- (1.) REJESH Tandon, J. Heard Sri Sarvesh Agap. Wal, counsel for the appellant, Sri D. S. Patni, counsel for the respondent no. 10.
(2.) BY the present A. O. , appellant has prayed for setting aside the judgment and award dated 25. 1. 2002 passed by the Motor Accident Claims Tribunal / Addl. District Judge (1st Fast Track Court), Kashipur, District Udham Singh, Nagar in M. A. C. P. No. 78 of 2000. Briefly stated, a claim petition under Section 166 /140 of the Motor Vehicles Act was filed being M. A. C. P. No. 78 of 2000 Sri Bachan Singh and others Vs. Sri Rakesh Kumar alleging therein that on 3rd March, 1990 at about 7. 30 p. m. , deceased Mangla be ing a pillion rider with Sri Vijendra Singh was going on Scooter to Village Shivrajpur, when the deceased reached near Shivrajpur for, all of a sudden a Truck bearing No. D. L. No. 1 G-6218 (hereinafter referred to as Offending Truck), which was being driven rashly and negligently by its driver dashed the Scooter, due to which deceased suc cumbed to injuries on the spot. First In formation Report of this accident was lodged in Police Station- Jaspur, District Udham Singh Nagar, which was regis tered as Case Crime No. 74 of 1999 under Sections 79/338/304 A, 427 of the Indian Penal Code. The offending truck was allotted a new Number -as U. P 20d- 8759 by the R. T. O. Bijnor in place of D. L. 1g-6218. At the time of accident, the deceased was 35 years of age and is survived by his six minor children. Ac cording to the claimants, the deceased was earning a sum of Rs. 4,000/- per month from the work of dairy and as a labourer, The defendants no. 2, 3 and 4 have filed the written statement, wherein they have denied the factum of having died on account of rash and negligent driving of the offending truck. They have also stated that the offending truck was insured with United India Insurance Company Ltd. with cover note no. 120137, which was valid from 5-3-1998 to 4. 3. 1999.
(3.) THE defendant no, 4 has also filed its written statement. According to it, the accident had occurred due to own negligence of the Scooter and the Insur ance Company, therefore, is not respon sible for the same and the responsibility lies with the owner of the offending truck. On the pleadings of the parties, the claims tribunal has framed as many as three issues to the following effect : Hindi 7. Sri Bachan Singh has been ex amined as P. W. 1 he has stated that his brother used to earn a sum of Rs. 4000/ - per month and he has six minor chil dren and after the death of his brother whole family has come on the verge of starvation. He has stated that accident had not occurred in his presence. 8. One Brijendra Singh has been examined as P. W. . 2. who was a pillion rider with the deceased, has stated that the accident had taken place due to rash and negligent driving of the truck driver of the offending truck. 9. On behalf of the claimant one Avar Singh was examined as PW-3, who was an ocular witness has stated that the deceased Mangla has died on the spot on 3-3-1999 without any fault of his own. 10. One Sri Chhote Lal has been examined as P. W. 4. He has also deposed about the accident. 11. On behalf of the appellant, Sri Shiv Kumar-Owner of the truck has been examined as D. W. I. He has stated that on 3. 3. 1999 at 7 p. m. no accident had taken place by his truck and his truck was standing in the Mill Compound at Seohara District Bijnor. He has pro duced a receipt Exhibit D-l, which bears signatures of Clerk of the Factory, which is computerized. Sri Pradeep Kumar Saxena has examined as D. W. 2, who has proved the aforesaid receipt and supported the statement of the D. W. I. 12. While deciding the issues no. 1 and 2 a finding was recorded that the offending truck has dashed the Scooter, where by the deceased received fatal in juries and ultimately died on the spot. 13. While deciding the Issue No. 3 with regard to the fact as to whether the claimants are entitled for compensation, it has come on the record that the de ceased was getting a sum of Rs. 4,000/- per month and he was aged about 35 years. 14. However, a sum of Rs. 15,000/- per annum was taken as notional in come and after deducing 1/3 on the de pendants, a sum of Rs. 10,000/- was taken into consideration as income of the deceased. Multiplier of 15 was ap plied and a total sum of Rs. 1,52,000/-was awarded towards compensation. 15. A finding has been recorded by the Claims Tribunal that the offending vehicle has not been found to be insured and the policy which has been filed does not relate to the Vehicle in question. 16. In U. P. State Road Transport Corporation Vs. Krishna Bala [2006 (64) ALR 771] Supreme Court relying upon various judgments, it has been observed as under : "6. Certain principles were high lighted by this Court in the case of Municipal Corporation of Delhi v. Subhagwanti 1966 (3) SCR 649 in the matter of fixing the appropriate multiplier and computation of com pensation. In a fatal accident action, the accepted measure of damages awarded to the dependants is the pecuniary loss suffered by them as a result of the death. "how much has the widow and family loss by the father's death?" The answer to this lies in the oft quoted passage from the opinion of Lord Wright in Davies v. Powell Duffryn Associated Collier ies Ltd. All ER p. 665 A-B. which says : "the starting point is the amount of wages which the deceased war earn ing, 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 or expended for his own personal and living, expenses. The balance will give a datum or basic figure which will generally be turned sum, however, has to be taxed down by having due regard to uncertain ties, for instance, that the widow might have again married and thus ceased to be dependent, and other like matter of speculation and doubt. " 8. The multiplier method involves the ascertainment of the loss of depend ency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an ap propriate multiplier. The choice of mul tiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calcula tion as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multi plicand by way of annual interest. In as certaining this, regard should also be consumed 7u over the period for which the dependency is expected to last. 9. The considerations generally rel evant in the selection of multiplicand and multiplier were adverted to by Lord Diplock in his speech in Mallett v. Me 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 multipolicand Lord Diplock observed : "the starting point in any estimate of the amount of the 'dependency' is the 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 up or down in the future. His earn ings 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 of un employment. As his children grew up and became independent the propor tion of his earnings spent on his de pendants would have been likely to fall. But in considering the effect to be given in the award of damages to possible variations in the dependency there are two factors to be borne in mind. The first is that the more re mote 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 of it in 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 1/2% the person 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 arithmetical average annu ity 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 $ 1590 per annum. If therefore, the chances of variations in the de pendency are to be reflected in the multiplicand of which the years' purchase is the multiplier, varia tions 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. " 17. Since the deceased was 35 years of age, therefore, in view of the aforesaid, the multiplier of 13 will be ap propriate. 18. The Apex Court in Tamil Nadu State Transport Corporation Ltd. Vs. S. Rajapriya and 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 na ture of things, it has to take into ac count 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 in come or might have lost his employ ment or income together. 9. The manner of arriving at the damages is to ascertain the net in come of the deceased available for the support of himself and his de pendants, and to deduct there from such part of his in come as the de ceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net in come the deceased was accustomed to spend for the benefit of the de pendants. Then that should be capi talized 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 hy pothesis "and in that region arithme tic is a good Servant but a bad mas ter" 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 ac tions, the first the multiplier mentioned in Davies case (supra) and the second in Nance u. British Columbia Electric Railway Co. Ltd. (1951 (2) All ER 448 ). 19. The multiplier method involves the ascertainment of the loss of depend ency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an ap propriate 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 calcula tion as to what capital surn, if invested at a rate of interst appropriate to a sta ble economy, would yield the multiplicant by way of annual interst. In ascertaining this, regard should also be hald to the fact that ultimately the capi tal sum should also be consumed up over the period for which the depend ency is expected to last. 1" 20. In view of the aforesaid, taking into consideration the income of the de ceased to the extent of 10,000/- per annum multiplier of 13 being reasonable and just can be selected. The told in come comes to Rs. 1,30,000/ -. The claimant is also entitled to get Rs. 2000/ - towards funeral expenses. The claim ant will be entitled to get a total Rs. l,32,000/- along with interest at the rate of 7% per annum. 21. Consequently, Appeal partly suc ceeds and is allowed with costs. .;