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Uttarakhand High Court · body

2005 DIGILAW 106 (UTT)

Sheela Tiwari v. State of Uttaranchal

2005-03-31

B.S.VERMA, IRSHAD HUSSAIN

body2005
Judgment B.S. Verma, J. Present appeal under Section 173 of the Motor Vehicles Act, 1988 (herein after, referred as 'the Act') has been filed against the judgment and award dated 11-10-2002, passed by the Motor Accident Claim Tribunal/District Judge, Nainital, in M.A.C. No. 58/2002, awarding Rs, 50,000/- as compensation under Section 140 of 'the Act' for no fault liability. 2. Brief facts were that Jagdish Chandra Tiwari, was employed as Orderly peon with Conservator of Forest Southern Circle Nainital, On 27-11-2001, he was going to Dehradun with Conservator of Forest in official Ambassador Car No U,P, 02-C8663 which was being driven by Pani Ram driver rashly and negligently. When the Car reached near Sunarauwali Pulia Nazibabad, At about 7-40 a.m. it met with an accident and Jagdlsh Chandra Tiwari received injuries in the accident and succumbed to his injuries at the spot itself. According to the claimants the deceased was aged about 36 years having good health and he was the only earning member in the family. The deceased was getting salary of Rs. 4,390/- per month. The claimants claimed Rs. 10,00,000/- as compensation. 3. The opposite parties filed written statement, admitting the accident and occupation of the deceased. It was pleaded by the O.Ps. that the accident occurred due to bursting of tyer of the car and there was no fault on the part of the driver. 4. The learned Tribunal framed following issues ;- 1- Whether Jagdlsh Chandra Tiwari died in an accident on 27-11- 2001 due to rash and negligent driving on the part of the driver of the vehicle registration No. UP 02-C-8663 owned by respondent as alleged in claim petition ? 2- Whether the claimants are dependents of the deceased and have they suffered the loss claimed? If so, to what amount of compensation and from whom are they entitled ? 3- Whether the claim petition is bad for misjoinder of respondent NO.2, if so, its effect? 4- To what relief, if any, the claimants are entitled? 5. On behalf of claimants Smt. Sheela Devi widow of the deceased examined herself as P.W.1 and the opposite parties examined driver of the car Pani Ram as D.W.1. The learned Tribunal gave finding on issue NO.1 that the deceased died in the accident but the accident did not take place due to rash and negligent driving of the driver of the car. The learned Tribunal gave finding on issue NO.1 that the deceased died in the accident but the accident did not take place due to rash and negligent driving of the driver of the car. On issue NO.2 finding of the learned Tribunal was that there was no fault on the part of the driver, hence awarded Rs. 50,000/- envisaged in Section 140 of 'the Act' as compensation. Issue No. 3 was decided in favour of the claimant. Aggrieved the claimants have come up in appeal. 6. The appeal has been filed on the grounds that the learned Tribunal has failed to appraise the evidence on record and wrongly made up its mind that the appellants could not prove the rash and negligent act of the driver and granted compensation to the appellants on the basis of the principle of 'no fault liability'; that the deceased was a salaried person getting salary of Rs. 4394/- per month; that the deceased was aged 36 years at the time of accident and that the appellants are entitled to get compensation at an enhanced rate. 7. We have heard the learned counsel for the parties and perused the record. 8. Learned counsel for the appellants argued that the appellants- claimants are entitled to get compensation under Section 166 of 'the Act' and the learned Tribunal was not justified in awarding the compensation only under no fault liability. In support of his submission he has cited the reported decision of the Apex Court in the matter of Kaushnuma Begum and others vs. New Indian Assurance Company Ltd. and others; 2001(1) T.A.C. 649 (S.C.). In the aforesaid case the cause of the capsize of vehicle was attributed to bursting of the front tyre of the jeep and the vehicle hit against a pedestrian who got crushed and succumbed to the Injuries sustained in that accident. The Tribunal had awarded Rs. 50,000/- for no fault liability only but the Apex Court observed as under :- "No Fault Liability" envisaged in Section 140 of the Motor Vehicles Act is distinguishable from the Rule of strict liability. In the former the compensation amount is fixed and is payable even if anyone of the exceptions to the Rule can be applied .. 1t is a statutory liability created without which the claimant should not get any amount under that count. In the former the compensation amount is fixed and is payable even if anyone of the exceptions to the Rule can be applied .. 1t is a statutory liability created without which the claimant should not get any amount under that count. Compensation on account of accident arising from the use of motor vehicles can be claimed under the common law even without the aid of a statute. The provisions of the Motor Vehicles Act permits that compensation paid under 'No Fault Liability' can be deducted from the final amount awarded by the Tribunal. Thereafter, these two are resting on two different premises. We are, therefore, of the opinion that even apart from Section 140 of the Motor Vehicles Act, a victim in an accident which occurred while using a motor vehicles, is entitled to get compensation from a Tribunal unless any one of the exceptions would apply. The Tribunal and the High Court have, therefore, gone into error in divesting the claimants of the compensation payable to them." The Apex Court awarded compensation to the claimants besides compensation awarded by the tribunal under Section 140 of 'the Act'. In our view the above said decision squarely applies to the facts of the present case. In the present case the accident took place due to tyre bursting of the jeep and the jeep dashed against the culvert due to which deceased Jagdish Chandra Tiwari had died. In view of above the claimants are entitled to get compensation and the Tribunal was not justified in divesting the claimants from the proper compensation. 9. Now we have to decide what quantum of compensation is payable to the claimants. The deceased was a government servant and undisputedly was getting Rs. 4394/- per month as salary. According to claimants the age of the deceased at the time of accident was 36 years. We therefore assess the monthly income of the deceased at Rs. 4394/- and after deducting 1/3rd towards personal expenses, the dependency of the claimants comes to Rs. 2,929/- per month and the annual dependency comes to Rs. 35,148/- rounded to Rs. 35,000/-. As per the structured formula of second schedule appended to Section 163-A of 'the Act' multiplier of 16 will be applied in the present case and after calculating the annual income of Rs. 35,000/- by multiplier' 16' the dependency of the claimants comes to Rs. 2,929/- per month and the annual dependency comes to Rs. 35,148/- rounded to Rs. 35,000/-. As per the structured formula of second schedule appended to Section 163-A of 'the Act' multiplier of 16 will be applied in the present case and after calculating the annual income of Rs. 35,000/- by multiplier' 16' the dependency of the claimants comes to Rs. 5,60,000/- to which the claimants are entitled to get. 10. In view of above, the appeal succeeds partly. The claimants are entitled to get Rs. 5,'50,000/- (five lacs Sixty thousands) as compensation from the respondent No. 1 the State owner of the car involved in the accident. The amount of Rs. 50,000/- awarded by the learned Tribunal under Section 140 of 'the Act' if paid to the claimants shall be deducted from the compensation awarded. The claimants shall also be entitled to get Interest @ 7% per annum as awarded by the tribunal.