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Judgment
Rajesh Tandon, J.—Heard Sri D.S. Patni, counsel for the appellant and Sri M.C. Pandey, counsel for the respondents.
By the present A.O. filed u/s 173 of the Motor Vehicles Act, appellant has prayed for setting aside the award dated 29.5.1999 passed by the Motor Accident Claims Tribunal / District Judge, Pithoragarh in M.A.C.P. No. 40 of 1993 Smt. Khasti Devi v. Mangat Ram and Anr. whereby the claims tribunal has awarded a sum of Rs. 1,15,000/- to the claimant along with simple interest @ 8% per annum.
Briefly stated, on 22.1.1993, deceased along with hired truck No. USZ 9416 for a sum of Rs. 1800/- from Lohaghat to Tanakpur to bring the furniture and other goods, but when the truck reached near Village Kathol, Police-Out Post Chalthi about 5 p.m., the truck met with an accident on account of rash and negligent driving of its driver and fell down by the side of the road. In this accident, Narain Dutt Joshi sustained injuries but when he was taken to the Hospital, he was declared dead. His post mortem was conducted on 23.1.1993.
Insurance Company has filed the written statement stating therein that no information regarding the accident was given to the Insurance Company by the owner of the vehicle in question. It has also been stated that the burden to prove lies on the owner to prove that at the time of the accident, the vehicle in question was registered with the Insurance Company and the driver of the vehicle in question had valid driving licence. It has further been stated that the amount claimed by the claimant is excessive. It has further been stated that the driver of the vehicle in question was only entitled to drive light motor vehicle in plain area, though the vehicle in question was a medium goods vehicle, therefore, the Insurance Company is not liable to pay any compensation.
Opposite Party No. 1 has admitted in his written statement that the accident occurred as a result of which Narain Datt Joshi died, but it was not due to rash and negligent driving of the driver of the vehicle in question. The accident occurred as all of a sudden an animal had come in front of the truck and for saving the same, the truck over turned and fell down into the gorge. The driver was having valid driving licence at the time of accident.
On the pleadings of the parties, the claims tribunal has framed the following issues:
(1) Whether the accident resulting in the death of Sri Narain Datt Joshi took place due to rash and negligent driving of vehicle No. USZ 9416 by its driver?
(2) Whether the truck in question was being plied in violation of the terms and conditions of the insurance policy?
(3) To what amount of compensation, if any, are the claimants entitled and from which of the opposite parties?
On behalf of the claimants, Smt. Khashti Devi and Devi Dutt have been examined as P.W. 1 & P.W. 2 respectively. Towards the documentary evidence, the claimants have filed certificate of the salary, death certificate of the deceased, Certificate given by the Pargana Magistrate, Lohaghat, photocopy of the First Information Report, copy of the post mortem report of Hospital, Pilibhit.
On behalf of Mangat Ram-respondent no. 3, he himself has been examined as O.P.W. 1. Towards the documentary evidence, copy of the permit of Truck No. U.S.Z 9416 valid for the period from 16.1.1993 to 15.1.1994, copy of the registration certificate, copy of the fitness certificate, copy of the Insurance Policy No. 22383/302/00333/30/92/04856 valid for the period from 19.2.1992 to 18.2.1993, copy of the report of the foreman, report of the Office of R.T.O. Farm 54, photocopy of the Driving Licence of Prem Singh and photocopy of the Insurance Cover Note have been filed.
While deciding the Issue No. 1 as to whether the accident resulting in the death of Sri Narain Datt Joshi took place due to rash and negligent driving of vehicle No. USZ 9416 by its driver, the claims tribunal has relied upon the statement of P.W. 1-Smt. Khasti Devi, P.W. 2-Joga Ram, copy of chick F.I.R. 43-C1, copy of F.I.R. 11 C1, certificate issued by the S.D.M. Lohaghat Paper No. 9C1 and post mortem report Paper No. 11C. P.W. 1 Khasti Devi has stated in her statement that her husband died on account of the accident. P.W. 2-Joga Ram-ocular witness has stated in his statement that on 22.1.1999 at about 5 p.m. he was going from Kathot to Chalthi by road, he has seen the truck bearing No. 9416 coming from the side of Champawat to Chalthi, which was being driven rashly and negligently at speed of 50 Kms. per hour, due to which the truck fell down into a gorge. Narain Dutt and Yudhisthir Joshi, who were sitting in the truck received grievous injuries. Deceased-Narain Dutt was taken to Tankapur for treatment, where the Medical Officer declared him dead. The claims tribunal has disbelieved the statement of O.P.W. 1-Mangat Ram, who has stated that the road where the accident took place was narrow and has further stated that the accident took lace in order to save a cow coming in front of the truck and the steering of the truck had locked. The claims tribunal has disbelieved his statement as he was not an ocular witness. Relying upon the statement of Joga Ram, the claims tribunal has recorded a finding that the accident occurred due to rash and negligent driving of the driver of the vehicle in question in which the deceased died. This issue was decided in favour of the claimant.
While deciding the Issue No. 2 as to whether the truck in question was being plied in violation of the terms and conditions of the Insurance Policy, claims tribunal has relied upon the photocopy of the Driving Licence of the driver of the vehicle in question Paper No. 62C1, which shows that the same was for driving light motor vehicle with an endorsement to transport light motor vehicle. Thus, the claims tribunal has recorded a finding that the truck inquestion was being plied by the driver having an endorsement to ply a transport vehicle on his driving licence. This issue was decided against the Insurance Company.
While deciding the Issue No. 3 with regard to quantum of compensation, the claims tribunal has recorded a finding that opposite party No. 1 is admittedly owner of the truck in question and the truck in question was insured with the Oriental Insurance Company Limited. At the time of deciding the Issue No. 2, it has been found that the truck was being plied not in violation of the terms and conditions of the Insurance Policy, therefore, the claims tribunal has further recorded a finding that the owner and the Oriental Insurance Company both are liable to pay compensation. For assessing the age of the deceased, the claims tribunal has relied upon the certified issued by the Executive Engineer, P.W.D., Champawat Paper No. 7C1, where the date of birth of the deceased has been shown to be 20.1.1993. Thus, the claims tribunal has taken the age of the deceased as 56 years. According to the age of the deceased, multiplier of 7 has been selected. For assessing the age of the deceased, the claims tribunal has relied upon the statement of P.W. 1, who has stated that her husband was getting a sum of Rs. 1985/- per month as he was working in P.W.D. Thus, the claims tribunal has taken Rs. 1985/- per month (i.e. Rs. 22820/- per annum) as income of the deceased. Further 1/3rd of the personal expenses has been deducted from that amount, then the annual dependency comes to about Rs. 15,000/-. Multiplying the annual dependency with multiplier of 7, the amount of compensation comes to Rs. 1,05,000/-. Apart from that, the claims tribunal has awarded a sum of Rs. 5,000/- for funeral expenses and Rs. 5,000/- for loss of consortium. Thus, a total sum of Rs. 1,15,000/- has been awarded to the claimants towards compensation along with simple interest @ 8% per annum.
I do not find any infirmity or illegality in the award passed by the Motor Accident Claims Tribunal so as to interfere u/s 173 of the Motor Vehicles Act, 1988, hence, the A.O. deserves to be dismissed.
The Apex Court in Tamil Nadu State Transport Corporation Ltd. v. S. Rajapriya and Ors. 2005(4) Supreme 87 has observed as under:
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.
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.
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.
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.
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 calcuartion as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicant by way of annual interst. In ascertaining this, regard should also be hald 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
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 earnignds 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 firs tis 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 thue toral 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.
However, counsel for the appellant has submitted that the interest is on higher side.
In Managing Director, T.N.S.T.C. v. Sripriya and Ors. 2007 (67) ALR 813 Supreme Court, the Apex Court has observed as under:
In regard to choice of the multiplicand the Halsbury''s Laws of England in Vol. 34, para 98 stats the principle thus:
Assessment of damages under the fatal Accidents Act, 1976.--The Courts have evolved a method for calculating the amount of pecuniary benefit that dependants could reasonably expect to have received from the deceased in the future. First the annual value to the dependants of those benefits (the multiplicand) is assessed. In the ordinary case of the death of a wage-earner that figure is arrived at by deducting from the wages the estimated amount of his own personal and living expenses.
The assessment is split into two parts. The first part comprises damages for the period between death and trial. The multiplicand is multiplied by the number of years which have elapsed between those two dates. Interest at one-hald the short-term investment rate is also awarded on that multiplicand. The second part is damages for the period from the trial onwards. For that period, the number of years which have based on the number of years that the expectancy would probably have lasted; central to that calculation is the probable length of the deceased''s working life at the date of death.
Considering the age of the deceased appropriate multiplier would be 12. The income fixed by the Tribunal and the deduction for personal expenses do not warrant any interference. Worked out on that basis, the entitlement of the loss of income is Rs. 5,76,000. The other expenses awarded unaltered. In other words, total entitlement of the claimant is fixed at Rs. 6,00,000. It would be appropriate to fix the rate of interest at 7.5.% instead of 9% as done by the Tribunal and maintained by the High Court.
In view of the aforesaid case, so far as the rate of interest is concerned, the same shall be payable @ 7.5% in place of 8% in case the amount of compensation has not already been paid. In case the amount has already been paid, the rate of interest shall remain same as was payable earlier.
With the aforesaid modification in the rate of interest, A.O. is dismissed.
No order as to costs.