Central Industrial Security ... vs Ms. Shiela Dina Nath & Anr.
1998 Latest Caselaw 530 Del

JUDGMENT

Manmohan Sarin, J.

1. The appellants have preferred this first appeal against the grant of compensation vide Award dated 7.9.1992 amounting to Rs. 5,83,200/- with costs and simple interest at the rate of 12%, per annum from the date of petition till realisation.

2. Respondents herein and claimants before the Motor Accident Claims Tribunal have also preferred cross-objections (C.M.No. 1309/93) seeking enhancement in the awarded amount. The appeal was admitted to hearing on 3.2.1993.

3. During the pendency of the appeal interim directions were given from time to time requiring the appellants to deposit the awarded amount, as well as the amount so deposited, being kept in Fixed Deposit Receipts for the minor respondent and for disbursement to the other respondents.

4. By this order the appeal and the cross-objections being C.M. No. 1390/93 are being disposed of.

5. Relevant facts in brief may be noted. The deceased Captain Ashok Kumar Dinanath, was employed as an Accountant with the Punjab National Bank. He was a graduate and had also completed a Diploma in accountancy. The deceased was aged 40 years and his last drawn salary from the bank was Rs. 4,077.72. The respondent No.1 happens to be the widow of the deceased, while respondent No. 2 is the minor daughter of the deceased. The appellants are the Central Industrial Security Force as well as the driver of the Truck Shri Chanan Singh.

6. On 28.3.1988, the deceased Ashok Kumar Dinanath, who was driving a two wheeler scooter had an accident with the Truck bearing No. DBL-9325. It was claimed by the respondents in the petition that the deceased was hit by the truck driven by the appellant No. 2 at a fast speed in a rash and negligent manner. The deceased was declared dead, when brought to the Hospital. The factum of the accident is not denied by the appellants. However, they questioned the manner of the accident.

7. The respondents had examined an eye witness, who deposed that the deceased who was on the scooter was hit by the front Bumper of the truck as a result of which he lost balance and was crushed under the rear wheels of the truck. He further stated that the truck did not stop after hitting the deceased and it was another scooterist who made the truck stop in front of Bhikaji Cama Place. The appellant No. 2/driver had been examined. He admitted that he was given a signal by a person asking him to stop the vehicle and was told that a person had been crushed under his vehicle. He admitted that he then noticed that a two wheeler scooter was lying on the road . He further stated that he had been told by the person who stopped him that the accident had happened when the scooterist was trying to overtake the truck and then stumbled over a stone. The appellants had also examined one Mr. B.R. Nayyar, who deposed that he was sitting on the rear of the truck. The deceased was trying to overtake the truck and due to sand and stones lying on the road, scooter slipped and the deceased fell down and got crushed under the left rear wheel of the vehicle.

8. Learned Motor Accident Claims Tribunal disbelieved the version set up by the appellants and held that the accident had taken place because of the rash and negligent driving of the truck by appellant No. 2.

9. Coming on the question of quantum of compensation the learned Motor Accident Claims Tribunal on the basis of evidence recorded, accepted the last drawn salary as Rs. 4,077.72, made a deduction of 1/3rd on account of personal expenses, and arrived at monthly dependency of Rs. 2,700/- per month. The Motor Accident Claims Tribunal, considering the age of the deceased being 40, proceeded on the basis that the deceased would have served for another 18 years, applied a multiplier of 18 and awarded a sum of Rs. 5,83,200/-. Rs. 15,000/- was awarded as interim compensation. The mother of the deceased was awarded Rs. 35,000/ - while the minor daughter was awarded Rs. 2 Lacs and the widow of the deceased was awarded Rs. 3,33,200/-. Further out of the share of the widow, Rs. 2 lacs were directed to be kept in FDR for 5 years.

10. Learned Counsel for the appellant has assailed the quantum of award before me as well as the finding of rash and negligent driving on the part of the appellant No. 2 driver of the truck . Learned Counsel submitted that RW 4, the only witness on behalf of the claimants had admitted that the scooter was running parallel to the truck, which would itself suggest that the scooter was being driven almost on the same speed as the truck. The testimony of RW 4 was labelled as untrustworthy being an interested witness holding an account with the same bank, where the deceased worked. It was also submitted that the accident was caused due to the act of the deceased in trying to overtake the truck. It was claimed that in these circumstances the front bumper of the truck could not have hit the deceased. It was submitted that at worst it was a case of contributory negligence.

11. I have perused the impugned judgment as well as the evidence on record. The learned Motor Accident Claims Tribunal has carefully analysed the evidence of the witnesses and reached the conclusion of rash and negligent driving by the appellant driver resulting in the death of the deceased scooterist. It has Come in evidence and admitted by the appellant No. 2 truck driver that he did not even realise that an accident had been caused . The appellant truck driver went on merrily driving and had to be stopped by others by signalling and thumping on the Truck. The appellant truck driver appears to have been recklessly, driving oblivious of his surroundings. The learned Motor Accident Claims Tribunal has also rightly disbelieved the other witnesses on behalf of the appellants who claimed that the deceased was trying to over take their vehicle and in that bid he came across sand and stones on the road, slipped and got crushed under the left rear wheel of the Truck. The witness RW1 on behalf of appellants admitted that he had seen the serious accident, yet he did not ask the driver of the Truck to stop the vehicle. Apart from the fact that the conduct of this witness RW 1 was reprehensible, in letting the vehicle proceed despite the accident, his testimony does not inspire any confidence. The appellants have not been able to show any material contradictions in the testimony of RW 4 whose evidence is cogent and trustworthy. Simply because he possessed an account in the Bank in which the deceased was working, he cannot be labelled as an interested witness and disbe-

lieved.

12. Learned Counsel then urged that it could at least be taken as a case of contributory negligence. This plea was not taken in the written statement. In any case, I find that the conclusion reached by the Motor Accident Claims Tribunal was fully justified that the accident was caused as a result of rash and negligent act of driving of the truck driver appellant No. 2.

13. Coming to the question of grant of compensation, the deceased aged about 40 years left behind a widow, and a four year old daughter and an old mother, who has since expired. The Motor Accident Claims Tribunal proceeded on the basis that the child would need support atleast for a period of 18 years and accordingly applied a multiplier of 18. Compensation was computed as follows:

Rs. 4,077/- per month being last drawn salary less 1/3rd deduction for personal expenses, Rs. 2,718/- or Rs. 2,700/- per month as the monthly dependency. Total compensation = Rs. 2700x12 x 18 = Rs. 5,83,200/-.

14. Learned Counsel for the appellant has rightly contended that multiplier of 18 would be on the higher side. Reference may usefully be made to the decision of the Apex Court in General Manager, Kerala State Road Transport Corporation, Trivendrum Vs. Mrs. Susamma Thomas & Ors., which reiterated and approved the multiplier method as being logically sound and legally well established. The Apex Court also noticed that in certain cases the compensation had been determined and awarded by computing future earnings and making deduction therefrom and where multipliers of 30 and 45 have been adopted. The Court observed that such decisions should not be treated as having laid down a settled principle as these were merely instances of very high awards in individual cases. The Court while disapproving the said decisions indicated that multiplier method was the appropriate method, a departure from it can only be justified in rare and extraordinary circumstances and very exceptional cases. It was also observed that the multiplier was normally 12 and rarely exceeds 16. In the cited case deceased was 39 years of age and was survived by his widow and a child. He was working with "Malayala Manorama" on a monthly salary of Rs.1,032/-. The Court applied multiplier of 12. However, it took future prospects into account and took gross monthly income as Rs. 2,000/- and making a deduction for monthly expenses arrived at Rs.1400/- as the loss of dependency and further awarded for loss of consortium and awarded Rs. 2,25,000/-.

15. In the instant case the deceased was working with Punjab National Bank and his last drawn salary was Rs. 4,077/-. Considering that there was security of tenure and there would be some promotions in the normal Course and increase in wages it would not be unreasonable to take the gross income of Rs. 6,000/- which would make the monthly dependency after deducting 1/3rd on account of personal expenses to Rs. 4,000/- and even if the multiplier of 12 was applied the compensation payable would work out to Rs. 5,76,000/- to which may be added the sum on account of loss of consortium etc. It would, therefore, be seen that while the Motor Accident Claims Tribunal applied the multiplier at 18 it failed to take into account the future prospects and make a suitable allowance for the same. Accordingly, the determination of compensation by application of a higher multiplier has been off set by non consideration of the future prospects while determining monthly dependency. Although the Second Schedule under Section 163A of the Motor Vehicles Act provides for a multiplier of 15 for ages 35 to 40 and 16 for ages 40-45, in the instant case the possibility of remarriage of young widow cannot be ruled out. Considering the cumulative effect of the various factors discussed hereinbefore is that just compensation has been awarded, which is the mandate of the statute. There is also no merit in the submission of the respondents that there has been non consideration of the benefit of a free residential accommodation provided to the deceased. It was urged that the employer was paying a rent of Rs.1,000/ - per month to the landlord. The provision of a free residential accommodation is a perquisite which comes alongwith the job and vocation being carried out. It is granted for the purposes of discharge of the said duties and vocation. The same cannot be computed as a pecuniary loss to the estate. Accordingly, the compensation awarded is just compensation and does not warrant any interference in appeal.

16. Learned Motor Accident Claims Tribunal considering the facts of this case has exercised its discretion in awarding interest at the rate of 12%, per annum from the date of petition till realisation. I find no ground to interfere with this exercise of discretion in this regard. It is, however, clarified that while computing interest the appellants would be entitled to the benefits and adjustment on account of payments towards the principal amount of the award as and when made, and the interest would be payable on the balance amount.

17. It may also be noted that vide orders dated 20.1.1993, this Court took note of the death of the mother of the deceased and, therefore, directed that the amount of award which was to come to the share of the mother of the deceased was now to be divided amongst remaining legal representatives, namely, respondents No. 1 & 2.

18. The amount payable to respondent No. 2 minor daughter shall be kept in Fixed Deposit Receipts in her name and would not be encashable till she attaining majority.

19. The appeal as well as the cross-objections are accordingly dismissed.