JUDGMENT By the Court.—Instant F.A.F.O has been filed by Smt. Prabhawati Singh, feeling aggrieved by the award passed by Motor Accident Claims Tribunal/Additional District Judge (Ayodhya Prakaran) Lucknow dated 15.9.2005, passed in Motor Accident Claim Case No. 512 of 2001 Smt. Manorama Thakur and others v. Smt Prabhawati Singh, by which the claim petition was allowed and opposite party was directed to pay Rs. 18,71,100/- as compensation alongwith interest at the rate of 7.5% per annum from the date of filing of the claim petition till the date of actual payment. 2. Facts in brief are that the deceased Sitaram Thakur was going on his Motor-cycle No. U.P. 41C3159, from Kala Kankar House to Hazarat Ganj on 27 August 2001 at about 12:40 PM. When he reached near NCC Tiraha Birbal Sahani Road, a Motor-cycle No. U.P.32AE 9635, being driven rashly and negligently by its driver hit the vehicle of Sitaram Thakur, due to which he received serious injuries and was admitted in Medical College Lucknow, where during the treatment, he succumbed to the injuries. By filing the claim petition the compensation of 50 lakhs rupees was sought, because at the time of death, age of the deceased was 45 years and he was serving in Rural Engineering Service as an engineer and was getting about Rs. 20,000/-as salary. The owner of the motor-cycle Smt. Prabhawati Singh denied the accident though admitted the ownership of the motor-cycle. 3. The tribunal below after going through the pleading of the parties framed following issues: “1-Whether on 27 August 2001 at about 12:40 p.m. deceased Sitaram Thakur was going on his motor-cycle number U.P.41,3159 from Kala Kankar house to Hazrat Ganj and when he reached near NCC tiraha, Birbal Sahni Road an accident took place due to rash and negligent driving of the driver of vehicle No. U.P.41AE 9635 in which Sitaram Thakur received injuries and he died due to the injuries received in the accident? if so its effect. 2-Whether claimants are entitled to any compensation, if yes then how much? 4. In order to prove the case, claimants have examined, Manorama Thakur as PW 1, Kumari Ranjana Agnihotri as PW 2 and Jai Krishna as PW 3. Smt. Prabhawati Singh has examined herself as O.P.W1, Nusarat Ali as O.P.W2 and Vikrant as O.P.W.3. 5. if so its effect. 2-Whether claimants are entitled to any compensation, if yes then how much? 4. In order to prove the case, claimants have examined, Manorama Thakur as PW 1, Kumari Ranjana Agnihotri as PW 2 and Jai Krishna as PW 3. Smt. Prabhawati Singh has examined herself as O.P.W1, Nusarat Ali as O.P.W2 and Vikrant as O.P.W.3. 5. Apart from that parties have filed several papers which will be discussed later on as and when necessary. The tribunal after going through the evidence on record and on going through the submissions made by parties allowed the claim petition and directed Smt. Prabhawati Singh to pay Rs. 18,71,100/- to the claimants alongwith simple interest of 7.5% from the date of filing of the petition till the actual date of payment. Hence, this appeal. 6. It was argued from the side of appellant that the claim petition was filed under Section 166 of the Motor Vehicle Act and not under Section 163 A of the Act. Since the salary of the deceased was more than Rs. 40,000/- per annum hence compensation cannot be determined under second schedule of the Act. It was also argued that the tribunal has wrongly determined the compensation, taking into account the gross salary and not considering the take-home pay. It is also argued that there is no reliable evidence to show that the accident was caused by the rash and negligent driving of the driver of the Vehicle No. U.P.32AE 9635. It was also argued that there was no evidence on record to prove that son of the appellant was driving the offending vehicle. It was also argued that under Section 166 of the Act, claimant has to prove that the driver of the offending vehicle was negligent. There is no reliable evidence to prove the negligence of the driver of offending vehicle. The accident took place due to negligence of the deceased. It was also submitted that the bed head ticket of the hospital is not in consonance with the statement of the alleged eye-witness. It was also argued that the statement of the sole eye-witness is full of contradictions and the Tribunal has wrongly believed her statement. It was also submitted that all the claimants are major and one of the son of the deceased has got compassionate appointment and while determining the compensation, the same should have been considered. 7. It was also argued that the statement of the sole eye-witness is full of contradictions and the Tribunal has wrongly believed her statement. It was also submitted that all the claimants are major and one of the son of the deceased has got compassionate appointment and while determining the compensation, the same should have been considered. 7. Learned counsel for the appellant in support of his arguments relied upon the case laws of Deepal Girish Bhai Soni v. United India Insurance Company Limited, (2004)5 SCC 385 ; State of Haryana v. Jasbir Kaur, (2003)7 SCC 784; Oriental Insurance Company v. Meena Variyal, (2007)5 SCC 428 ; Oriental Insurance Company v. Prem Lata Shukla, (2007)13 SCC 476; Surendra Kumar Arora v. Manoj Bisla, (2012)4 SCC 552 ; District Transport Cooperative Society Limited v. Janak Rani, AIR 1984 P & H 317; Dr. Sudha Nangia v. Ibrahim, AIR 1993 Del 361 ; T.N. State Transport Corporation v. S. Raja Priya, (2005)6 SCC 236 and Bhakra Beas Management Board v. Kanta Agarwal, (2008)11 SC 366. 8. Learned counsel for respondents argued that it is a settled law that in the absence of any formula, for calculating the compensation in a claim petition filed under Section 166, it is reasonable to rely upon the criteria specified in second scheduled of the Motor Vehicle Act and the schedule always acts as a guiding factor while determining just compensation. 9. It was also argued that the eye-witness Kumari Ranjana Agnihotri is an advocate and is not an interested but an independent witness and nothing has come from her evidence so that her evidence could be disbelieved. It was also submitted that the compassionate appointment of one of the sons of the deceased will not affect the compensation as the son of the deceased would have got the compassionate appointment had the deceased been died due to any other cause so the appointment is not the direct result of death due to the accident. 10. Learned counsel for the respondent relied upon the cases of Syed Basheer Ahmad and others v. Mohammed Jameel and another, (2009)2 SCC 225 ; Oriental Insurance Co Ltd. v. Dhanbai Kanji Gadhvi, (2011)11 SCC 513 ; United India Insurance Co Ltd v. Patricia Jean Mahajan and others, (2002)6 SCC 281 and NKV Brothers(P) Limited v. M. Karumai Ammal and others, (1980)3 SCC 457 . 11. 11. We have heard the parties and gone through the record. 12. Before discussing the legal arguments we are adverting to decide the factual aspects. 13. On perusal of the record it is evident that except, Kumari Ranjana Agnihotri Advocate, there is no other eye-witness. From the side of appellant one Nusarat has been examined to claim that no accident took place from the use of Vehicle No. U.P. 32 AE 9635. It has been admitted by the appellant that she is the owner of the above vehicle. She has also admitted that she was not present at the place where the accident took place. A perusal of the statement of the appellant and her two witnesses reveals that there are glaring discrepancies in their statements so as to make their statement unreliable. Vikrant DW3 is the domestic help of the appellant. He has stated that on the fateful day he took the motor-cycle for repair on foot to Gomti Motor Garage, near IT College. The appellant has stated that she herself sent the vehicle at about 12.30 p.m. for repairs to the garage on rickshaw, accompanied by a mechanic from the garage. 14. Vikrant has stated that when he reached near Hanuman Temple some police personnel forcibly seized the motor-cycle and ask him to go away. He has further stated that when the appellant returned from her office, she was informed about this act. On the contrary, the appellant has stated that the mechanic came to her house in the night and informed her that while he was taking the motor cycle for repairs to the garage, then near Nishat Ganj Gomti Bridge, several police personnel took down the motor-cycle from rickshaw and also took away the papers of the vehicle. She has further stated that she did not make any complaint to any police officer regarding this taking away of the vehicle. The Tribunal rightly disbelieved her testimony finding it unbelievable that she being a high ranking Government Officer did not lodge any complaint against such daring police personnel. The contradiction is very material. The mechanic who was taking the vehicle to the garage was not examined by the appellant before the Tribunal. 15. On the other hand the independent eye-witness produced from the side of respondent is believable. She is an advocate and an independent person. She was not interested from either of the parties. The contradiction is very material. The mechanic who was taking the vehicle to the garage was not examined by the appellant before the Tribunal. 15. On the other hand the independent eye-witness produced from the side of respondent is believable. She is an advocate and an independent person. She was not interested from either of the parties. She was the person who took the deceased to the hospital. 16. Learned Counsel for appellant vehementally stressed about the alleged discrepancy in her statement and a statement in writing on the Bed Head ticket. This bed head ticket which is Annexure 12 of the appeal, is a previous statement in writing of a living person. A perusal of her statement and cross-examination reveals that this document was not shown to her during her cross-examination and she was not given a chance to explain it as has been provided under Section 145 of the Evidence Act. In view of this, the statement in the Bed Head ticket is not admissible in evidence. Apart from that there is no discrepancy in the statement of this witness so as to make her statement unreliable. 17. After going through the record and a statement of the witnesses we are of the view that the Tribunal has rightly decided issue No. 1 in favour of the petitioners. There is no need for interference in this finding. 18. Now coming to the compensation part, we find that the Tribunal has on the basis of the statement of PW 3, held that the monthly salary of the deceased was Rs. 17,900/- per month and Rs. 2,14,800/- per anum. The Tribunal has also held that the age of the deceased at the time of accident was 46 years and on this basis applied the multiplier of 13. Deducting one third for his personal expenses, Tribunal fixed the dependency to be Rs. 18,61,600/- and after adding Rs. 2000/- for funeral expenses, Rs. 5000/- for loss of consortium and the Rs. 2500/- for loss of the estate, fixed the total compensation to be Rs. 18,71,100/-. 19. The appellant has relied upon the decisions of Deepal Girishbhai Soni v. United India Insurance Co. 18,61,600/- and after adding Rs. 2000/- for funeral expenses, Rs. 5000/- for loss of consortium and the Rs. 2500/- for loss of the estate, fixed the total compensation to be Rs. 18,71,100/-. 19. The appellant has relied upon the decisions of Deepal Girishbhai Soni v. United India Insurance Co. Ltd. (Supra) and State of Haryana v. Jasbir Kaur and another (Supra) to stress the point that in a petition under Section 166 of Motor Vehicles Act, structured formula as provided under Section 163A of the Motor Vehicle Act cannot be made basis of the calculation of compensation so as the Annual Income of the deceased was more than 40,000/-per annum so the multiplier system could not be adopted. 20. We are afraid that the interpretation given by learned counsel for the appellant has no force. Section 163 A of the Motor Vehicles Act covers the cases where even negligence is on the part of the victim and the parliament intended to provide for the making for an award consisting of a predetermined sum without insisting on a long drawn out delay or without proof of negligence in according to the accident. The Apex Court has in the case of Syed Basheer Ahamed and others v. Mohammed Jameel and another (Supra) discussed the difference of awarding compensation under Section 163A and Section 166 of the Motor Vehicles Act. The relevant portion of the Judgment is reproduced as under: “16. As noted earlier, in the matter of computation of compensation, there is no uniform rule or formula for measuring the value of a human life.Though a special provision for assessment of compensation on structured formula basis for the purpose of a claim petition under Section 163A of the Act has been inserted in the Act with effect from 14th November, 1994, but no such formula has been laid down for determination of compensation in a claim petition under Section 166 of the Act, though there is no bar in taking the said schedule as a guiding factor while determining the just compensation by applying multiplier method. In fact, in Managing Director, TNSTC Ltd. v. K.I. Bindu and others, it has been observed that the second schedule to the Act may serve as a guide but cannot be used as an invariable ready reckoner. “17. In fact, in Managing Director, TNSTC Ltd. v. K.I. Bindu and others, it has been observed that the second schedule to the Act may serve as a guide but cannot be used as an invariable ready reckoner. “17. In a catena of decisions of this Court, certain broad principles which could be applied for assessing just compensation have been highlighted. It has been observed that in a fatal accident action, the accepted measure of damages awarded to the dependents is the pecuniary loss suffered and likely to be suffered by them as a result of abrupt termination of life. 18. The question as to what factors should be kept in view for calculating pecuniary loss to a dependent came up for consideration before a three-Judge Bench of this Court in Gobald Motor Service Ltd. and another v. R.M.K. Veluswami, (2005) 8 SCC 473 and others4, with reference to a case under the Fatal Accidents Act, 1855, wherein, K. Subba Rao, J. (as His Lordship then was) speaking for the Bench observed thus: “In calculating the pecuniary loss to the dependants many imponderables enter into the calculation. Therefore, the actual extent of the pecuniary loss to the dependants may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. Shortly, stated, the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependant by the death must be ascertained.” 19. Taking note of the aforeextracted observations in Gobald Motor Service Ltd. (supra) in Susamma Thomas (supra), it was observed that (Susamma Thomas Case SCC 182, para 9) “9.The assessment of damages to compensate the dependents 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 upto the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or may have lost his employment or income altogether.” 20.Thus, for arriving at a just compensation, it is necessary to ascertain the net income of the deceased available for the support of himself and his dependents at the time of his death and the amount, which he was accustomed to spend upon himself. This exercise has to be on the basis of the data, brought on record by the claimant, which again cannot be accurately ascertained and necessarily involves an element of estimate or it may partly be even a conjecture. The figure arrived at by deducting from the net income of the deceased such part of income as he was spending upon himself, provides a datum, to convert it into a lump sum, by capitalising it by an appropriate multiplier (when multiplier method is adopted). An appropriate multiplier is again determined by taking into consideration several imponderable factors.” 21. In the case of Oriental Insurance Company Ltd. v. Dhanbai Kanji Gadhvi and others, (2011) 11 SCC 513 . The Apex Court has again discussed above provisions and held that : “8. On consideration of the object of Section 163-A of the Act which was inserted by Section 51 of the Act 54 of 1994 w.e.f.14-11-1994, and the non-obstante clause with which sub-section (1) of Section 163A commences, it is manifest that the legislature did not intend to prevent the claimant from getting compensation as per the structured formula merely because in his original claim petition he had prayed for compensation on the basis of “fault liability” principle. There is no prohibition in any provision of the Motor Vehicles Act,1988 against the claimant praying for compensation as per the structured formula after having filed a claim petition under Section 166 of the Act. 10. However, in Deepal Girishbhai Soni and others v. United India Insurance Co. Ltd., Baroda, (2004) 5 SCC 385 , the question which was considered by a three Judge Bench of this Court was whether a proceeding under Section 163-A of the Motor Vehicles Act, 1988 is a final proceeding, by reason whereof, the claimant who has been granted compensation under Section 163-A, is debarred from proceeding with any further claims on the basis of fault liability in terms of Section 166. After considering the scheme envisaged by Section 163-A of the Act, it is held in the said case that: “...Parliament intended to lay down a comprehensive scheme for the purpose of grant of adequate compensation to a section of victims who would require the amount of compensation without fighting any protracted litigation.” What is ruled therein is that the compensation determined and paid under Section 163-A of the Act is final and not an interim one. 11. The clear proposition of law which emerges from the decision of this Court in Deepal G. Soni is that the remedy for payment of compensation both under Sections 163-A and 166 being final and independent of each other as statutorily provided, a claimant cannot pursue his remedies thereunder simultaneously. As explained by this Court in the said decision, a claimant, thus, must opt/elect to go either for a proceeding under Section 163-A or under Section 166 of the Act, but not under both.” 22. In catena of decisions of the Apex Court has held that except in a very rare cases, multiplier system should not be deviated from the other methods which were in vogue prior to introduction of multiplier system has to be more than good system. The choice of multiplier may differ to some decree, dependent upon various facts and circumstances of the case. Though, normally, the multiplier as indicated in the second schedule should be applied as it is a safeguard calculation of amount of compensation. 23. The choice of multiplier may differ to some decree, dependent upon various facts and circumstances of the case. Though, normally, the multiplier as indicated in the second schedule should be applied as it is a safeguard calculation of amount of compensation. 23. The argument of learned counsel for appellant that since one of the major sons of the deceased has been appointed on compassionate ground hence this fact also should have been taken into consideration, has also in our opinion, no force. Admittedly, the deceased was a Government Employee and in case of his death even due to any other cause would have resulted in employment of his son. So it cannot be said that the employment of his son was dependent on the death due to Motor Accident. 24. Learned counsel for appellant has argued that during the pendency of this appeal, the son of the appellant was tried by the Criminal Court and has been acquitted. This fact will also have no bearing as acquittal in criminal case is no ground for allowing this appeal. In the case of N.K.V. Brothers (P)Ltd. (supra), the Apex Court has held that the requirement of culpable recession under Section 304 IPC is more drastic than negligence sufficient under the law of tort. 25. We have however gone through the judgment of the criminal Court filed by the appellant in this Court. We find that the sole eye-witness Kumari Ranjana Agnihotri, Advocate has not been examined by the prosecution, the reason best known to the prosecution. In view of above, the above plea is baseless. 26. As we have discussed above, the findings and the compensation awarded by the Tribunal does not warrant any interference as they are according to the evidence and the law. 27. In the result, the F.A.F.O. is liable to be dismissed and is hereby dismissed. ——————