Janak Raj Kotwal, J.:-

1. This is an appeal in a Motor Accident Claim case. Heard. I have perused the record.

2. On 29.09.2007, S. Amarjeet Singh (hereinafter the deceased) was travelling from Kishtwar to Jammu by a car bearing registration No. JK02 D-9212. Respondent No. 3, Inderjit Singh Bali, who was owner of the car, was on the wheel. The car met with an accident near a place called Thathri and plunged into a trench. Deceased suffered grievous injuries. He died.

3. Respondent Nos. 1 & 2, (hereinafter the claimants) who are the sons of the deceased, filed a claim for compensation under section 166 of the Motor Vehicles Act, 1988 (hereinafter the Act) before the Motor Accident Claims Tribunal, Jammu (hereinafter the Tribunal) against the owner and insurer (herein appellant) of the offending car.

4. Learned Tribunal vide its judgment and award dated 30.04.2010 found that the accident had occurred due to rash and negligent driving by respondent No. 3 and awarded compensation of Rs. 17,53,800/to claimants. The Tribunal foisted liability of paying the compensation on the appellant.

5. In assessing the compensation, learned Tribunal on appreciation of evidence found that the deceased was a Government servant serving as Manager QC in the Food Corporation of India. His monthly salary was Rs. 24,149/. He was aged 54 years as at the time of his death. Learned Tribunal deducted 1/3rd of the salary towards personal expenses of the deceased and took the remaining Rs. 16,100/as his monthly contribution towards the claimants. Annual contribution of the deceased towards the claimants thus came out as Rs. 1,93,200/-, which became the 'multiplicand' for calculating compensation under the head 'loss of dependency'. On the basis of the age of the deceased, applicable multiplier being 11, learned Tribunal scaled it down to 9. Compensation under this head thus amounting to Rs. 17,38,800/(1,93,200 x 9). In addition, learned Tribunal awarded Rs. 15,000/as compensation for funeral expenses. Total compensation thus awarded was Rs. 17,53,800/.

6. Appellant-Insurance Company has impugned the judgment and award of the learned Tribunal to the extent of the quantum of compensation awarded to the claimants. Award has been assailed on the ground that only respondent No. 2, who is a MBA student, should have been taken as dependent of the deceased, whereas respondent No. 1 could not have been because he is gainfully employed as per the evidence available before the Tribunal. It is also contended that as per the evidence, the basic salary of the deceased was Rs. 10,600/and the total amount which he was drawing after deduction was Rs. 19,481/. It is also contended that both the claimants were major but this aspect was ignored by the learned Tribunal.

7. Mr. C.S. Gupta, learned counsel appearing on behalf of the appellant, submitted that compensation under the head Toss of dependency' is payable only to the dependent legal representatives of a deceased. Compensation under this head is paid for the monetary loss suffered by the dependants. Learned Tribunal, therefore, submitted Mr. Gupta, has fallen in error by taking the total strength of the family of the deceased as three and thereby deducting only 1/3rd of the salary towards his personal expenses. Mr. Gupta cited Supreme Court judgment in Smt. Manjuri Bera v. Oriental Company limited and Anr. 2007 (3) Supreme 620.

8. Mr. Surinder Singh, learned counsel appearing on behalf of the respondents, on the other hand supported the judgment and award passed by the learned Tribunal. He submitted that under section 166 of the Act, all the legal representatives of deceased are entitled to claim compensation irrespective of the fact whether they were dependent upon the deceased or not. He cited Smt. Lalitha and Ors. v. Dashanbhat Haribansh Bhat, AIR 1998 Karnatka 344 and Kulsum Bai v. Kallu and ors. AIR 200 MP 292.

9. Claimant-respondent No. 2, Harbaksh Singh has deposed before the learned Tribunal as claimants' witness. In cross-examination he has admitted that his brother Harpreet Singh is employed as a clerk in Doordarshan. This aspect is not disputed by the claimants. Appellant in its objections before the learned Tribunal had clearly contended that the claimants were major and earning hands. No evidence, however, has been led by the claimants to prove that even claimant Harpreet Singh was an unemployed person and dependent upon the deceased up to the time of his death. Since claimant, Harpreet Singh is gainfully employed in a Central Government service and there is nothing in the claimants' evidence that he was dependent upon the deceased as at the time of latter's death, appellant's contention that claimant Harpreet Singh cannot be taken as a person dependent upon the deceased is to be accepted.

10. Viewed thus, correctness of compensation awarded under the head 'loss of dependency' by the learned Tribunal calls for reconsideration. It needs to be determined, whether claimant, Harpreet Singh, is entitled to the compensation under this head?

11. Before taking up the above aspect, I will however, first take up the appellant's challenge to the correctness of the income of the deceased as taken by the learned Tribunal. In this regard, evidence available with and relied upon by the learned Tribunal is the salary certificate Ex.PW KA issued by Manager (Accounts), Food Corporation of India, District Office, Jammu. In this certificate, basic pay of the deceased is shown as Rs. 10,600/and total salary, inclusive of allowances as Rs. 24,149/. Deduction towards CPF is shown as Rs. 4352/, Rs. 306/is shown as deduction towards licensing fee and Rs. 10/towards BF. Learned Tribunal, therefore, cannot be said to have erred in taking total salary of the deceased as Rs. 24,149/because nothing except income tax paid on the total salary is deductible, while ascertaining the contribution of the deceased towards his dependents.

12. It is indisputable that learned Tribunal has applied the multiplier method, which is well recognized for computing the amount of compensation payable to the legal representatives/dependents of a motor accident victim under the head 'loss of dependency'. Core question thus arising is, whether multiplier method has been correctly applied by the learned Tribunal. This in turn would automatically lead to determination of the question involved in this appeal.

13. The multiplier method has been explained by the Supreme Court earlier in the landmark judgments in Kerala State Road Transport Corporation v. Susamma Thomas, (1994) II SCC 176 and U.P. State Road Transport Corporation v. Trilok Chandra, (1996) 4 SCC 362 and recently qualified and amplified in Sarla Verma and ors. v. Delhi Transport Corporation 2009 ACJ 1298.

14. It may be stated, briefly, that multiplier method involves ascertainment of the monthly income of the deceased at the time of his death. His annual contribution towards his dependents (claimants) depending upon their number, which is taken as 'multiplicand' and its multiplication with a figure, called 'multiplier', to be selected on the basis of the age of the deceased.

15. Some of the important principles laid down by their Lordships in Sarla Verma may be stated thus:

Para 18 of the reporting:

"Basically only three facts need to be established by the claimants for assessing compensation in the case of death:

(a) age of the deceased;

(b) Income of the deceased; and

(c) The number of dependants.

The issues to be determined by the Tribunal to arrive at the loss of dependency are:

(i) Additions/deductions to be made for arriving at the income;

(ii) The deduction to be made towards the personal living expenses of the deceased; and

(iii) The multiplier to be applied with reference to the age of the deceased."

16. Addition to the income where the deceased was having a permanent job, as in the case on hand, is governed by the age of the deceased.

Para 24 of the reporting:

"11. In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50 per cent of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. [Where the annual income is in the taxable range, the words 'actual salary' should be read as 'actual salary less tax']. The addition should be only 30 per cent if the age of the deceased was 40 to 50 years. There should be no addition where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."

17. Deduction towards the personal and living expenses of the deceased is governed by the number of the dependents/claimants.

Para 30 of the reporting:

"14. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra's case, 1996 ACJ 831 (SC), the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased should be one-third (1/3rd) where the number of dependent family members is 2 to 3; one-fourth (1/4th) where the number of dependent family members is 4 to 6; and one-fifth (1/5th ) where the number of the dependent family members exceed six."

18. Multiplier is to be selected and applied on the basis of the age of the deceased from column 4 of the table given in para 40 of the reporting in Sarla Verma's case.

19. A plain and collective reading of the principles stated by their Lordships in Sarla Verma, in particular, para 18 and para 30 (supra) of the reporting would render it beyond any doubt that award of compensation under the head, 'loss of dependency' is governed by the number of dependents of the deceased and not the number of legal representatives having filed the claim. Only such legal representatives of the deceased who at the time of the death were dependent upon him are relevant for calculating compensation payable under the head 'loss of dependency'. Only such claimants would be entitled to compensation under this head.

20. Judgment in Smt. Lalitha (supra) relied upon by learned respondent's counsel (supra) would not apply to this case and does not lay down a different principle. Situation in that case was not one where claimant was not dependent on the deceased at the time of his death. The claimant rather had got compassionate appointment in place of the deceased and the High Court of Karnataka had held that income earned by the claimant was in lieu of services rendered by him, which cannot be adjusted against the compensation for loss of dependency. Likewise, judgment in Kulsum Bhai has no application to this case as question involved therein was altogether different.

21. That a legal representative, who was not dependent upon the deceased, is not entitled to compensation under the head 'loss of dependency' is discernible from the judgment of the Supreme Court in Manjuri Bera (supra) relied upon by the learned counsel for the appellant. In that case the Calcutta High Court has held that though the appellant, a married daughter of the deceased, could maintain a claim petition in terms of section 166 of the Act, she was not entitled to any compensation as she was not dependent upon the deceased. In appeal His Lordship (Dr.Arijit Pasayat J.) in para 16 of the reporting held:

"16. Judged in that background where a legal representative who is not dependent files an application for compensation, the quantum cannot be less than the liability referable to Section 140 of the Act. Therefore, even if there is no loss of dependency the claimant if he or she is a legal representative will be entitled to compensation, the quantum of which shall be not less than the liability flowing from Section 140 of the Act. The appeal is allowed to the aforesaid extent. There will be no order as to costs."

22. The legal position, thus, can be summarized that a legal representative of a victim of a motor accident, who was not dependent upon the deceased, though can lay a claim for compensation, he is not entitled to compensation under the head 'loss of dependency'. He would be entitled to compensation for loss to estate as well as the statutory compensation under section 140 of the Act.

23. Having stated the legal position as above, it can be said that learned Tribunal has erred in taking respondent (claimant) Harpreet Singh too as a claimant entitled to get compensation under the head 'loss of dependency' and in that taking strength of the family of the deceased as three and deducting 1/3rd of the salary towards personal expenses of the deceased. Claimant-Harpreet Singh, though a legal representative of the deceased and thereby entitled to lay the claim for compensation, is not entitled to get compensation under the head 'loss of dependency' for the reason that he is gainfully employed in Central Government service and was not dependent upon the deceased.

24. Strength of the family of the deceased for the purpose of 'loss of dependency' in this case should have been and is being taken as two only and in applying the multiplier method, deduction towards personal expenses of the deceased would be half of the salary. Since the deceased at the time of the death was 50 plus, no addition to the income of the deceased is to be made. However, given that total annual salary of the deceased was Rs. 2,89,788/(29149 x 12) and his savings, earning deduction from taxable income was Rs. 52,224/only so at least Rs. 15,000/can be and should have been deducted towards income tax. Effective income of the deceased should have been and is being taken as Rs. 2,74,788/- (2,89,788 - 15,000). Personal expenses of the deceased and his contribution towards claimant-Harbaksh Singh for calculating compensation therefore, would be Rs. 1,37,394/say Rs. 1,37,400/each (half of Rs. 2,74,788/) each. This would be the 'multiplicand' in this case.

25. Deceased at the time of death was in the age group of 50 to 55. Applicable multiplier as per Sarla Verma's case (supra) is 11. Having regard to the age of the deceased and age of the dependent-claimant, learned Tribunal can be said to have correctly scaled down the multiplier to 09.

26. Compensation payable under the head 'loss of dependency' would be Rs. 12,36,600/- (1,37,400 x 09).

27. For the aforementioned, this appeal is found to have merit and is, therefore, allowed. Impugned judgment and award is modified accordingly and the compensation payable would be as under:

Loss of dependency: Rs. 12,36,600/

Funeral expenses: Rs. 15,000/

Total Rs. 12,51,600/-

28. Rate of interest and other conditions as provided in the impugned judgment and award shall apply. Award amount, if deposited in this Court be disbursed accordingly. Record of the Tribunal be remitted back along with a copy of this order.

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