Research › Search › Judgment

Uttarakhand High Court · body

2007 DIGILAW 112 (UTT)

New India Assurance Co. Ltd. v. Vimla Devi

2007-03-14

J.C.S.RAWAT, RAJEEV GUPTA

body2007
JUDGMENT Hon'ble J.C.S. Rawat, J. : 1. Since both the appeals have arisen out of the same impugned award dated 12 06-2006 and accident dated 27-12-2004, therefore, both the appeals have been heard together and are being disposed of by this common judgment. 2. Both appeals under section 173 of the Motor Vehicles Act have been filed against the award dated 12-062006 passed by the Motor Accident Claims Tribunal/District Judge, Udham Singh Nagar (hereinafter referred as 'Tribunal') in M.A.C.P. No. 30/2006 Smt. Vimla Devi & others Vs. Pramod Kumar Jaiswal & another, whereby the learned Tribunal had awarded a sum of Rs 6,19,000/- as compensation against the New India Assurance Company Ltd. The Insurance Company was directed to deposit the amount of compensation within thirty days from the date of award alongwith interest thereon @ 5% per annum from the date of filing of the claim petition till the date of payment. The claimants have filed the A.O. 533 of 2006 for enhancement of compensation and the Insurance Company has filed A.O. No. 446 of 2006 for setting aside the aforesaid award. 3. Brief facts of the case are that the claimants had filed a claim petition before the learned Tribunal for compensation of Rs. 16,92,000/- alleging therein that on 27-12-2004 at about 1:30 p.m. the deceased Ishan Dutt was returning to his house from Khatima. When the deceased reached near Nigam Bhoji, Pilibhit Road, the offending Mini Bus bearing No. U.P.E.-6350 came rashly and negligently and dashed him, due to which the deceased sustained the grievous injuries. The injured was taken to P.H.C. Khatima where he was declared dead by the Doctor. It was further alleged that the deceased was aged about 35 years. He was working on the post of Marketing Supervisor in Chorakoti Fal Sanrakshan Gramoudyog Sew a Sansthan, Khatima from where he used to get Rs. 8,000/- per month as salary. Thus, the claimants had filed a claim petition for compensation of Rs. 16,92,000/-. 4. The opposite parties filed their written statements and contested the case. Pramod Kumar Jaiswal, who was the owner of the offending vehicle did not file his written statement The Insurance Company had filed its written statement denying the allegations made in the claim petition. Thus, the claimants had filed a claim petition for compensation of Rs. 16,92,000/-. 4. The opposite parties filed their written statements and contested the case. Pramod Kumar Jaiswal, who was the owner of the offending vehicle did not file his written statement The Insurance Company had filed its written statement denying the allegations made in the claim petition. It was further alleged that the driver of the offending vehicle was not having a valid driving licence at the time of the accident and the documents of the offending vehicle was also not valid. 5. On the basis of the pleadings, the learned Tribunal framed necessary issues in the case and ultimately, the learned Tribunal had come to the conclusion that the accident occurred due to rash and negligent driving of the driver of the offending vehicle and due to which the deceased-lshan Dutt sustained the injuries and died. It was further held that the driver of the offending vehicle was having a valid driving licence at the time of accident. The Tribunal has assessed the age of the deceased as 40 years at the time of the accident. The Tribunal further assessed the income of the deceased at Rs. 4500/- per month. After deducting 1/3 for the personal expenses of the deceased, the dependency of the claimants was assessed at Rs. 3000/- per month or say Rs. 36,000/- per annum. The learned Tribunal had applied the multiplier of "17" and the amount of compensation was assessed Rs. 6,12,000/-. Apart from this, Rs. 2,000/for Funeral Expenses and Rs. 5000/- for Loss of Estate as well as Loss of Consortium were awarded. Thus, the Tribunal had awarded a sum of Rs. 6,19,000/ - to the claimants as compensation against the Insurance Company. The Insurance Company was directed to pay the aforesaid amount to the claimants within thirty days from the date of award alongwith interest thereon @ 5% p.a. from the date of filing of the claim petition till the date of payment. 6. Feeling aggrieved by this, the claimants have filed the A.O. No. 533/ 2006 for enhancement of compensation and the Insurance company has filed the A.O. No. 446/2006 against the impugned award. 7. Heard learned counsel for the parties and perused the record. 8. 6. Feeling aggrieved by this, the claimants have filed the A.O. No. 533/ 2006 for enhancement of compensation and the Insurance company has filed the A.O. No. 446/2006 against the impugned award. 7. Heard learned counsel for the parties and perused the record. 8. Learned counsel for the c1ajmants contended that the Tribunal has erred in ignoring the salary certificate issued by the employer - Chorakoti Fal Sanrakshan Gramoudyog Sew a Sansthan. Learned counsel for the claimants further contended that the Tribunal has awarded a meager amount of compensation in lieu of the death of the deceased and the claimants are entitled to get a sum of Rs. 16,92,000/- as compensation. Learned counsel for the insurance company refuted the contentions and contended that the Tribunal has awarded the compensation on the higher side. 9. Learned counsel for the insurance company contended that the Tribunal had rightly rejected the evidence of the claimants with regard to the salary of the deceased Ishan Dutt. However, it was also contended on behalf of the insurance company that the Tribunal had wrongly assessed the monthly income of the deceased at Rs. 4500/- p.m. It was further contended that the copy of the Pariwar Register filed before the Tribunal reveals that the deceased was a labourer. It was further contended that the Tribunal had selected a higher multiplier while awarding the compensation. 10. The claimants had examined Vimla Devi PW1-widow of the deceased, Suresh Chandra Chaurakoti PW2- employee of the Chorakoti Fal Sanrakshan Gramoudyog Sewa Sansthan and Shamsher Singh PW3, who claimed to be the eyewitness of the accident. The insurance company had examined Chatrapal Singh as DW1 who was the driver of the offending bus. The findings recorded by the Tribunal that the deceased Ishan Dutt died on account of the injuries sustained by him in the motor accident on 27-12-2004; the accident occurred due to rash and negligent driving of the driver of the offending bus and the insurer of the offending bus was liable to pay the compensation to the claimants have been challenged by the Insurance Company before this "Court. Perusal of the record reveals that the claimants had adduced the evidence of Shamsher Singh as PW3 who was the eye witness of the accident. He had categorically stated in his evidence that the accident occurred due to rash and negligent driving of the driver of the offending bus. Perusal of the record reveals that the claimants had adduced the evidence of Shamsher Singh as PW3 who was the eye witness of the accident. He had categorically stated in his evidence that the accident occurred due to rash and negligent driving of the driver of the offending bus. The insurance company had adduced the evidence of the driver of the offending bus as DW1 -Chatrapal Singh, who had stated that on 27-12-2004 when the accident is said to have been occurred, the deceased was going on his cycle and few girls were going on their cycles ahead to the deceased. When the driver of the offending bus tried to take over the cyclists, the deceased lost his control on his cycle and he hit the cycles of the girls who were going ahead. The deceased fell down on the road. The deceased was never hit by• the offending bus. Perusal of the record reveals that the report of the accident was lodged in the police station and the investigating officer submitted a charge-sheet against the driver of the offending bus i.e. Chatrapal Singh. Chatrapal Singh DW1 had himself admitted that he had been prosecuted by the police in the said accident and the case is pending before the court. Shemsher Singh PW3 was cross examined at length, but nothing could be elicited from his testimony. The evidence of PW3 is credible and cogent. The matter has been reported immediately to the police and the prosecution has been launched against the driver of the offending bus. The manner in which the offending bus is said to have committed the accident does not leave any doubt of the negligence of the driver of the offending bus, which led to the accident resulting into the death of the deceased. Therefore, we do not find any infirmity in the findings recorded by the Tribunal. 11. Now, we shall examine as to whether the compensation of Rs. 6,19,000/- awarded by the Tribunal to the claimants is just and proper in the facts and circumstances of the case. 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 in the facts and circumstances of the case. The Hon'ble Supreme Court in Tamil Nadu State Transport Corporation Ltd. Vs. 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 in the facts and circumstances of the case. The Hon'ble Supreme Court in Tamil Nadu State Transport Corporation Ltd. Vs. S. Rajapriya reported in J. T. 2005 (4) SC 531 has held that: "8. The assessment of damages to compensate the dependents 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 would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chahces 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 hi, employment or income together. 9. The manner 0f 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 there from 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 capitalised 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. " 12. The evidence led by the claimants about the income of the deceased Ishan Dutt was not of a clinching nature. Vimla Devi PW1 had stated in her evidence that the deceased was getting a sum of Rs. 8000/- p.m. as salary from the employer - Chorakoti Fal Sanrakshan Gramoudyog Sewa Sansthan. The certificate with regard to the salary of the deceased had been filed before the Tribunal. Vimla Devi PW1 had stated in her evidence that the deceased was getting a sum of Rs. 8000/- p.m. as salary from the employer - Chorakoti Fal Sanrakshan Gramoudyog Sewa Sansthan. The certificate with regard to the salary of the deceased had been filed before the Tribunal. The said certificate had been issued by Suresh Chandra Chaurakoti PW2, who had deposed in his evidence that the deceased was his cousin. He had further admitted that the employer (Sansthan) maintains the pay & attendance register of its employees. The extract of the pay & attendance registers had not been filed before the Tribunal. Vimla Devi PW1 had herself admitted in her cross examination that the deceased had been working in the Sansthan for 7 to 8 months back from the date of accident and he was a temporary employee in the Sansthan. No appointment letter of the deceased as Marketing Supervisor has been filed before the Tribunal. The copy of the Pariwar Register also reveals that the deceased was a labourer. We, therefore, do not find any fault in the approach of the Tribunal in discarding the evidence led by the claimants about the income of the deceased. The Tribunal had rightly assessed the income of the deceased at Rs. 4500/- p.m. 13. The multiplier of '17' selected by the Tribunal is certainly on the higher side. The deceased Ishan Dutt was 35 years of age on the date of incident, whereas the widow of the deceased Vimla Devi was shown to be aged about 28 years in the claim petition; three minor children were aged 6 years, 4 years, 1 year; the father and mother of the deceased have been shown alive. Considering the age of the deceased, widow and three minor children, in our opinion the appropriate multiplier would be of "15" in this case. 14. After deducting 1/3rd income for personal expenses of the deceased, the dependency of the claimants comes to Rs. 36,000/- per annum. By multiplying the dependency of Rs. 36,000/- with the multiplier of '15', the compensation works out to Rs. 5,40,000/-. Apart from this, the claimants are also entitled to Rs. 5000/- for funeral expenses, Rs. 5000/- for the loss of consortium to the widow and Rs. 5000/- for the loss of estate. Thus, the claimants become entitled to receive a total sum of Rs. 36,000/- with the multiplier of '15', the compensation works out to Rs. 5,40,000/-. Apart from this, the claimants are also entitled to Rs. 5000/- for funeral expenses, Rs. 5000/- for the loss of consortium to the widow and Rs. 5000/- for the loss of estate. Thus, the claimants become entitled to receive a total sum of Rs. 5,55,000/- (Rupees five lakhs fifty five thousand only) as compensation in lieu of the death of the deceased Ishan Dutt. 15. The interest @ 5% p.a. awarded by the Tribunal is certainly on the lower side. In our opinion, the interest ought to have been awarded @ 7% per annum. Thus, the claimants are entitled to get the interest @ 7% per annum on the aforesaid compensation from the date of filing of the claim petition till the date of payment. 16. In view of the foregoing discussion, the A.O. No. 446/2006 filed by the Insurance Company is liable to be partly allowed and is hereby partly allowed to the above extent. The claimants are entitled to get a sum of Rs. 5,55,000/- (Rupees five lakhs fifty five thousand only) as compensation instead of Rs. 6,19,000/- as awarded by the Tribunal in, lieu of the death of the deceased Ishan Dutt. The claimants would also get interest @ 7% per annum instead of 5% per annum as awarded by the Tribunal from the ... date of filing of claim petition till the date of the deposit before the Tribunal. The impugned award passed by the learned Tribunal is modified to the above extent. A.O. No. 533/2006 filed by the claimants is disposed of accordingly. No orders as to costs. 13. The amount deposited before the concerning Claims Tribunal by the Insurance Company shall be adjusted by the Tribunal. The Insurance Company shall deposit the remaining amount of compensation before the Claims Tribunal within a period of three months from today. The Registry is directed to remit the sum of Rs. 25,000/- deposited by appellant Insurance Company as mandatory deposit to the concerning Claims Tribunal immediately.