T. Vaiphei, J.
1. This appeal under Section 173, Motor Vehicles Act, 1988 is directed against the award dated 18-7-2008 passed by the learned member, Motor Accident Claims Tribunal, Shillong in MAC Case No. 24 of 2006 awarding a compensation of Rs. 9,57,350/- (Rupees nine lakhs fifty seven thousand three hundred and fifty) only together with interest to the claimant-respondent No. 1 ('the claimant').
2. The material facts giving rise to this appeal are that on 8-3-2006, one coal loaded truck bearing registration No. AS-01-L-3986, driven by one Ngait Litep, 36 years old, s/o. Wat Suchiang of Shangpung Moolybang, P, O. Shangpung, P.S. Raliang, Jaintia Hills ('respondent No,' 3') was proceeding to wards MES Point along National Highway 44, and on reaching Military Hospital, Shangpung at around 9.15 p.m., the vehicle alleged to have been driven rashly and negligently tried to overtake the scooter bearing registration No. ML-05-B-1141, which was also proceeding in the same direction, dashed against the same in the process and ran over the scooterist, namely, Lankeshwar Dutta Baruah, 53 years old, husband of the claimant. The scooterist died on the spot instantaneously. The Police registered a regular case for the accident being Shillong P.S. Case No. 45(3)2006 under Sections 279/ 427/304-A, I. P. C. against the respondent No. 3. The deceased is survived by the claimant, his son and daughter and his mother. Due to the death of her husband in that accident, the claimant filed a claim petition before the Tribunal for compensation. The appellant, who is the insurer of the offending truck, the owner of the vehicle and the driver were impleaded as party-respondents. The insurer contested the claim petition and filed its written statement. As the owner of the offending vehicle did not come forward to contest the claim petition, the insurer was allowed to contest the claim petition on all grounds available to the owner. The driver of the vehicle, however, contested the case by filing his written statement by denying that the accident was caused by his rash and negligent driving. On the basis of the pleadings of the contesting parties, the Tribunal framed the following issues:
1. Whether the claim petition is maintainable?
2. Whether the accident occurred due to rash and negligent driving of the driver of the truck bearing registration No. AS-01-L-3986 or of the deceased rider of the scooter bearing registration No. ML-05-B-1141?
3. Whether the Opposite Parties are liable for compensation?
4. Whether the claimant is entitled to compensation? If so, to what extent?
3. In the course of trial, the claimant examined herself and S. I. W. R. Marak, the I. O. of the case as CW l and CW 2 while no witness was tendered by the insurer or the driver of the offending vehicle. The Tribunal, after the trial, passed the impugned award. On the maintainability of the claim petition, the Tribunal held that as the deceased was involved in a motor accident in a public place, the claim petition is maintainable. On Issue No. 2, the Tribunal held that the accident was due to the rash and negligent driving of the driver of the truck, and not due to the fault of the deceased rider of the scooter. In reaching this conclusion, the Tribunal took into consideration the following factors: (i) the evidence of the I.O., (ii) the first information report concerning the vehicular accident, (iii) the refusal of the driver of the offending vehicle to examine himself thereby warranting the drawing of adverse inference against him, (iv) the fact that the dead body of the deceased and the offending truck were lying in the middle of the road while the scooter was lying on the right side of the road, (v) the fleeing of the driver from the scene of occurrence just after the accident and his subsequent surrender before the Police Station and (vi) the doctrine of res ipsa loquitur is applicable to the facts of the case. The Tribunal, however, held that as the driving license of the driver was renewed after the date of the accident, there is breach of policy condition; the insurer is not liable to reimburse the owner of the vehicle, who is vicariously liable for the compensation. The Tribunal found that the deceased was 54 years old on the date of accident, and was working as Senior Plate Maker in the Office of the Director of Printing and Stationary, Meghalaya earning a salary of Rs. 10,771/- per month as per the last pay certificate issued by his employer. The Tribunal also found that the claimant and his two children, who were at that time doing post graduation, are his dependents. For the quantum of compensation, the Tribunal determined the annual take home salary of the deceased to be Rs. 10,771 x 12= Rs. 1,29,252, out of which he deducted one-third i.e. Rs. 43,084/- for the personal expenses of the deceased leaving a balance of Rupees 86,168/- as the annual loss to the claimant and her two children. Taking the age of the deceased into account, the Tribunal adopted a multiplier of 11 and calculated the compensation at Rs. 86,168 x 11 = Rs. 9,47,848/-, to which added Rs. 2,000/- for funeral expenses, Rs. 5,000/- for loss of consortium and Rs. 2,500/- for loss of estate. The Tribunal, therefore, rounded off the amount of compensation payable to the claimant at Rs. 9,57,350/-. He also awarded interest at the rate of 8% per annum from the date of filing the claim petition and directed the insurer to pay this amount to the claimant and thereafter recover the same from the owner of the offending vehicle, if it so desired.
4. In assailing the impugned award, Mr. V.K. Jindal, the learned senior counsel for the appellant, makes fourfold contention, namely, (i) the claimant has miserably failed to prove with ocular witnesses that the death was caused by the rash and negligent driving of the truck by the driver of the offending vehicle : the reliance by the Tribunal on the evidence of the I. O., who was nowhere near the place of occurrence when the accident occurred, and, alternatively, on the doctrine of res ipsa loquitur for holding that the driver drove the offending vehicle rashly and negligently is wholly erroneous and misconceived; (ii) the Tribunal ought not to have accepted the version of the claimant concerning the age, monthly income and dependency of the deceased without producing his service record: at least, the Tribunal should have requisitioned the service record of the deceased from the employer of the deceased and having not done so, the findings of the Tribunal in this behalf are perverse, being based on surmises and presumptions, (iii) the Tribunal committed grave error of law in applying a multiplier of 11 for computing the quantum of compensation payable without taking into account of the age of the claimant and when he has no dependent apart from the claimant: his two children are already grown up and earning income by doing tuition works and (iv) the Tribunal has also acted contrary to the law laid down by the Apex Court in Pramod Kumar Agarwal and Anr. v. Mushtari Begum : (2004) 8 SCC 667 : AIR 2004 SC 4360 and Oriental Insurance Co. Ltd. v. Nanjappa and Ors. : (2004) 13 SCC 224 : AIR 2004 SC 1630, which held that before directing the insurer to initially satisfy the award and recover the same from the owner later on, the owner of the offending vehicle should be required to furnish security for such amount, if necessary, by issuing notice upon him. The learned senior counsel, therefore, submits that the impugned award is liable to be set aside or, at any rate, to be modified to the extent indicated in the afore-cited cases, Mr. S. P. Mahanta, the learned Counsel for the claimant-respondent, however, supports the impugned award, which does not suffer from any infirmity. In support of his contentions, he relies on the following decisions : (i) New India Assurance Co. Ltd. v. Phelishsa Bakai and Ors. 2006 (1) GLT 282, (ii) Jyoti Kaul and Ors. v. State of M. P. and Anr. : (2002) 6 SCC 306 : AIR 2000 SC 3582 and (iii) Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors. (2009) 78 AIC 129 SC : 2009 AIR SCW 4298.
5. The first point for consideration in this appeal is whether the Tribunal is correct in holding that there was rash and negligent driving by the driver of the offending vehicle, which resulted in the death of the deceased. Since the claimant, who was examined as CW 1, was not present at the time of the accident, her statement will not be relevant for proving whether the driver rashly and negligently drove the truck. However, the statement of the I. O. of the case i.e. CW 2 may come in handy in this regard. It is his evidence that on the fateful day, both the offending coal laden truck and the scooter of the deceased were proceeding in the same direction, but when the truck rashly and negligently tried to overtake the scooter, it dashed against the latter and crushed the deceased to death. In his cross-examination, he disclosed that the body of the deceased and the offending truck were lying on the middle of the road whereas the scooter was on the right side of the road. He deposed that he did not find any skidding marks of the truck or the scooter on the road. He further deposed that after the incident, the driver of the truck fled from the scene leaving the truck behind there and surrendered before Sadar Traffic Branch, Shillong on 11-3-2006. In my opinion, the undisputed fact that both the deceased and the offending truck were lying in the middle of the road clearly reinforced the conclusion of CW 2 that the truck tried to overtake the scooter in the middle of the road, and that it cannot but be a case of rash and negligent driving by the driver of the truck. No untoward incident took place like sudden failure of brakes. In the absence of any unexpected development, it is for the driver to explain how the accident happened, and no such explanation is forthcoming. In fact, the driver did not enter the witness box to tender his evidence. In such a situation, the Tribunal is more than justified in applying the doctrine of res ipsa loquitur. As already noted, the claimant could not have proved the actual cause of the accident, and on the fact of it, it was so improbable that such an accident could have happened without the negligence on the part of the driver without further evidence. Moreover, one cannot also lose sight of the admitted fact that the driver fled from the place of accident immediately after the accident and surrendered before the Sadar Traffic only three days after the accident. The burden in such a situation is on the driver or owner of the vehicle to show that the driver was not negligent and that the accident might, more probably, have happened in a manner which did not connote negligence on his part, but then the defense has failed to produce any defense to support such a possibility. Therefore, the first limb of contention of the learned senior counsel for the appellant that no act of rash and negligent driving of the truck in question has been proved, fails.
6. On the question of proof of the age, income of the deceased and his dependency also, there is absolutely no reason to disagree with the findings of the Tribunal. Once the Last Pay Certificate issued by the employer of the deceased has been exhibited by the claimant as Ext. 4, the genuineness whereof is not impeached in any manner by the insurer in her cross-examination, the Tribunal cannot be faulted with for acting upon the same for determination of the income of the deceased at Rs. 10,771/- per month. Insofar as the age of the deceased is concerned, much issue has been raised by the learned senior counsel on the finding of the Tribunal that he was 54 years old at the time of the accident. The undisputed statement of CW 1 in her cross-examination by the learned senior counsel for the insurer reveals that the eldest daughter of the deceased was born in the year 1980. If the eldest daughter of the deceased was born in the year 1980, the Tribunal cannot be said to be wide of the mark in holding that the deceased was about 54 years old at the time of the accident: he could not have been 38 years old then. Coming now to the dependency factor, the findings of the Tribunal on the age of the claimant as well as the earnings of the children of the deceased cannot be seriously assailed. However, the contention of the learned senior counsel is that the adoption of a multiplier of 11 by the Tribunal is on the high side. In the instant case, the Tribunal adopted a multiplier of 11 on the basis of the age of the deceased. In my opinion, the latest decision of the Apex Court in Sarla Verma v. DTC (2009) 6 SCC 121: 2009 AIR SCW 4992 appears to have clarified the true principles to be followed by the Tribunals/Court to maintain uniformity and consistency in determining compensation payable in a motor accident claim cases. Expressing grave concern over lack of uniformity and consistency among the decisions of Tribunals and Courts, the top Court held that when the factors/inputs as well as the formula/legal principles are the same, consistency and uniformity, and not divergence and feakiness, should be the result of adjudication to arrive at just compensation. The relevant portions are found at paragraphs 37, 38, 39, 40, 41 and 42 of the judgment, which are reproduced hereunder:
37. The principles relating to determination of liability and quantum of compensation are different from claims made under Section 163-A of the MV Act and claims under Section 166 of the MV Act. (See Oriental Insurance Co. Ltd. v. Meena Variyal) : AIR 2007 SC 1609. Section 163-A and the Second Schedule in terms do not apply to determination of compensation in applications under Section 166. In Trilok Chandra this Court, after reiterating the principles stated in Susamma Thomas : AIR 1994 SC 1631 however, held that the operative (maximum) multiplier, should be increased as 18 (instead of 16 indicated in Susamma Thomas), even in cases under Section 166 of the M. V. Act, by borrowing the principle underlying Section 163-A and the Second Schedule.
38. This Court observed in Trilok Chandra (SCC p. 371, paras 17-18)
17. ...Section 163-A begins with a non-obstante clause and provides for payment of compensation, as indicated in the Second Schedule, to the legal representatives of the deceased or injured, as the case may be. Now if we turn to the Second Schedule, we find a table fixing the mode of calculation of compensation for third party accident injury claims arising out of fatal accidents. The first column gives the age group of the victims of accident, the second column indicates the multiplier and the subsequent horizontal figures indicate the quantum of compensation in thousand payable to the heirs of the deceased victim. According to this table the multiplier varies from 5 to 18 depending on the age group to which the victim belonged. Thus, under this Schedule the maximum multiplier can be up to 18 and not 16 as was held in Susamma Thomas case.
18. ... Besides, the selection of multiplier cannot in all cases be solely dependent on the age of the deceased. For example, if the deceased, a bachelor, dies at the age of 45 and his dependents are his parents, age of the parents would also be relevant in the choice of the multiplier...What we propose to emphasize is that the multiplier cannot exceed 18 years' purchase factor. This is the improvement over the earlier position that ordinarily it should not exceed 16.
39. In New India Assurance Co. Ltd. v. Charlie AIR 2005 SC 2159 this Court noticed that in respect of claims under Section 166 of the M. V. Act, the highest multiplier applicable was 18 and that the said multiplier should be applied to the age group of 21 to 25 years (commencement of normal productive years) and the lowest multiplier would be in respect of per sons in the age group of 60 to 70 years (normal retiring age). This was reiterated in T. N. State Transport Corporation Ltd. v. Rajapriaya : AIR 2005 SC 2985 and UPSRTC v. Krishna Bala : AIR 2006 SC 2688.
40. The multipliers indicated in Susamma Thomas, Trilok Chandra and Charlie (for claims under Section 166 of the MV Act) is given below in juxtaposition with the multiplier mentioned in the Second Schedule for claims under Section 163-A of the M. V. Act (with appropriate deceleration after 50 years):
-------------------------------------------------------------------------------Age of the Multiplier Multiplier Multiplier Multiplier MultiplierDeceased scale as in scale scale in specified actuallyenvisaged as adopted trilok in Second used inin Susamma by Trilok Chand as Column in SecondThomas Chandra clarified the Table Schedulein Charlie in Second to theSchedule MV Actto the (as SeenMV Act from thequantum ofcompensation-------------------------------------------------------------------------------(1) (2) (3) (4) (5) (6)-------------------------------------------------------------------------------Up to 15 Yrs - - - 15 20-------------------------------------------------------------------------------15 to 20 Yrs 16 18 18 16 19-------------------------------------------------------------------------------21 to 25 Yrs 15 17 18 17 18-------------------------------------------------------------------------------26 to 30 Yrs 14 16 17 18 17-------------------------------------------------------------------------------31 to 35 Yrs 13 15 16 17 16-------------------------------------------------------------------------------36 to 40 Yrs 12 14 15 16 15-------------------------------------------------------------------------------41 to 45 Yrs 11 13 14 15 14-------------------------------------------------------------------------------46 to 50 Yrs 10 12 13 13 12-------------------------------------------------------------------------------51 to 55 Yrs 9 11 11 11 10-------------------------------------------------------------------------------56 to 60 Yrs 8 10 09 8 8-------------------------------------------------------------------------------61 to 65 Yrs 6 08 07 5 6-------------------------------------------------------------------------------Above 65 Yrs 5 05 05 5 5-------------------------------------------------------------------------------41. Tribunals/courts adopt and apply different operative multipliers. Some follow the multipliers with reference to Susamma Thomas (set out in Column (2) of the table above; some follow the multiplier with reference to Trilok Chandra, (set out in Column (3) of the table above); some follow the multiplier with reference to Charlie (set out in Column (4) of the table above); many follow the multiplier given in the second column of the table in the Second Schedule of the M. V. Act (extracted in Column (5) of the table set out above); and some follow the multiplier actually adopted in the Second Schedule while calculating the quantum of compensation (set out in Column (6) of the table above). For example, if the deceased is aged 38 years, the multiplier would be 12 as per Susamma Thomas, 14 as per Trilok Chandra, 15 as per Charlie, or 16 as per the multiplier given in Column (2) of the Second Schedule to the M. V. Act or 15 as per the multiplier actually adopted in the Second Schedule to the M. V. Act. Some tribunals, as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under Section 166 and not under Section 163-A of the M. V. Act. In cases failing under Section 166 of the M. V. Act, Davies method is applicable.
42. We, therefore, hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for age group of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56-60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.
7. In the aftermath of the aforesaid decision, there is, therefore, no difficulty in assessing the just compensation payable to the claimant in this case. As found by the Tribunal, the age of the deceased being 54 years at the time of the accident, there is no infirmity in applying a multiplier of 11 for determination of the quantum of compensation payable to the claimant. Therefore, the compensation is assessed at Rs. 86,168 x 11 + Rs. 9,47,848/-, to which shall be added Rs. 2,000/- for funeral expenses, Rs. 5,000/- for loss of consortium and Rs. 2,500/- for loss of estate. Thus, the total amount of compensation payable to the claimant comes to Rs. 9,59,348/-(Rupees nine lakhs fifty nine thousand three hundred forty eight) only. The claimant will also be entitled to interest at the rate of six per centum per annum with effect from the date of filing the claim petition. However, this is not the end of the matter. It is about the liability of the insurer to reimburse the owner of the vehicle. As already noticed, the owner of the vehicle did not come forward to contest the claim petition, but the driver of the offending truck has been held to be guilty of rash and negligent driving which resulted in the death of the deceased. Therefore, the owner of the offending truck is vicariously liable to pay the compensation. The Tribunal has come to the conclusion that the driver of the offending vehicle did not have a valid driving license at the time of the accident : the accident took place between the date his driving license got expired and the date when license was yet to be renewed. Mr. S. P. Mahanta, the learned Counsel for the claimant, initially attempted to question this finding of the Tribunal but abandoned it, rightly so, when confronted with unimpeachable documentary evidence to this effect. Thus, on the facts found, a clear case of breach of policy condition by the owner of the offending vehicle has been established to the hilt by the insurer. Consequently, the insurer is not liable to reimburse the compensation payable by the owner of the vehicle. As already noticed, the Tribunal nevertheless directed the insurer to pay the compensation to the claimant and then recover the same from the insurer. Strong exception is taken by Mr. V. K. Jindal, the learned senior counsel for the insurer, to this direction by submitting that this is contrary to the law laid down by the Apex Court in Pramod Kumar Agarwal : AIR 2004 SC 4360 (supra) followed by Nanjappa : AIR 2004 SC 1630 (Supra). However, in the following cases, namely, (i) National Insurance Co. Ltd. v. Geeta Bhat : (2008) 12 SCC 426 : AIR 2008 SC 1837, (ii) New India Insurance Co. Ltd. v. Darshana Devi : (2008) 7 SCC 416 : 2008 AIR SCW 2035, (iii) Premkumari v. Prahlad Devi : (2008) 3 SCC 193 : AIR 2008 SC 1073 and (iv) Ram Babu Tiwari v. United Insurance Co. Ltd. : (2008) 8 SCC 165 : (2008 AIR SCW 6512), the Apex Court directed the insurer to make the payment and then recover the amount from the driver and the owner of the vehicle in the manner laid down in National Insurance Co. Ltd. v. Baljit Kaur : (2004) 2 SCC 1 : AIR 2004 SC 1340. In the light of the subsequent decisions of the Apex Court, I am not inclined to interfere with the direction to pay first and recover later issued by the Tribunal. Nevertheless, considering the fact that the awarded amount is quite considerable, to protect the interest of the insurer partly, the initial payment of the awarded amount to be made by the insurer may be limited to fifty per cent while the payment of remaining sum be deferred to the appearance of the owner of the offending vehicle before the Tribunal.
8. The offshoot of the foregoing discussion is that this appeal will stand disposed of as indicated hereunder. The appellant-insurer is, therefore, directed to pay fifty per cent of the awarded amount together with the interest payable in terms of this judgment to the claimant-respondent within a period of two months from today. Any amount already deposited or paid to the claimant shall be deducted accordingly. The Tribunal shall thereafter summon the owner of the vehicle and, if necessary, may also employ coercive measures including seizure of the truck to ensure his attendance before it. If necessity arises, the executing Court may take the assistance of the Transport Authority. On the appearance of the owner, the insurer shall deposit the balance amount, which shall then be released by the Tribunal to the claimant after the owner furnishes security to the satisfaction of the Tribunal. For the purpose of recovering the same from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing Court concerned as if the dispute between the insurer and the owner was the subject of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. The executing Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default, it shall be open to the executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle. The impugned award is accordingly modified to the extend indicated above. The parties are, however, directed to bear their respective costs.