IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 330/1997 Reserved on:24.7.2008 Decided on:9.9.2008 Mohan Singh and another. …Appellant. Versus Himachal Pradesh State Electricity Board and another. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the Appellants : Mr. Vinay Thakur, Advocate vice counsel for the appellant. For the Respondents : Mr. Baldev Singh, Advocate. Rajiv Sharma, J. This Regular Second Appeal has been filed against the judgment and decree passed by the learned District Judge, Shimla in civil appeal No. 124-S/13 of 1995/92 dated 1.7.1997. The brief facts necessary for the adjudication of this Regular Second Appeal are that the parents of the appellants filed a suit for damages in the Court of Sub Judge 1st Class, Theog on 13.7.1987. Their son Virender Singh died as a result of electric shock from the naked electric wires lying on the earth while he was ploughing the fields. The 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 original plaintiffs/parents died during the pendency of the suit and the present appellants were substituted as legal representatives. The appellants are brothers of deceased Virender Singh. The incident occurred on 13th July, 1986 at 2.00 P.M. The deceased was 20 years old and he had passed his matriculation examination and had registered himself with the employment exchange for getting service. The respondents (hereinafter referred to as the defendants) contested the suit primarily on the ground that the Board was not negligent in maintaining the electric wires and the deceased was himself negligent. It was further pleaded in the written statement that no complaint whatsoever was received about the damaged pole. The trial court on the basis of the evidence led by the parties, awarded a sum of Rs. 1,20,000/- to the appellants. The income of the deceased was worked out at Rs. 1,000/- per month and the same was reduced to half taking into consideration the expenditure he had to incur on himself. The defendants feeling aggrieved by the judgment and decree passed by the learned Sub Judge preferred an appeal in the Court of learned District Judge, Shimla. The learned District Judge, Shimla partly accepted the appeal and the judgment and decree of the trial court was modified to the extent that instead of Rs. 1,20,000/-, a sum of Rs. 20,600/- was only awarded to the appellants- plaintiffs. The plaintiffs have filed this Regular Second Appeal against the judgment and decree dated 1.7.1997 passed by the learned District Judge, Shimla. Mr. Vinay Thakur, Advocate vice counsel for the appellants had strenuously argued that the judgment and decree of the learned District Judge dated 1.7.1997 whereby the amount has been reduced from Rs. 1,20,000/- to Rs. 20,600/- is not sustainable. He had prayed for the restoration of the judgment and decree dated 18.1.1992. 3 Mr. Baldev Singh, Advocate had supported the judgment and decree dated 1.7.1997. I have heard the learned counsel for the parties and perused the record carefully. Both the courts below have returned concurrent findings that the accident was caused due to negligence of the defendants. Deceased Virender was ploughing the field on the fateful day and he came in contact with the live wire. It has come in the post-mortem report that the deceased died due to electric shock and this fact is also verified by the final police report Ex.PW-7/A. The findings of both the courts below about the negligence of the defendants are upheld being based on correct appreciation of oral as well as documentary evidence. The only question now remains to be considered is: Whether the learned District Judge could reduce the amount from Rs. 1,20,000/- to Rs. 20,600/- with interest @ 12% per annum from the date of institution of the suit to the date of the payment? The deceased was 20 years old. He had passed matriculation examination and got himself enrolled in the employment exchange. The learned District Judge has come to a just conclusion that the income of the deceased could not be more than Rs. 600/- per month. He was bound to spend Rs. 200/- per month on his own requirements of food, clothing etc. The loss of dependency could not be more than 400/- per month. The mother of the deceased died on 17.10.1987. The accident has taken place on 13.7.1986. The father of the deceased died in the year 1989 as observed by the District Judge. The trial court has applied wrong principles while awarding compensation to the appellants. The deceased was only 20 years old and the trial court has applied wrong multiplier of 40. The multiplier was required to be applied taking into consideration the age of the dependents and not the 4 age of the deceased alone. The age of the father of the deceased at the time of the accident was 85 years and the mother of the deceased was 60-62 years old. Their Lordships of the Hon’ble Supreme Court in Municipal Corporation of Greater Bombay versus Laxman Iyer and another, (2003) 8 SCC 731 have laid down the factors to be considered at the time of awarding compensation under the Motor Vehicles Act, 1988. These principles are general in nature and are also applicable pertaining to torturous liability. Their Lordships have held as under: “So far as the quantum of compensation is concerned we find that at the time of accident, as revealed from the claim petition, the claimants were 47 years and 43 years respectively. It is not the age of the deceased alone but the age of the claimant as well which are to be the relevant factors, in case parents or other defendants are claimants. 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 has their separate earnings being employed and educated have 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 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 3 lakhs 5 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. “ Their Lordships of the Hon’ble Supreme Court in New India Assurance Company Limited versus Charlie and another, (2005) 10 SCC 720 have held that the choice of the multiplier is determined by the age of the deceased or claimant whichever is higher. Their Lordships have held 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 capitalising 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.” Their Lordships of the Hon’ble Supreme Court in Bijoy Kumar Dugar versus Bidya Dhar Dutta and others, (2006) 3 SCC 242 have held that in case of deceased being a young boy and of marriageable age supporting both parents there is likely reduction in support to the parents on his marriage to be expected soon. Their Lordships have held as under: “To appreciate the respective contentions of the learned counsel for the parties, we have gone through the relevant material on record. It is by now well-settled that the compensation should be the pecuniary loss to the 6 dependants by the death of a person concerned. While calculating the compensation, annual dependency of the dependants should be determined in terms of the annual loss, according to them, due to the abrupt termination of life. To determine the quantum of compensation, the earnings of the deceased at the time of the accident and the amount, which the deceased was spending for the dependants, are the basic determinative factors. The resultant figure should then be multiplied by a `multiplier'. The multiplier is applied not for the entire span of life of a person, but it is applied taking into consideration the imponderables in life, immediate availability of the amount to the dependants, the expectancy of the period of dependency of the claimants and so many other factors. Contribution towards the expenses of the family, naturally is in proportion to one's earning capacity. In the present case, the earning of the deceased and consequently the amount which he was spending over the members of his family, i.e. dependency is to be worked out on the basis of the earnings of the deceased at the time of the accident. The mere assertion of the claimants that the deceased would have earned more than Rs. 8,000/- to Rs.10,000/- per month in the span of his lifetime cannot be accepted as legitimate income unless all the relevant facts are proved by leading cogent and reliable evidence before the MACT. The claimants have to prove that the deceased was in a trade where he would have earned more from time to time or that he had special merits or qualifications or opportunities which would have led to an improvement in his income. There is no evidence produced on record by the claimants regarding future prospects of increase of income in the course of employment or business or profession, as the case may be. It is stated that the deceased was about 24 years at the time of the accident. The MACT has accepted Rs. 4,000/- per month, as the earning of the deceased and after deducting Rs. 400/- per month for his pocket 7 expenses, the remaining sum of Rs. 3600/- has been divided into three equal shares, out of which two shares, i.e. Rs. 2400/- per month or Rs. 28,800/- (wrongly mentioned as Rs. 28,000/- in the award), were assessed as loss to both the claimants, who were the parents of the deceased. The ages of the claimants are stated to be between 45 and 50 years and accordingly multiplier of 12 was applied. Thus, a sum of Rs. 28,800/- X 12 = Rs. 3,45,600/- was awarded as compensation. In addition thereto, a sum of Rs. 2,000/- has been given for funeral expenses and a further amount of Rs. 6,000/- under the head "Loss of Estate". The total sum awardable is Rs. 3,53,600/- but since the deceased was held liable for contributory negligence, the liability of the insurer with whom the bus in question was insured is fixed at 50%, i.e. to the extent of Rs. 1,76,800/- with interest at the rate of 10% per annum from the date of the filing of the claim application till the date of payment. The deceased, a young boy of 24 years old, was unmarried and the claimants were his father and mother, the dependency has to be calculated on the basis that within two or three years the deceased would have married and raised family and the monthly allowance he was giving to his parents would have been cut down. Thus, in our view, the MACT has awarded just and reasonable compensation to the claimants.” The learned District Judge on correct appreciation of the evidence has awarded a sum of Rs. 20,600/- along with interest @ 12% per annum. The trial court was swayed with the fact that there was loss of estate. This was not the case of the appellants in the original suit. The trial court could not make a new case in favour of the plaintiffs to award a sum of Rs. 1,20,000/- by treating it as loss to the estate. The learned District Judge has correctly observed that the parents of the deceased did not claim any damage on account of loss to the estate. The learned District 8 Judge has correctly multiplied a sum of Rs. 400x39 months, the money payable on account of actual loss of dependency. A sum of Rs. 5,000/- awarded on the funeral of the deceased is also upheld. In view of the observations made hereinabove, there is no substantial question of law involved in this appeal and the same is dismissed. There shall be no order as to costs. 9.9.2008 (Rajiv Sharma ), J. *awasthi*