P.V. Manickam [Dead] by Lrs. Vs. Gopalswamy Naicker Charitieds Trust and anr. - Court Judgment

Excerpt:
- motor vehicles act (59 of 1988)section 168: [dr.arijit pasayat & asok kumar ganguly,jj] compensation - multiplier method held, it involves ascertainment of loss of dependency or multiplicand. choice of multiplier is determined by age of deceased and by calculation as to what capital sum would yield the multiplicand by way of annual interest. section 168: [dr.arijit pasayat & asok kumar ganguly,jj] compensation determination - deceased riding scooter died in accident with bus - he was aged 43 years and earning rs. 12000/-p.m. as contractor applying multiplier of 10 and making 1/3rd deduction claimants would be entitled to compensation of rs.2,40,000/- with interest @ 6% p.a. section 168 :[dr.arijit pasayat & asok kumar ganguly,jj] compensation multiplier method held, the multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalising the multiplicand by an appropriate multiplier. the choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. in ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed up over the period for which the dependency is expected to last. deceased aged 43 years at time of accident and was hawker. multiplier of 10 and rate of interest @ 6% p.a. would be appropriate and not multiplier of 15 and interest rate @ 9% p.a. fixed by high court. compensation was determined at rs.2,00,000/- with interest at 6% p.a. order1. in our view, these appeals are concluded by the concurrent findings of fact arrived at by the courts below. the appellant as plaintiff filed a suit for declaration that the release and surrender deed dated 31st of october, 1971, executed by him was null and void and also for rendering accounts with regard to the rental income from the disputed property which was dismissed by the trial court. the judgment of the trial court was affirmed in appeal which was also affirmed by the high court in second appeal. the other appeal filed in this court was against the judgment passed in second appeal questioning the correctness of the concurrent findings of the courts below in granting a decree for recovery of possession of the suit property from the first defendant with damages for use and occupation for the past and present. so far as this part of the common judgment of the high court is concerned, mr. sampath, learned counsel for the appellant, could not argue that the concurrent findings of fact arrived at by the courts below on the question of possession and other incidental prayers can be upset by us in the exercise of our power under article 136 of the constitution.2. having considered the entire evidence, both oral and documentary on record, the high court as well as the courts below came to the conclusion of fact that the appellant having failed to prove that the release and surrender deed dated 31st of october, 1971, was null and void and thereby, dismissed the suit of the appellant which was affirmed in appeal. mr. a.t.m. sampath, learned counsel for the appellant, however, sought to argue before us that the high court had failed to consider the case of fraud in holding whether the release and surrender deed dated 31st of october, 1971 could be found to be null and void. we are unable to accept this contention of the learned counsel for the appellant simply for the reason that the case of fraud was not made out by the appellant in his plaint nor there was an issue for the same nor was there any finding on the question of fraud. that being the position, we do not find any merit in these appeals. the appeals are thus dismissed. there will be no order as to costs.

Judgment:
ORDER

1. In our view, these appeals are concluded by the concurrent findings of fact arrived at by the courts below. The appellant as plaintiff filed a suit for declaration that the release and surrender deed dated 31st of October, 1971, executed by him was null and void and also for rendering accounts with regard to the rental income from the disputed property which was dismissed by the trial court. The judgment of the trial court was affirmed in appeal which was also affirmed by the High Court in Second Appeal. The other appeal filed in this Court was against the Judgment passed in Second Appeal questioning the correctness of the concurrent findings of the Courts below in granting a decree for recovery of possession of the suit property from the first defendant with damages for use and occupation for the past and present. So far as this part of the common Judgment of the High Court is concerned, Mr. Sampath, learned Counsel for the appellant, could not argue that the concurrent findings of fact arrived at by the Courts below on the question of possession and other incidental prayers can be upset by us in the exercise of our power under Article 136 of the Constitution.

2. Having considered the entire evidence, both oral and documentary on record, the High Court as well as the Courts below came to the conclusion of fact that the appellant having failed to prove that the release and surrender deed dated 31st of October, 1971, was null and void and thereby, dismissed the suit of the appellant which was affirmed in appeal. Mr. A.T.M. Sampath, learned Counsel for the appellant, however, sought to argue before us that the High Court had failed to consider the case of fraud in holding whether the release and surrender deed dated 31st of October, 1971 could be found to be null and void. We are unable to accept this contention of the learned Counsel for the appellant simply for the reason that the case of fraud was not made out by the appellant in his plaint nor there was an issue for the same nor was there any finding on the question of fraud. That being the position, we do not find any merit in these appeals. The appeals are thus dismissed. There will be no order as to costs.