S.N. Kapoor, J.
1. This judgment shall dispose of the above-mentioned three appeals viz. FAO No. 130/97--the appeal filed by the claimants as legal heirs of the deceased, namely, Smt. Santosh Dhingra (wife), Anup (son), Neeru and Simmi (daughters), FAO No.131/97--the appeal filed by Smt. Santosh Dhingra, who herself suffered injuries in the accident, which occurred on 28th January, 1985 and FAO No.480/96--the appeal filed by the State of Uttar Pradesh, the owner of the offending vehicle. All the three appeals are against the common award passed by the learned Motor Accident Claims Tribunal (in short the 'Tribunal') dated 17th September, 1996.
2. The learned Tribunal awarded compensation amounting to Rs.1,20,000/- to the legal heirs of the deceased Om Prakash Dhingra in the death case. In the petition relating to injuries suffered by Smt. Santosh Dhinra, a sum of Rs.20,000/- was awarded as compensation. In both the matters the learned Tribunal has awarded interest @ 12% per annum from the date of filing of the petition till realisation.
3. The State of Uttar Pradesh, owner of the offending vehicle, feeling aggrieved by the impugned award dated 17th September, 1996 has filed FAO 480/96 submitting that the amount of the award is on very high side. The learned Tribunal had not taken into consideration the fact that the vehicle, which was being plied by the driver of the State, was carrying a serious patient from Muzaffar Nagar, who was to be taken to AIIMS and under the Rules of the Motor Vehicles Act it has got preferable right of passage as compared to other vehicles. Consequently, the deceased himself had contributed to the accident.
4. On the other hand learned counsel for the claimants Mr. Narang submits that the plea regarding preferable right of passage of an ambulance was neither pleaded nor proved. Consequently, it could not be taken at this stage.
5. In their own appeal the claimants submits that the deceased was highly qualified, for he was MA, LLb. and had got a diploma from USA. He was working as a guide and was doing liaison work for exports. His income was not rightly taken by the leaned Tribunal. In any case, the future prospects were not considered and appropriate multiplier was not applied. By just taking the income of the deceased at Rs.3,000/- and by applying the multiplier of 5 only highly inadequate compensation was awarded. The age of the deceased was 54 years and obviously ages of the claimants would be much less. According to the Schedule II of the Motor Vehicles Act, 11 years' multiplier should have been applied.
6. Learned counsel appearing on behalf of the injured Smt. Santosh Dhingra submits that awarding a sum of Rs.29,000/- as compensation to a person, who suffered hairline fractures on the head and multiple fractures on the hand and who was required to take premature retirement, for she was suffering headache continuously, is highly inadequate and could not be termed as just compensation.
7. It is also submitted by learned counsel for the State of UP that evidence of the State of UP was closed by the learned Tribunal on account of their failure to produce the witnesses. Later on an application was moved. That application remained undecided.
8. Having heard the parties counsel and after going through the record as regards the undisposed application, it is submitted by learned counsel for the claimants that once the evidence of the State of UP was closed for want of production of witnesses, even after granting last opportunity, the State of UP did not have any right to wake up all of a sudden. It should be treated that the application stood disposed of by necessary implication. In response to submission of learned counsel for the State of UP, it is rightly submitted that in case the State of UP was interested in producing the witnesses they could have filed an application under Order 41 Rule 27 CPC. It has rightly been submitted by learned counsel for the claimants that this ground has got no force.
9. As regards compensation relating to injury suffered by Smt. Santosh Dhingra, Mr. Narang was candid enough to state that there is neither any disability certificate nor any medical evidence was produced to prove that there was hairline fracture on the head of Smt. Santosh Dhingra. However, there is no dispute that Smt. Santosh Dhingra remained in hospital from 29th January, 1985 to 7th February, 1985. She was treated in a government hospital. She claimed that she had spent about Rs.9,000/- to Rs. 10,000/- on her treatment. The learned Tribunal has awarded a sum of Rs.10,000/- on account of her treatment and purchase of medicines, which appears to be appropriate. She had appropriately been given leave salary for a period of 54 days, i.e. the period of her leave on account of injuries suffered by her amounting to Rs.4,000/- on account of loss of income as she had taken leave for about 2 months which was appropriate in terms of her salary those days. She was further awarded a sum of Rs.5,000/- on account of special diet and conveyance. She was further awarded Rs.10,000/- for pain and traumatic shock suffered by her. Thus, in all she was allowed Rs.29,000/- as compensation with interest @ 12% per annum. Learned counsel for the claimants could not point out any head under which compensation could be enhanced in absence of any medical certificate. Consequently, I do not find any force in the appeal filed by Smt. Santosh Dhingra relating to injuries suffered by her. Accordingly, the award given by the learned Tribunal in respect of the appeal filed by Smt. Santosh Dhingra, i.e FAO No. 131/1997 is confirmed.
10. As regards the appeal filed by the claimants on account of death of Sh. Om Prakash Dhingra, i.e. FAO No.130/1997, the first point which is required to be considered is about the preferential right of passage of the ambulance. Learned counsel for the appellant very candidly submits that this plea was neither taken before the learned Tribunal nor in the appeal. As such, this plea cannot be taken now, particularly when the plea of the State of Uttar Pradesh was that the vehicle itself was not involved in the accident. But supposing for the sake of arguments it is accepted that it was an ambulance, then the circumstances are required to be proved. Since it has not been proved that any patient was being carried by the ambulance, it may not be possible to accept the contention, particularly in absence of pleadings.
11. As regards the plea regarding enhancement of compensation, it is very much evident from the impugned order that future prospects of the deceased have not been taken into consideration in terms of the judgment in General Manager, KSRTC v. Susamma Thomas, : AIR1994SC1631 . Future prospects must be reflected in the income of the deceased to award just compensation. In this case, the learned Tribunal accepted the income of the deceased as Rs.3,000/- per month in view of his education etc. Learned counsel for the claimants submitted that the deceased was working as a Liaison Officer as well as guide for the foreigners and he was earning more than Rs.10,000/- per month. However, no specific evidence has been led in this regard to prove that the deceased was an income-tax payee. In such circumstances, the view taken by learned Tribunal could not be said to be unjustified so far as the income was concerned at that point of time. But at the same time not to consider the future prospects would amount to accept that the income of the deceased would not have increased. The accident took place on 29th January, 1985. It is evident that the income of the deceased might have gone up many fold since then. Besides, the money value of the rupee has also gone down. Consequently, not to take into consideration the future prospects would be unjust and improper. Adopting and following the same method, as has been adopted in the case of General Manager, KSRTC v. Susamma Thomas (supra), average gross income of the deceased is required to be taken at Rs.6,000/- per month by doubling his actual monthly income as decided by the learned Tribunal and as has been decided in the case of General Manager, KSRTC v. Susamma Thomas (supra). Thus, the gross average monthly income of the deceased would come to around Rs.6,000/- per month out of which 1/3 of the total gross income is required to be deducted towards personal expenditure of the deceased, thus leaving a balance of Rs.4,000/- which would be left as the amount of dependency of the claimants.
12. Now, the question of applying appropriate multiplier is required to be considered. Seeing the Schedule appended to the Motor Vehicles Act, it is apparent that the claimants should have been allowed multiplier of 11 years. It is evident that the deceased was 54 years of age and the average age is around 65 years for, probably that is the reason that the Schedule provided 11 years' multiplier for a person ranging between the age of 50 to 55 years and accordingly, the claimants are entitled to a compensation of Rs.4,000/- X 12 X 11 = Rs.5,28,000/-.
13. Learned counsel for the State of UP Mr. Mittal submits that since two sons have reached the age of 27 and 25 years respectively, thereforee, income of the deceased should not be taken at Rs.6,000/- per month with effect from the date of accident. There cannot be any doubt about this aspect that one son has started working and there are two daughters, who are married now. Since the marriage has been performed by the mother and she had brought up the children, there could be just adjustment between different claimants. But the owner of the vehicle cannot claim any benefit out of it, for the aforesaid amount of dependency of Rs.4,000/- p.m. could not be avoided; it could be just diverted to other claimants for the benefit and happiness of the entire family.
14. For the aforesaid reasons, the appeal of the State of UP (FAO 408/96) is hereby dismissed, while the appeal of the claimants (FAO 130/97) is to be allowed.
15. Since the total amount of the award in this appeal comes to Rs.5,28,000/-, the claimants are entitled to interest on this amount @ 12% per annum from the date of the application till 31.3.2001 and thereafter @ 9% per annum in view of the reduction in the rate of interest on fixed deposit in the nationalised banks. Out of the aforesaid amount, claimant No.1 Smt. Santosh Dhingra, shall get 70% of the enhanced amount in addition to what has been allowed by the learned Tribunal in para-28 of its judgment subject to the condition that out of the above said amount and the amount of interest accrued thereon as aforesaid, claimant No.1 shall deposit 50% of the amount in fixed deposit for a period of 5 years. All the three remaining claimants shall get 10% each of the enhanced amount in addition to what has been given to them in terms of para 28 of the award given by the learned Tribunal subject to the condition that out of this enhanced amount, 50% of the enhanced amount shall be deposited in fixed deposit for a period of 5 years. However, all the claimants are at liberty to withdraw the interest which accrues on the amount deposited in fixed deposit and in case of necessity, they may move appropriate application before the learned Tribunal for releasing the further amount.
16. The State of Uttar Pradesh is directed to deposit the amount of difference between the amount awarded hereinabove minus the amount, which has already been deposited, within a period of 6 weeks.
17. With these observations, all the three appeals are disposed of.
18. A copy of this order be placed on the files of FAO Nos. 130/97 and 131/97.