Per Kawoosa J:

1. This judgment will dispose of the two cross appeals, LPA No. 15/95 and LPA No. 5/95 directed against the Single Bench judg­ment of this court dated 28th April, 1995, passé in CIMA No. 165 of 1993. Shortly put and shorn of details: the facts from which the above two appeals emanate are that one Asha Singh died in a vehicular accident on 13.4.1991. He was plying a scooter which collided with Vehicle No. 89-E-65834 driven by respondent, Kailash Nath of 57 RCC C/ O 56 APO. It is admitted that the Vehicle and the scooter were coming from opposite directions when the collision occured at R.S.Pora - Jammu road. The deceased suc­cumbed to the injuries on 15.4.1991. Ap­pellants in LPA No. 15/95 are the widow and children of the deceased, who filed an application for compensation before the con­cerned Motor Accidents Claims Tribunal. The case set by the Appellants was that the acci­dent occured because of the rash and negli­gent driving of the respondent, Kailash Nath, driver of the aforesaid Vehicle and, as a re­sult of this accident, the deceased passed away. The Tribunal, after analysing all the evidence lead on behalf of the parties, held that the accident occured because of the rash and negligent driving of the driver, Kailash Nath. The Tribunal assessed a compensation of Rs. 2.75 lakhs. While concluding the judg­ment, the learned Tribunal made a deduc­tion of 25% of the total amount of award for contributory negligence of the deceased. It made a further deduction of 20% on account of uncertainties of life and for lumpsum pay­ment. Out of the assessed compensation of Rs. 2.75 lakhs, the learned Tribunal passed the net award for an amount of Rs. 1.65 lakhs. Against this judgment the respondents did not choose to file any appeal, but the petitioners before the Tribunal, filed an ap­peal, CIMA No. 165/95. The learned Sin­gle Bench of this Court partially allowed the appeal while holding that there was no con­tributory negligence of the deceased, so the deductions to the extent of 25% on this ac­count were not justified and he thus set-aside the impugned judgment to the extent of the deduction of Rs. 68,750/- on account of contributory negligence and passed the award to the tune of Rs. 2,20,000/-. This judgment was passed on 28th April, 1995. Against this judgment, the aforementioned two cross ap­peals have been filed. In LPA No. 5/95, the appellants have challenged both the learned Single Bench Judgment as well as the basic judgment passed by the learned Tribunal dated 29.7.1993 to the extent that the judg­ments are erroneous in law so far as the de­ductions of 20% have been made on account of uncertainties of life and making the lumpsum payment. It has been contended in the appeal that once the multiple system has been employed and multiple sixteen has been applied, it already took care of uncertainties of life and the lumpsum payment. Therefore, the deduction on account of uncertainty of life and lumpssum nature of payment was not proper. It has been prayed that the whole compensation, as has been assessed by the learned Tribunal Judge, which comes to Rs.2.75 lakhs, be awarded to the appellants instead of only Rs.2.20 lakhs which as been awarded by the learned Single Bench of this Court. This is one side of the picture.

2. Another side is that the respondents in the original claim petition too have filed LPA No. 5/95. They have challenged the learned Single Bench judgment wherein the award passed by the Motor Accidents Claims Tribunal in Claim petition No. 44/91 has been enhanced from Rs. 1,65000/- to Rs. 2,20,000/-. The appellants in this appeal have in para No. 7 contended that, in fact, no liability for causing of the accident can be fastened on the appellant No.2, but, how­ever, because of non-challenging of the award by the appellants at the initial stage, the ap­pellants are limiting their challenge to the judgment of the learned Single Judge to the extent it has enhanced the award which con­cept is foreign to the factual position. The whole thrust of the appellants is that the finding of the learned Single Judge, that there is no contributory negligence on the part of the deceased, is erroneous in law and has been made without application of mind. Accord­ing to the present appellants, the finding of the learned Tribunal Judge that there was a contributory negligence is based on correct appreciation of facts so he deducted 25% for the contributory negligence of the deceased.

3. We have called the record of the Motor Accidents Claims Tribunal and have heard learned counsel for the parties in full. We first take up LPA No. 15/95.

4. The bone of contention of the learned counsel for appellants is that both the Motor Accidents Claims Tribunal and the learned Single Judge have erred in deducting 20% of the award money on the basis of uncertain­ties of life and lumpsum payment. LC for ap­pellants is right in saying that once the method of multiplier is employed, it itself takes care of the uncertainties of life. This is the method which is the latest and is adopted by almost all the Tribunals existing in the coun­try and, more so, this has been approved by the Apex Court also. This method is already based on the uncertainties of life and the pre­sumed tenure of dependency of the claim­ants. It is an admitted fact that the span of age has gone up in this country. Now sev­enty years is taken to be the average span of life. Here in this case the age of the deceased shown in the claim petition is thirty years, but in the evidence and from the medical re­port, it appears that his age was thirty five years at the time of the said accident and the age of the widow claimant is admittedly less that that of the deceased. Only sixteen mul­tiplier has been applied in the case which means that the average age of the deceased has been taken upto only fifty one years and much less average age of dependency has been taken for consideration, though it can be far long. It has been held in various judi­cial pronouncements, that no duction is desir­able on the basis of uncertainties of life on this score. There are catina of authorities which we have gone through and this is the consensus opinion of various High Courts also that while employing the method of multiplier no deduction can be made on this score, because number of multiplier is already a reduced figure itself which takes care of imponderabbles. Learned counsel for the otherside could not spell out anything regard­ing this argument. The matter does not rest here, but the deduction made on the basis of payment of lumpsum also is neither allowed nor desirable, because of rapidly falling of the rate of, value of rupee, rise in inflation year after year and secondly the period of litiga­tion also is to be taken into consideration regarding this fact. The authorities referred on these points are: H (1994) ACC 1993 Calcutta High Court; 1995 ACJ 53, MP High Court; 1995 ACJ 560 MP High Court; AIR 1994 AP page 32 at page 36; and AIR 1985 Allah 197- In 1995 ACJ 560,.the MP High Court as held as under:-

" 14. Coming to the question of quantum of compensation, it is well settled that mul­tiplier method for ensuring just compen­sation is logical, sound and legally well settled in assessing the compensation by the method of capitalisation of net income of the deceased or the age of dependant. Whichever multiplier is lower, is an ap­propriate method. Whenever a multiplier is selected, it cannot be equal to the number of years of dependency or to the remainder of the life of the deceased. It is much less, taking into account the uncertainties of life.' It takes care of the acceleration of the interest of the claim in the benefit which might have been re­ceived on the death of the deceased. It takes into consideration all the Heads for which the compensation can be awarded. It is a right and ready and more scientific method of capitalisation of the loss of dependency, wherein no deduction for uncertainties of life or for lump sun pay­ment is permissible."

Keeping in view the law on the subject, we are of the considered opinion that the deductions made on the basis of uncertain­ties of life and lumpsum payment are not per­missible in law. For these reasons therefore, we allow the appeal and hold that the deduc­tion of 25% made both by the Motor Acci­dents Claims Tribunal and by the learned Sin­gle Judge on the basis of uncertainties of life and lumpsum payment are hot permissible and so not in accordance with law.

5. Now we will take up LPA No. 5/95. Two points have been raised by counsel for the appellants: firstly that even the multiplier method employed is not based on the age of the deceased, because neither the learned Single Judge, nor the learned Tribunal Judge has in their judgments stated the age of the deceased which could have been the basis for employing the scientific method of multi­plier and secondly, that the learned Single Judge has erred in enhancing the compen­sation while holding that there was no con­tributory negligence on the part of the de­ceased. According to the learned counsel, the learned Single Judge has traversed beyond the factual position of the case and the evi­dence adduced. We have heard learned coun­sel for both the parties regarding these points and have perused the entire evidence in this behalf.

6. So far as the first point is concerned, we fail to understand as to how this point has been raised by the LC for the appellants for the first time here in this appeal, because it is the admitted fact that the appellants have not agitated the judgment of the Motor Acci­dents claims Tribunal. It were only the re­spondents herein who had filed the appeal before the learned Single Bench for enhanc­ing the compensation. Secondly, this point does not find any place in the memo of the appeal. So we very much doubt whether he can press this point before this court. How­ever, we have taken into consideration the whole stock of things and have perused the entire record. We think that the (sic) learned counsel is misconceived. It is candidly dear from the record that the application which the respondents have filed before the learned Tribunal for compensation for the death of the deceased, did show the age of the de­ceased as thirty years. Police FIR, Medical report and in the evidence, it is seemingly clear that the age of the deceased was men­tioned thirty five years. The matter does not rest here, even in the memo of appeal of LPA No. 15/95, the age of the deceased has been declared as thirty years in para No. 4 thereof. Though the Tribunal Judge in his judgment has not mentioned the age of the deceased yet, while assessing the compensa­tion, he has categorically taken into consid­eration the young age of the widow and of the deceased. It was not even necessary for him to mention the age of the deceased in the absence of any controversy regarding the matter. But it is apparent from the evidence and the record that while assessing the com­pensation, the Tribunal Judge has taken into consideration the age of the deceased be­tween thirty to thirty five years, which re­mained unrebutted in the evidence. Thus he has employed sixteen as multiplier, taking into view the young age of the deceased and the widow. So there is no force in this argument of the learned counsel for the appellants. Learned counsel for the appellants, while advancing his arguments, has laid stress on the point that the learned Single Judge has not applied his mind with regard to the con­tributory negligence of the deceased. Learned counsel for the respondents has taken us through the judgments of the Tribunal and the learned Single Judge. We have gone through the evidence also and our consid­ered view is that there is no error is the judg­ment of the learned Single Judge and he has rightly reached to the conclusion that there was no contributory negligence on the part of the deceased. We wonder as to how the learned Judge of the Tribunal has deducted 25% on the basis of contributory negligence when he in his own judgments appears to be convinced that the respondents before him have failed to prove the contributory negli­gence of the deceased. Before analysing the judgments of the learned Tribunal and the learned Single Judge, we want to make it clear that with regard to the application of the plea of contributory negligence, the state­ment of law, in Halsbury's Laws of England, is that where the defendant is negligent and the plaintiff is alleged to have been guilty of contributory negligence, the test to be ap­plied is whether the defendant's negligence was nevertheless as direct and effective cause of the misfortune. The existence of contribu­tory negligence does not depend on any duty owed by the injured party to the party sued and all that is necessary to establish a plea of contributory negligence is to prove that the injured party did not, in his own interest, take reasonable care of himself and contributed, by his want of care, to his own injury. The principle involved is that where a man is a part-author of his own wrong, he cannot call on the other party to compensate him in full. If negligence on the part of the defendant is proved and contributory negligence by the plaintiff is, at best, a matter of doubt, the defendant alone is liable in such circum­stances. Once negligence of the driver is found to be responsible for the occurrence of the accident, it is impossible to hold that there was contributory negligence on the apart of the injured or the deceased so as to re­lieve the driver from the evil consequences. In the light of this back-ground, let us see how the accident had occurred. The deceased was coming from R.S.Pora to Jammu on a metalled general road. From the opposite direction the appellant No. 2 driver Kailash Nath was plying a heavy vehicle and was going towards R.S.Pora. Vision was clear. He could have foreseen the scooter coming from the opposite direction but, for the negligence of appellant No. 2,, the accident has occurred. We have gone through the evidence. The two independent eye witnesses, namely, Sardar Gur Dev Singh and Sardar Ajit Singh have been examined. Both the eye witnesses con­cur to the view that it was the negligence of appellant No. 2 which caused the accident. Even the Tribunal Judge also seems to be convinced that the misfortune was caused due to the rash and negligent driving of appellant No. 2. The learned Single Judge in his judgment has quoted the various paragraphs of the judgment of the learned Tribunal Judge was himself convinced that the accident was caused due to the negligence of appellant No.2. The learned Tribunal Judge, in his judgment, has in unequivocal terms observed that, having pleaded contributory negligence, it was for the respondents to prove it, be­cause the burden according to the special law rests with them, but the burden has not been discharged. The learned Single Judge has very rightly analysed and appreciated the evidence, the judgment of the learned Tribu­nal Judge and has come to a right conclu­sion that there was no contributory negli­gence on the part of the deceased. So he has set-aside the judgment of the learned Tribunal Judge in part so far as the deduction of 25% of the amount on the basis of con­tributory negligence is concerned and has thus enhanced the compensation. We see no defect in the judgment of the learned Single Judge and no force in the argument of LC for appellants. For these reasons, therefore, this appeal is dismissed.

7. Taking the totality of circumstances of both the appeals into consideration, we hold that the deductions made on the basis of uncertainties of life and lump sum pay­ment are not permissible by law, in conse­quence of which the compensation given to the heirs of the deceased is enhanced from Rs. 2,20,000/- to Rs.. 2,75,000/- and, as such, no deduction is allowed to be made from the total compensation assessed by the Tribunal

Records received be sent down forthwith. Announced at Srinagar

July 10-7-1996. (Justice Bhawani Singh) (Justice M.Y. Kawoosa)