G. Chandraiah, J.Heard both the Counsel.

2. Not being satisfied with the compensation awarded by III Additional Chief Judge, City Civil Court, Hyderabad in O.P. No. 647/1993 dated 26th July, 1999, the claimants preferred this appeal.

3. The brief facts of the case are that on 23 April, 1993 at about 9.20 a.m., the deceased Venugopal was proceeding on his scooter bearing No. ABL 4382 to his work place at B.D.L., Kanchanbagh, Hyderabad and on reaching Dhobighat at Saidabad, one M.C.H. lorry bearing No. ADT 5008 came from behind and hit the scooter and as a result, Venugopal died on the spot. The pillion rider T.V. Satyanarayana Murthy also sustained injuries. It was alleged that accident occurred due to rash and negligent driving of the driver of the lorry. The deceased was working as junior Technician, drawing Rs. 3,300 per month in B.D.L. The 2nd respondent is the wife of the deceased and as she was residing separately, the claimants who are the parents and brother of the deceased, alleged that she is not entitled for compensation. With these averments, they claimed an amount of Rs. 6,00,000 as compensation u/s 166 of the Motor Vehicles Act, 1988 (for short the).

4. The 1st respondent who is the owner, remained ex parte. The 2nd respondent who is wife of the deceased, denied that there is any severance of marital status and stated that she filed O.P. No. 728/1994 before the same Court for compensation and sought for clubbing of both the cases.

5. The 3rd respondent-insurer filed counter and denied the averments of the claimants. It was stated that as the wife filed O.P. No. 728/1994 for compensation, the present petition is not maintainable. In the additional counter-affidavit filed, it was also alleged that the accident occurred due to negligence of the deceased and as the matter of accident was not reported to the Insurance Company with the collusion of the claimants, the Insurance Company is not liable to pay compensation and accordingly the claim petition was sought to be dismissed.

6. Based on the above pleadings, the Court below framed the following issues:

1. Whether the accident in question took place on 23 April, 1993 at about 9.20 a.m. due to rash and negligent driving of the lorry (MCH) bearing No. ADT 5008, by its driver

2. Whether the petitioners are entitled to any compensation for the death of their son in the motor accident If so, to what amount

3. To what relief

7. In support of the case of claimants, the father and mother of the deceased examined themselves as PWs 1 and 2 and an eye-witness was examined as PW 3. Exts. A.-1 to A-8 were got marked. On behalf of the respondents, the 2nd respondent, who is the wife of the deceased was examined as RW 1 and xerox copy or policy was marked as Ext. B-1. On behalf of the insurer or the insured, no one was examined.

8. Based on evidence, the Court below held that as there was no decree of divorce and marriage is subsisting, the 2nd respondent is not disqualified to claim any share in the estate of deceased under the Hindu Succession Act. The Court below further held that accident occurred due to rash and negligent driving of driver of the lorry bearing No. ADT 5008. With regard to assessment of compensation, the Court below took the salary certificate of the deceased Ext. A-4 Wherein the salary was shown as Rs. 4,536. Taking his future prospects, the Tribunal below assessed the income of the deceased at Rs. 5,000 and after deducting 1/3 rd towards personal expenses, arrived at Rs. 40,000 per annum as the contribution of the deceased to his family. As the deceased was aged 31 years as per Ext A-2 postmortem certificate, the Tribunal took the age of the mother, who is 51 years, and as the accident occurred prior to Amendment Act 54 of 1994, considering the multiplier laid down in Bhagwandas v. Mohd. Arif 1987 A.C.J. 1052 applied the multiplier of 7.06 and granted Rs. 2,82,400 towards the income of the deceased and also granted Rs. 7,500 towards loss of estate and in all granted Rs. 2,89,900. As stated at the threshold, the claimants filed this petition for enhancement.

9. The learned Counsel for the claimants submitted that the Court below erred in applying the multiplier under the Bhagwandas case (supra) instead of the Second Schedule to Section 163A. He stated that Second Schedule u/s 163A can be made applicable to petitions u/s 166 of the and according to which, the multiplier that is to be applied is 16. In support of his contention, the learned Counsel relied on the judgments of the learned Single Judges of this Court in National Insurance Co. Ltd. Vs. Ojili Gopal Reddy and Others, and K. Matura Bai v. A. Shiva Nageshwara Rao III (2004) ACC 592 : 2004 A.I.H.C. 3413 . He further contended that the deceased was aged 31 years and was working as junior Technician in B.D.L. and was drawing an amount of Rs. 4,537 per month and there are chances of his future promotion to . higher posts. Therefore, he contended that the Court below ought to have taken in consideration his future prospects and granted more compensation. In support of his contention, he relied on the judgment of the Apex Court in Jyoti Kaul and Others Vs. State of M.P. and Another, .

10. On the other hand, the learned Counsel appearing for insurance Company submitted that the Second Schedule to Section 163A is not applicable to the claims made u/s 166 of the. In support of her contention, she relied on the Division Bench judgment of this Court in United India Insurance Co. Ltd. v. Mokkala Chandramma II (2002) ACC 326 : 2003 AGJ 191 and also of the judgment of the learned Single Judge of this Court in United India Insurance Co. Ltd. v. Dangugula Bheem Bai II (2005) ACC 396 : 2004 (3) A.L.D. 325. In the alternative, she submitted that the accident occurred on 23rd April 1993 i. e., prior to the amendment Act 54 of 1994, through which Section 163A was inserted with Second Schedule and as the amendment is prospective, the Second Schedule cannot be made applicable to the accident, which occurred before the amendment and for the present case, law existing as on the date of accident has to be applied.

In support of this contention, she relied on the judgment of the Apex Court in Maitri Koley and Another Vs. New India Insurance Co. and Others, .

11. In view of the above rival contentions, the following points would arise for my consideration:

1. Whether the Schedule-II u/s 163A can be made applicable to the claim petitions u/s 166 of the

2. If so, whether the schedule inserted to Section 163A by Act 54 of 1994 dated 14th November, 1994 can be made applicable to accidents occurred prior to the said amendment

3. To what relief

12. In order to consider first issue it is necessary to look into Sections 163A and 166 of the. They are extracted as under for ready reference:

Section 163A. Special provisions as to payment of compensation on Structured Formula basis--

(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victims, as the case may be.

Explanation : For the purpose of this Sub-section, "permanent disability" shall have the same meaning and extent as in the Workmens Compensation Act, 1923.

(2) In any claim for compensation under Sub-section (1) the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of the other person.

(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time-to-time amend the Second Schedule.

Section 166 : Application for compensation :

(1) Application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 165 may be made-

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(d) by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be:

Provided that where all the legal representatives of the deceased has not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.

(2) Every application under Sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:

Provided that where no claim for compensation u/s 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.

(4) The Claims Tribunal shall treat any report of accidents forwarded to it under Sub-section (6) of Section 158 as an application for compensation under this Act.

13. From a reading of Section 163A it is clear that in case of death or permanent disablement of a person, due to accident arising out of the use of the motor vehicle, even though the claimant/s does plead or establish that such death or permanent disability was due to any wrongful act or neglect or default of the owner of the vehicle, which is insured, still, he is liable to pay compensation. For payment of compensation in case of fatal accidents, Second Schedule is provided to this section for applying the multiplier, based on age of deceased. This provision was inserted by Amendment Act 54 of 1994 on 14th November, 1994.

14. From a reading of Section 166 it is clear that it provides by whom the claim petitions can be made for the accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles, or damages to any property of a third party, as specified u/s 165(1). Section 166 also specifies the jurisdiction where the claim petitions can be filed. Further Section 168 contemplates passing of the award by the Claims Tribunal on receipt of claim petitions u/s 166, after adjudication. At this juncture it is to be seen that unlike Second Schedule provided to Section 163A, no such schedule is provided to Section 166. Therefore, the Tribunal after adjudication u/s 168 of the, can determine the just compensation.

15. As already noted above, Section 163A with Second Schedule was inserted Act 54 of 1994 on 14th November, 1994 and prior to said amendment, this Court used to follow the judgment of Honble Mr. Justice M. Jagannadha Rao (as he then was) in which His Lordship gave a schedule for application of multiplier based on age and other factors. Subsequently, the amendment has been made to the and Second Schedule was provided only to Section 163A. Therefore, the question arises whether the said schedule can be made applicable to the applications made u/s 166

16. In my considered view, as no specific schedule is provided for calculation of compensation by applying multiplier method, I am of the view that the said schedule can be taken as a guiding principle for calculation of compensation by applying multiplier method. In fact a Division Bench of the Apex Court in Oriental Insurance Co. Ltd. v. Hansrajbhai I (2001) ACC 618 : 2001 (3) A.L.T. 34 held that compensation which can be granted as per Structured Formula basis was not in addition but in the alternative to determination of compensation on the basis of fault liability or no fault liability. It was further held

that object of providing schedule to Section 163A was to avoid delay. A three-Judge Bench of the Apex Court in Smt. Supe Dei and Others Vs. National Insurance Co. Ltd. and Another, , held at Paragraph No. 8 as follows:

....The position is well settled that the Second Schedule u/s 163A to the which gives the amount of compensation to be determined for the purpose of claim under the section can be taken as a guideline while determining the compensation u/s 166 of the.

17. A learned Single Judge of this Court in K. Matura Bais case (supra) taking into consideration the judgments of the Apex Court cited Oriental Insurance Co. Ltd. v. Hansrajbhai and Supe Dei v. National Insurance Co. Ltd. (supra) and also taking into consideration the judgment of the leaned Single Judge of this Court in Bhagwan Das case (supra) held as under:

18. From the foregoing discussion, it is obvious that there is every distinction between the claims under Sections 140, 163A and 166 of the. No fault liability is in respect of death or permanent disablement u/s 140 of the and the owner is liable to pay the compensation. However, u/s 163A even though there has been no fault on the part of the driver, the owner and insurer are liable to pay the compensation in respect of death or permanent disablement as given in the Structured Formula in the Second Schedule appended to the. However, Section 166 mandates that the Tribunal should consider the facts and circumstances of each case and determine just compensation. This is in respect of death or grievous injuries resulting in permanent disablement or any other injuries to qualify them. This distinction cannot be overlooked. Be it the case of assessment of compensation u/s 163A or assessment of compensation u/s 166, the multiplier in the Structured Formula as given in the Second Schedule appended to the being the statutory provision shall have to be followed. A fortiori the multiplier table as given in Bhagwandas case (supra) having not been up dated so far, there is no option for the Tribunal except to follow the statutory multiplier as given in the Structured Formula, Deviation is permissible from these multipliers as held by the judgments of the Apex Court only in proper cases and under the compelling circumstances. The legal position thus appears to be obvious from the concatenation of the cases discussed hereinabove.

(Emphasis supplied)

18. Another learned Single Judge of this Court in Gopal Reddys case (supra) also relying on the judgment of the Apex Court in Supe Deis case (supra) held that appropriate multiplier for assessment of claims on application filed u/s 166 of the, Schedule Second notified u/s 163A of the, can be taken as a guideline instead of multiplier given in Bhagwandas case (supra).

19. Further in the latest Division Bench judgment of the Apex Court in The Managing Director, TNSTC Ltd. Vs. K.I. Bindu and Others, , considering the grant of compensation u/s 168 of Motor Vehicles Act, 1988 and Schedule Second, in a fatal motor accident, observed that the Second Schedule to the suffers from many defects but, however, it can be taken as a guide, but cannot be said to be a ready reckoner. The relevant portion is extracted as under:

18. In fact in U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and Others, , after reference to the Second Schedule to the, it was noticed that the same suffers from many defects. It was pointed out that the same is to serve as a guide, but cannot be said to be an invariable ready reckoner. However, the f appropriate highest multiplier was held to be 18. The highest multiplier has to be for the age group of 21 to 25 years when an ordinary Indian citizen starts independently earning and the lower would be in respect of a person in the age group of 60 to 70, which is the normal retirement age.

20. The quintessence of the above judgments of the Apex Court and the learned Single Judge of this Court is that the Second Schedule to Section 163A can be taken as a guiding factor for considering the claim applications u/s 166 of the and it cannot be taken as ready reckoner and if there are compelling and justifying circumstances, the Second Schedule to Section 163A can be deviated, to do complete justice to the parties and the appropriate highest multiplier can be 18 for the age group of 21 to 25 and the lower multiplier can be applied to the age group of 60 to 70. Further, the two learned Single Judges of this Court in the decisions cited National Insurance Co. Ltd. v. Ojili Gopal Reddy and K. Matura Bai v. A. Shiva Nageshwara Rao, (supra) gave further reason for taking the Second Schedule as a pideline, that the table given by the learned Single Judge of this Court in Bhagwandas case (supra) was not updated.

21. But the learned Counsel for the Insurance Company relied on a Division Bench judgment of this Court in United India Insurance Co. Ltd. v. Mokkala Chandramma (supra), wherein it was held that multiplier as provided in Second Schedule to Section 163A cannot be made applicable to the application filed u/s 166 of the and the table given in Bhagwandas case (supra) has to applied. The learned Counsel also relied on the judgment of the learned Single Judge of this Court in United India Insurance Co. Ltd. v. Dangugula Bheem Bai (supra), wherein it was held that Schedule Second of Act applies to petitions filed u/s 163A, but not to petitions filed u/s 166. From a reading of these two judgments United India Insurance Co. Ltd. v. Mokkala Chandramma and United India Insurance Co. Ltd. v. Dangugula Bheem Bai (supra), it could be seen that the judgment of the Apex Court in Supe Dei (supra) it could be seen that the judgment of the Apex Court in Supe Dei (supra) was not bought to the notice of this Court. Considering the judgment of the Apex Court in Hansrajbhai case (supra) the Division Bench in Mokkala Chandrammas case (supra), observed at Paragraph No. 7, "...that the Apex Court held that the Second Schedule is not properly drafted and, therefore, suggestion was made by the Apex Court to the Central Government to take necessary action as early as possible as regards the error in the Second Schedule and the need for amendment in view of the rise in the cost of living. In other words, it means that the Supreme Court never said that if the petition is filed u/s 166 of the Motor Vehicles Act, the multiplier given in Second Schedule is to be applied".

However, from a reading of above judgments of the Division Bench and the judgment of the learned Single Judge United India Insurance Co. Ltd. v. Mokkala Chandramma and United India Insurance Co. Ltd. v. Dangugula Bheem Bai (supra), it is clear that Second Schedule to Section 163A cannot be made applicable to applications u/s 166 of the. Even in the judgments cited by the Counsel for the claimants, there is no categorical ruling that Second Schedule to Section 163A of thecan be made strictly applicable to the applications u/s 166 of the. The essence of these judgment is only to the effect that the Second Schedule to Section 163A can be taken as a guideline for arriving at the appropriate multiplier, for grant of compensation for the g applications made u/s 166 of the, since the multiplier method, as per the judgment of the Apex Court in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, , is the accepted method of ensuring a just compensation which will make for uniformity and certainty of the awards. Therefore, there appears to be no conflicting view between the above judgments relied on by the Counsel for the claimants and the respondent-Insurance Company

22. Therefore, as already expressed, in my considered view, following judgments of the Apex Court cited (Supe Dei) and K.I. Bindu and this Court Ojili Gopal Reddy and A. Shiva Nageshwara Rao (supra), it can safely be concluded that the Second Schedule to Section 163A can be taken as a guideline for the applications made u/s 166 of the, as no specific schedule was provided and this is only to avoid delays in calculation of compensation by applying appropriate multiplier. Further in exceptional cases, this Court is always at liberty to deviate from the Second Schedule and award compensation by applying appropriate multiplier, not more than 18.

23. The issued framed is answered accordingly.

24. Coming to the second issue, it is to be noted that in the present case, the accident occurred on 23rd Apri1, 1993 i. e., prior to the amendment of Act 54 of 1994 on 14th November, 1994 and the said amendment has prospective effect. However, as per the discussion above the Second Schedule can be taken only as a guideline for awarding just compensation by applying the multiplier, taking the age and annual income of the deceased. However, to take the Second Schedule as a guideline, the said provision shall, atleast, be existing as on the date of accident. Therefore, as the said provision was not available on the date of accident, the law existing on the date of accident, shall be made applicable. The Apex Court also in Maitri Koley v. New India Assurance Co. Ltd. (supra), held that the Second Schedule could not be applied for determination of compensation in a claim arising out of accident which occurred before 1988 Act came into force and the law prevailing as on the date of accident shall be applied. But however, in the said judgment, the Apex Court confirmed the multiplier of 14, to an accident which occurred on 1st April, 1986 i.e., even prior to the promulgation of 1988 Act, due to rash and negligent driving of the driver.

25. As already stated above, Honble Mr. justice M. Jagannadha Rao (as he then was) considering all the facts and circumstances and by scientific method, provided a schedule in Bhagwan Das case (supra) and this Court has been following the same. The very same Honble Judge while presiding a Division Bench of another High Court i.e., High Court of Delhi, in the decision reported in Rattan LalMehta v. Rajinder Kapoor II (1996) ACC 1 : 1996 A.C.J. 327 taking into account mortality rate prior to 1994 v. e., during which year, the amendment Act 54 of 1994 was introduced, and also subsequent mortality rate, and further to avoid anomalies, in payment of compensation, since prior to 1994, as there was no schedule, and the Courts were applyingmultiplier based on facts and circumstances and subsequent to 1994 as amendment was made and Second Schedule was introduced with maximum multiplier of 18, held that:

37. ....A whole range of discrimination between cases can easily be avoided. That is why we have taken pains to give reasons as to why the statutory multiplier table provided for prospective use can also be used for accidents which occurred before 14th November, 1994.

39. In fact, if ad hoc multipliers like 26, etc., are used for pre-14th November, 1994 accidents and only maximum multiplier of 18 as per the table is bound to be used for post-14th November, 1994 accidents, there will be undue over-payment in regard to accidents priorto 14th November, 1994, i. e., in the seventies or eighties, when survival rates were far less than in 1994. Our view will eliminate any such anomaly.

26. Therefore, in my view though the accident occurred prior to 1994 amendment came into force, since the multiplier method in the Second Schedule to Section 163A, which is prospective and can be taken only as a guideline to the applications u/s 166 and further even the Apex Court in the decision reported in United India Insurance Co. Ltd. Vs. Patricia Jean Mahajan and Others Etc. Etc., , held that in exceptional circumstances, different multiplier can be applied instead of specified in Second Schedule, but not exceeding 18 and the Apex Court in the decision reported in Maitri Koleys case (supra) applied the multiplier of 14 to an accident which occurred even prior to the promulgation of Motor Vehicles Act, 1988 due to rash and negligent driving of the driver of the vehicle, and further as the learned Single Judges of this Court [Ojili Gopal Reddy and A. Shiva Nageshwara Rao (supra)] held that the table in Bhagwan Das (supra), has not been updated which was delivered in 1987 and as the present accident occurred in the year 1993, where a young Technician in a Government Undertaking died in an accident at the age of 31, who was having future prospects, which the Tribunal has not given due weightage, which ought to have been given as per the judgment of the Apex Court in Jyoti Kaul v. State of M.P. (supra), and further as the judgment of the Apex Court cited in Supe Deis case (supra), was not brought to the notice of the Division Bench Mokkala Chandramma (supra), while holding that Second Schedule cannot be made applicable to the applications u/s 166, I feel it is appropriate to increase the multiplier.

27. Accordingly, I hold that the amendment Act 54 of 1994 is only prospective and the issue is answered in the affirmative. Notwithstanding the amendment and its applicability to Section 166, taking the judgments of the Apex Court and also the facts and circumstances of the case, wherein a young Technician aged 31 working in a Government Undertaking died in an accident, due to rash and negligent driving of the driver of the lorry and also the age of his mother, who is 51 and his future prospects, the multiplier is increased from 7.06 to 14.

28. With regard to future income of the deceased, the claimants did not lead any evidence, except marking the salary certificate Ext. A-4, wherein he was shown to be drawing an amount of Rs. 4,536 per month. Therefore, the Tribunal has rightly fixed the income of the deceased at Rs. 5,000 and deducted 1/3rd towards the personal expenses of the deceased and arrived at Rs. 40,000 as annual income of the deceased.

29. Applying the multiplier of 14 to the income of the deceased at Rs. 40,000 the claimants will be entitled to Rs. 5,60,000 along with Rs. 7,500 granted by the Trial Court towards loss of estate.

30. With regard to interest, 1 feel it appropriate to apply the bank rate existing, which is 7.5 per cent and the Apex Court also in Hindus case (supra) granted interest at the rate of Rs. 7.5 per annum in a motor accidents claim, considering the interest rate in nationalized banks. Accordingly the interest is granted at the rate of 7.5 per cent per annum on the compensation amount from the date of the petition till realisation.

31. The appeal is accordingly allowed to the extent indicated above. No costs.