently by its driver dashed the deceased, his rickshaw and then a standing truck. As a result of which, he received fatal injuries and was succumbed to death on the spot. 5. Sri Aslam, brother of the deceased, has lodged the FIR of the aforesaid accident on the same date at P.S. Khatima and a criminal case was registered against the Driver of the offending vehicle Tata Spacio Gold Jeep No. UP – 77 / C 6711 as case crime no. 1198 of 2006 under section 279, 304A and 427 of Indian Penal Code. 6. According to the claimants the deceased was rickshaw puller and he was earning about Rs. 4500/- per month and at the time of death, he was only 22 years old and was unmarried. 7. Written statement was filed by the New India Insurance Company Limited denying the averments contained in the application and has further stated that the accident was caused not by the rash and negligent driving of the said offending vehicle Tata Spacio Gold Jeep No. UP – 77 / C 6711 but accident had taken place due to negligence of deceased, who was pulling the rickshaw without obeying the rules and regulations of Motor Vehicles Act. 8. On the pleadings of the parties, the Claims Tribunal has framed the following issues: 1. D;k nq?kZVuk fnukWd 20-3-2006 dks le; djhc 2-00 cts lk;a LFkku xzke & vekÅ ds ikl cgn Fkkuk & [kVhek] ftyk & Å/ke flag uxj esa thi VkVk Lisf’k;ks xksYM la[;k & ;w0 ih0 & 77 lh & 6711 ds pkyd }kjk okgu dks rsth ,oa ykijokgh ls pykus ds dkj.k ?kfVr gq;h] ftles vcjkj 'kkg dh e`R;q gks x;h\ ;fn gkW rks izHkko \ 3 2. D;k ;kphx.k dksbZ izfrdj izkIr djus ds vf/kdkjh gS] ;fn gkW rks fdruh /kujkf’k vkSj fdl i{kdkj ls\ 9. Claimants have filed documentary evidences viz. copy of FIR, postmortem report, registration certificate, Insurance Cover Note and Driving License of the driver. Towards oral evidence Sri Kamal Shah and Sher Mohammad have been examined as PW 1 and PW 2. The respondents have adduced no documentary evidence. 10. While deciding the issue no. 1 as to whether on 20.03.2006 at about 2.00 p.m. near Geetanjali Public School, P.S. Khatima, District U.S. Nagar accident had taken place due to the fact that offending vehicle Tata Spacio Gold Jeep No. UP 77 / C 6711 was driving the vehicle rashly and negligently as a result of which, Abrar Shah, son of claimants, died. 11. Reliance has been placed on the oral statement of PW 1 Kamal Shah and PW 2 Sher Mohmamad. In order to prove the said accident the claimants have filed paper no. 6 Ga / 1 FIR, Postmortem Report, Beema Cover Note and Driving License. 12. The Claims Tribunal has come to the conclusion that offending vehicle Tata Spacio Gold Jeep No. UP – 77 / C 6711 was being driven by the driver rashly and negligently as a result of which Abrar Shah died on the spot. 13. While deciding issue no. 2 as to whether the claimants are entitled for compensation, the Tribunal has recorded a finding that the deceased was earning a sum of Rs. 3000/- per month instead of Rs. 4500 per month. After deducting 1/3rd i.e. Rs. 1000/-, which he must have been spending. The annual dependency was calculated a sum of Rs. 24,000/-. After taking into consideration the age of father and mother of the deceased about 45 and 40 years, the Tribunal has selected the multiplier of 13, consequently, the claimants have been held to be entitled 4 for Rs. 3,12,000/- and as a sum of Rs. 2000/- has been awarded for funeral rites. Accordingly, a sum of Rs. 3,14,000/- has been awarded. 14. Counsel for the appellant has referred the judgment of Municipal Corporation of Greater Bombay Vs. Laxman Iyer (2003) 8 SCC 731, where the Apex Court has observed as under: “7. At this juncture, it is necessary to refer to the “doctrine of last opportunity”. The said doctrine is said to have emanated from the principle enunciated in Davies v. Mann (1842) 10 M & W 546 : 152 ER 588, which has often been explained as amounting to a rule that when both parties are careless the party which has the last opportunity of avoiding the results of the other’s carelessness is alone liable. However, according to Lord Denning it is not a principle of law, but a test of causation. [See Davies v. Swan Motor Co. (Swansea) Ltd. (1949) 2 KB 291 : (1949) 1 All ER 620 (CA) Though in some decisions, the doctrine has been applied by courts, after the decisions of the House of Lords in Volute (1922) 1 AC 129 and Swadling v. Cooper 1931 AC 1, it is no longer to be applied. The test is, what was the cause or what were the cause of the damage. The act or omission amounting to want of ordinary are or in defiance of duly or obligation on the part of the complaining party which conjointly with the other party’s negligence was the proximate cause of the accident, renders it one to be the result of contributory negligence. 8. This Court in M.S. Grewal case (2001) 8 SCC 151 has clearly observed that the decision in Lata Wadhwa case (2001) 8 SCC 197 is definitely a guiding 5 factor in the matter of award of compensation wherein children died due to an unfortunate accident. The said observation was made after taking into consideration the conclusions arrived at in Lata Wadhwa (2001) 8 SCC 197 regarding the compensation which was to be paid and the multiplier which was to be applied in relation to the death of a child. This Court in G.M. Kerala SRTC v. Susamma Thomas (1994) 2 SCC 176 held that the proper method of compensation is the multiplier method, and the same view was reiterated in M.S. Grewal case observing that “needless to say that the multiplier method stands accepted by this Court in the said decision” (SCC p. 171, para 33). 12. Keeping in view the observations made by this Court in various cases, several other factors need to be taken note of. The deceased was unmarried. The contribution to the parents who had their separate earnings being employed and educated has relevance. The possibility of reduction in contribution once a person gets married is a reality. The compensation is relatable to the loss of contribution or the pecuniary benefits. The multiplier adopted by the Tribunal and confirmed by the high Court is certainly on the higher side. Considering the age of the claimants, it can never exceed 10 even by the most liberal standards. Worked out on that basis the amount comes to Rs. 3.6 lakhs at the monthly expected income fixed by the Tribunal and confirmed by the High Court. Looking into the nature of the contributory negligence of the deceased after making an appropriate deduction which can reasonably be fixed at 25%, the compensation amount payable by the Corporation can be fixed at rupees 6 three lakhs including the amount awarded by the Tribunal and confirmed by the high Court for loss of expectation of life. Interest at the rate as awarded by the High Court is maintained from the date of application for compensation.” 15. On the other hand, counsel for the respondent has placed reliance on the judgement of APSRTC Vs. M. Pentaiah Chary reported in 2007 AIR SCW 5689 where the claimant was aged about 38 years and the multiplier of 15 has been held to be proper and the Apex Court has observed that the multiplier specified in the Schedule ii of Section 163 A of Motor Vehicle Act has to be taken into consideration and this departure should only be made when there is strong reasons for the same. Paras 5, 6 and 7 of the same are quoted below: “5. Application of the multiplier in a structural form was provided in the Second Schedule appended to the Motor Vehicles Act. Benefit of applying such structural formula was considered by this Court in General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs) and Others [(1994) 2 SCC 176] wherein this Court opined: "14. The considerations generally relevant in the selection of multiplicand and multiplier were adverted to by Lord Diplock in his speech in Mallett's case where the deceased was aged 25 and left behind his widow 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 the annual value of the material benefits provided for the dependants out 7 of the earnings of the deceased at the date of his death. But...there are many factors which might have led to variations up 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 of unemployment. As his children grew up and became independent the proportion of his earnings spent on his dependants would have been likely to fall. But in considering the effect to be given in the award of damages to possible variations in the dependency there are two factors to be borne in mind. The first is 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 in the assessment. The second is that as a matter of the arithmetic of the calculation of present value, the later the change takes place the less will be its effect upon the total award of damages. Thus at interest rates of 4 per cent the present value of an annuity for 20 years of which the first ten years are at Pounds 100 per annum and the second ten years at Pounds 200 per annum, is about 12 years' purchase of the arithmetical average annuity of Pounds 150 per annum, whereas if the first ten years are at Pounds 200 per annum and the second ten years at Pounds 100 per annum the present issue is about 14 years' purchase of the arithmetical mean of Pounds 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 8 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." 6. Placing strong reliance upon the observations made therein, the learned counsel appearing on behalf of the appellant corporation would submit that the correct multiplier which should have been applied in this case was '12'. Reliance was also placed on Dr. K.G. Poovaiah v. General Manager/ Managing Director Karnataka State Road Transport Corporation [(2001) 9 SCC 167] wherein this Court opined: "5... However, the assessment of compensation under the head of loss of earning capacity is very much on the lower side. The injury to the right hand, which has left a permanent disability and which has affected the functioning of the limb and in particular the fingers, is a serious handicap to a medical practitioner. Patients would be reluctant to go to him for treatment and, therefore, the loss of earning capacity would be substantial. Even if we were to assume that it would reduce his earning capacity by 50% and even if we go by his earnings at the date of the accident, the monthly loss would come to Rs. 1500 i.e. Rs. 18,000 per annum. If this monthly loss of earning is multiplied by 10 years purchase factor the compensation would work out to Rs. 1,80,000. To that must be added the compensation allowed under certain other heads, namely, pain and suffering, loss of amenities, medical expenses, etc. The total amount comes to Rs. 2,38,000." 9 7. Reliance has also been placed on U.P. State Road Transport Corpn. v. Krishna Bala and Others [(2006) 6 SCC 249] wherein it was held: "13. In Susamma Thomas case it was noted that the normal rate of interest was about 10% and accordingly the multiplier was worked out. As the interest rate is on the decline, the multiplier has to consequentially be raised. Therefore, instead of 16 the multiplier of 18 as was adopted in Trilok Chandra appears to be appropriate. In fact in Trilok Chandra case, after reference to Second Schedule to the Act, it was noticed that the same suffers from many defects. It was pointed out that the same is to serve as a guide, but cannot be said to be invariable ready reckoner. However, the appropriate highest multiplier was held to be 18. The highest multiplier has to be for the age group of 21 years to 25 years when an ordinary Indian citizen starts independently earning and the lowest would be in respect of a person in the age group of 60 to 70, which is the normal retirement age. (See: New India Assurance Co. Ltd. v. Charlie)" 16. Further, the counsel for the respondents has placed reliance on the judgement reported in 2008 AIR SCW 182. Paras 12 and 13 are quoted below: Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. 13. The following words of Lord Denning in the matter of applying precedents have become locus classicus: 10 Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it. 17. I have perused the Second Schedule contained in Motor Vehicle Act where multiplier of 15 has been selected towards age from 40 but not exceeding 45 years and above 45 years multiplier of 13 has been selected. The Tribunal has already reduced the multiplier from 15 to 13 as age of parents are 40 and 45 years, therefore, there is no occasion to come to the conclusion that the multiplier of 10 should have been selected. 18. Facts of the case of Greater Bombay are quite different as already stated father and mother of the deceased cannot be deprived as his son was only dependent and parents were fully dependent upon him. 19. In view of the above, I do not find any infirmity with the impugned judgement and award. Appeal lacks merit and is liable to be dismissed. 20. I have also perused the cross objection. Since the multiplier of 13 has already been selected and the income has 11 already taken as Rs. 36,000/- per annum. Therefore, I do not find any ambiguity or illegality in the order passed by the Tribunal. 21. Consequently, the appeal is dismissed. Cross objection is also dismissed. (Rajesh Tandon, J. ) 13.02.2008 SKS