T. Vaiphei, J.
1. In this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to 'the Act'), the appellants seek enhancement of the amount of compensation awarded by the learned Member, Motor Accidents Claims Tribunal, Court No. 3, West Tripura, Agartala (hereinafter referred to 'the Tribunal') in his judgment and award dated 28.2.1998 in connection with T.S. (MAC) No. 123 of 1997 from Rs. 82,000 to Rs. 8,00,000 due to the death of the deceased, namely, Nepal Chakraborty. Appellant No. 1 is the wife of the deceased while the appellant Nos. 2 and 3 are his sons.
2. The material facts of the case are that on 25.12.1996 at about 8.15 a.m., while the deceased was returning home by a rickshaw along Assam-Agartala Road, the vehicle bearing No. TR 01-2081 proceeding in a high speed dashed against the rickshaw in which he was travelling. In the accident, both the deceased and the rickshaw puller sustained grievous injuries, whereupon the deceased was immediately removed to the local hospital for treatment. When he did not improve, he was referred to and taken to S.S.K.M. Hospital, Kolkata, where he died on 30.12.1996. As noted earlier, the deceased is survived by the appellants. The deceased was a retired employee of Life Insurance Corporation and was 60 years at the time of his death. According to appellants, the deceased was earning Rs. 3,750 per month as pension while he earned an extra income of Rs. 2,250 as a consultant. The appellants also asserted that they were dependent upon the income of the deceased. They accordingly claimed compensation of Rs. 8,00,000 for the death of the deceased.
3. The owner of the vehicle never contested the claim petition. It is, however, seen from the record that respondent No. 2 herein contested the claim petition and filed its written objection. The stand taken by the respondent No. 2 is that no accident ever took place as alleged by the appellants and that the appellants were not entitled to any compensation. However, the said respondent did not deny that the offending vehicle was insured with them on the date of accident. On the premises of the pleadings of the parties, Tribunal framed the following issues:
(i) Whether the deceased Nepal Chakraborty met with an accident on 25.12.1996 at about 8 to 8.15 a.m. and whether the vehicle bearing No. TR 01 -2081 was involved in the said accident?
(ii) Whether due to the said accident deceased Nepal Chakraborty died?
(iii) Whether the claimants-petitioners are entitled to get compensation for the death of Nepal Chakraborty, if so, what should be the amount of compensation?
(iv) Who shall be held liable for payment of compensation?
On the side of the claimants-appellants, the appellant No. 3 and another witness were examined to substantiate their claim. They also adduced documentary evidence such as, F.I.R., medical prescriptions, cash memos, air tickets and death certificate of the deceased, which were duly exhibited in the course of the trial. No witness was, however, examined on behalf of respondent No. 2. At the conclusion of the trial, the Tribunal passed the impugned judgment and award. It is to be noted that none of the respondents filed any appeal from the impugned judgment and award. Under the circumstances, the findings of the Tribunal concerning the factum of accident, the income as well as age of the deceased have attained finality. Therefore, the only question, which falls for consideration in this appeal, is whether the compensation amount awarded by the Tribunal can be enhanced on the basis of the evidence on record.
4. At the outset, it may be noticed that the appellant No. 2 was 24 years old in 1998, whereas the appellant No. 3 was 31 years old. According to the Tribunal, the deceased was receiving monthly pension of Rs. 3,600 and also had an additional income of Rs. 1,000 per month through consultancy. The Tribunal also found that the wife of the deceased, appellant No. 1, has been getting a family pension of Rs. 3,600. In that view of the matter, Tribunal came to the conclusion that the yearly loss of the dependency was Rs. 1,000 x 12 = Rs. 12,000. Adopting a multiplier of 5 as per Second Schedule to the Act, the Tribunal awarded Rs. 12,000 x 5 = Rs. 60,000 as loss of the dependency. Claims Tribunal also recorded the finding that the deceased was under treatment both at Agartala and Kolkata for which he awarded a sum of Rs. 15,000 for medical expenses in terms of the Second Schedule to the Act. In addition to that the Tribunal awarded a sum of Rs. 2,000 as a cost of funeral expenses and another sum of Rs. 5,000 for loss of consortium. The Tribunal accordingly awarded Rs. 60,000 + Rs. 15,000 + Rs. 2,000 + Rs. 5,000 = Rs. 82,000 as compensation. Tribunal further directed that the compensation amount would carry interest at the rate of 12 per cent per annum from the date of the claim petition, i.e., 3.3.1997, (sic) failing which the interest payable would be enhanced to 20 per cent per annum till payment of the compensation amount.
5. Mr. K. Bhattacharjee, the learned Counsel for the appellants submits that the Tribunal has overlooked the life expectancy of the deceased and also the income and life expectancy of the appellant No. 1 and in the process arrived at unjust decision on the quantum of compensation payable to the appellants. It is also contended by the learned Counsel for the appellants that since the deceased was within 60 years of age at the time of his death, the Tribunal ought to have adopted a multiplier of 8 and not 5. Lastly, the learned Counsel for the appellants urged that the Tribunal grossly erred in law in deducting the family pension received by the appellants for the purpose of assessing the compensation payable to them. On the other hand, Mr. A. Lodh, the learned Counsel for the respondent insurance company supports the impugned judgment and award and submits that no case for enhancement has been made out by the appellants. He, therefore, prays that appeal be dismissed with cost.
6. Insofar as income of the deceased is concerned, there is in evidence that he was earning a pension of Rs. 3,639 per month from Life Insurance Corporation vide the certificate dated 14.4.1997 issued by the Manager (OS), Life Insurance Corporation of India, Silchar Sub-Divisional Office (Exh. 1 series). However, there is no evidence to substantiate the assertion made by the appellants that deceased was earning an additional income from consultancy business in addition to Rs. 3,639 earned by him as the monthly pension. But then, when the respondents did not dispute that deceased was engaged in consultancy business, the findings of the Tribunal that the deceased used to earn a sum of Rs. 1,000 per month through consultancy business cannot be said to be perverse. There is no dispute that on the death of the deceased, his wife, appellant No. 1, is drawing a family pension of Rs. 3,600 per month. While there is no evidence as to the age of appellant No. 1, the appellant Nos. 2 and 3 were 24 years old and 31 years old respectively at the time of the death of the deceased. The deceased was admittedly 60 years old at the time of his death.
7. In a claim petition under Section 166 of the Act, the Tribunal is expected to and must, determine a just amount of compensation awardable to the victim of an accident in accordance with the well-established principles of law and not according to its whims or guessworks. To arrive at a just compensation, the first and paramount consideration for a Tribunal is to find out the loss of dependency to his legal heirs. Applying the principles by now firmly laid down by the Supreme Court in U.P. State Road Trans. Corporation v. Trilok Chandra : (1996)4SCC362 , the assessment of compensation payable may be made in this manner. The deceased is survived by his widow, appellant No. 1 and his two sons, who are appellant Nos. 2 and 3, aged about 24 years and 31 years respectively at the time of the accident. Let us break-up the family into units, taking two units for each of them, who are all adults. Thus, the four of them would make 2 + 2 + 2 + 2 = 8 units in total. Their share per unit will then work out to Rs. 3,639 + Rs. 1,000 = Rs. 4,639, which when divided by 8 will come to Rs. 579.88 per month. It can thus be assumed that Rs. 579.88 + Rs. 579.88= Rs. 1,159.76 was spent on the deceased. Since the deceased was a working member, I estimate his out of pocket expense at Rs. 300 p.m. Thus, the amount spent on the deceased comes to Rs. 1,459.76 leaving the balance amount of Rs. 3,179.24 per month. This amount can be taken as the monthly loss to the dependants of the deceased. Therefore, the annual dependency works out to Rs. 3,179.24 x 12 = Rs. 38,150.88. The annual dependency has to be applied by the use of an appropriate multiplier to assess the compensation under the head of loss to the dependants. In the instant case, though the age of the deceased was found to be 60 years, age of his widow, appellant No. 1 is not indicated. The Supreme Court in Trilok Chandra's case (supra), further held that neither the Tribunal nor the courts can go by the ready-reckoner and that the selection of multiplier cannot in all cases be solely dependent on the age of the deceased. Therefore, in my judgment, depending upon the facts and circumstances of the case, the multiplier to be used can be more than, or less than, those provided in the Second Schedule to the Act. In the instant case, the admitted position on record is that the appellant Nos. 2 and 3 were already adults at the time of the accident. Considering the matter from all aspects, I am of the opinion that the appropriate multiplier would be 6 and not 5 as held by the Tribunal. Thus, the compensation amount comes to Rs. 38,150.88 x 6 = Rs. 2,28,905.28. To this may be added a sum of Rs. 2,000 as funeral expenses, Rs. 5,000 as loss of consortium to appellant No. 1 and Rs. 2,500 as loss to estate. In so far as medical expenses are concerned, the appellants exhibited nine cash memos for purchasing medicines, the total whereof is Rs. 6,494 and the three used air tickets of the total value of Rs. 4,305. In the absence of any other evidence, in my judgment, the appellants would be entitled to Rs. 6,494 + Rs. 4,305 = Rs. 10,799 as medical expenses and not Rs. 15,000 as awarded by Claims Tribunal. Thus, total amount of compensation payable to the appellants works out to Rs. 2,28,905.28 + Rs. 2,000 + Rs. 5,000 + Rs. 2,500 + Rs. 10,799 = Rs. 2,49,204.28.
8. The next question which falls for consideration is whether the family pension earned by the appellants to the tune of Rs. 3,600 per month is deductible from the compensation amount so payable. Following the decision of Apex Court in Helen C. Rebello v. Maharashtra State Road Trans. Corporation : AIR1998SC3191 , as affirmed in the subsequent decision of United India Insurance Co. Ltd. v. Patricia Jean Mahajan : [2002]3SCR1176 , the law on this aspect appears to be no longer res Integra. The Apex Court held that the compensation payable under the Motor Vehicles Act, 1939 is on account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. Therefore, the application of the general principle under the common law of loss and gain for the computation of compensation under this Act must correlate to this type of injury or death, viz., accidental death. If the 'pecuniary advantage' resulting from death means pecuniary advantage coming under all forms of death then it will include all kinds of heritable assets. This would obliterate both, all possible conferment of economic security to the claimant by the deceased and the intentions of the legislature. The following observations of the Supreme Court are particularly apposite:
An employee contributing to a provident fund and his heirs are entitled to the amount of funds irrespective of the accidental death. Similarly, the heirs receive family pension even otherwise than the accidental death. There is no correlation between the two. Similarly, the amount of life insurance policy is receivable by the claimant not on account of any accidental death but otherwise on the insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, bank balance, shares, fixed deposits, etc., though are all a pecuniary advantage receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. Such an amount cannot come within the periphery of the Motor Vehicles Act to be termed as 'pecuniary advantage' liable for deduction.
(Emphasis mine)
9. Thus, there is no scope for deducting the family pension received by appellants. The Tribunal completely overlooked the afore cited decisions of the Apex Court and has, in the process, erroneously deducted the family pension received by the appellants from the employer of the deceased, i.e., Life Insurance Corporation of India. I need say no more in this behalf. However, keeping in view the rate of interest prevailing in the commercial banks, the interest awarded even at the rate of 12 per cent per annum is on the high side. Similarly, the default/penal interest awarded at the rate of 20 per cent per annum cannot be justified in law. Therefore, both the interests awarded by the Tribunal are liable to be interfered with.
10. In the result, this appeal is partly allowed. Respondents shall pay a compensation of Rs. 2,49,204.28 to the appellants together with a simple interest at the rate of 9 per cent per annum on the enhanced amount of compensation with effect from the date of the claim petition. The penal/ default interest awarded by the Tribunal is accordingly set aside. The impugned judgment and award stands modified to the extent indicated above. Needless to say, any amount already deposited or paid to the appellants shall be adjusted against the enhanced amount of compensation.
There shall be no order as to costs.