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2006 DIGILAW 593 (UTT)

ORIENTAL INSURANCE COMPANY LTD. v. VIMLA DEVI

2006-10-19

RAJEEV GUPTA, RAJESH TANDON

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JUDGMENT Coram : Hon’ble Rajeev Gupta, C.J. Hon’ble Rajesh Tandon, J. Hon. Rajesh Tandon, J. 1. This is insurer’s appeal against the Award dated 2.12.2004, passed by the Motor Accident Claims Tribunal, Pauri Garhwal. 2. The claimant Smt. Vimla Devi preferred a claim petition under section 166 of the Motor Vehicles Act, for the grant of compensation on account of the death of Yogamber Singh in a motor vehicle accident. According to the claimant on the fateful day on 13.9.2003, the deceased was going from Ghanghalikhal to Sisaldi by Jeep No. DAE 1381. The Jeep was being driven by its driver rashly and negligently, with the result when the vehicle reached 50 metres ahead from Ghanghalikhal the driver lost control over the vehicle and it fell down into a ditch. The deceased sustained head injuries and he succumbed to his injuries instantaneously. 3. Opposite party respondent no. 2 Smt. Prassanni Devi filed written statement and admitted the factum of accident but denied that the accident took place due to rash and negligent driving by its driver. He has stated that the accident occurred due to failure of brakes of the jeep. 4. The insurance company, appellant has admitted the insurance of the jeep but it has been denied that the accident had taken place due to negligence of driver of the offending vehicle. It has been denied that the income of the deceased was Rs. 4,500/- per month. 5. In order to prove their case, the claimants have examined claimant, Smt. Vimla Devi as P.W. 1 and Raju as P.W. 2. The claimant has also filed copy of post mortem report, copy of F.I.R. and copy of Pariwar Register. The opposite party owner of the vehicle has filed copy of fitness certificate of the vehicle. Permit, certificate of payment of tax, insurance cover note and licence of the driver. 6. On the basis of the evidence adduced by the claimant, the Claims Tribunal has held that the accident had taken place due to rash and negligent driving of Jeep No. DAE 6381. P.W. 2 Raju has stated that the jeep was being driven rashly and negligently due to which it met with accident. This witness has also sustained injuries in the accident. The statement of P.W. 2 Raju remained uncontroverted. 7. P.W. 2 Raju has stated that the jeep was being driven rashly and negligently due to which it met with accident. This witness has also sustained injuries in the accident. The statement of P.W. 2 Raju remained uncontroverted. 7. So far as the compensation is concerned the Tribunal has recorded the finding that at the time of accident the age of the deceased was 22 years. The Claims Tribunal held that the deceased was working as Raj Mistri and was earning Rs. 150/- per day as wages. Thus the monthly income of the deceased was Rs. 4,500/- or Rs. 54,000/- per annum. The claims Tribunal selected multiplier of 17 and thus worked out compensation of Rs. 9,18,000/-. The Claims Tribunal made a deduction of 1/3 towards personal expenses of the deceased and worked out compensation of Rs. 6,12,000/-. As the amount was being paid in lump sum the Claims Tribunal further made a deduction of 1/3 and worked out compensation of Rs. 4,08,000/-. A sum of Rs. 2,000/- for funeral expenses and Rs. 5,000/- were paid for loss of love and affection. Thus a total compensation of Rs. 4,15,000/- was awarded to the claimant. 8. Sri I.P. Kohli, counsel for the appellant has submitted that Claims Tribunal has erred in assessing the compensation as the deceased was only a labourer and his per day income has wrongly been calculated and further it is not necessary that he was getting his job regularly in the whole month. Further that the amount of compensation awarded to the claimant is excessive. 9. Sri Kohli has further submitted that the Claims Tribunal selected multiplier of 17 while the claimant was the mother of the deceased and she is 50 years of age, therefore, the Claims Tribunal should have deducted half of the amount instead of one third. 10. We have considered the submissions in the light of the evidence on record. The deceased was working as Raj Mistri and was getting wages of Rs. 150/- per day or Rs. 10. We have considered the submissions in the light of the evidence on record. The deceased was working as Raj Mistri and was getting wages of Rs. 150/- per day or Rs. 4,500/- per month, P.W. 1 Smt. Vimla Devi, who was the mother of the deceased has stated on oath as under : ;ksxEcj flag mQZ v”kksd dqekj esjk yM+dk Fkk tks jkt feL=h Fkk ************ mldh mez ml le; 24&25 lky Fkh mls /;kMh esa 150@& #i;s jkst feyrs FksA P.W. 2 Raju has stated in his statement as under : ?kk?kyh[kky esa Mªkboj us rsth ls pykbZ thi [kkbZ esa fxj x;h mlesa eq>s vkSj v”kksd dqekj esa pksV vk;h v”kksd ogha ej x;k ********* v”kksd dqekj 150@& #i;k jkst /;kMh ikrk FkkA 11. Both these witnesses were not cross-examined. The claimant in paragraph 6 of the claim petition has mentioned the monthly income of the deceased as Rs. 4,000/- and as such we have no option but to presume that the deceased was getting Rs. 4,000/- per month. His annual income thus comes to Rs. 48,000/-. A deduction of 1/3 for the own expenses of the deceased, if he would have been alive, is to be made and thus the annual dependency of the claimant on the income of the deceased comes to Rs. 32,000/-. So far as selection of multiplier is concerned the learned counsel for the appellant has submitted that it should not been more than 10 as the claimant is the mother of the deceased. 12. The Apex court in the case of Municipal Corporation of Greater Bombay vs. Laxman Iyer and another, (2003) 8 SCC 731, has held that, where the claimants are parents of the deceased, the multiplier should not be more than ten. 13. We deem it necessary to reproduce paragraph 12 of the Apex Court judgment in that case : “12. Keeping in view the observations made by this Court in various cases, several other factors need to be taken note of the deceased was unmarried. The contribution to the parents who had their separate earnings being employed and educated has relevance. The possibility of reduction in contribution once a person gets married is a reality. The compensation is relatable to the loss of contribution or the pecuniary benefits. The multiplier adopted by the Tribunal and confirmed by the High Court is certainly on the higher side. The possibility of reduction in contribution once a person gets married is a reality. The compensation is relatable to the loss of contribution or the pecuniary benefits. The multiplier adopted by the Tribunal and confirmed by the High Court is certainly on the higher side. Considering the age of the claimants, it can never exceed 10 even by the most liberal standards. Worked out on that basis the amount comes to Rs. 3.6 lakhs at the monthly expected income fixed by the Tribunal and confirmed by the High Court. Looking into the nature of the contributory negligence of the deceased after making an appropriate deduction which can reasonably be fixed at 25%, the compensation amount payable by the Corporation can be fixed at rupees three lakhs including the amount awarded by the Tribunal and confirmed by the High Court for loss of expectation of life. Interest at the rate as awarded by the High Court is maintained from the date of application for compensation. 14. In the present case the age of the mother is 50 years. The father of the deceased is predeceased. The deceased was unmarried and was the sole breadwinner of the family. The claimant was fully dependent upon the income of the deceased. Thus the deduction of half of the amount cannot be justified. Further the mother of the deceased has also mentioned in paragraph 23 of her claim petition that since the death of her son she became ill and is confined to bed. 15. In the case of Municipal Corporation of Greater Bombay vs. Laxman Iyer & another (supra), the father of the deceased was a earning person in the family but in the present case the mother of the deceased had no income of her own. 16. In a motor accident claim case, what is important is that the compensation to be awarded by the Tribunal should be just and proper compensation after taking into account all facts and circumstances of the case. 17. The Apex Court, in the case of T.N. State Transport Corpn. Ltd. Vs. S. Rajapriya and others, (2005) 6 Supreme Court Cases 236, has observed as under : “8. 17. The Apex Court, in the case of T.N. State Transport Corpn. Ltd. Vs. S. Rajapriya and others, (2005) 6 Supreme Court Cases 236, has observed as under : “8. The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables e.g. the life expectancy of the deceased and the dependants, the amount that the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income together. 9. The manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalized by multiplying it by a figure representing the proper number of years’ purchase. 10. Much of the calculation necessarily remains in the realm of hypothesis “and in that region arithmetic is a good servant but a bad master” since there are so often many imponderables. In every case “it is the overall picture that matters”, and the court must try to assess as best as it can the loss suffered.” 18. Thus we find that a multiplier of 13 would be just and proper in the present case. By multiplying the amount of annual dependency of Rs. 32,000/- with 13 the amount of compensation comes to Rs. 4,16,000/-. Apart from that the claimant is also entitled to get Rs. 2,000/- for the last rites of the deceased and Rs. 5,000/- for loss of estate. Thus the claimant is entitled to get Rs. 4,16,000 + 2,000 + 5,000 = Rs. 4,23,000/- as compensation. 19. Thus seen from any angle, the compensation works out to Rs. 4,16,000/-. Apart from that the claimant is also entitled to get Rs. 2,000/- for the last rites of the deceased and Rs. 5,000/- for loss of estate. Thus the claimant is entitled to get Rs. 4,16,000 + 2,000 + 5,000 = Rs. 4,23,000/- as compensation. 19. Thus seen from any angle, the compensation works out to Rs. 4,23,000/- but since there is no cross appeal by the Claimant, we affirm the compensation of Rs. 4,15,000/- awarded by the Tribunal. 20. In view of above, the appeal is devoid of merit and is hereby dismissed. The compensation of Rs. 4,15,000/- awarded by the Tribunal is confirmed. 21. No order as to costs.