IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Chapter VIII, Rule 32(2) (b) Description of case Appeal From Order No. 397 of 2005 Date of decision: 18th November, 2006 A.F.R. (Approved for Reporting) _____________________________ Not Approved for Reporting Date Initials for 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. 397 of 2005 1. Smt. Mayawati W/o Late Sri Ramesh Singh. 2. Vikram Singh S/o Late Sri Ramesh Singh. 3. Naresh Singh S/o Late Sri Ramesh Singh. 4. Km. Manju D/o Late Sri Ramesh Singh. 5. Prakash Singh S/o Late Sri Ramesh Singh. (Appellants No. 2 to 5 through their natural guardian) 6. Smt. Neela Devi W/o Late Sri Bhim Singh, Mother of Late Sri Ramesh Singh. All R/o Malli Rihi, Patwari Circle Balatari, Tehsil Pati, District Champawat. ……….. Appellants Versus 1. New India Assurance Company Ltd., through its Regional Manager, Regional Office Haldwani, District Nainital. 2. Sri Umesh Chandra Tripathi, S/o Late Sri B.D. Tripathi, R/o Forest Range Office, Bhingrara, P.O. Bhingrara, District Champawat. ………. Respondents Mr. Dinesh Gahtori, Advocate for the appellants. Mr. R.B. Agarwal and Mr. M.K. Agarwal, Advocates for respondent No. 1. Mr. M.C. Pande, Advocate for respondent No. 2. JUDGMENT Coram: Hon’ble Rajeev Gupta, C.J. Hon’ble J.C.S. Rawat, J. RAJEEV GUPTA, C. J. (Oral) This is claimants’ appeal for enhancement of the compensation awarded by Motor Accident Claims Tribunal / District Judge, Champawat vide Award dated 21.05.2005 passed in M.A.C.P. No. 47 of 2004. 2. The claimants, who are unfortunate widow, minor children and mother of deceased Ramesh Singh, claimed compensation of Rs. 8,79,000/- for his death in the motor accident when on 15.07.2004 he was dashed by the Jeep bearing registration No. U.A. 03 2159 resulting in multiple serious injuries to Ramesh Singh, who succumbed to those injuries during the course of his treatment in the intervening night of 16th / 17th July, 2004. The claimants pleaded that the deceased was working as an Assistant with a contractor and used to earn Rs. 5,000/- per month. 3. The owner and insurer of the offending vehicle Jeep contested the claim and denied their liability to pay compensation to the claimants. The owner took the plea that the deceased himself was negligent and as such, the driver of the Jeep was not responsible for the accident. The insurer, on the other hand, pleaded that the Jeep was being plied in breach of the policy conditions. 4. The claimants examined P.W.1 Mayawati, P.W.2 Prakash Chand Sharma and P.W.3 Bhawan Singh in support of their claim, whereas the owner and insurer of the Jeep did not examine any witness in rebuttal. 5. The Tribunal, on a close scrutiny of the evidence led by the parties, held that deceased Ramesh Singh died on account of the injuries sustained by him in the motor accident; the accident occurred due to the rash and negligent driving of the driver of the Jeep; and the insurer of the Jeep was liable to pay compensation to the claimants. 6. As the Tribunal did not find the evidence led by the claimants about the income of the deceased reliable, his income was assessed 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 a portion of the above amount of Rs. 15,000/- as the personal expenses of the deceased, the claimants’ dependency was assessed at Rs. 11,000/- per annum. By multiplying the annual dependency of Rs. 11,000/- with the multiplier of ‘17’, the compensation was worked out to Rs. 1,87,000/-. The Tribunal further awarded Rs. 2,000/- towards Funeral Expenses and Rs. 5,000/- for Loss of Consortium to the widow and thus, a total sum of Rs. 1,94,000/- was awarded as compensation to the claimants for the death of Ramesh Singh in the motor accident. The Tribunal further directed the insurer of the Jeep to pay interest on the amount of compensation at the rate of 8% per annum from the date of the claim petition in the event of its failure to pay the amount of compensation to the claimants within a period of two months from the date of the Award. 7. Mr. Dinesh Gahtori, the learned counsel for the appellants submitted that the Tribunal has erred in not accepting the claimants’ evidence about the income of the deceased and in assessing his income at Rs. 15,000/- per annum only; in awarding low compensation of Rs. 1,94,000/-; and in not awarding any interest on the amount of compensation and in directing only a conditional payment of interest in the event of insurer’s failure to pay the amount of compensation to the claimants within a period of two months from the date of the Award. 8. Mr. R.B. Agarwal and Mr. M.K. Agarwal, the learned counsel for respondent No. 1 New India Assurance Company Ltd., on the other hand, supported the Award and submitted that the Tribunal has been quite liberal in awarding substantial compensation of Rs. 1,94,000/- to the claimants. 9. Mr. M.C. Pande, the learned counsel for respondent No. 2 Mr. Umesh Chandra Tripathi, the owner of the offending vehicle Jeep, also supported the Award. 10. The findings recorded by the Tribunal that deceased Ramesh Singh died on account of the injuries sustained by him in the motor accident; the accident occurred due to the rash and negligent driving of the driver of the Jeep; and the insurer of the Jeep was liable to pay compensation to the claimants have, now, attained finality as the respondents have not filed any appeal against the Award. 11. True, the claimants could not establish, by leading cogent and reliable evidence, that deceased Ramesh Singh was earning Rs. 5,000/- per month as was pleaded by them in the claim petition. In this state of evidence, we do not find any fault in the approach of the 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. 15,000/- per annum requires reconsideration, as the same is on the lower side. 12. The notional income of Rs. 15,000/- per annum in the Second Schedule under Section 163-A of the Motor Vehicles Act was prescribed in the year 1994. Sub-section (3) of Section 163-A casts a duty on the Central Government to amend the Second Schedule from time to time taking into account the increase in the cost of living. Inspite of the lapse of a period of more than 10 years, the Central Government has not amended the Second Schedule. We, therefore, deem it proper to take into account the steep hike in the price index of the essential commodities and the resultant increase in the cost of living during the period between 1994 to 2004, the year of the accident in the present case. If the erosion in the purchase value of the Rupee during the period between 1994 and 2004 is taken into consideration, the notional income of Rs. 15,000/- prescribed in the Second Schedule in the year 1994, would, in the year 2004, come to Rs.36,000/- per annum. We, therefore, propose to re-compute the compensation taking the income of the deceased at Rs. 36,000/- per annum. 13. By deducting 1/3rd of Rs. 36,000/- as the personal expenses of the deceased, the claimants’ dependency is assessed at Rs. 24,000/- per annum. 14. In a motor accident claim case, what is important is that the compensation to be awarded by the Tribunal / Court should be just and proper compensation in the facts and circumstances of the case. The Apex Court, while considering the selection of appropriate multiplier in a claim case in the case of T.N. State Transport Corpn. Ltd. Vs. S. Rajapriya 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 that 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.” 15. The multiplier of ‘17’ selected by the Tribunal is certainly on the higher side in view of the above-quoted dictum of the Apex Court in the case of S. Rajapriya (supra). Deceased Ramesh Singh, on the date of the accident, was aged about 32 years. His widow claimant No. 1 Smt. Mayawati was shown as 31 years of age in the claim petition, whereas the minor children were aged between 7 years to 13 years and his mother Smt. Neela Devi was aged 49 years. Considering the age of the deceased; his widow; minor children; and mother, we are of the opinion that multiplier of ‘15’ would be appropriate in the case. 16. By multiplying the annual dependency of Rs. 24,000/- with the multiplier of ‘15’, the compensation works out to Rs. 3,60,000/-. The claimants are further entitled to Rs. 5,000-/ towards Funeral Expenses; Rs. 5,000/- for Loss of Consortium to the widow; and Rs. 5,000/- for Loss of Estate. Thus, the claimants become entitled to receive a total sum of Rs. 3,75,000/- (Rupees Three Lakhs and Seventy Five Thousand only) as compensation for the death of Ramesh Singh in the motor accident. 17. The Tribunal has fallen into error in not awarding any interest on the amount of compensation to the claimants. By directing only a conditional payment of interest in the event of insurer’s failure to pay the amount of compensation to the claimants within a period of two months from the date of the Award, the Tribunal has deprived the claimants of the amount of interest, which was otherwise payable to them under Section 171 of the Motor Vehicles Act. With a view to avoid any possible delay in the computation of the amount of interest by the Claims Tribunal and any possible dispute between the parties about the period for which the claimants should get the interest, we deem it proper to quantify the interest ourselves. The accident, in the present case, took place on 15.07.2004 and the claim petition was filed on 27.11.2004. The impugned Award was passed by the Tribunal on 21.05.2005 and the compensation awarded by the Tribunal appears to have been deposited by the insurer by 21.07.2005. Taking all the above-mentioned relevant factors into consideration, we quantify the amount of interest at Rs. 35,000/-. 18. The claimants, therefore, become entitled to receive a total sum of Rs. 4,10,000/- (Rupees Four Lakhs and Ten Thousand only) [Rs. 3,75,000/- towards Compensation + Rs. 35,000/- quantified as Interest on the amount of compensation awarded by the Tribunal as well as the enhanced amount of compensation]. 19. For the foregoing reasons, the appeal filed by the claimants under Section 173 of the Motor Vehicles Act for enhancement of the compensation is allowed in part. The compensation of Rs. 1,94,000/- (Rupees One Lakh and Ninety Four Thousand only) awarded by the Tribunal is enhanced to Rs. 3,75,000/- (Rupees Three Lakhs and Seventy Five Thousand only) with further quantified interest of Rs. 35,000/- (Rupees Thirty Five Thousand only). First respondent New India Assurance Company Ltd. is directed to deposit the enhanced amount of compensation and the quantified amount of interest before the concerning Claims Tribunal within a period of two months from today. The enhanced amount of compensation shall be disbursed amongst the claimants in the same proportion as directed by the Tribunal in the impugned Award. 20. No order as to costs. (J.C.S. Rawat, J.) (Rajeev Gupta, C.J.) 18.11.2006 18.11.2006 G