M. K. MITTAL, J. ( 1 ) THESE two appeals have been filed against the judgment and decree dated 19. 8. 1995 passed by Motor Accidents claims Tribunal (Special/addl. District and Sessions Judge), aligarh (in short 'the Tribunal') in Motor accident Claim petition No. 79 of 1982, Leela Bhanott v. Petrolube India, whereby it allowed the claim petition for an amount of Rs. 3,35,000 with interest at the rate of 9 per cent per annum against the opposite party Nos. 1 to 3 with the direction that Oriental Fire and general Insurance Co. Ltd. (hereinafter referred as 'the insurance company') was liable to pay an amount of Rs. 50,000 and balance was to be paid by opposite party nos. 1 and 3 jointly and severally. Since these two appeals arise against the same order they have been heard together and are being decided by a common judgment. Leela Bhanott and Kumud Khaitan died during the pendency of the appeals and their legal heirs are on record/have been substituted. ( 2 ) BRIEF facts are that Leela Bhanott filed a claim petition alleging that when on 11. 12. 1981, her husband Major N. P. Bhanott sitting on the pillion seat of motor cycle No. DDT 684, being driven by Harsh kumar reached near the road crossing in awas Vikas Colony of Raghuveer Puri road and G. T. Road, Aligarh at about 9. 20 p. m. , a tanker bearing No. UPB 7010, being driven rashly and negligently by Prem Pal singh, opposite party No. 3, hit the motor cycle and as a result thereof Harsh Kumar and Major N. P. Bhanott received injuries and later Major N. P. Bhanott succumbed to his injuries in Military Hospital, Aligarh. At the relevant time N. P. Bhanott, who was a Major in the army, was attached to n. C. C. Group HQ at Ramghat Road, Aligarh. He left behind him his widow Leela bhanott, minor daughter Kritika Bhanott and son Arun Kumar. Major Bhanott was getting about Rs. 2,500 per month as salary and his age was about 45 years. According to claimants his life expectancy was up to 80 years. The claim petition was filed for award of Rs. 10,50,000 as compensation. He left behind him his widow Leela bhanott, minor daughter Kritika Bhanott and son Arun Kumar. Major Bhanott was getting about Rs. 2,500 per month as salary and his age was about 45 years. According to claimants his life expectancy was up to 80 years. The claim petition was filed for award of Rs. 10,50,000 as compensation. ( 3 ) OPPOSITE party Petrolube India filed written statement and, inter alia, pleaded that the accident took place on account of negligence of the motor cycle driver as at the time of the accident, he was in drunken condition and had no control over the vehicle. The vehicle was insured with the insurance company against third party risk with insurance policy No. 2810/30/01933/3081/1278/t. P. and the conditions of the policy were fulfilled. The driver Prem Pal Singh was prosecuted in Criminal Case No. 1826 of 1982, State v. Prem Pal Singh, but was acquitted for want of any evidence by order dated 16. 6. 1983. ( 4 ) THE driver Prem Pal Singh filed separate written statement and pleaded that he was driving the tanker carefully and the accident had taken place on account of rash and negligent driving of the motorcyclist who was in drunken condition. He has further contended that he had a valid driving licence. ( 5 ) THE insurance company filed written statement and alleged that driver had no valid driving licence and the accident had taken place on account of negligence of the deceased himself. In additional written statement the insurance company pleaded that the insurance was third party insurance with limited liability of Rs. 50,000. The claim made by the petitioner was highly inflated and exaggerated. ( 6 ) THIS case has had a chequered history. The petition was filed on 31. 5. 1982 but petitioner did not take steps from July 1982 to January 1986. Although Petrolube india, the owner of the tanker had filed written statement on 12. 12. 1983, the steps were not taken for other opposite parties. The petition was dismissed for want of prosecution on 20. 5. 1986 and was restored on 14. 11. 1986. It was again dismissed on 8. 3. 1989. Several applications (Misc. Case nos. 13 of 1989, 54 of 1991, 25 of 1992)were given for restoration of the petition as well as restoration of restoration application and the petition was finally restored on 27. 5. 1994. 5. 1986 and was restored on 14. 11. 1986. It was again dismissed on 8. 3. 1989. Several applications (Misc. Case nos. 13 of 1989, 54 of 1991, 25 of 1992)were given for restoration of the petition as well as restoration of restoration application and the petition was finally restored on 27. 5. 1994. The case was decided by judgment and order dated 29. 9. 1994 by tribunal. Against that judgment Petrolube india filed F. A. F. O. No. 1111 of 1994 on the ground that appellant did not get opportunity to contest the claim petition after it was restored. That appeal was allowed by judgment and order dated 8. 2. 1995 and the case was remanded to the Tribunal. ( 7 ) THE learned Tribunal framed the following four issues in the case for determination: (i) Whether the driver of tanker No. UPB 7010 was driving the tanker rashly and negligently? If so, its effect? (ii) Whether the accident took place on account of negligence of the motorcyclist? if so, its effect? (iii) Whether the petition was bad for non-joinder of parties? (iv) To what relief, if any, were the claimants entitled? ( 8 ) THE parties led their evidence in the case and on behalf of claimants, claimant kritika Bhanott, PW 1, Som Pal, PW 2, were examined. The respondents examined prem Pal Singh driver as DW 1. Parties also filed documentary evidence in support of their contentions. On the basis of evidence, the Tribunal came to the conclusion that the incident had taken place due to rash and negligent driving of the tanker driver as the tanker had hit the back portion of the motor cycle. It further held that the age of the deceased was about 45 years and he was getting salary of Rs. 2,500 per month. Adding the value of the perks, the tribunal held that his total income was rs. 4,000 per month and on that basis concluded that he must have spent Rs. 2,700 on the petitioners and on that basis, applying the multiplier of 10, calculated the compensation amount as Rs. 3,24,000. The tribunal also awarded Rs. 15,000 for loss of consortium and rounded the figure to rs. 3,35,000. It also awarded interest at the rate of 9 per cent from the date of filing of petition. Feeling aggrieved, both the parties have come up in these appeals. 3,24,000. The tribunal also awarded Rs. 15,000 for loss of consortium and rounded the figure to rs. 3,35,000. It also awarded interest at the rate of 9 per cent from the date of filing of petition. Feeling aggrieved, both the parties have come up in these appeals. ( 9 ) THE contention of the claimants in appeal is that learned Tribunal has erred in determining the dependency at Rs. 2,700 because the overall salary of deceased was rs. 9,128 and after deduction of 1/3rd as personal expenses the dependency should have been fixed at Rs. 6,100 per month; that the retirement age of the deceased was 58 years and the multiplier of 18 and in any case of 13 should have been applied; that the interest as awarded is less and that it should have been at the rate of 12 per cent per annum. ( 10 ) THE contention of the respondents in their appeal is that the driver of the motor cycle was not holding any driving licence and was not conversant with the traffic rules and art of driving; that he was in drunken state; that the deceased was not a commissioned officer but was a Major of non-commissioned rank coming up from j. C. O. ; that the salary as shown was excessive; that the age of the deceased was more than 45 years; that he was retired person receiving pension; that the claimants were not entitled to get any interest for the period they did not take steps in the petition and the period during which the petition remained dismissed. ( 11 ) WE have heard the learned counsel for the claimants, learned counsel for the respondents and perused the record. ( 12 ) THE following points arise for determination in these appeals: (1) Whether the accident took place on account of rash and negligent driving by the driver of the tanker or on account of rash and negligent driving of the motorcyclist? (2) To what amount of compensation, if any, are the claimants entitled? findings point No. 1: ( 13 ) LEARNED counsel for the claimants contended that the accident in which Major bhanott was killed took place due to rash and negligent driving of Prem Pal Singh, opposite party No. 3, who was driver of the tanker. (2) To what amount of compensation, if any, are the claimants entitled? findings point No. 1: ( 13 ) LEARNED counsel for the claimants contended that the accident in which Major bhanott was killed took place due to rash and negligent driving of Prem Pal Singh, opposite party No. 3, who was driver of the tanker. As against it the contention of learned counsel for the opposite parties is that the motor cycle driver was in drunken condition and was also not conversant with the traffic rules and was responsible for this accident. In this connection, the statement of Som Pal, PW 2, is important. This witness has stated that he was present when the incident took place. The tanker hit the back portion of motor cycle which was dragged to some distance. Major Bhanott was wearing helmet which was also crushed. The driver of the tanker was drunk and was apprehended at the spot. The smell of liquor was coming from his mouth. He made a positive statement that this incident took place on account of rash and negligent driving of the tanker driver. In his cross-examination, this statement of the witness has not been challenged. Even no suggestion has been given to him that the incident took place on account of any rash or negligent driving of the motorcyclist. If the statement of witness is not challenged in cross-examination it has to be accepted as such. In this statement, it has also been stated that he was present at the time of incident and there is nothing in his statement to show that he was not present. In the circumstances, the statement of this witness shows that the accident took place on account of rash and negligent driving of tanker driver. ( 14 ) PREM Pal Singh, DW 1, the driver has examined himself and stated in the examination-in-chief that the back portion of the motor cycle hit against the tanker; although he has stated that the accident did not take place on account of his mistake or negligence but this contention cannot be accepted. Had there been a head-on collision the position would have been different. Had there been a head-on collision the position would have been different. It was the back portion of the motor cycle that was hit by the tanker and it shows that tanker's driver was negligent in not controlling the speed of his tanker although he had seen motor cycle from a distance of 50 yards as stated by him on oath. He did not tell any police personnel and did not give any report to the effect that the incident took place on account of mistake of the motorcyclist. In view of this evidence, it is clear that this incident took place due to rash and negligent driving of the tanker's driver and not that of the motorcyclist and the findings as recorded by Tribunal are correct and are confirmed. The point is decided accordingly. Point No. 2: ( 15 ) NOW we have to see whether the claimants are entitled to any amount as compensation and if so, what amount. 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 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 deceased might have got promotions, better employment or income or might have lost his employment or income altogether and so on. ( 16 ) THE manner of arriving at the damages is to ascertain the net income of the deceased that is 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. Than that should be capitalized by multiplying it by a figure representing the proper number of year's purchase. Than that should be capitalized by multiplying it by a figure representing the proper number of year's purchase. ( 17 ) 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. Thus 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. ( 18 ) 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 had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last. ( 19 ) LEARNED counsel for the claimants has contended that the learned Tribunal has erred in determining the dependency at Rs. 2,700 per month. He has contended that overall income of the deceased should have been taken to Rs. 9,128 and on that basis dependency should have been determined. The claimants' contention is also that had the deceased lived, he must have been promoted as Colonel in the very near future and thereafter must have gone to the post of Brigadier. Learned counsel for the respondents, owner of the vehicle, has contended that the earning of the deceased was rs. 2,500 per month as said by Bhanott, pw 1, herself. Therefore, the dependency should have been determined at Rs. 1,666 and further there should have been deduction of Rs. 800 as this amount was admittedly being received by the dependants as family pension. The learned counsel for the opposite parties has further contended that he was already a retired person from regular army and was posted in the NCC office. But no document to that effect has been placed and no such suggestion has been given to the claimant Bhanott during her cross-examination that her father had already retired from service. Therefore this plea is not tenable. But no document to that effect has been placed and no such suggestion has been given to the claimant Bhanott during her cross-examination that her father had already retired from service. Therefore this plea is not tenable. ( 20 ) THE statement of Bhanott shows that her father was getting a salary of Rs. 2,500 per month. Besides, he was also getting free residence, medical facilities and also used to get subsidies in the conveyance and education of the children. It appears that the claimants did not file any salary certificate of the deceased in the trial court. The statement of Kritika Bhanott that her father was getting Rs. 2,500 as salary has not been challenged in cross-examination. It has also not been challenged that the deceased was not getting perks in the form of free and subsidised services, as mentioned above. However, the learned counsel for the claimants could not show as to how the income should have been assessed at rs. 9,128 per month, when the salary was about Rs. 2,500. The value of perks could not have been about three times of the salary. The petitioners should have given the details. The contention of learned counsel for the opposite parties that the dependency should have been determined at Rs. 1,666 is also not correct because deceased was getting free residence, medical facilities and also some facilities at subsidised rates. In the circumstances, learned trial court has rightly assessed the monthly income of the deceased at Rs. 4,000. ( 21 ) AGAIN the contention of the learned counsel for respondents that the amount of pension should have been deducted, is also not correct because if any family pension is payable to dependants of the deceased, it does not affect the amount of compensation. In case of Urmila Kaur v. Bapu Rajaram Kothale, 1986 ACJ 267 (Bombay), it has been held that deduction on account of contributory provident fund, gratuity and family pension from compensation for accident is not justified. Thus we come to the conclusion that the Tribunal has rightly assessed the dependency at Rs. 2,700 per month and the finding in this regard is confirmed. ( 22 ) LEARNED counsel for the claimants has further contended that learned Tribunal has erred in applying the multiplier of 10 while calculating the amount of compensation. Thus we come to the conclusion that the Tribunal has rightly assessed the dependency at Rs. 2,700 per month and the finding in this regard is confirmed. ( 22 ) LEARNED counsel for the claimants has further contended that learned Tribunal has erred in applying the multiplier of 10 while calculating the amount of compensation. He has contended that multiplier of 18 or in any case 13 should have been adopted. The age of the deceased has been given as 45 years in the claim petition. Kritika bhanott has also given the age of the deceased as 45 years and the same has not been challenged in her cross-examination. ( 23 ) THE claimant did not file any certificate showing the date of birth of deceased. In the circumstances, the contention of the learned counsel for the claimants that the age of the deceased was less than 45 years cannot be accepted. The contention was also raised by the learned counsel for the respondents owner that the deceased had retired and was getting pension and his age was more than 45 years but no evidence to that effect has been adduced by respondents as well. In the circumstances, the age of the deceased can be taken to be in the group of 45 years to 50 years and in view of the Second Schedule, the multiplier of 13 can be said to be the appropriate multiplier in the instant case. Learned trial court has erred in adopting the multiplier of 10 and the finding is to be set aside. ( 24 ) NOW we come to the question of interest. The contention of learned counsel for the claimants is that learned trial court has erred in awarding the interest at the rate of 9 per cent whereas it should have been given at the rate of 12 per cent. The learned counsel for the claimants has also contended that it appears that learned trial court has awarded interest at the rate of 9 per cent because he has awarded interest for the entire period from the date of application. In the impugned order learned trial court has mentioned that the petition was dismissed for default otherwise petitioners could have been given interest at the rate of 12 per cent. ( 25 ) LEARNED counsel for the claimants has referred to the case of Sarla Dix. In the impugned order learned trial court has mentioned that the petition was dismissed for default otherwise petitioners could have been given interest at the rate of 12 per cent. ( 25 ) LEARNED counsel for the claimants has referred to the case of Sarla Dix. it v. Balwant Yadav, 1996 ACJ 581 (SC ). In that case the incident had occurred in the year 1975 and the Hon'ble Supreme Court while deciding the appeal on 29. 2. 1996 awarded interest at the rate of 12 per cent per annum from the date of the claim application. ( 26 ) LEARNED counsel for the claimants has also referred the case of New India assurance Co. Ltd. v. Kali Charan Rai, decided by a Division Bench of this court in F. A. F. O. No. 1201 of 1993 wherein the interest has been awarded at the rate of 12 per cent per annum from the date of application. The death had taken place on 25. 9. 1990. ( 27 ) LEARNED counsel for respondents owner has contended that the learned trial court has rightly allowed the interest at the rate of 9 per cent per annum. In a recent case of Tamil Nadu State Trans. Corpn. Ltd. v. S. Rajapriya, 2005 ACJ 1441 (SC), the Hon'ble Apex Court awarded interest at the rate of 7. 5 per cent per annum on account of the reduced prevailing rate of interest. In that case age of the deceased was 38 years and the death took place on 30. 8. 2001. In the instant case although the claim petition was filed in the year 1982 but it was not effectively prosecuted till the year 1994 and the delay was caused mainly on account of the claimants. ( 28 ) CONSIDERING all the facts and circumstances of the case, as well as the prevailing rate of the interest, we are of the opinion that the claimants are entitled to get interest at the rate of 9 per cent per annum and in this connection, the finding as recorded by the learned Tribunal needs no interference. ( 29 ) LEARNED counsel for the respondents has further contended that learned Tribunal has erred in awarding the interest from the date of petition and in not excluding the period during which claimants did not take steps or the petition remained dismissed. ( 29 ) LEARNED counsel for the respondents has further contended that learned Tribunal has erred in awarding the interest from the date of petition and in not excluding the period during which claimants did not take steps or the petition remained dismissed. The record shows that the petitioner did not take effective steps from July 1982 to january 1986 and that the petition was dismissed for non-prosecution on 20. 5. 1986 and was restored on 14. 11. 1986. Petition was again dismissed on 8. 3. 1989 and was finally restored on 27. 5. 1994. Regarding non-prosecution and dismissals, learned counsel for the claimants has contended that at the relevant time the claimants lived at Dehradun and their counsel was directed to take steps and to prosecute the petition but he was negligent and that the claimants should not suffer on account of laches on the part of the counsel. ( 30 ) IN this connection, learned counsel for the claimants has placed reliance on the case of Shaikh Abdul Rafi Abdul Aziz v. Aspy Beharam Talathi, 1994 ACJ 749 (Bombay ). In this case, Bombay High court has held that the claimants should not be refused hearing because of the negligence of their lawyers. But in the instant case, the facts are different and this ruling does not help the claimants. ( 31 ) LEARNED counsel for the respondents has cited the case of Sanjay Kumar v. Munnalal, 1993 ACJ 869 (MP ). In that case, the claimants had failed to properly pursue the claim and petition was dismissed and after restoration the trial had been limping on account of their fault for a long time. In that matter Gwalior Bench of madhya Pradesh High Court held that the interest was not admissible from the date of filing of the claim petition but from the date of that judgment. ( 32 ) IT is true that if there is a bona fide mistake or negligence on the part of the lawyers, the party should not be made to suffer. But it is equally true that for the negligence of the counsel of one party, the other party should not suffer. In the instant case there was negligence on the part of learned counsel for the claimants. But it is equally true that for the negligence of the counsel of one party, the other party should not suffer. In the instant case there was negligence on the part of learned counsel for the claimants. He did not take steps and also the case remained dismissed for a long time and in this circumstance, the opposite parties cannot be made to suffer and to pay the interest for that period. In the circumstances, we come to the conclusion that the learned Tribunal has erred in awarding the interest for the period the claimants did not take effective steps and also for the period, the petition remained dismissed. The point is decided accordingly. ( 33 ) IN view of the above discussion we come to the conclusion that the claimants are entitled to get Rs. 2,700 x 12 x 13 =rs. 4,21,200 as compensation. They are further entitled to get Rs. 15,000 as awarded by the learned Tribunal. Thus they are entitled to get Rs. 4,36,200 and interest thereon as mentioned above. The liability of the insurance company is limited to the extent of Rs. 50,000, it shall also pay the interest thereon as directed herein. ( 34 ) THEREFORE both the appeals are to be partly allowed. ( 35 ) APPEAL No. 1039 of 1995 is allowed to the extent that the claimants shall get rs. 4,36,200 as compensation. The Appeal no. 1585 of 2002 is partly allowed to the extent that the appellants of this appeal shall not be liable to pay interest w. e. f. July 1982 to January 1986, 20. 5. 1986 to 14. 11. 1986 and 8. 3. 1989 to 27. 5. 1994. The interest on the compensation amount shall be payable w. e. f. the date of petition to the actual date of payment excluding the aforesaid period and at the rate of 9 percent per annum. Opposite parties shall pay the amount and the interest as above within a period of two months, failing which the claimants shall be entitled to recover the amount in accordance with law. It is also made clear that if any amount has been paid earlier, the same shall be liable to adjustment. Parties are directed to bear their costs of these two appeals. Appeals partly allowed. - .