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1998 DIGILAW 195 (ORI)

NEW INDIA ASSURANCE COMPANY LTD. v. DULANA JENA

1998-06-24

P.K.MISRA

body1998
JUDGMENT : P.K. MIisra, J. - In this appeal u/s 173 of the Motor Vehicles Act, the Insurance Company has assailed the award of the Claims Tribunal awarding a sum of Rs. 1, 52,000/-to claimant-respondents 1 to 3. The latter have filed Cross Objection claiming higher compensation. 2. The claimant-respondents are the legal representatives of deceased Basanta Jena. As per the claim application, on 2-2-1990, while the deceased was walking towards Nishamani Talkies in Cuttack Town a bus bearing registration number G.R.P. 2158 dashed against the deceased from his back-side as a result of which the deceased sustained head injury and subsequently died in course of treatment in the S.C.B. Medical College & Hospital on 5-2-1990. It was claimed in the claim application that the deceased was working as a dyeing mistri under M/s. Baral Dyeing Industry, Badambadi, Cuttack, on a monthly salary of Rs. 1,500/ and he was also getting Rs. 2001- per month towards over-time working. It was claimed that the deceased was contributing a sum of Rs. 1,200/- to Rs. 1,300/- per month for the maintenance of his family. The owner-respondent No. 4 herein, was set ex parte. However, the Insurance Company filed written statement contesting the claim application on several grounds. 3. The claims Tribunal on consideration of the evidence on record found that the accident occurred due to rash and negligent driving of the bus driver and the deceased had sustained injury in the said accident and had subsequently died in the Hospital. It directed that a sum of Rs. 1,52,000/- should be paid to the claimants along with interest at the rate of nine per cent per annum from the date of the claim case, that is to say, from 28-2-1990. Certain directions had been issued regarding keeping certain amount in fixed deposit and releasing the balance amount to the claimants. 4. The learned Counsel appearing for the Appellant first contended 'that the finding regarding rash and negligent driving of the bus driver is not sustainable in law. The Tribunal has relied upon the evidence of p. w. 2 who claims to be an eye witness to the incident. 4. The learned Counsel appearing for the Appellant first contended 'that the finding regarding rash and negligent driving of the bus driver is not sustainable in law. The Tribunal has relied upon the evidence of p. w. 2 who claims to be an eye witness to the incident. On a perusal of the evidence of p w. 2 it is apparent that the accident occurred due to rash and negligent driving of the driver of the vehicle Moreover, though the owner was set ex parte and the Insurance Company contested the case, it has not chosen to examine the driver of the vehicle. Apart from the evidence of p. w. 2 showing negligent of the driver, the doctrine of res ipsa loquitur is also applicable. In the present case, the Insurance Company which had contested the case has not adduced any evidence to rebut the presumption arising out of the doctrine of res ipsa loquitur. Keeping in view all these aspects, the finding of the Tribunal regarding rash and negligent driving of the bus driver in question is bound to be sustained. 5. The Appellant has also challenged the quantum of compensation. The claimant-respondents have filed a Cross-Objection praying for enhancement of compensation. The Tribunal has assessed the monthly contribution to the family at Rs. 1,OOO/-. Relying upon the evidence of p. ws. 1 and 3 and Ext. 5 the Tribunal held that the deceased was working as a dyeing mistri and was receiving a monthly salary of Rs. 1,500/-. Deducing one-third towards possible expenses of deceased himself the Tribunal has assessed the monthly contribution at Rs. 1,000/-. Such assessment relating to monthly contribution appears to be reasonable and does not call for interference. 6. The learned Counsel for the Appellant has, however, submitted that instead of adopting multiplier of 12 as the deceased was found to be aged more than 40 years, the Tribunal should have applied the multiplier of 10. The learned Counsel for the claimant-respondents, on the other hand submitted that keeping in view the facts and circumstances of the case and the age of the deceased: multiplier of 14 should have been applied. From the post-mortem examination report (Ext. 4) it appears that deceased Basanta Jena was 45 years' old at the time of his death. The learned Counsel for the claimant-respondents, on the other hand submitted that keeping in view the facts and circumstances of the case and the age of the deceased: multiplier of 14 should have been applied. From the post-mortem examination report (Ext. 4) it appears that deceased Basanta Jena was 45 years' old at the time of his death. Keeping in view the age of the deceased and other facts and circumstances, it cannot be said that adoption of 12 as multiplier by the Claims Tribunal is either on the lower side or on the higher side so as to warrant interference in this appeal Law is well-settled that the appellate court should be slow to interfere with the assessment made by the Tribunal unless the assessment is grossly low or grossly high In the facts and circumstances of this case, it cannot be said that the assessment made by the Tribunal by applying multiplier of 12 is grossly low or grossly high. As such, I hardly see any scope for interference either in the appeal or in the Cross-Objection. Accordingly the appeal and the Cross-Objection are dismissed. 7. The Tribunal had given a direction that a sum of Rs. 1,30,000/- should be kept in fixed deposit in a nationalised bank for a period of six years. Such a direction was given more than one and half years back. Having regard to the facts and circumstances of the case, while dismissing the appeal and the Cross-Objection, I direct that a sum of Rs. 1,52,000/- along with interest at the rate of nine per cent per annum from the date of claim application, that' is to say 28-2-1990 shall be paid to the claimant-respondents within a period of three months. Out of the said amount, a sum of Rs. 1,30,0001- should be kept in fixed deposit jointly in the names of claimant-respondents for a period of five years with permission to withdraw quarterly interest. The balance amount of Rs. 22,000/- along with accrued interest on the entire sum of Rs. 1,52,000/- as directed shall be paid to claimant Respondent No. 1 who is the guardian of other two Respondents. 8. There will be no order as to costs of the present appeal Appeal dismissed. Final Result : Dismissed