Research › Search › Judgment

Uttarakhand High Court · body

2005 DIGILAW 143 (UTT)

Nand Lal Bakshi v. Lalit Kumar Gupta

2005-05-03

B.S.VERMA, P.C.VERMA

body2005
JUDGMENT This appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988 (in short the Act) against the judgment and award, dated 5-7-1990, passed by the Motor Accident Claims Tribunal/Additional District Judge. Dehradun (in short the Tribunal), whereby the knrned Tribunal has awarded compensation worth Rs. 22,500/- along with interest @ 12% per annum in favour of the claimant as against the Insurance Company-appellant as well as the owner of the vehicle, as directed in the impugned order. Aggrieved, the claimant-appellant has come up in appeal for enhancement of compensation. 2. Brief facts of the case arc that -the son of the claimant Subhash Bakshi(the deceased) aged 24 years lost his life in a motor vehicle accident, which occurred on 14.12.1983. According to the claimant, the deceased was working as a Clerk with Manjeet Singh Dang, Forest Contractor, and was gelling monthly salary of Rs. 650/-. On the fateful day, the deceased had gone to the shop of one Jagat Singh Chauhan in village Lakhaundi. When he along with Ramesh Thapa was returning to Budhair village on foot at 8.30 p.m., the deceased was hit by Truck No. URM-8286, which was driven rashly and negligently by its driver, with the result he sustained grievous injuries and died at the spot. It was alleged that the driver of the ill-fated truck also fell down into the Khudd and died on. spot. The deceased was unmarried, therefore, the father of the deceased filed the claim petition claiming Rs. 3,40,000/- as compensation. 3. The owner of the vehicle contested the claim petition by filing his written statement on the ground inter alia that the Truck No. URM-8286 met with an accident on 14.12.83.at about 9 p.m. near Budhair village but denied the time and place of accident as alleged by the claimant. Death of the deceased was also denied due to the said accident. However, in paragraph 15 it was asserted that the deceased and Ramesh sustained injuries due to their own fault and negligence with the result they fell down into a deep ravine thereby both of them sustained injuries and 'Subhash Bakshi succumhed to his injuries. 4. It was asserted that the vehicle was duly insured at the time of accident, therefore, the liability to pay compensation, if any lay upon it. It was however stated that the liability of the insurance company was unlimited. 5. 4. It was asserted that the vehicle was duly insured at the time of accident, therefore, the liability to pay compensation, if any lay upon it. It was however stated that the liability of the insurance company was unlimited. 5. The insurance company (respondent no.2) also contested the claim petition and alleged that the claimant was required to prove the accident strictly and that the amount of compensation claimed was excessive. It was further pleaded that the liability of the insurer was limited it was also pleaded that the vehicle was being plied in violation of the relevant provisions of the act. Plea of gratuitous passenger was also taken it was further pleaded that only the owner was responsible to pay the compensation if any. 6. The learned Tribunal framed as many as eight issues m the case. The learned Tribunal took up issue nos. 1, 2, and 5 together and it came to the conclusion that the deceased died due to the motor vehicle accident involving truck no. URM 8286 which was driven rashly and negligently by its driver and there was no fault on the part or the deceased who was a pedestrian. The learned Tribunal decided issue no. 3 & 4 together and held that the claim petition was maintainable and the same was not had for non joinder or necessary party. The learned Tribunal took up issue no. 6, 7 and 8 together for decision and held that the vehicle was owned by the O.P. no.1 duly insured with O.P. respondent no.2. It also held that the liability of the insurance company under the policy was to the extend or Rs. 50,000/-. As regards quantum of compensation, the learned Tribunal found that the income of the deceased was Rs. 650/- per month at the time of his death. The dependency of the petitioner on the deceased was assessed to be Rs. 125/- per month. i.e. Rs. 1,500/- per annum. The Tribunal observed that the deceased would have supported the claimant for a period of 15 years had he been alive, thereby the dependency came to Rs. 1500/- per annum. Accordingly the total amount of compensation was assessed to be Rs. 22,500/- accordingly the claim petition was decreed for compensation of Rs. 22,500/- as mentioned earlier. 7. 1,500/- per annum. The Tribunal observed that the deceased would have supported the claimant for a period of 15 years had he been alive, thereby the dependency came to Rs. 1500/- per annum. Accordingly the total amount of compensation was assessed to be Rs. 22,500/- accordingly the claim petition was decreed for compensation of Rs. 22,500/- as mentioned earlier. 7. At the out set it may be mentioned that the insurance company has neither preferred any appeal nor has riled any cross objection in this appeal. 8. We have heard learned counsel for the both the parties and have carefully gone through the entire material on record. 9. The only point for consideration before us is whether the compensation awarded by the Tribunal is just and proper or not. 10. It has been submitted on behalf of the claimant-appellant that the monthly dependency on account of death of the deceased was Rs. 560/- per month instead of Rs. 125/- per month, therefore, the finding of the learned Tribunal is perverse and illegal. On the other hand it was argued on behalf of the Insurance company-respondent no.2 that the liability of the insurer under the Old Act was limited to the extent of Rs. 50.000/- only. It was further pointed out on behalf of the Insurance Company that the learned.(Tribunal erred in not deducting 1/3rd from the income towards personal expenses and that the multiplier of 11 ought to have been applied instead of 15 in the present case. 11. It is not disputed that the deceased Subhash. Bakshi was unmarried at the time of his death in the accident. It was also nod disputed that he was aged about 24 years. Therefore, for the purposes of compensation, the age or the claimant-father will be material. 12. So far as the first argument raised on behalf of the Insurance Company is concerned, the accident occurred on 14-12-1983. The present case was covered by the provisions of Motor Vehicles Act, 1939, Admittedly, at the relevant time the liability of the insurance company was to the extent of Rs. 1,50,000/- by virtue of amendment of Section 95(2) of the Old Act. Section 95(2) had been amended to increase the liability of the Insurance Company to Rs. 1,50,000/- had been amended in the years 1982 and the accident in question took place on 14-12-1983. 1,50,000/- by virtue of amendment of Section 95(2) of the Old Act. Section 95(2) had been amended to increase the liability of the Insurance Company to Rs. 1,50,000/- had been amended in the years 1982 and the accident in question took place on 14-12-1983. Thus, on the date of the accident the liability of the Insurance Company was Rs. 1,50,000/-. There was thus no justification for restricting the liability of the Insurance Company to only Rs. 50,000/-. Therefore, we hold that the liability of the Insurance company on the date of accident was to the extent of Rs. 1,50,000/- and not Rs. 50,000/- in the year 1983 when the accident occurred. The argument of the learned counsel for the insurance company is not tenable. 13. So far as the quantum of compensation is concerned, the learned Tribunal found that the income of the deceased was Rs. 650/- per. month this fact has not been challenged by the Insurance Company in this appeal. The learned Tribunal while assessing the amount of compensation has observed as under: "It is true that after marriage he would have spent the earning on his own family and thereby the dependency of the petitioner on the deceased would have been reduced. Keeping in view the facts and circumstances of the case, the dependency of the petitioner on the deceased would not be less than Rs. 125/- per month which comes to Rs. 1500/- per annum. The petitioner would have lived at least upto the age of 70 years and thereby the young deceased would have supported the petitioner for another 15 years and thereby, the total amount of compensation comes to Rs. 22.500/-." 14. Having considered the entire case from all the four corners, we are not inclined to agree with the finding recorded by the Tribunal on the point of dependency owing to the death of the deceased. The submissions made by the Insurance Company has some force. In the case of "Kaushnwna Begum (Smt.) and others Vs. New India Assurance Company and others" [(2001), 2, Supreme Court Cases, 9] before the Apex Court wherein the accident took place in the year 1986. In para No. 22, the Apex Court observed that "In calculating the amount of compensation in this case we lean ourselves to adopt the structured formula provided in the Second-Schedule to the MV Act. New India Assurance Company and others" [(2001), 2, Supreme Court Cases, 9] before the Apex Court wherein the accident took place in the year 1986. In para No. 22, the Apex Court observed that "In calculating the amount of compensation in this case we lean ourselves to adopt the structured formula provided in the Second-Schedule to the MV Act. Though it was formulated for the purpose of Section 163-A of the MV Act, we find it a safer guidance for arriving at the amount of compensation than any other method so far as the present case is concerned". Taking the income of the deceased as Rs. 650/- per month, it can safely be held that the deceased would have been spending at least 1/3rd of his income towards his personal expenses, after deducting 1J3rd from his income, the remaining amount comes to Rs. 650-217 =433/-. This amount can be rounded to Rs. 430/- per month, i.e. 430/- x 12 = 5160/- per annum. By applying the multiplier of 11, as pointed out on behalf of the Insurance Company itself, the total loss of dependency now comes to Rs. 5160/- x 11 = 51,760/-. which is rounded to Rs. 52,000/-. This amount appears to be just and proper. We accordingly hold that the claimant-appellant is entitled to get total compensation of Rs. 52,000/- instead of Rs. 22,500/- as held by the learned Tribunal. To this extent the impugned award is liable to be modified. Rest of the finding recorded by the learned Tribunal regarding interest is maintained. Since the vehicle in question was duly insured with the respondent no.2, the compensation shall be payable by the Oriental Fire and General Insurance Company. 15. The appeal is partly allowed. The judgment and award dated 5.7.1990 is modified to the extent that the claimant-appellant shall get compensation of Rs. 52,000/- (Rs. Fifty two thousand) instead of Rs. 22,500/- along with interest as awarded by the learned Tribunal. Amount, if any, already received by the claimant under the provisions of the Act, shall be adjusted towards payment.