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2008 DIGILAW 532 (DEL)

SHAMA KAUR v. DELHI TRANSPORT CORPORATION

2008-05-19

RAJIV SHAKDHER

body2008
JUDGMENT Rajiv Shakdher, J. 1. This is an appeal u/s 173 of the Motor Vehicles Act, 1988 (hereinafter in short referred to as 'the Act') against the judgment dated 18.4.1996, passed by the Motor Accidents Claims Tribunal, Delhi (hereinafter referred to as 'the Tribunal') in Suit No. 584 of 1988. 2. By virtue of the said judgment, the appellants have been awarded a compensation of Rs. 91,200. The appellants being aggrieved by the same, have preferred the present appeal. 3. Before adverting to the submissions made on behalf of the parties, it may be useful to detail out certain facts and circumstances, which are necessary for the disposal of the present appeal. 4. On 5.6.1988, one Pritam Singh had met with a road accident while he was proceeding from Janakpuri to Kamla Market. The cause spelled out being rash and negligent driving of a bus bearing registration No. DHP 3356 (hereinafter in short referred as 'the offending vehicle') owned by respondent No. 1, i.e., Delhi Transport Corporation. The offending vehicle was driven by its driver, respondent No. 2, i.e., Bakshi Ram. The victim Pritam Singh succumbed to the injuries sustained in the accident. Pritam Singh died on 5.6.1988. 5. Aggrieved by the same, an action was jointly instituted, on 17.8.1988 by the appellant No. 1, who is the widow of the deceased Pritam Singh and the children, i.e., appellant Nos. 2 to 10. The action was registered as Suit No. 584 of 1988. 6. In the suit filed by the appellants, the owner of the bus, i.e., Delhi Transport Corporation was impleaded as respondent No. 1; the driver of the offending vehicle was impleaded as respondent No. 2 and the mother of the deceased Nyadri Devi was impleaded as respondent No. 3. 7. The petition was opposed by the respondent Nos. 1 and 2 who filed their written statement on 23.1.1989. Obviously, there was no opposition by respondent No. 3 who is the mother of the deceased. To the written statement, a replication was filed by the appellants on 9.2.1989 reiterating the stand taken in the petition and denying the averments made by respondent Nos. 1 and 2 in their joint written statement. 8. The matter was put to trial and after recording of evidence, the Tribunal passed the impugned judgment on 18.4.1996. 9. To the written statement, a replication was filed by the appellants on 9.2.1989 reiterating the stand taken in the petition and denying the averments made by respondent Nos. 1 and 2 in their joint written statement. 8. The matter was put to trial and after recording of evidence, the Tribunal passed the impugned judgment on 18.4.1996. 9. In the impugned judgment, the Tribunal culled out the following points for determination: (1) Whether the cause of accident is the negligent driving of the bus No. DHP 3356 by respondent No. 2? (2) Whether the deceased Pritam Singh died due to this accident? (3) Whether the petitioners are L.Rs. of the deceased and entitled for compensation from respondents? (4) To what amount of compensation the petitioners are entitled from respondents? 10. In the judgment in appeal, as regards the first point, based on the testimony of witnesses, i.e., ASI Krishan Chand, PW 1 and HC Rajender Singh, PW 10, Tribunal came to the conclusion that the death of Pritam Singh was caused on account of offending vehicle being driven in a rash and negligent manner by respondent No. 2 and that; the accident took place while the deceased Pritam Singh was standing on the road. The Tribunal disbelieved the version of respondent Nos. 1 and 2 taken in the written statement that the deceased had died on account of his carelessness in alighting from the offending vehicle before it could be brought to a halt at the designated bus stop. The relevant observation and the finding of the Claims Tribunal on this aspect of the matter read as follows: ...It is important to mention here that the respondent Nos. 1 and 2 have not disputed the factum of the accident. They have also not disputed the involvement of the offending D.T.C. bus No. DHP 3356 in this accident. They have also not disputed that the time of the accident the bus was driven by Bakshi Ram, respondent No. 2. The only dispute as borne out from the pleas of the parties is whether or not the respondent No. 2 is responsible for the accident. In his examination, HC Rajender Singh, PW 10, has stated that on 5.6.1988, he was posted at Ajmeri Gate along with ASI Krishan Chand, PW 1. The only dispute as borne out from the pleas of the parties is whether or not the respondent No. 2 is responsible for the accident. In his examination, HC Rajender Singh, PW 10, has stated that on 5.6.1988, he was posted at Ajmeri Gate along with ASI Krishan Chand, PW 1. At about 9 p.m. a D.T.C. bus No. DHP 3356 came at a fast speed from the side of Paharganj which was driven by the respondent No. 2. The deceased Pritam Singh standing on the bus stop was hit by this bus as a result of which he fell down and a wheel of the bus ran over him. The bus stopped at a distance of about 30-40 paces from the spot of accident. ASI Krishan Chand, PW 1, is another eyewitness. According to him, at about 9.15 p.m. on 5.6.1988, he was on duty at Ajmeri Gate. A D.T.C. bus on route No. 751 came from Paharganj Bridge side and hit a person standing on the bus stop from the front side of the bus. Due to the impact, he fell down on the road and the wheel of the bus passed over him. A police jeep came at the spot and the investigating officer of this case recorded his statement. This accident has taken place due to rash and negligent driving of the bus driver who drove the bus at a fast speed. These witnesses were cross-examined by the respondents, but they were not able to extract out anything from their cross-examination which could bring the court to the conclusion that their testimonies were not reliable. Both of them have stated that they were on duty near the place of the accident. The presence of these witnesses on the place of the accident cannot be doubted, because the investigating officer of this case, while appearing as PW 4, has stated that he has recorded the statement of eyewitnesses on the place of accident. There appears no reason with the eyewitnesses for falsely involving the respondent No. 2 in this case of accident. I am further of the view that in case, the respondent had not been at fault, he would have not been involved falsely by these witnesses. There appears no reason with the eyewitnesses for falsely involving the respondent No. 2 in this case of accident. I am further of the view that in case, the respondent had not been at fault, he would have not been involved falsely by these witnesses. To my mind, merely because PW 1 and PW 10 as well as the deceased Pritam Singh happen to be police officials, it is not sufficient for discarding the testimonies of these eyewitnesses, i.e., PW 1 and PW 10. On the other hand, I find that the evidence of these eyewitnesses have given a vivid account of the accident to bring before the court, the circumstances in which the accident has taken place. The respondents have not led any evidence to disprove the testimonies of these witnesses. Even the driver of the bus, i.e., respondent No. 2 also did not care to come to the court as witness to state the circumstances in which the accident has taken place and to explain as to how and why he was not responsible for the accident. I am of the considered view that the statements of these witnesses can be safely relied by the court. Thus, from the testimonies of these PWs the petitioners are able to establish that the respondent No. 2 while driving the bus at a fast speed and in a rash and negligent manner struck against the deceased Pritam Singh standing on the bus stop, as a result of which he fell down and a wheel of the bus passed over him. The accident having taken place in the manner clearly shows that this accident is the result of the rash and negligent driving of the D.T.C. bus No. DHP 3356 by respondent No. 2. This point stands decided accordingly. 11. As regards the second point, the Tribunal having already determined the first point in favour of the appellants and having accepted the testimonies of the two eyewitnesses PW 1 and PW 10 and, as well as, the testimony of the doctor; one, Vishnu Kumar, PW 7, it had no difficulty in coming to the conclusion that the deceased Pritam Singh had succumbed to the injuries caused by the accident. In this regard, observations and the findings of the Tribunal are as follows: I have also held that this accident has taken place due to rash and negligent driving of the respondent No. 2. PW 1, PW 10 and PW 4 through their testimonies have already stated that after the accident the deceased was taken to the hospital where he was declared dead. Their statements are further supported by the testimony of Dr. Vishnu Kumar, PW 7, who stated that the post-mortem report of the deceased Pritam Singh was made by him as he examined the body of the deceased. In his report, Exh. PW 7/1, he has mentioned that all injuries were ante-mortem, of recent duration and could be caused by running over a vehicle as alleged. Thus, from the testimonies of these PWs, it is clear that the deceased Pritam Singh died due to the accident. This point stands disposed of accordingly. 12. As regards point No. 3, Tribunal concluded that the appellants who were arrayed as the petitioners were the L.Rs. of the deceased. 13. In determining the last point pertaining to compensation, Tribunal relied upon the following: (i) the testimony of HC Chandu Lal, PW 2 and came to the conclusion that on the date of the accident, the deceased was 54 years of age, drew a salary of Rs. 2,829 and lastly would retire at the age of 58 years; (ii) the testimony of the widow, i.e., the appellant No. 1, PW 9 in which she stated that she was drawing a family pension of Rs. 1,400 p.m. 14. Based on the aforesaid evidence, the Tribunal concluded that taking the monthly income of the deceased at Rs. 2,900 and after deducting 1/3rd towards his personal expenses, the monthly loss of dependency would be approximately Rs. 1,900. The annual loss of dependency was consequently, pegged at Rs. 22,800, i.e., Rs. 1,900 x 12. The Tribunal, however, applied the multiplier of 4. The basis even though not clear seems to be that the age of the deceased at the time of the death was 54 years and that he would have, in terms of service rules then prevailing, retired at 58 years of age. Thus, the Tribunal concluded that the compensation payable to the claimants ought to be a sum of Rs. 91,200, i.e., Rs. 1,900 x 12 x 4. Thus, the Tribunal concluded that the compensation payable to the claimants ought to be a sum of Rs. 91,200, i.e., Rs. 1,900 x 12 x 4. The Tribunal while making the said award for compensation in the sum of Rs. 91,200 also granted interest at the rate of 12 per cent from the date of filing of the petition till the date of award, with a caveat, that the sum would be paid by respondent Nos. 1 and 2 to the appellants and respondent No. 3 within 2 months, failing which they shall be entitled to further interest at the rate of 12 per cent from the date of award till realisation. 15. As observed above, aggrieved by the impugned judgment, the appellants have moved the present appeal before this Court on 18.10.1996. 16. Before this Court, Mr. O.P. Goyal, Advocate for the appellants has assailed the impugned judgment and his submissions in regard to the same are as follows: (A) The judgment on the aspect of attributability of respondent No. 2 in causing the death of Pritam Singh as a result of his rash and negligent driving of the offending vehicle has attained finality. Both the owner, as well as, the driver have not preferred any appeal and hence, this Court is concerned now only with regard to the adequacy of compensation awarded by the Tribunal. (B) In arriving at a just and fair compensation, the Tribunal lost sight of fact that the family of the deceased comprised 11 dependants which included the widow, their 9 children 4 of whom were minor at the relevant date and the mother of the deceased. It was thus contended that the Tribunal ought to have deducted only 1/5th of the monthly income of the deceased as expenses towards his personal needs which could be rounded off to Rs. 500 p.m. (C) As regards the application of multiplier of 4 by the Tribunal, Mr. Goyal contended that the guideline available in the Second Schedule to the Act ought to have been taken recourse to and if, that be so, taking the age of the deceased on the relevant date as 54 years, multiplier of 11 would have been appropriate. (D) Lastly, Mr. Goyal, submitted that a sum of Rs. 1,00,000 ought to have been awarded towards pain and suffering on account of untimely death of Pritam Singh. 17. Mr. (D) Lastly, Mr. Goyal, submitted that a sum of Rs. 1,00,000 ought to have been awarded towards pain and suffering on account of untimely death of Pritam Singh. 17. Mr. Goyal has submitted for consideration of the court that if the monthly salary of the deceased is taken as Rs. 2,900, after deduction of 1/5th towards personal expenses, which could be rounded off to Rs. 500, the loss of dependency would be Rs. 2,400 p.m. which, if annualised would come to a figure of Rs. 28,800. To this, if a multiplier of 11 is applied, the compensation for loss of dependency would be Rs. 3,16,800. To this as noted above, as contended by Mr. O.P. Goyal if a sum of Rs. 1,00,000 is added towards damages suffered on account of pain and suffering, then the total compensation which ought to have been awarded to the appellants would be a sum of Rs. 4,16,800 in addition to interest at the rate of 12 per cent. This figure according to him would be a just and fair compensation. 18. In the alternative, Mr. Goyal has submitted that even if the monthly loss of dependency is taken as Rs. 1,900 and the annual loss of dependency pegged at Rs. 22,800 as found by the Tribunal; then upon application of a multiplier of 11, the loss of dependency would come to a sum of Rs. 2,50,000 (rounded off). This, however, is based on deduction on account of personal expenses to the extent of 73rd of the monthly income found by the Tribunal. 19. In support of his submissions, the learned Counsel for appellants, Mr. Goyal, has relied upon the following judgments: (i) Smt. Chameli Wati and Another Vs. Municipal Corporation of Delhi and Others, (ii) Rukmani Devi and Others Vs. Om Prakash and Others, (iii) Chellammal v. Kailasam 2006 ACJ 854 ; (iv) Oriental Insurance Co. Ltd. v. R. Swaminathan 2006 ACJ 1398; (v) Manalal Prabhudayal Vs. Oriental Insurance Co. Ltd., (vi) The Municipal Corporation of Greater Bombay Vs. Shri Laxman Iyer and Another, (vii) Abati Bezbaruah Vs. Dy. Director General Geological Survey of India and Another, 20. The first case cited by the learned Counsel for appellants, Smt. Chameli Wati and Another Vs. Municipal Corporation of Delhi and Others. Oriental Insurance Co. Ltd., (vi) The Municipal Corporation of Greater Bombay Vs. Shri Laxman Iyer and Another, (vii) Abati Bezbaruah Vs. Dy. Director General Geological Survey of India and Another, 20. The first case cited by the learned Counsel for appellants, Smt. Chameli Wati and Another Vs. Municipal Corporation of Delhi and Others. This is a case in which the Supreme Court reversed the judgment of High Court both on the issue of reduction in the rate of interest and also the period for which the interest was to run. The Supreme Court set aside the judgment of the Division Bench of the High Court on the ground that if the High Court had enhanced the compensation which, according to the High Court was the correct compensation, then the interest should run from the date of the application and not the date of judgment of the High Court and that too at the rate of 12 per cent as awarded by the trial court. The second case cited is Rukmani Devi and Others Vs. Om Prakash and Others. This is a case where the Apex Court has granted interest at the rate of 15 per cent from the date of the petition. In comparison, Mr. O.P. Goyal submits that the appellant seeks a rate of interest of 12 per cent per annum. The third case cited is Chellammal v. Kailasam 2006 ACJ 854 . This case has been cited by the appellants' counsel to establish that the Supreme Court in its decision rendered on 13.4.2005 has applied a multiplier of 15 by taking recourse to the Second Schedule to the Act in respect of a deceased whose age was 41 years. The rate of interest awarded in this case was 12 per cent per annum from the date of the filing of the application till the date of realisation. The fourth case cited is Oriental Insurance Co. Ltd. v. R. Swaminathan 2006 ACJ 1398. The said case has been cited to demonstrate that the Apex Court has sustained the award of compensation for pain and suffering granted by the Tribunal in the sum of Rs. 1,00,000 as well as, interest at the rate of 12 per cent per annum. Fifth case cited is Manalal Prabhudayal Vs. Oriental Insurance Co. Ltd.,. The said case has been cited to demonstrate that the Apex Court has sustained the award of compensation for pain and suffering granted by the Tribunal in the sum of Rs. 1,00,000 as well as, interest at the rate of 12 per cent per annum. Fifth case cited is Manalal Prabhudayal Vs. Oriental Insurance Co. Ltd.,. The appellants' counsel relied upon this case to buttress his point that once the trial court has exercised its discretion with regard to what it considers a reasonable rate of interest then the appellate court will not interfere with the same unless it comes to the conclusion that the discretion exercised is ex facie bad in law. The sixth case which is The Municipal Corporation of Greater Bombay Vs. Shri Laxman Iyer and Another, deals with aspect of contributory negligence as against composite negligence. In the instant case, no such issue arises and hence, this judgment has no application to the facts of the present case. The last case which is titled as Abati Bezbaruah Vs. Dy. Director General Geological Survey of India and Another, relates to the determination of the correct multiplicand, as well as, rate of interest to be granted. This case was relied upon to establish that the Supreme Court had applied a multiplier of 15 where the age of deceased was 48 years. The lead judgment of Mr. Justice S.B. Sinha lays down in no uncertain terms that resort can be had to the structure formula as contained in Second Schedule to the Act for determination of the amount of compensation payable. It is held that deviation from the structured formula ought to be made only in exceptional cases. The concurrent judgment of Dr. Justice AR. Lakshmanan (as he then was) has laid down the principles for grant of interest. The observation in this regard can be quoted with profit. These are as follows: (18) Three decisions were cited before us by Mr. A.P. Mohanty, learned Counsel appearing on behalf of the appellant, in support of his contentions. No ratio has been laid down in any of the decisions in regard to the rate of interest and the rate of interest was awarded on the amount of compensation as a matter of judicial discretion. A.P. Mohanty, learned Counsel appearing on behalf of the appellant, in support of his contentions. No ratio has been laid down in any of the decisions in regard to the rate of interest and the rate of interest was awarded on the amount of compensation as a matter of judicial discretion. The rate of interest must be just and reasonable depending upon the facts and circumstances of each case and taking all relevant factors including inflation, change of economy, policy being adopted by the Reserve Bank of India from time to time, how long the case is pending, permanent injuries suffered by the victim, enormity of suffering, loss of future income, loss of enjoyment of life, etc. into consideration. No rate of interest is fixed u/s 171 of the Motor Vehicles Act, 1988. Varying rates of interest are being awarded by the Tribunals, High Courts and the Apex Court. Interest can be granted even if the claimant does not specifically plead for the same as it is consequential in the eyes of law. Interest is compensation for forbearance or detention of money and that interest being awarded to a party only for being kept out of money which ought to have been paid to him. No principle could be deduced nor any rate of interest can be fixed to have a general application in motor accident claim cases having regard to nature of provision u/s 171 giving discretion to the Tribunal in such matter. In other matters, awarding of interest depends upon the statutory provisions, mercantile usage and doctrine of equity. Neither Section 34 of the CPC nor Section 4-A(3) of the Workmen's Compensation Act are applicable in the matter of fixing rate of interest in a claim under the Motor Vehicles Act. The courts have awarded interest at different rates depending upon the facts and circumstances of each case. Therefore, in my opinion, there cannot be any hard and fast rule in awarding interest and the award of interest is solely on the discretion of the Tribunal or the High Court as indicated above. 21. As against this, the learned Counsel for the respondent, Mr. Therefore, in my opinion, there cannot be any hard and fast rule in awarding interest and the award of interest is solely on the discretion of the Tribunal or the High Court as indicated above. 21. As against this, the learned Counsel for the respondent, Mr. Ataul Haque, has relied upon the impugned judgment to contend that insofar as the submission of the appellant with regard to the deductions of personal expenses is concerned, the view taken by the Tribunal ought to be sustained as ordinarily, the courts provide for deduction on account of personal expenses to the extent of V3rd of the income of the deceased while calculating the loss of dependency. 22. As regards the appellants' submission with regard to the application of an appropriate multiplier, Mr. Haque makes two short points. First, the view of the Tribunal in applying multiplier of 4 is a fair and reasonable. He submitted that in view of the fact that the deceased at the time of accident was 54 years of age and he was to retire at the age of 58, a multiplier of 4 stood to reason. Thus according to him the rationale for applying a multiplier of 4 was both evident as well as just. 23. On this aspect, the second submission of Mr. Haque was that the appellants could not take recourse to provisions of Second Schedule to the Act in view of the fact that the event, i.e., the accident and consequent death of Pritam Singh occurred on 5.6.1988; whereas the new Act, that is, Motor Vehicles Act, 1988, came into force on 1.7.1989 and the Second Schedule was brought into force with effect from 14.11.1994. The Act being prospective, the appellants cannot take assistance of the provisions of Second Schedule and Section 163-A read with Second Schedule to the Act which provides for recourse to a structured formula in the event claimant's wish to rely upon 'no fault' principle at time of adjudication of final compensation. 24. In this context, reliance was placed on two judgments of Apex Court titled as The Land Acquisition Officer-cum-DSWO, Andhra Pradesh Vs. B.V. Reddy and Sons, and the judgment titled as P. Mahendran and others Vs. State of Karnataka and others, 25. As regards the claim for compensation on account of pain and agony, Mr. 24. In this context, reliance was placed on two judgments of Apex Court titled as The Land Acquisition Officer-cum-DSWO, Andhra Pradesh Vs. B.V. Reddy and Sons, and the judgment titled as P. Mahendran and others Vs. State of Karnataka and others, 25. As regards the claim for compensation on account of pain and agony, Mr. Haque, learned Counsel for respondents, submitted that this was not agitated before Tribunal except in very broad and vague terms. In the petition generally, compensation for loss of support, present and future, pain and suffering, loss of expectation for life and loss to estate and service rendered by the deceased have been claimed. It is his submission that no evidence on this aspect of the matter was led before the Tribunal. 26. In view of the above, Mr. Haque makes a general submission that the view taken by the Tribunal in awarding compensation was just and fair and hence ought to be sustained. 27. Having heard the learned Counsel for parties, my opinion on the delineated aspects is as follows. 28. Insofar as first point decided by the Tribunal as regards the fixing of responsibility for rash and negligent driving is concerned, the finding based on the testimony of HC Rajender Singh, PW 10 and ASI Krishan Chand, PW 1, has to be accepted as the testimony is cogent, rings of honesty and has not been, in any manner, diluted in the cross-examination. I would, therefore, concur with the Tribunal that Pritam Singh died on account of rash and negligent driving of the offending vehicle by respondent No. 2; the owner of which is respondent No. 1. I agree with the submissions of learned Counsel for appellants that the findings in regard to this aspect has attained finality, as there is neither any cross-appeal before me or nor has the respondent No. 3 attempted to re-agitate this point before this Court. 29. Insofar as the award of compensation is concerned, there are broadly three sub-points. First, the amount which the Tribunal ought to have deducted towards personal expenses of deceased for determining loss of dependency. Second, the appropriate multiplier that the Tribunal ought to have applied in determining the loss of dependency in the facts and circumstances of the case. And lastly, whether any amount ought to have been paid towards pain and suffering. 30. First, the amount which the Tribunal ought to have deducted towards personal expenses of deceased for determining loss of dependency. Second, the appropriate multiplier that the Tribunal ought to have applied in determining the loss of dependency in the facts and circumstances of the case. And lastly, whether any amount ought to have been paid towards pain and suffering. 30. Insofar as the first aspect, i.e., the amount that ought to have been deducted on the account of personal expenses. I am of the view that even though, ordinarily the courts have deducted 1/3rd towards the personal expenses this is not an inviolable rule. The amount to be deducted towards personal expenses would always depend upon the facts and circumstances of the case including the evidence adduced in a given case. In the present case, it is not disputed that the deceased had left behind a widow, nine children, out of which three were minor at the time of accident and mother, Nyadri Devi, who at some point in time was arrayed as respondent No. 3, but has since passed away and deleted from the array of parties vide order dated 9.10.2001, passed by this Court. The evidence on the amount made available by the deceased to the dependants from his salary is best brought out in the testimony of the widow Shama Kaur, PW 9 and HC Chandulal, PW 2. In her testimony the widow Shama Kaur says that the deceased would give her a sum of Rs. 1,900 p.m. for household expenses. While, Chandulal, PW 2, has stated that the take-home salary of deceased was Rs. 1,809 p.m. The relevant portion of testimony of PW 9 is as under: Deceased Pritam Singh was my husband. He was SI in Delhi Police. At the time of his death, deceased was aged about 50 years. He used to pay me about Rs. 1,900 p.m. for my household expenses. At the time of death of my husband my age was about 49 years. Petitioner Nos. 2 and 3 are our daughters who were already married when my husband died. Petitioner Nos. 4, 5, 7, 8, 9 and 10 are our sons. The age of petitioner No. 4 now may be about 27 years, of petitioner No. 5 Surinder Pal about 25 years and petitioner No. 7, Narinder Pal about 21 years. Petitioner Nos. 2 and 3 are our daughters who were already married when my husband died. Petitioner Nos. 4, 5, 7, 8, 9 and 10 are our sons. The age of petitioner No. 4 now may be about 27 years, of petitioner No. 5 Surinder Pal about 25 years and petitioner No. 7, Narinder Pal about 21 years. At present the age of petitioner No. 8, Jatinder Pal is about 19 years, petitioner No. 9 Sanjeev Kumar about 18 years and of petitioner No. 10 Rajiv Kumar about 16 years. The age of petitioner No. 6, Dinesh Kumar is about 26 years. Petitioner No. 6 was also married at the time of death of my husband. Petitioner Nos. 4 and 5 were self-dependent at the time of the death of my husband. Petitioner No. 7, Narinder Pal, is also earning now. However, petitioner Nos. 8, 9, 10 are still studying. The mother of my husband Nyadri Devi is still alive. She has been impleaded as respondent No. 3 in this case. She may be aged about 80 years now. 31. The relevant portion of testimony of HC Chandulal, PW 2, in his cross-examination read as under: He joined as a constable in 1953. He became ASI on 10.5.1976 and he became SI on 6.9.1984. Till retirement he-had no chances of further promotion. It is correct that after deductions his carry-home salary was Rs. 1,809 only. The widow is getting pension at the rate of Rs. 820 p.m. 32. Given these facts and the evidence adduced, I am of the view that it is quite evident that the deceased spend next to nothing on himself and handed over almost his entire salary to his dependants. The amount which was kept back by the deceased was perhaps towards statutory deductions such as income tax, etc. The amount available to the dependants was a sum of Rs. 1,900 p.m. The Tribunal by its own reasoning with which I do not concur, has come to the same figure of monthly loss of dependency, which is Rs. 1,900. The Tribunal's view that deceased would have spent 73rd of his income for his personal expenses is contrary to the evidence and the circumstances obtaining in the case; though, the net result would remain the same. Thus, if one were to take the monthly salary of deceased as Rs. 1,900. The Tribunal's view that deceased would have spent 73rd of his income for his personal expenses is contrary to the evidence and the circumstances obtaining in the case; though, the net result would remain the same. Thus, if one were to take the monthly salary of deceased as Rs. 2,900 which with benefits could be rounded off to say Rs. 3,000, then the monthly loss of dependency would be a sum of Rs. 1,900. The monthly loss of dependency could be rounded off to Rs. 2,000 which if annualised would be a sum of Rs. 24,000 (Rs. 2,000 x 12). 33. This brings us to the second aspect of the compensation, i.e., what would be appropriate multiplier in the instant case. The Tribunal has applied multiplier of 4 taking into account the fact that at the time of the accident the deceased Pritam Singh was 54 years of age and based on testimony of witness HC Chandulal, PW 2, came to the conclusion that he would retire at the age of 58 years. Apart from this, no other rationale is provided. Mr. O.P. Goyal, has perhaps rightly called upon this Court to look for guidance, to the Second Schedule to the Act for determining fair and reasonable multiplier. 34. Per contra, Mr. A. Haque, on this aspect of the matter has, as already noted above, submitted that the Second Schedule to the Act cannot be taken resort to in view of the fact that date of death of Pritam Singh is 5.6.1988, whereas the Act was brought into force on 1.7.1989 and the Second Schedule to the Act brought into force with effect from 14.11.1994. 35. At the outset, I must observe that the learned Counsel for the respondent has failed to appreciate the issue at hand. The question before the court is not whether the provisions of Section 163-A of the Act and the Second Schedule to the Act as incorporated by Act 54 of 1994, can be applied retrospectively but that if a measure under the Second Schedule to the Act was available before final adjudication, whether the Tribunal could have taken recourse to it. To my mind it could have. The point to be noted is that the suit for compensation was filed u/s 92-A and Section 110-A of Motor Vehicles Act, 1939 as it then stood. To my mind it could have. The point to be noted is that the suit for compensation was filed u/s 92-A and Section 110-A of Motor Vehicles Act, 1939 as it then stood. Section 92-A of Motor Vehicles Act is pari materia with Section 140 of the amended Act and Section 110-A is pari materia with Section 166 of the amended Act. Therefore, it is clear that the petition was filed both for an interim payment on the principle of 'no fault' liability on account of loss of dependency and also for final compensation on the principle of 'fault' liability. I am told that payment by way of interim compensation u/s 92-A being the statutory minimum on the principle of 'no fault' liability has been received by the appellants. The question which thus falls for consideration of the court, as articulated above is whether u/s 140 of the Act of 1988 which is pari materia with Section 166 of amended Act (sic Sections 92-A and 110-A of the Act of 1939 which are pari materia with Sections 140 and 160 of the Act of 1988), it is permissible for this Court to look to the Second Schedule in arriving at a compensation which is just and fair. 36. In this context, the following undisputed dates are noted. The deceased died on 5.6.1988. The suit for compensation was filed by the appellants on 17.8.1988. The amended Act 59 of 1988 was brought into force on 1.7.1989 and Section 163-A was inserted by Act 54 of 1994 with effect from 14.11.1994. By the very same amendment the Second Schedule to the Act was also introduced in the statute. Judgment of the Tribunal was delivered on 18.4.1996. Therefore, on the date when the Tribunal delivered its judgment, the Second Schedule to the Act was available with the Tribunal for seeking necessary guidance. It is not disputed by the respondents that if the Second Schedule to the Act is applied and if the age of the deceased is kept in mind, since in any event the appellant No. 1, i.e., the wife was younger, then the appropriate multiplier would be 11. 37. In this regard, the observations of Division Bench of this Court in the case of Rattan Lal Mehta Vs. Rajinder Kapoor, are apposite. In the said case, Chief Justice Mr. M. Jagannadha Rao (as he then was), at pp. 37. In this regard, the observations of Division Bench of this Court in the case of Rattan Lal Mehta Vs. Rajinder Kapoor, are apposite. In the said case, Chief Justice Mr. M. Jagannadha Rao (as he then was), at pp. 386-387 in paras 31, 36 and 38 while holding that the amendment to the Act of 1988 by the insertion of statutory multiplier Table, i.e., Second Schedule is prospective and can only be applied to an accident which has occurred after 14.11.1994; in paras 36, 37 and 38 after a detailed discussion held that recourse could be taken to the statutory multiplier Table. The ratio of this judgment is that even though the Table appended by the Motor Vehicles (Amendment) Act, 1994, is prospective, it has relevance even in respect of the cases where the accident have occurred prior to 14.11.1994. (31) A statutory multiplier Table has now arrived in India with effect from 14.11.1994. That means that our Parliament is ahead of Parliament in U.K. and other countries. The amendment by Act 54 of 1994 to the Motor Vehicles Act, 1988, contains a multiplier Table in the Second Schedule. Amendment is prospective and applied to cases of accidents which have occurred after 14.11.1994. (Unfortunately, in the quantum fixed for different levels of loss of annual earnings, there are clear arithmetical errors in multiplication. In our view, the arithmetical mistakes in the Table can be corrected by the courts/Tribunals for if there is an obvious arithmetical mistake in the Table appended to a statute, the courts can correct the same. The mistakes are confined to the other columns which refer to the amounts in rupees. While the column relating to the appropriate multiplier for different age levels does not contain any mistakes, the mistakes are confined to the other columns which refer to the amounts in rupees). (36) Question arises as to whether the multiplier in the Table appended by the Motor Vehicles (Amendment) Act, 1994, which is prospective, can also be of relevance in respect of accidents which occurred before 14.11.1994, on which date the Table came into force. In our opinion, the statutory multiplier Table is clearly relevant for the following reasons. (37) .. (36) Question arises as to whether the multiplier in the Table appended by the Motor Vehicles (Amendment) Act, 1994, which is prospective, can also be of relevance in respect of accidents which occurred before 14.11.1994, on which date the Table came into force. In our opinion, the statutory multiplier Table is clearly relevant for the following reasons. (37) .. .That is why we are of the view that even in regard to cases of accidents prior to 14.11.1994, i.e., the date from which the Table in the Second Schedule brought in by the Amending Act, 1994, has come into force, it will be open to the courts/Tribunals to take the multiplier as per the said statutory Table as relevant. (In fact, the objection or dispute must come from the tortfeasors or the insurance companies. Even if they do raise an objection, we may say from experience that the defendants need not be apprehensive of a higher award on the basis of the 1994 statutory Table, because difference in each multiplier over a period of 10 years will be higher only by small fractions ranging between 0.25 and 0.50 generally). (38) If the above procedure enunciated by us based on the statutory multiplier provided by Parliament is applied, we can steer clear of conflicts in the multipliers applied by the courts on the judicial side in several cases. This approach of ours will help in rationalising awards, remove ad hocism in selection of multipliers based on individual preferences. A whole range of discrimination between case and case can easily be avoided. That is why we have taken pains to give reasons as to why the statutory multiplier Table provided for prospective use can also be used for accidents which occurred before 14.11.1994. This aspect of the matter has been put beyond doubt with the observations of the Apex Court in the case of Abati Bezbaruah Vs. Dy. Director General Geological Survey of India and Another, para 11, the relevant observations are as follows: (11) It is now a well settled principle of law that the payment of compensation on the basis of structured formula as provided for under the Second Schedule should not ordinarily be deviated from. Section 168 of Motor Vehicles Act lays down the guidelines for determination of the amount of compensation in terms of Section 166 thereof. Section 168 of Motor Vehicles Act lays down the guidelines for determination of the amount of compensation in terms of Section 166 thereof. Deviation of the structured formula, however, as has been held by this Court, may be resorted to in exceptional cases. Furthermore, the amount of compensation should be just and fair in the facts and circumstances of each case. 38. I may, however, in the passing note that even on the aspect as to whether the Act would have retrospective application, there seems to be a divergence of view. A single Judge of Allahabad High Court in the case Kamta Prasad and Another Vs. Jaggan and Co. and Another, held that both Section 92-A under Motor Vehicles Act of 1939 and Section 140 of the Motor Vehicles Act of 1988, as well as, Section 163-A inserted by amendment Act of 1994 in the Motor Vehicles Act, 1988 will apply to pending actions. The relevant observation in this regard is in paras 10 to 12 and 16 of the said judgment which read as follows: (10) True, there are no express words in Section 92-A nor is there any express provision in the amending Act 47 of 1982 making the section retrospective but that by itself is not sufficient to hold against retrospectivity for such an intention of the legislature may be inferred by necessary implication for there is no absolute rule of inviolability of substantive rights. Presumption against retrospectivity may be rebutted by necessary implication specially in a case where new law is to cure an acknowledged evil and has been made justly for the benefit of the individual and the community as a whole... If the new law speaks in a language which expressly or by clear intendment takes in even pending matters, at the court of trial as well as the court of appeal must have regard to an intention so expressed and the court of appeal may give effect to such a law even after the judgment of the court of first instance. (11) The question, therefore, that now emerges is whether retrospectivity is implicit and can be inferred from the language in which Section 92-A (section 140 of 1988 Act) is couched having due regard to the legislative intent and objective behind introduction of provisions for compensation based on principle of no fault.. (11) The question, therefore, that now emerges is whether retrospectivity is implicit and can be inferred from the language in which Section 92-A (section 140 of 1988 Act) is couched having due regard to the legislative intent and objective behind introduction of provisions for compensation based on principle of no fault.. the use of motor vehicle irrespective of whether the accident and the consequential death or permanent disablement has taken place before or after 1.10.82, the date with effect from which Section 92-A was inserted...(3) lead to inescapable conclusion that the benefit of Section 92-A is extendible even to the claims for compensation in respect of death or permanent disablement which has resulted from an accident taking place prior to 1.10.1982 though nothing therein has the effect of reopening any claim for compensation already settled and concluded or otherwise extinguished by efflux of time. (12) Take, for example, a case where the accident arising out of the use of motor vehicle occurred on 30.9.1982 but the person who sustained injuries died on or after 1.10.1982. Can it be said that the benefit of Section 92-A is not extendible to such a case merely because the accident had taken place prior to 1.10.1982? I find nothing on principle or authority to say 'no'. Section 92-A, in my opinion, was a blend of prospective as well as retrospective enactment and so is Section 140 of the Motor Vehicles Act, 1988 and in the absence of any expression therein to indicate that the section shall apply to an accident taking place only after its introduction the provision has to be applied in praesenti in respect of matters pending before Tribunals or courts of appeal as well as in respect of all claims subsisting on the date of coming into force of the provision but preferred thereafter. (16) In my opinion, therefore, Division Bench decision in Ram Mani Gupta and Others Vs. Mohammad Ibrahim and Another, cannot be cited as a binding precedent to support the submission that the language in which Section 92-A was couched too did not imply retrospective effect. (16) In my opinion, therefore, Division Bench decision in Ram Mani Gupta and Others Vs. Mohammad Ibrahim and Another, cannot be cited as a binding precedent to support the submission that the language in which Section 92-A was couched too did not imply retrospective effect. Section 92-A of the Act was intended to have retrospective effect and, in my opinion, all claims either pending before Tribunals or courts or otherwise subsisting on the date of enforcement of the sections are covered and so also is the effect of Section 140 of Motor Vehicles Act, 1988...The limit of compensation in case of death has since been enhanced to Rs. 50,000 by means of amending Act 54 of 1994 which has been enforced with effect from 14.11.1994...In this view of the matter, I am of the considered view that Section 140 of the Motor Vehicles Act, 1988, as amended by the Motor Vehicles (Amendment) Act, 1994 (Act 54 of 1994) enforced with effect from 14.11.94 shall apply to all claims pending before the Tribunal or appellate court as also the causes of action subsisting on 14.11.1994 notwithstanding that the accident giving rise to the claim had taken place before 14.11.1994. 39. On the other hand, the High Court of Karnataka in the case of Guruanna Vadi v. General Manager, Karnataka State Road Trans. Corporation 2001 ACJ 1528 (Karnataka), has on the issue of retrospective application of the Act concurred with the view held by Division Bench of this Court in Rattan Lal Mehta Vs. Rajinder Kapoor, and differed with the view of a single Judge of Allahabad High Court. The relevant observations are at pp. 1544-45 in paras 27 to 31: (27) This question should not detain us for long. Every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. Every enactment which takes away or impairs any vested rights under existing laws or creates a new obligation or imposes a new duty or attaches a new disability must be presumed to be intended not to have retrospective effect. Section 163-A takes away the right of the owner or the insurer to defend the claim and creates an obligation to pay the compensation fixed under the Second Schedule without demur. Section 163-A takes away the right of the owner or the insurer to defend the claim and creates an obligation to pay the compensation fixed under the Second Schedule without demur. Section 163-A is, therefore, a statute which deals with substantive rights and it is only if the new provision affects matters of procedure only then it would apply to all actions, both pending as well as future. This is based on the fact that no person can have a vested right in any course or procedure but it cannot be said so in the case of a substantive right. The owner or the insurer had a right to defend the claim for compensation which is a substantive right and this right is taken away by Section 163-A and, therefore, it can be given only prospective effect and not retrospective effect. That the intention of the legislature was to give it only a prospective effect can also be gauged from Sub-section (3) of Section 163-A which reads: The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. (28) The fact that the legislature reserved the right to amend the Second Schedule from time to time keeping in view the cost of living also manifests the intention of Parliament to give the provision only prospective effect from the date the provision or the changes effected to it come into force. (29) A single Judge of the High Court of Rajasthan in United India Insurance Co. Ltd. Vs. Smt. Mehtab Bai and Others, has taken the same view. It was held: (20) It is thus well established that a distinction has to be made between the statutes dealing with the substantive rights or liabilities and the statutes dealing with the matters of procedure only and the general rule applicable to the statutes of the first category is that they are to be held prospective in operation unless legislature expressly makes them retrospectively operative. The statutes of the later category are to be regarded as retrospective as well as prospective in operation unless the legislature expressly indicates that they shall have retrospective application only. The statutes of the later category are to be regarded as retrospective as well as prospective in operation unless the legislature expressly indicates that they shall have retrospective application only. (21) For the reasons mentioned above, I am of the considered opinion that Section 163-A of the Motor Vehicles Act, 1988, as inserted by Amendment Act 54 of 1994, creates a new right in favour of the claimants and this right is similar to the right u/s 140 of the Motor Vehicles Act, 1988. Simultaneously, it creates a new liability on the non-petitioners and, therefore, it is to be governed by the rule that unless the legislature makes it retrospectively operative, its operation shall be prospective only. (30) A Division Bench of Delhi High Court in Rattan Lal Mehta Vs. Rajinder Kapoor, has also taken the view that Section 163-A is prospective in operation and is applicable to only those cases where the accident occurred after 14.11.1994. A single Judge of Allahabad High Court in Kamta Prasad and Another Vs. Jaggan and Co. and Another, has taken the view that Section 163-A is retrospective in operation and would be applicable to all matters pending before the Tribunal or courts of appeal as well as the claims subsisting on the date of enforcement of the provisions but preferred thereafter. Para 16 of the judgment reads: In my opinion, therefore, the Division Bench decision in Ram Mani Gupta and Others Vs. Mohammad Ibrahim and Another, cannot be cited as binding precedent to support the submission that the language in which Section 92-A was couched too did not imply retrospective effect. Section 92-A of the Act was intended to have retrospective effect and, in my opinion, all claims either pending before Tribunals or courts or otherwise subsisting on the date of enforcement of the sections are covered and so also is the effect of Section 140 of the Motor Vehicles Act, 1988. Similar will be the position in respect of Section 163-A inserted by Amendment Act 54 of 1994 in the Motor Vehicles Act, 1988, with effect from 14.11.1994. There is nothing in Section 217 of the said Act to suggest the exclusion of Section 140 to pending cases. The limit of compensation in the case of death has since been enhanced to Rs. 50,000 by means of Amendment Act 54 of 1994 which has been enforced with effect from 14.11.1994. There is nothing in Section 217 of the said Act to suggest the exclusion of Section 140 to pending cases. The limit of compensation in the case of death has since been enhanced to Rs. 50,000 by means of Amendment Act 54 of 1994 which has been enforced with effect from 14.11.1994. In Lakshmi Narayan Guin and Others Vs. Niranjan Modak, it was held: that a change in the law during the pendency of an appeal has to be taken into account and would govern the rights of the parties. In this view of the matter I am of the considered view that Section 140 of the Motor Vehicles Act, 1988, as amended by Motor Vehicles (Amendment) Act, 1994 (Act 54 of 1994) enforced with effect from 14.11.1994 shall apply to all claims pending before the Tribunal or the appellate court as also the causes of action subsisting on 14.11.1994 notwithstanding that the accident giving rise to the claim had taken place before 14.11.1994. (31) With respect we differ with the view expressed by the single Judge of Allahabad High Court and agree with the view expressed by Division Bench and the single Judge of Rajasthan High Court. 40. As regards the third submission, I find no discussion on the aspect of pain and suffering in the judgment of Tribunal. It is not evident from the judgment as to whether this issue was raised. There is a general ground in the claim petition page No. 6 in para IV which reads as under: (IV) That the petitioners claim compensation for loss of support present and future, for pain and suffering undergone by them for loss of expectations of life of the deceased, for loss to the estate of the deceased, for services which were being rendered by the deceased, general and special damages according to law. 41. Furthermore, though ten witnesses have been examined there is no evidence led on this account nor any material placed before the Tribunal. See observation in the case of Lata Wadhwa and Others Vs. State of Bihar and Others, which read as under: (13) ...In examining the question of damages for personal injury, it is axiomatic that pecuniary and non-pecuniary heads of damages are required to be taken into account. See observation in the case of Lata Wadhwa and Others Vs. State of Bihar and Others, which read as under: (13) ...In examining the question of damages for personal injury, it is axiomatic that pecuniary and non-pecuniary heads of damages are required to be taken into account. In case of pecuniary damages, loss of earnings or earning capacity, medical, hospital and nursing expenses, the loss of matrimonial prospects, if proved, are required to be considered. In the case of non-pecuniary losses, loss of expectation of life, loss of amenities or capacity for enjoying life, loss or impairment of physiological functions, impairment or loss of anatomical structures or body tissues, pain and suffering and mental suffering are to be considered. But for arriving at a particular figure on each of the aforesaid heads, the claimant is duty-bound to produce relevant materials, on the basis of which, a determination could be made, as to what would be the best compensation... Furthermore, in the testimony of the widow, PW 9, recorded in January 1993, it has come out that at the time of the death of her husband, two daughters, i.e., appellant Nos. 2 and 3 as well as one son, appellant No. 6 were already married. 42. In the instant case, I would tend to agree with the submissions of the learned Counsel for the respondent that if for the purpose of selecting an appropriate multiplier, the principle and guidance set forth in the Second Schedule is taken into account, then even for the purpose of general damages, in a case of death, the figures indicated therein can be used as a general guide. This is not to say, that in a fit case, the courts cannot award damages in excess of amounts indicated under the head of general damages in para 3 of the Second Schedule. Thus, keeping in mind totality of the facts and circumstances, I award compensation for pain and agony in a sum of Rs. 30,000. 43. In view of the discussion above, the appeal is partly allowed. 44. The appellants shall be paid compensation for loss of dependency amounting to Rs. 2,64,000 by taking the monthly loss of dependency as Rs. 2,000 which on annual basis would come to a figure of the sum of Rs. 24,000 (Rs. 2,000 x 12). 30,000. 43. In view of the discussion above, the appeal is partly allowed. 44. The appellants shall be paid compensation for loss of dependency amounting to Rs. 2,64,000 by taking the monthly loss of dependency as Rs. 2,000 which on annual basis would come to a figure of the sum of Rs. 24,000 (Rs. 2,000 x 12). By applying multiplier of 11, the total compensation for loss of dependency would be a sum of Rs. 2,64,000, i.e., Rs. 2,000 x 12 x 11 in addition to the sum of Rs. 30,000 towards pain and suffering. The said sum of Rs. 2,94,000 shall be paid with interest at the rate of 12 per cent from the date of filing of the claim petition till date of realisation, after adjusting the moneys already received inclusive of interest by the appellants. The respondent No. 1 shall make the payment within a period of four weeks. 45. Before parting with the case, it is necessary to note that Mr. Goyal, learned Counsel for appellants at the commencement of the matter filed written submissions dated 28.4.2008, in which enhanced compensation amounting to Rs. 4,16,000 with interest at the rate of 12 per cent was sought. 46. However, at conclusion of the case another written submission dated 30.4.2008 was filed in which the compensation to the tune of Rs. 4,30,000 with interest at the rate of 12 per cent from the date of the filing of petition has been claimed which was not pressed. I need not say anything further on this aspect. 47. There shall be no order as to costs.