IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (Chapter VIII, Rule 32(2)(b) Description of Case Appeal From Order No. 521 of 2006 Date of decision: 18th February, 2008 A.F.R. (Approved for Reporting) Not approved for Reporting Date: 18.02.2008 Initial of Judge Note: Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Appeal from Order No. 521 of 2006 1. Smt. Pratima Devi W/o Khadak Singh 2. Km. Neema D/o Kadak Singh Age 19 years 3. Bhupendra S/o Kadak Singh Age 17 years through natural mother Smt. Pratima Devi 4. Shiv Raj S/o Harak Singh 15 years through natural mother Smt. Pratima Devi All R/o Vill. Miragaon, P.O. Dhiyari, Tahsil, Bhanoli, Distt. Almora ......Claimants/Appellants Versus 1. Pratap Singh S/o Ganga Singh R/o Village and Post Bhanoli District Almora 2. New India Insurance Company through its Regional Manager, Regional Office Haldwani, District Nainital ……...Respondents Mr. Amrish Tiwari, learned Counsel for the appellants None for respondent No. 1- Pratap Singh. Mr. P.C. Maulekhi, learned Counsel for respondent No. 2. JUDGMENT Coram : Hon’ble V.K. Gupta, C.J. Hon’ble J.C.S. Rawat, J. Per Hon’ble J.C.S. Rawat, J. 1. This appeal, under section 173 of the Motor Vehicles Act 1988, has been filed for the enhancement of the award dated 05.06.2006 passed by the Motor Accidents Claims Tribunal/District Judge, Almora (hereinafter referred as ‘Tribunal’) in M.A.C. No.41 of 2005, Smt. Pratima Devi and others Vs. Pratap Singh and another whereby the learned Tribunal has awarded as sum of Rs. 2,35,000/- as compensation alongwith interest thereon at the rate of 7% per annum from the date of filing of the claim petition upto the payment a1gainst the opposite parties/respondents jointly and severally. 2. The facts, in nutshell, are that deceased Sri Harak Singh was working as a Cleaner in Vehicle No. UA-01/3039. On 8th December, 2004, the vehicle met with an accident due to rash and negligent driving of the driver and deceased Harak Singh sustained multiple injuries in the motor accident. Later on, deceased Harak Singh succumbed to his injuries. Deceased Harak Singh was getting a sum of Rs. 3,500/- per month salary as a cleaner of the vehicle. Thus, the claimants had filed a claim petition before the Tribunal. 3. The respondents contested the claim petition and filed their separate written statements. The respondent No. 1, owner of the vehicle, admitted the factum of the accident and denied the rest of the allegations made in the claim petition. He further alleged in the written statement that the driver of the said vehicle was not rash and negligent at the time of the accident; the accident occurred due to technical defect in the vehicle; the driver of the vehicle had a valid and effective driving licence to driver the vehicle; the vehicle was insured with respondent No. 2, the New India Insurance Company Ltd; and if, there is any liability to pay the compensation, the Insurance Company is liable to pay the compensation. The respondent No. 2, insurer, or the other hand, pleaded that the vehicle was being plied in breach of the policy conditions; the driver was not holding valid driving licence at the time of accident; and the compensation demanded was very excessive. 4. The learned Tribunal on the evidence led by the parties held that the deceased died on account of the injuries sustained by him in the motor accident on 08.12.2004; the accident occurred due to rash and negligent driving of the driver of the vehicle; and the insurer & owner of vehicle No.UA01/3039 were liable to pay the compensation to the claimants jointly and severally. 5. The Tribunal assessed the monthly income of the deceased at Rs. 1,500/- per month in his own estimate. By deducting 1/3rd of Rs. 1,500/- as personal expenses, the dependency was assessed at Rs. 1,000/- per month i.e. Rs. 12,000/- per years. The learned Tribunal had selected the multiplier of ‘13’ but due to mistake the calculation has been carried out on the basis of multiplier of ‘12’. By multiplying the annual dependency of Rs. 12,000/- with the multiplier of ‘12’, the compensation worked out to Rs. 1,44,000/-. The Tribunal further awarded Rs. 2,000/- towards ‘Funeral Expenses’, Rs. 5,000/- for ‘Loss of Consortium’ and Rs.84,000/- towards the treatment for the injuries sustained by the deceased in the motor accident. Thus, a total sum of Rs. 2,35,000/- was awarded as compensation to the claimants for the death of deceased Harak Singh in the motor accident. The Tribunal further directed the insurer and the Owner of the vehicle to pay interest at the rate of 7% per annum from the date of claim petition till the payment of the compensation. 6. Feeling aggrieved by this award, the claimants have preferred the present appeal for enhancement of compensation. 7. Heard learned counsel for the parties and perused the record. 8. Mr. Amrish Tiwari, Advocate for the appellants submitted that the Tribunal erred in not accepting the claimants’ evidence about in income of the deceased; in selecting the lower multiplier of ‘13’; and in awarding a low compensation of Rs. 2,35,000/- 9. Mr. P. C. Maulekhi, Advocate for respondent No. 2, the New India Assurance Company Limited, on the other hand, supported the award and submitted that the Tribunal has been quite liberal in awarding substantial compensation of Rs.2,35,000/- to the claimants. 10. The findings recorded by the Tribunal that the deceased Harak Singh died on account of injuries sustained by him in the motor accident on 08.12.2004; the accident occurred due to rash and negligent driving of the driver of the jeep; and the insurer and the owner of the vehicle were liable to pay the compensation to the claimants have, now, attained finality as the respondents have not filed any appeal against the said award. Apart this, we have gone through the entire record and we find that there is overwhelming evidence to support the above findings recorded by the Tribunal. 11. Now, we shall examined as to whether the compensation of Rs. 2,35,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the case. 12. The evidence led by the claimants about the income of the deceased Harak Singh was not found reliable by the Tribunal. The Tribunal has assessed the income of deceased Harak Singh at Rs. 1,500/- per month at his own assessment. It is true that the evidence led by the claimants about the income of the deceased was not of clinching nature. We, therefore, do not find any fault in the approach of the learned Tribunal in discarding the evidence led by the claimants about the income of the deceased. Nevertheless, the assessment of the income of the deceased by the Tribunal at Rs. 1,500/- per month on the basis of his own assessment also requires reconsideration, as the same is on the lower side. If the evidence of the income is not of clinching nature, the notional income mentioned in the Second Schedule under Section 163-A is the guiding criteria for assessing the income of the deceased. In the Second Schedule under Section 163-A, the national income has been prescribed at Rs. 15,000/- per annum. Section 163-A casts a duty on the Central Government to amend the Second Schedule from time to time, keeping in view the increase in the cost of living. Inspite of the lapse of a period of more than 10 years, the Second Schedule has not been amended by the Central Government. We, therefore, deem it proper to take into consideration the erosion of purchase value of rupee during the period between 1994 to 2004 (the year of accident in the present case). By taking into consideration the steep hike of the price index of the essential commodities and resultant increase of the cost of living, we are of the opinion that the national income prescribed in the year 1994 in the second Schedule of the Act would now come to Rs. 30,000/- per annum in the year 2005 when the claim petition was filed. Apart from this, even otherwise, the deceased Harak Singh who was aged about 43 years could easily earn Rs. 80-90 per day an unskilled labour. We, therefore, assess the income of the deceased as Rs. 2,500/- per month i.e Rs. 30,000/- per annum instead of Rs. 12,000/- per annum as assessed by the Tribunal. We, therefore, purpose to re-compute the compensation taking into consideration, the income of the deceased at Rs. 30,000/- per annum. 13. By deducting 1/3rd of Rs. 30,000/- as personal expenses of the deceased, the claimants’ dependency is assessed at Rs. 20,000/- per annum. 14. The multiplier of ‘13’ selected by the Tribunal is appropriate considering the age of deceased as 43 years on the date of the incident. The claimants are his widow Smt. Pratima Devi, shown to be aged about 37 years in the claim petition; and three children aged about 18, 16 and 14 years. Considering the age of the deceased; his widow; and the children, in our opinion, the Tribunal has selected the appropriate multiplier. 15. By multiplying the annual dependency of Rs. 20,000/- with the multiplier of ‘13’, the compensation works out to Rs.2,60,000/-. The claimants are further entitled to Rs. 7,000/- towards ‘Funeral Expenses’ and ‘Loss of Consortium’ as awarded by the Tribunal. The learned Tribunal has awarded a sum of Rs. 84,000/- towards the treatment of the deceased Harak Singh in the motor accident which, in our opinion, is appropriate. Thus, the claimants become entitled to receive a total sum of Rs.3,51,000/- as compensation for the death of the deceased Harak Singh. 16. For the foregoing reasons, the appeal filed by the claimants for enhancement of the compensation is allowed in part. The compensation or Rs. 2,35,000/- awarded by the Tribunal is enhanced to Rs. 3,51,000/- (Rupees Three Lacs Fifty One Thousand Only) with 7% interest from the date of claim petition upto the payment. 17. Accordingly, the award dated 05.06.2006 passed by the learned Tribunal in M.A.C. No. 41 of 2005 is modified and the appeal is allowed in part to the above extent. The respondent No. 1, Pratap Singh, owner of vehicle No. UA/01- 3039 and the respondent No. 2, the New India Assurance Company Ltd., are directed to deposit the enhanced amount of compensation alongwith 7% interest within a period of two months from today before the concerning Claims Tribunal. The amount of compensation and interest deposited by the respondents in satisfaction of the impugned award dated 05.06.2006 shall be given due adjustment by the Claims Tribunal. 18. No order as to costs. (J.C.S. Rawat, J.) (V.K. Gupta, C.J.) Dated 18th February, 2008 Shiv