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2007 DIGILAW 470 (ALL)

New India Assurance Company Ltd v. Devendra Devi

2007-02-28

RAJESH TANDON

body2007
RAJESH TANDON, J. Heard Sri T. A. Khan for the appellant and Sri R. Dobhal for the respondents. 2. This is insurers appeal against the Award dated 31st January, 1996 passed by the Motor Accident Claims Tribunal, Dehradun. 3. The claimants Smt. Devendra Devi and others preferred a claim petition under Section 166 of the Motor Vehicles Act, for the grant of compensation on account of the death of Ram Lal in a motor vehicle accident. According to the claimants on the fateful day on 10th November, 1993, the deceased was going from Matli to Uttarkashi by Taxi No. UMX 491. The taxi was being driven by Prakash Singh rashly and negligently, with the result the vehicle fell down into river Bhagirathi causing the death of deceased Ram Lal. 4. The Insurance Company, appellant filed written statement and denied the allegations made in the claim petition and further submitted that the driver had no valid driving licence nor there was valid registration. The taxi was over-loaded and terms and conditions of the insurance policy were flouted by the owner of the taxi, therefore, the Insurance Company is not liable to pay compensation. 5. In order to prove their case, the claimants have examined claimant No. 1, Smt. Devendra Devi as PW 1 and Sri Kalamu Ram as PW 2 and have filed copy of post-mortem report, insurance cover- note and copy of the statement of one Khuspal Chand Ramola. Opposite party appellant has filed copy of survey report of the taxi met with accident. 6. On the basis of the evidence adduced by the claimants, the Claims Tribunal has held that the accident had taken place due to rash and negligent driving of the taxi. 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 43 years. The Claims Tribunal held that the deceased was working as a mason and was getting Rs. 1,200/- per month. One-third amount was deducted for his own expenses of the deceased, if he would have been alive. Thus, the dependency of the claimants on the income of the deceased comes to Rs. 800/- per month or Rs. 9,600/- per annum. The Claims Tribunal selected multiplier of 15 and multiplying the annual dependency by 15 the amount of compensation comes to Rs. 9,600 x 15 = 1,44,000/ -. Thus, the dependency of the claimants on the income of the deceased comes to Rs. 800/- per month or Rs. 9,600/- per annum. The Claims Tribunal selected multiplier of 15 and multiplying the annual dependency by 15 the amount of compensation comes to Rs. 9,600 x 15 = 1,44,000/ -. The Claims Tribunal has further deducted a sum of Rs. 48,000/- for lump sum payment and thus awarded a sum of Rs. 96,000/ -. A further sum of Rs. 4,000/- was awarded for loss of love and affection and thus a net amount of Rs. 1,00,000/- was awarded as compensation alongwith pendente lite and future interest @ 12% per annum. 8. Feeling aggrieved the present appeal has been preferred by the Insurance Company. 9. Counsel for the appellant has submitted that the owner-cum- driver of the taxi has flouted the terms and conditions of the insurance policy. The taxi was insured only for four persons and as per survey report there were six persons travelling by the taxi at the time of accident. The vehicle was overloaded and as such Insurance Company is not liable to pay compensation. 10. A photo copy of the insurance cover-note has been filed by the appellant Insurance Company. This shows that the vehicle was insured for comprehensive liability to the third party and a premium of Rs. 15/- was also paid for the driver. 11. The alleged survey report filed by the appellant has not been proved and as such it cannot be read in the evidence. The driver- cum-owner of the vehicle also died in the accident, therefore, entire burden to prove that the terms and conditions of insurance policy were violated comes on the appellant but the appellant has failed to sustain such burden. 12. The Claims Tribunal has calculated the amount of compensation to be Rs. 1,44,000/- on the basis of selecting multiplier, however one-third of the amount i. e. Rs. 48,000/- was further deducted for lump sum payment, which is not permissible. However, no cross-appeal has been filed by claimants, therefore, no interference can be made in this regard. The Claims Tribunal awarded interest @ 12% on the amount of award. Counsel for the appellant has submitted that this rate of interest is exaggerated. 48,000/- was further deducted for lump sum payment, which is not permissible. However, no cross-appeal has been filed by claimants, therefore, no interference can be made in this regard. The Claims Tribunal awarded interest @ 12% on the amount of award. Counsel for the appellant has submitted that this rate of interest is exaggerated. In view of the deduction made in the award for lump sum payment the rate of interest cannot be said to be unjustified and I am not inclined to make any interference in the rate of interest. 13. The appeal, therefore, lacks merit and is hereby dismissed. 14. No order as to costs. Appeal dismissed. .