HIGH COURT OF UTTARANKHAND AT NAINITAL A.O. NO. 589 of 2007 1. Union of India, through Defence Secretary, Government of India, New Delhi. 2. AGEV/R (MES) through Sri Rakesh Kumar Singhal, Assistant Engineer MES Military Cantt. Banbasa, District – Champawat. …..Appellants Versus 1. Smt. Sagarwati W/o late Mahesh Singh, 2. Km. Roshani, D/o late Mahesh Singh. Both resident of village – Mudeli, P.S. – Khatima, District – Udham Singh Nagar. ……….Claimants/Respondents 3. The United Indian Insurance Company Ltd., through Divisional Manager, Haldwani. …..Respondents Hon’ble Rajesh Tandon, J. Heard Sri Arvind Vashistha, learned Assistant Solicitor General for the appellants, Sri D.C.S. Rawat, learned counsel for the claimants and Sri D.S. Patni, for the respondent no. 3 2. By the present appeal, appellants have prayed for setting aside the judgment and award dated 18.10.2007 by which a sum of Rs. 1,82,000/- has been awarded to the claimants on the claim petition filed by the respondent nos. 1 and 2 under section 166/140 of the Motor Vehicles Act. 3. Briefly stated on 22.10.2006, the deceased Deepu was going along with his friend Mohan Singh and Gopal Singh on motor cycle no. UA 06 E 4762 at about 5.00 p.m. near Sitarganj Road motorcycle was stopped. Thereafter, deceased Deepu started looking to the defect of the motorcycle by which motorcycle was stopped. In the meantime, a military jeep no. OIC 671694Y was coming from Sitarganj, rashly and negligently dashed three persons, as a result of which, they have received grievous injuries. Vikky and Rajnish, who were coming, took them to hospital, where doctor declared them as dead. FIR was lodged at Police Station Khatima as case crime no. 3375 of 2006. 4. According to the claimants deceased was aged about 18 years and was doing work of Rajmistri and was earning about Rs. 4500/- per month. The insurer has also filed written statement, who has stated that deceased was not having a valid driving license. 5. Respondents / Union of India have filed the written statement, wherein they have stated that offending vehicle was being driven in moderate speed and due to own fault of motorcyclist the accident had taken place. 6. On the pleadings of the parties, the Claims Tribunal has framed the following issues: Þ1- D;k nq?kZVuk fnukWd 22-10-2006 dks le; djhc 5-00 cts 'kke] LFkku & flrkjxat jksM xzke & ckuwlh ds ikl cgn Fkkuk & [kVhek ftyk & Å/ke flag uxj esa okgu la0 & vks0 vkbZ0 lh0 67169 okbZ ds pkyd }kjk mDr okgu dks rsth ,oa ykijokgh ls pykus ds dkj.k ?kfVr gqbZ] ftlls nhiw dh e`R;q gks xbZ\ ;fn gkW rks izHkko \ 2- D;k iz’uxr okgu ds pkyd ds ikl nq/kZVuk dh frfFk ij oS/k pkyd ykblsal ugh Fkk\ ;fn gkW rks izHkko \ 3- ;kphx.k dksbZ izfrdj izkIr djus ds vf/kdkjh gS] ;fn gkW rks fdruh /kujkf’k o fdl i{kdkj ls\ 7. Claimants have filed documentary evidence viz. FIR, Post Mortem Report, driving license of Sri S.N. Shukla, driving license of deceased, insurance certificate of motorcycle and Registration Certificate. Towards oral evidence Smt. Prem Sagarwati and Rajneesh have been examined as PW 1 and PW 2. 8. While deciding issue no. 1 as to whether on 22.10.2006 at about 5.00 p.m. at Sitarganj Road, near village Banusi accident took place, reliance has been placed on the statement of PW 2 Rajneesh and DW 1 Sandeep Narayan Shukla, the Tribunal has recorded the finding that the accident was caused due to rash and negligent driving of Jeep and therefore, issue no. 1 was decided in favour of claimants. 9. While deciding issue no. 2 as to whether the driver of the offending vehicle has valid driving license, issue was decided in favour of the claimants. 10. While deciding issue no. 3 with regard to the quantum of compensation, the Claims Tribunal has assessed the age of the deceased as 18 years and in absence of any documentary proof has taken Rs. 15,000/- as notional income. Further taking into consideration situation the multiplier of 12 has been selected. Multiplying the annual dependency with 12 the amount of dependency comes to Rs. 1,80,000/-. Apart from this, a sum of Rs. 2000/- has been awarded towards funeral rites and total a sum of Rs. 1,82,000/- has been awarded towards compensation. 11. Learned counsel for the appellant has submitted that while calculating the amount of compensation multiplier has wrongly been taken into consideration and the same is on higher side. 12. I have gone through the award passed by the claims tribunal concerned and find that the deceased used to do the work of Rajmistri and now the he is survived by his wife, sister and mother and there is no bread-earner left in his family. 13. 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 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 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 of 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 involves 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 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 held 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 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 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 independent the proportion of his earnings 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 first is that the more remote in the future is the anticipated change the less confidence there can be in the chances 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 change takes place the less will be its effect upon the total 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 are 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.” 14. In the case of New India Assurance Co. Ltd. Vs. Satender & Ors 2006 (8) Supreme 870, it has been observed as under: “7. In Mallett v. McMonagle 1970 (AC) 166, Lord Diplock analysed in detail the uncertainties which arise at various stages in making a rational estimate and practical ways of dealing with them. In Davies v. Taylor (1974) AC 207, it was held that the Court, in looking at future uncertain events, does not decide whether on balance one thing is more likely to happen than another, but merely puts a value on the chances. A possibility may be ignored if it is slight and remote. Any method of calculation is subordinate to the necessity for compensating the real loss. But a practical approach to the calculation of the damages has been stated by Lord Wright in Davies v. Powell Duffryn Associated Colleries Ltd. (1942) 1 All ER 657 in the following words: “The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required to be spent for his won personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years’ purchase.” 9. There are some aspects of human life which are capable of monetary measurement, but the totality of human life is like the beauty of sunrise or the splendour of the stars, beyond the reach of monetary tape-measure. The determination of damages for loss of human life is an extremely difficult task and it becomes all the more baffling when the deceased is a child and /or a non- earning person. The future of a child is uncertain. Where the deceased was a child, he was earning nothing but had a prospect to earn. The question of assessment of compensation, therefore, becomes stiffer. The figure of compensation in such cases involves a good deal of guesswork. In cases, where parents are claimants, relevant factor would be age of parents. 10. In case of death of an infant. There may have been no actual pecuniary benefit derived by its parents during the child’s lifetime. But this will not necessary bar the parent’s claim and prospective loss will find a valid claim provided that the parents’ establish that they had a reasonable expectation of pecuniary benefit if the child had lived. This principle was laid down by the House of Lords in the famous case of Taff. Vale Rly. V. Jenkins (1913) AC 1. and Lord Atkinson said thus: “……all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact—there must be a basis of fact from which the inference can reasonably be drawn, but I wish to express my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first that the deceased earned money in the past, and, second that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inference can I think, be drawn from circumstances other than and different from them.” (See Lata Wathwa and Ors. v. State of Bihar and Ors. (2001 (8) SCC 197). 11. This Court in Lata Wathwa’s case (supra ) while computing compensation made distinction between deceased children falling within the age group of 5 to 10 years and age group of 10 to 15 years. 12. In case of young children of tender age, in view of uncertainties abound, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation.” 15. I have perused the record, the Claims Tribunal has taken into consideration the multiplier of 12. I do not find any infirmity while recording the said finding. 16. Heard the Cross objection. I do not find any illegality or ambiguity in the selection of multiplier. In my opinion multiplier of 12 is perfectly correct. 17. Accordingly, appeal and cross objection are dismissed. 18. The Tribunal shall release the amount in accordance with the judgement of this court. Statutory amount deposited in FDR in pursuance to the interim order shall be transmitted to the Tribunal concerned for its payment in accordance with the final order. (Rajesh Tandon, J. ) 14.02.2008 SKS