IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (Chapter VIII, Rule 32(2)(b) Description of Case Appeal From Order No. 511 of 2006 Date of decision: 8th January, 2008 A.F.R. (Approved for Reporting) _____________________________ Not approved for Reporting Date Initials 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. IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Appeal from Order No. 511 of 2006 1. Smt. Sabnam W/o late Sri Alim. 2. Smt. Maqsoodi W/o Sri Ishaq Ali. 3. Ishaq Ali S/o Maqmul Ali. All R/o Village Manakpur Adampur, Police Station Jhabreda, District Haridwar. …. Appellants Versus 1. The New India Assurance Company Ltd., through Divisional Manager, Divisional Office Ranipur Mod, District Haridwar. (Insurance Company of Truck No. UA07-D-3257). 2. Sudhir Kumar S/o Hari Bhajan Singh, R/o Village Canbli, Dehradun. Permanent Address – Village Chandena Kolli, Police Station Deoband, District Saharanpur, U.P. (Owner of Truck No. UA07-D-3257). 3. National Insurance Company Ltd., through Divisional Manager, Divisional Office Near Jamuna Palace Talkies, District Haridwar. (Insurance Company of Mini Truck TATA 407 No. UP 11-D-3930). 4. Farjand Ali S/o Abdul, R/o Village Rasulpur, Police Station Gangnahar Roorkee, District Haridwar. (Owner of Mini Truck TATA 407 No. UP 11-D-3930). …. Respondents Mr. Pramod Tewari, Advocate for the appellants. Mr. T.A. Khan, Advocate for respondent No. 1. None for respondent Nos. 2 to 4. JUDGMENT Coram : Hon’ble Rajeev Gupta, C.J. Hon’ble J.C.S. Rawat, J. RAJEEV GUPTA, C.J. (Oral) This is claimants’ appeal, filed under Section 173 of the Motor Vehicles Act, 1988, for enhancement of the compensation awarded by Motor Accident Claims Tribunal/Additional District Judge/ Second Fast Track, Haridwar vide Award dated 22.05.2006 passed in Motor Accident Claim Petition No. 103 of 2003. 2. Respondent No. 1 The New India Assurance Company Ltd., the insurer of the offending vehicle Truck bearing registration No. UA07- D-3257, has also filed Cross Objection (CLMA No. 744 of 2007) against the Award on the plea that it was a case of contributory negligence, as the drivers of both the vehicles i.e. the Truck as well as the Mini Truck equally contributed to the accident. 3. The claimants, who are unfortunate widow and parents of deceased Alim, claimed compensation of Rs. 13,10,000/-, by filing a claim petition under Section 166 of the Motor Vehicles Act, 1988, for his death in the motor accident on 26.08.2003 when the Mini Truck bearing registration No. UP11-D-3930, in which he was travelling, was dashed by the offending vehicle Truck bearing registration No. UA07-D-3257 resulting in the instantaneous death of Alim on the spot itself. The claimants pleaded that deceased Alim used to earn Rs. 4,500/- per month by working in a Dairy and by selling milk. 4. The insurer and owner of the offending vehicle Truck as well as the mini Truck contested the claim. 5. The insurer of the Truck bearing registration No. UA07-D-3257 took the plea that the driver of the Mini Truck was responsible for the accident; the driver of the Truck was not holding a valid driving license; and the Truck was being plied in breach of the policy conditions. 6. The owner of the Truck also denied his liability to pay compensation to the claimants on the plea that the driver of the Mini Truck was negligent and, as such, responsible for the accident and the liability to pay compensation to the claimants, if any, was that of the New India Assurance Company Ltd., as the Truck was insured at the time of the accident. 7. The insurer of the Mini Truck bearing registration No. UP11-D- 3930 pleaded that the accident occurred due to the sole negligence of the driver of the Truck bearing registration No. UA07-D-3257. 8. The owner of the Mini Truck also pleaded that the accident occurred due to the negligence of the driver of the Truck bearing registration No. UA07-D-3257 and the liability to pay compensation to the claimants, if any, was that of the National Insurance Company Ltd. with whom the Mini Truck was insured. 9. The claimants examined PW1 Smt. Shabnam, PW2 Ashraf, PW3 Narottamdutt Sharma and PW4 Faizan Ali in support of their claim, whereas the owner and the driver of the Mini Truck examined themselves as DW1 Farzand Ali and DW2 Sajre Alam in rebuttal. 10. The Tribunal, on a close scrutiny of the evidence led by the parties, held that deceased Alim died on account of the injuries sustained by him in the motor accident on 26.08.2003; the accident occurred due to the sole negligence of the driver of the offending vehicle Truck bearing registration No. UA07-D-3257; and, as the offending vehicle Truck, on the date of the accident, was insured with the New India Assurance Company Ltd., the liability to pay compensation to the claimants was that of the New India Assurance Company Ltd. 11. As the evidence led by the claimants about the income of the deceased was not found reliable by the Tribunal, the income of the deceased was assessed by the Tribunal at Rs. 15,000/- per annum on the basis of the notional income prescribed in the Second Schedule under Section 163-A of the Motor Vehicles Act. By deducting 1/3rd of Rs. 15,000/- as the personal expenses of the deceased, the claimants’ dependency was assessed at Rs. 10,000/- per annum. As the deceased was aged about 23 years, the Tribunal selected the multiplier of ‘17’. By multiplying the annual dependency of Rs. 10,000/- with the multiplying of ‘17’, the compensation was worked out to Rs. 1,70,000/-. By awarding further sums of Rs. 2,000/- towards Funeral Expenses and Rs. 2,500/- for Loss of Estate, the Tribunal awarded a total sum of Rs. 1,74,500/- as compensation to the claimants for the death of Alim in the motor accident on 26.08.2003. The Tribunal further directed payment of interest at the rate of 6% per annum on the above amount of compensation of Rs. 1,74,500/- from the date of the filing of the claim petition (25.09.2003) till the date of payment. 12. Mr. Pramod Tewari, the learned counsel for the appellants submitted that the Tribunal ahs erred in not believing the evidence led by the claimants about the income of the deceased; in assessing the income of the deceased at Rs. 15,000/- per annum only; and in awarding low compensation of Rs. 1,74,500/- only. 13. Mr. T.A. Khan, the learned counsel for respondent No. 1 The New India Assurance Company Ltd., insurer of the offending vehicle Truck bearing registration No. UA07-D-3257, on the other hand, contended that the Tribunal has erred in holding that the driver of the Truck was solely responsible for the accident, whereas, in fact, it was a case of contributory negligence, where the drivers of both the vehicles i.e. the Truck and the Mini Truck equally contributed to the accident. The learned counsel further submitted that the compensation of Rs. 1,74,500/-, awarded by the Tribunal, is just and proper compensation in the facts and circumstances of the present case. 14. The findings recorded by the Tribunal that deceased Alim died on account of the injuries sustained by him in the motor accident on 26.08.2003 and the accident occurred due to the sole negligence of the driver of the Truck bearing registration No. UA07-D-3257, are based on the eye-witness account of PW4 Faizan Ali. He has categorically stated that on the fateful day of 26.08.2003, Mini Truck bearing registration No. UP11-D-3930 was being driven by its driver on the left side of the road and the Truck bearing registration No. UA07-D- 3257 was brought by its driver rashly and negligently from the other direction and dashed the Mini Truck resulting in the death of three of the occupants of the Mini Truck, including Alim. Nothing could be elicited in his cross-examination, which may either render his evidence unworthy of credence or establish that the driver of the Mini Truck was also negligent or contributed to the accident. 15. The driver of the Mini Truck bearing registration No. UP11-D- 3930 was also examined before the Tribunal as DW2. He, too, has deposed that on the fateful day, he was driving his Mini Truck on the lift side of the road and the Truck bearing registration No. UA07-D- 3257, which was being driven by its driver rashly and negligently, dashed his Mini Truck resulting in the accident. He has further stated that with a view to avoid any possible accident, he had taken his Mini Truck even on the footpath, but the driver of the Truck, coming from the other direction, could not control his Truck and dashed against his Mini Truck. In his cross-examination, he has categorically denied the suggestion that he was negligent in driving the Mini Truck and contribution to the accident. For the reasons best known to the owner and insurer of the Truck bearing registration No. UA07-D-3257, the driver of this Truck was not examined before the Tribunal. 16. In this state of evidence, we do not find any fault with the approach of the Tribunal and the finding recorded by the Tribunal that the driver of the Truck bearing registration No. UA07-D-3257 was solely responsible for the accident. We, therefore, do not find any substance in the cross-objection filed on behalf of respondent No. 1 The New India Assurance Company Ltd. taking the plea that the driver of the Mini Truck also contributed to the accident and the Tribunal ought to have held it to be a cause of contributory negligence. The Cross-Objection, therefore, is liable to be dismissed. 17. As the offending vehicle Truck bearing registration No. UA07- D-3257 was admittedly insured with respondent No. 1 The New India Assurance Company Ltd. on the date of the accident, the Tribunal has rightly held the New India Assurance Company Ltd. liable to pay compensation to the claimants. 18. Now, we shall examine as to whether the compensation of Rs.1,74,500/-, awarded by the Tribunal, is just and proper compensation in the facts of the present case. 19. In a motor accident claim case what is important is that the compensation to be awarded by the Courts/ Tribunal should neither be a meager amount of compensation nor a ‘Bonanza’ arising out of the accident. The Apex Court, in the case of The Divisional Controller, KSRTC Vs. Mahadeva Shetty and another reported in 2003 AIR SCW 3797, observed in para 15: “15. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which to it appears to be “just”. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. Bodily injury is nothing but a deprivation which entitles the claimant to damages. The quantum of damages fixed should be in accordance with the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to damages for mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life, which has been curtailed because of physical handicap. The normal expectation of life is impaired. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be “just” and it cannot be a bonanza; not a source of profit but the same should not be a pittance. The courts and tribunals have a duty to weight the various factors and quantify the amount of compensation, which should be just. What would be “just” compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of “just”, compensation which is the pivotal consideration. Though by use of the expression “which appears to it to be just”, a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression “just” denotes equitability, fairness and reasonableness, and non-arbitrariness. If it is not so, it cannot be just. (See Helen C. Rebello v. Maharashtra State Road Transport Corporation (AIR 1998 SC 3191).” 20. The Apex Court, in the case of T. N. State Transport Corpn. Ltd. Vs. S. Rajpriya and others reported in (2005) 6 Supreme Court Cases 236, observed in paras 8 to 10: “8. The assessment of damages to compensate the dependents 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 the 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. 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 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. 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 as best as it can the loss suffered.” 21. True, the claimants, in their claim petition, pleaded that deceased Alim used to earn Rs. 4,500/- per month by serving in a Dairy and by selling mil, as the evidence led by the claimants about in income of the deceased was not convincing, the Tribunal was left with no other option but to assess the income of the deceased on its own estimate. The Tribunal has assessed the income of the deceased at Rs. 15,000/- per annum on the basis of the notional income prescribed in the Second Schedule under Section 163-A of the Motor Vehicles Act. 22. The notional income of Rs. 15,000/- per annum was prescribed in the Second Schedule under Section 163-A of the Motor Vehicles Act in the year 1994. The accident in the present case, wherein deceased Alim lost him life, took place in the year 2003. If the increase ion the prices of essential commodities and the cost of living from 1994 to 2003 is taken into consideration, the notional income of Rs. 15,000/- per annum, prescribed in the year 1994, would come to Rs. 30,000/- per annum in the year 2003. We, therefore, propose to re-compute the compensation taking the income of the deceased at Rs. 30,000/- per annum. 23. By deducting 1/3rd of Rs. 30,000/- as the personal expenses of the deceased, the claimants’ dependency is assessed at Rs. 20,000/- per annum. 24. Considering that deceased Alim was 23 years of age on the date of the accident and his widow claimant No. 1 Smt. Shabnam was shown 20 years of age in the claim petition, the multiplier of ‘17’, selected by the Tribunal, we are satisfied, is appropriate multiplier in the present case. 25. By multiplying the annual dependency of Rs. 20,000/- with the multiplier of ‘17’, the compensation works out of Rs. 3,40,000/-. In addition, the claimants are further entitled to Rs. 5,000/- towards Funeral Expenses; Rs. 5,000/- for Loss of Estate; and Rs. 5,000/- for Loss of Consortium to the widow. The claimants, thus, become entitled to received a total sum of Rs. 3,55,000/- as compensation for the death of Alim in the motor accident on 26.08.2003. 26. The interest, awarded by the Tribunal at the rate of 6% per annum, considering the prevalent rate of interest on the Fixed Deposits in the nationalised banks, is on the lower side. In our considered view, interest deserves to be awarded to the claimants on the above amount of compensation of Rs. 3,55,000/- at the rate of 7% per annum. 27. For the foregoing reasons, the appeal, filed by the claimants under Section 173 of the Motor Vehicles Act for enhancement of the compensation awarded by the Tribunal , is allowed in part. The compensation of Rs. 1,74,500/-, awarded by the Tribunal, is enhanced to Rs. 3,55,000/-. The rate of interest, awarded by the Tribunal, at 6% per annum is also enhanced to 7% per annum. 28. The entire enhanced amount of compensation with the amount of interest shall be paid to claimant No. 1 Smt. Shabnam, the widow of deceased Alim. 29. Respondent No. 1 The New India Assurance Company Ltd. is directed to deposit the enhanced amount of compensation and the amount of interest due thereon within a period of three months from today before the concerning Claims Tribunal. 30. The Cross-Objection filed by respondent No. 1 The New India Assurance Company Ltd. (CLMA No. 744 of 2007) fails and is hereby dismissed. 31. No order as to costs. (J.C.S. Rawat, J.) (Rajeev Gupta, C.J.) 08.01.2008 08.01.2008 G