The Judgment of the Court was delivered by

L.S Panta, J.:— We propose to deal and decide both these appeals by this common judgment as they arise out of the same and single judgment and award dated 1.4.1992 of the Motor Accidents Claims Tribunal, Solan in the MACT No. 89-S/2 of 1989 whereunder an award of Rs. 9,67,680 has been awarded in favour of the claimants and against the appellant New India Assurance Co., Ltd. and Hari Dayal, owner of the truck involved in the accident.

2. F.A.O (MVA) No. 201 of 1992 has been filed by the appellant the New India Assurance Co. Ltd., in joint with the owner of the vehicle challenging the correctness, validity and legality of the award whereas F.A.O (MVA) No. 254 of 1992 has been filed by the claimants for enhancement of the amount of compensation. Facts leading to these appeals may briefly be stated as under:

3. Vijay Kumar Jain along with his wife, Sandhya Jain, minor son Varun Jain and minor daughter Ashima Jain and R.K Dhingra, his wife and two minor children were proceeding to Shimla from Chandigarh in his Fiat car No. HNK 9615 on 26.6.1989 The car was being driven by Vijay Kumar Jain, When his car reached at village Dehu Goan Chowki Mor, near Kandaghat in District Solan, truck bearing registration No. PAT 9822 belonging to Hari Dayal and being driven by its driver Manjit Singh, struck against the car of Vijay Kumar Jain. The impact of the truck was so great that the direction of the car was reversed from Shimla side to Kalka side and the car was dragged by the truck up to a considerable distance and finally the car was smashed in a ditch. Vijay Kumar Jain sustained multiple grievous injuries in the accident and died at the spot. The other occupants of the car also sustained injuries. A case of rash and negligent driving was registered against the driver of the accidental truck with the Police Station, Kandaghat vide F.I.R No. 44 of 1989 on the same day. The claimants who are the widow, minor son, daughter and mother of the deceased Vijay Kumar Jain had filed claim petition before the Tribunal below under section 166 read with section 140 of the Motor Vehicles Act, 1988 seeking compensation to the tune of Rs. 64,42,800 for the death of Vijay Kumar Jain in the accident alleging, inter alia, that the accident had occurred due to rash and negligent driving of the truck in question by its driver. The age of the deceased at the time of the accident was about 34 years and he was earning monthly income of Rs. 32,214 from his business and other sources. The accidental truck was insured with the New India Assurance Co. Ltd.

4. The claim petition was contested and resisted by the New India Assurance Co. Ltd., owner and driver of the truck in question. The assurance company and the owner of the vehicle in question filed a joint written statement wherein the accident and death of deceased Vijay Kumar Jain in the accident had been admitted. They averred that the deceased himself lost control over his car as a result of which it dashed against the truck. It was denied that the accident had occurred due to rash and negligent driving of the vehicle in question by its driver. In the alternative, it was pleaded that the accident was as a result of contributory negligence on the part of the deceased and respondent driver of the truck in question. The income of the deceased as averred by the claimants was also denied.

5. The driver of the truck had also admitted the accident and the death of Vijay Kumar Jain in the said accident. He pleaded that the deceased himself was driving his car in a rash and negligent manner like an immature driver on the wrong side of the road and on seeing the truck coming from the opposite side, he got perplexed and nervous and lost control over his car due to which it dashed against the truck.

6. On the controversial pleadings of the parties, the Tribunal below framed the following issues on 3.7.1991:

(1) Whether the deceased Vijay Jain has died in the accident due to rash and negligent driving of respondent No. 3, an employee of respondent No. 1? OPP

(2) To what amount of compensation, if any, are the petitioners entitled and if so, from whom?

(3) Whether the deceased Vijay Jain was guilty of contributory negligence as alleged?

(4) Relief.

7. The parties went to trial and led their oral and documentary evidence before the Tribunal below. On entire appraisal of evidence on record, the Tribunal below returned the finding under issue No. 1 against the driver of the truck holding him rash and negligent in driving of the vehicle involved in the accident causing the death of Vijay Kumar Jain. Against issue No. 2, total compensation of Rs. 9,67,680 was awarded in favour of the widow and minor children of the deceased and a sum of Rs. 20,000 was awarded in favour of the claimant Tilak Jain, mother of the deceased and further that the owner, driver and assurance company were held liable jointly and severally to pay the amount of compensation along with interest at the rate of 9 per cent per annum from the date of institution of the claim petition till the date of payment/deposit and in default of payment of amount of compensation within 60 days from the date of the award, interest at the rate of 12 per cent per annum on the amount awarded was also ordered to be paid. Issue No. 3 came to be decided in the negative holding that the deceased Vijay Kumar Jain was not guilty of contributory negligence. Both the parties have felt aggrieved and dissatisfied against the judgment and award of the Tribunal below and filed these appeals as noticed above.

8. Mr. K.D Sood, learned counsel for the New India Assurance Co. Ltd., and owner of the vehicle in their joint appeal contended that the Tribunal has gravely erred in appreciating and scrutinizing the documentary evidence marked Exhs. PX-4 to PX-10 which are income tax returns for the years 1988-1989, 1989-1990 and 1990-1991 of the deceased filed before the Assessing Authority by the claimants after the death of Vijay Kumar Jain and no reliance on those documents ought to have been placed by the Tribunal below in assessing the monthly income of the deceased from his business. He next contended that similarly income tax returns Exhs. PX-5, PX-4 and PX-6 could not be relied upon for assessing the income of the deceased and that the dependency of the claimants worked out at Rs. 4,200 per month by the Tribunal below was grossly excessive and that the multiplier of 24 was also on the higher side.

9. Per contra, Mr. Ramakant Sharma, the learned counsel for the claimants contended that the learned Tribunal below has erred in reading the documentary evidence on record more particularly the last income tax return produced on record for the period with effect from 1.4.1989 to 26.6.1989 wherein the income of the deceased was reflected Rs. 96,643 and not Rs. 26,317 as observed by the Tribunal below. He contended that the total income of the deceased was arrived at Rs. 8,770 p.m by the Tribunal below which has been wrongly assessed and thereby the amount of dependency has been reduced which is not permissible on the proper appreciation of the evidence. He next contended that the Tribunal below has again fallen into error by deducting 20 per cent out of the total amount of compensation payable to the claimants which is also not permissible under law. He also contended that the multiplier of 24 used is at the lower side and judicial notice should have been taken by the Tribunal below about the average age of the Indian at 70 years and thus, the multiplier of 36 ought to have been applied and on this ground as well, the award deserves to be modified and amount of compensation enhanced as claimed in the claim petition which was just and reasonable compensation in the facts and circumstances of the present case.

10. We have given our careful consideration to the respective contentions of the learned counsel on either side and reappraised the entire evidence on record to appreciate the correctness and validity of the reasonings given by the Tribunal below in the impugned judgment and award.

11. So far as the question of rash and negligent driving of the vehicle involved in the accident by the respondent driver is concerned, there is no dispute about the same and we are not called upon to give any finding on the said question and, therefore, the findings of the Tribunal below to that extent have attained finality. The only question involved for our determination and consideration was whether the amount of compensation awarded by the Tribunal below was excessive as claimed by the appellant assurance company and the owner of the vehicle in their appeal or the same was inadequate which deserves to be enhanced as claimed by the claimants in their appeal. For determining this question, we have re-appreciated the entire evidence of Sandhya Jain, wife of late Vijay Kumar Jain who appeared as PW 1 before the Tribunal below. She deposed that the deceased was earning an income of Rs. 32,214 per month from his business and before his death, he was contributing Rs. 10,000 per month for the maintenance of the family consisting herself and two minor children besides himself. In support of her oral deposition, she placed on record the income tax returns of the deceased for the assessment years 1983-1984 to 1991, i.e for the financial years 1982-1983 to 1989-1990, which were marked Exhs. PX-4 to PX-10. On bare perusal of income tax returns for the assessment years 1988-1989, Exh. PX-6, 1989-1990, Exh. PX-4 and 1990-1991, Exh. PX-5, it would be seen that these returns were only filed by Sandhya Jain as legal heir after the death of Vijay Kumar Jain. The last return for the assessment year 1990-1991 for the period with effect from 1.4.1989 to 26.6.1989 (the date of death of Vijay Kumar Jain) has been placed on record and marked Exh. PW 4.G. According to the said income tax return, the gross income of the deceased was shown as Rs. 26,317 from all the sources of income indicated as 41 per cent share of profit in Anil Kumar and Brothers, Panipat (URF); salary from Tilak Sales Corporation of Panipat; commission from Capital Electro Systems, New Delhi and interest, etc., and the said gross income had been shown for about three months. In her cross-examination, claimant Sandhya Jain has admitted that her father-in-law G.C Jain is a retired Income Tax Commissioner and the income tax assessment order Exh. PX-10 for the assessment year 1990-1991 pertained to Anil Kumar and Brothers (URF) business in which her son Varun Jain after the death of her husband has been added as partner to the extent of 10 per cent profit. She also stated that her husband used to pay income tax during his lifetime. She also stated that the working hours of Tilak Sales Corporation, sister concern of Anil Kumar and Brothers, were from 8 a.m to 5 p.m with lunch break. She further stated that her mother-in-law and father-in-law are living separately in their own house and she along with her children is living in a separate floor. The claimants have also relied upon the oral evidence of Ramesh Dhingra, PW 2, who was travelling with Vijay Kumar Jain in his car on the relevant day on the question of income of the deceased. Dhingra deposed that the deceased was earning Rs. 30,000 to Rs. 35,000 per month, but this bald statement of the said witness will not prove the case of the claimants unless corroborated that the income of the deceased before his death was Rs. 30,000 to Rs. 35,000 per month from his business. The claimants also examined Vijay Mittal, Chartered Accountant, PW 5, who was allegedly attending to the income tax matters of the deceased. He has stated that Vijay Kumar Jain before his death as a partner of Anil Kumar and Brothers, was also working as Manager with Tilak Sales Corporation. In addition to working with those two companies, the deceased was also looking after the marketing business of Capital Electro Systems. He placed on record balance-sheets Exhs. PW 4.A and PW 4.B in respect of Anil Kumar and Brothers and certificates Exhs. PW 4.C to PW 4.F. He also filed the statement of income tax paid in respect of the deceased in his individual capacity marked Exh. PW 5.G. In his cross-examination, he has categorically admitted that he could not remember the net tax paid by the deceased as the balance-sheet produced by him was prepared after the death of the deceased. Copies of assessment orders of income tax, sales tax and xerox copies of the original assessment orders along with certificates, copies of the details of the documents were tendered in evidence by Mr. R.K Garg, Advocate representing the claimants before the Tribunal below which were exhibited as PX-1 to PX-8 by the Tribunal subject to all exceptions.

12. In rebuttal Harish Setia, U.D.C, Income Tax Office, Panipat, was produced as RW 1, by the appellant assurance company. This witness deposed that the net income of the assessment year 1983-1984 of Vijay Kumar Jain was Rs. 15,480 and the return of the income tax was filed on 31.3.1987 and also for the assessment year 1984-1985, the tax return was filed on the same day in which the income was shown as Rs. 16,220 and that return of the year 1985-1986 too was also filed on the same day for Rs. 16,540. Another return of the assessment year 1986-1987 was filed again on 31.3.1987 showing the net income of Rs. 18,480. Similarly, income tax return of the assessment year 1987-1988 was also filed on 31.7.1987 showing the net income of Rs. 21,290 per annum. He has stated that the income shown in those returns would include the income of Vijay Kumar Jain from all sources such as shares in factories and industries, etc. The witness in his cross-examination on behalf of the claimants has stated that as per the computation of income for the year 1990-1991, the gross income of Vijay Kumar Jain was Rs. 33,398 for a period of three months. Based upon the computation of income, copy Exh. PX-5 and similarly photocopies of the computation of income for the years 1983-1984, 1984-1985, 1985-1986, 1986-1987 and 1987-1988 were filed and exhibited as PX-6 to PX-10.

13. The learned counsel for the claimants have placed much reliance upon the income tax returns and contended that on the basis of the documentary evidence brought on record by the claimants, it has been established by them that the monthly income of the deceased at the time of his death was Rs. 32,214 from all sources, meaning thereby, the profits from Anil Kumar and Brothers firm; commission for looking after the marketing business of firm Capital Electro Systems and salary of Rs. 2,000 per month which the deceased was getting from sister concern of Tilak Sales Corporation and thus the Tribunal has determined the monthly income of the deceased at Rs. 8,770 from all sources besides the total dependency of the claimants at Rs. 4,200 per month or Rs. 50,400 per annum.

14. We have reappraised the entire evidence on record. The assessment order Exh. PX-10 for the year 1990-1991 in respect of Anil Kumar and Brothers and the status as indicated in the said order is URF. From the perusal of this assessment order which has been passed by the Assessing Authority with effect from 1.4.1989 to 27.6.1989 (URF) and second period 28.6.1989 to 31.3.1990 (RF), we find that in place of the deceased his son Varun Jain was admitted as partner of Anil Kumar and Brothers to the extent of 10 per cent share of the profit and unabsorbed investment allowance of Rs. 3,89,350 was also carried forward to the assessment years 1989-1990 and 1990-1991 whereas the income to the extent of available profit was shown ‘Nil’. All the balance-sheets Exhs. PW 4.A and PW 4.G as admitted by Vijay Mittal, Chartered Accountant, on 27.6.89 had been prepared by him after the death of Vijay Kumar Jain. We find from the perusal of the entire record that for two counting years, i.e, 1988-1989 and 1989-1990 no return was filed by the deceased till his death. Individual income tax return of deceased Vijay Kumar Jain was filed by him for the financial year 1986-1987 and assessment year 1987-1988 in which the total income was shown only Rs. 21,290 per annum out of the share of profits of Anil Kumar and Brothers to the extent of 35 per cent and share and profits in A.K Industries, Panipat to the extent of 75 per cent and Rs. 822 was paid as income tax on the net profit of Rs. 21,290. The document has been placed on record and marked Exh. PX-6. Similarly, for the financial year 1985-1986 and the assessment year 1986-1987 Vijay Kumar Jain filed income tax return as an individual in which from all sources the total income was shown Rs. 18,480 and the said assessment document was marked Exh. PX-7. In that last return filed by Vijay Kumar Jain for the assessment year 1987-1988, the net income from all sources had been shown Rs. 25,600 and thereafter no return was filed by Vijay Kumar Jain till his death, i.e, 26.6.89 In the last assessment return filed by the wife of late Vijay Kumar Jain for the period when he was alive no salary having been paid to him by Tilak Sales Corporation was reflected nor amount of compensation paid to him for looking after the marketing business of Capital Electro Systems had been reflected in such return. From the perusal of the partnership deed dated 8.3.88 entered into between Vijay Kumar Jain, his brother Anil Kumar Jain and mother Tilak Jain, under the name and style of Anil Kumar and Brothers, we find that under the condition No. 12 thereof, it is stipulated that no salary/remuneration/commission, etc., shall be payable to any partner unless otherwise mutually decided by all the parties. In the teeth of the assessment return, the gross income of the deceased as per last return of Anil Kumar and Brothers for the assessment year 1990-1991 filed for the period 1.4.89 to 26.6.1989, i.e, for a period of three months, Exh. PW 4.G comes to Rs. 26,317 which can be legitimately taken as gross income of the deceased from all sources. Based upon this document, the monthly income of the deceased comes to Rs. 8,770 and has rightly been determined so by the Tribunal below.

15. The deceased was carrying on the business as a partner of Anil Kumar and Brothers besides he was doing liaison work, therefore, during the course of his business he must have been meeting a number of persons in connection with his business activities. In the peculiar facts and circumstances, it can be reasonably accepted to deduct ⅓rd of his gross income towards his personal living expenses which would work out to Rs. 2,925 p.m and the deceased was as such contributing Rs. 8,770 - Rs. 2,925 = Rs. 5,845 per month towards his family members for their upkeep and maintenance. The Tribunal had used the method of unit system which in our view was not correct where the multiplier method of assessing the compensation to the dependants has been used. The age of the deceased at the time of the accident was 34 years. In the facts and circumstances of the case, the multiplier of 14 years would be appropriate multiplier to assess the just compensation on account of loss to the estate of the deceased. Thus, the annual dependency of the claimants would work out to Rs. 5,845 × 12 = Rs. 70,140. After applying the multiplier of 14, the compensation works out to Rs. 70,140 × 14 = Rs. 9,81,960. The Tribunal used the multiplier of 24 which in our view is not permissible in law as held by the Apex Court in U.P State Road Trans. Corpn. v. Trilok Chandra, 1996 ACJ 831 (SC), that the maximum multiplier should not exceed 18 years' purchase factor. The Tribunal had also given deduction at the rate of 20 per cent out of the total amount of compensation which in our view was also not permissible and sustainable.

16. Mr. Ramakant Sharma, the learned counsel for the claimants vehemently contended that in the present case, looking to the age of the deceased the multiplier of 18 should be applied by the court and in support of his submissions, he has placed reliance on a number of decisions of the various High Courts in Seetha Lakshmi Krishnan v. Gian Prakash, 1993 ACJ 206 (Delhi), in which the age of the deceased was 34 years at the time of the accident and the multiplier of 24 was applied; in Satish Kanta v. State of Punjab, 1995 ACJ 944 (P&H), the multiplier of 16 was applied by the court for the death of a person aged 34 years; again in Dhanpati v. State of U.P through Superintending Engineer, IV Circle, P.W.D, Varanasi, 1992 ACJ 338 (Allahabad); Sukhwinder Kaur… v. Amir Singh…, 1997 ACJ 774 (P&H); Divisional Manager, National Insurance Co. Ltd. v. Jayashree Rath, 1996 ACJ 472 (Orissa) and Himachal Road Transport Corpn. v. Padma Devi, 1998 ACJ 27 (HP), the courts had applied multiplier of more than 18 in all those cases in accidental deaths.

17. As noticed above, the contention of the learned counsel that the maximum multiplier of 18 shall be applied in the present case cannot be accepted merely on the ground that the age of the deceased at the time of his death was 34 years. The Apex Court in General Manager, Kerala State Road Trans. Corpn. v. Susamma Thomas, 1994 ACJ 1 (SC), held in para 8 of the judgment as under:

“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 he 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.”

18. After quoting the above passage, the Supreme Court said that it was rightly clarified that there should be no departure from the multiplier method on the ground that section 110-B of the Motor Vehicles Act, 1939 envisaged the payment of just compensation since the multiplier method is the accepted method for determining and ensuring payment of just compensation and it expected to bring uniformity and certainty of the awards made all over the country. Thereafter, the court held that on the facts of the earlier cases the court was justified in adopting the multiplier of 12 when the victim was of the age of 39.

19. Thus, it is clear from the three decisions of the Supreme Court, namely, General Manager, Kerala State Road Trans. Corpn. v. Susamma Thomas, 1994 ACJ 1 (SC); U.P State Road Transport Corpn. v. Trilok Chandra, 1996 ACJ 831 (SC); and S. Chandra v. Pallavan Trans. Corpn., 1995 ACJ 1170 (SC), that the multiplier has to be fixed on the basis of the facts and circumstances of each case and it cannot be a fixed figure for all the cases on a hypothetical basis. Looking to the ages of the deceased and the claimants, we consider it just and reasonable to apply the multiplier of 14 and on the basis of the said multiplier, the total compensation has been awarded in favour of the claimants payable by the appellant assurance company, owner and the driver of the ill-fated vehicle jointly and severally. The contention of the learned counsel for the claimants that the multiplier of 18 should be applied in the case on hand cannot be accepted and the decisions cited by the learned counsel shall be of no help to the case of the claimants in the teeth of the well settled proposition of law of the Apex Court which is binding on us and the multiplier has to be fixed on the basis of the facts and circumstances of each case and it cannot be a fixed figure for all the cases on a hypothetical basis.

20. The New India Assurance Co. Ltd. and owner of the vehicle involved in the accident have filed a joint appeal against the judgment and award of the Tribunal below which is not maintainable on behalf of the assurance company as has been held by the Apex Court in Narendra Kumar v. Yarenissa, 1998 ACJ 244 (SC). Thus, the appeal of the assurance company shall stand dismissed whereas the owner of the vehicle is permitted to pursue the appeal and cause title to that extent shall be amended by the Registry.

21. The Tribunal below has awarded an amount of compensation of Rs. 20,000 in favour of the claimant Tilak Jain, mother of the deceased on account of love, care and affection of her son as she was otherwise not found entitled to claim compensation for the death of her son since she is living with her husband and is being maintained by him who admittedly is a retired Income Tax Commissioner. However, we do not propose to interfere with the reasoning of the Tribunal below granting a small sum of Rs. 20,000 to the mother of the deceased.

22. The total amount of compensation of Rs. 9,81,960 awarded by us shall be apportioned by the claimants as under:

(i) Sandhya Jain w/o Vijay Kumar Jain Rs. 3,61,960 (ii) Varun Jain (minor son) Rs. 3,00,000 (iii) Ashima Jain (minor daughter) Rs. 3,00,000 (iv) Tilak Jain (mother of deceased) Rs. 20,000 Total Rs. 9,81,960

23. The claimants are entitled to interest at the rate of 12 per cent per annum from the date of institution of the claim petition, i.e, 28.9.1989 till the date of payment or deposit by the owner of the vehicle and insurer in the Registry of this court.

24. No other point has been urged by learned counsel on either side. In the result, for the foregoing reasons and discussion, both the appeals are allowed in part and the judgment and award of the Tribunal below shall stand modified to the extent indicated above. However, the parties are left to bear their own costs.

25. Orders accordingly.