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2007 DIGILAW 472 (UTT)

Oriental Insurance Co. Ltd. v. Sharda Rani

2007-08-30

B.C.KANDPAL, P.C.VERMA

body2007
JUDGMENT : P.C. Verma and B.C. Kandpal, JJ.-Since both these appeals u/s 173 of the Motor Vehicles Act, 1988, have been preferred against the judgment and award dated 7.4.2005 passed by the M.A.C.T./Addl. District Judge, Udham Singh Nagar in M.A.C.P. No. 59 of 2003, therefore, the appeals are being decided by this common judgment. M.A.C.T./Addl. District Judge (hereinafter referred as 'the Tribunal') vide aforesaid judgment awarded compensation of Rs. 7,29,500 along with interest at the rate of 6 per cent per annum from the date of presentation of claim petition till the date of final payment to the claimants payable by Oriental Insurance Co. Ltd. 2. Brief facts of the case are that on 10.10.2002, Pramod Kumar Bansal, along with his friends and relatives was returning to his home in jeep No. UP 04-A 7437 after attending 'Kisan Mela' at Pant Nagar and when they reached at Mehtosh Moar, within P.S. Gadarpur, the jeep was stopped in order to urinate by the occupiers of the jeep. Pramod Kumar Bansal was urinating at the corner of the road. Suddenly tractor-trolley bearing registration No. UP 04-B 4145 came there at a high speed and dashed Pramod Kumar Bansal due to which he was seriously injured and was rushed to Bazpur Hospital for medical aid but he died on the way. The information of the accident was sent to the Police Station, Bazpur on 11.10.2002. According to the claimants the deceased Pramod Kumar Bansal was a healthy person and was a contractor in the Forest Department and also a Supervisor in S.D. Seeds Pvt. Ltd. His annual income was Rs. 4,54,850. The claimants have claimed Rs. 80,00,000 as compensation. Dulhe Khan, owner of the tractor No. UP 04-B 4145, contested the claim petition by filing his W.S. He alleged that the accident occurred due to own fault of the deceased. The tractor driver had valid driving licence and it was insured with Oriental Insurance Co. Ltd. 3. The O.P. Oriental Insurance Co. Ltd. filed its W.S. before the 'Tribunal' and alleged that the driver of the tractor in question was driving it on wrong side and the accident had occurred due to own fault of its driver as he did not stop the tractor at the spot. It is also alleged that the trailer of the tractor was not insured with the insurance company. It is also alleged that the trailer of the tractor was not insured with the insurance company. The monthly income of the deceased averred by the claimants was also controverted. 4. On the basis of the pleadings of parties, the learned Tribunal framed the following issues in the claim petition: (1) Whether on 10.10.2002 at 5.50 p.m. when Pramod Kumar Bansal was travelling in jeep No. UP 04-A 7437 form Pant Nagar to Bazpur, the accident has occurred at Mehtosh Moar, due to rash and negligent driving of the driver of tractor-trolley No. UP 04-B 4145 in which Pramod Kumar Bansal has died? (2) Whether the driver of the jeep No. UP 04-A 7437 drove the vehicle on the wrong side due to which the accident has occurred? (3) Whether the petition is bad for non-joinder of necessary parties, the owner and insurer of jeep No. UP 04-A 7437? (4) To what relief amount the claimants are entitled to get and from whom? 5. Parties led documentary as well as oral evidence in support of their cases. The learned Tribunal after hearing the learned Counsel for the parties and having gone through the evidence on record, allowed the claim application for compensation of Rs. 7,29,500 along with interest at the rate of 6 per cent per annum from the date of presentation of petition till final payment against Oriental Insurance Co. Ltd. 6. Feeling aggrieved by the impugned judgment and award Oriental Insurance Co. Ltd. has preferred A.O. No. 310 of 2005 for setting aside the award and the claimants have filed A.O. No. 312 of 2005 for enhancement of the compensation. 7. We have heard the learned Counsel for the parties and perused the record. 8. Perusal of lower court record reveals mat Oriental Insurance Co. Ltd. has moved application u/s 170 of the Motor Vehicles Act, 1988, seeking permission to contest the claim petition on all the grounds available to the insured. The application is paper No. 25-C in the lower court file and the said application was allowed by the Tribunal, therefore, the appellant Oriental Insurance Co. Ltd. has right to file and argue the appeal before this Court. 9. The learned Counsel for Oriental Insurance Co. The application is paper No. 25-C in the lower court file and the said application was allowed by the Tribunal, therefore, the appellant Oriental Insurance Co. Ltd. has right to file and argue the appeal before this Court. 9. The learned Counsel for Oriental Insurance Co. Ltd. has firstly submitted that the accident occurred due to contributory negligence of the jeep as well as the tractor-trolley but the owner and the insurer of the jeep have not been made parties to the claim petition, therefore, the claim petition was bad for non-joinder of necessary party and the Tribunal has committed error in holding the sole liability of the appellant Oriental Insurance Co. Ltd. 10. On the other hand, learned Counsel for the claimants opposed the submission contending that the driver of tractor-trolley was driving it in a rash and negligent manner and dashed the deceased while he was urinating at the corner of the road. The jeep had no concern with the accident, therefore, the Tribunal was justified in holding the sole responsibility of the insurer of the tractor. 11. In the support of their version the claimants got examined Suresh Chandra Garg, PW 4, an eyewitness of the accident. This witness has deposed that on the date and time of the accident he along with his friend Amarjeet was going to Bazpur from Rudrapur and when they reached at Mehtosh Moar, his friend Amar Singh went to toilet and he was standing near the motor cycle. After 4-5 minutes a jeep came and stopped there and its passengers started urinating. Suddenly, tractor-trolley No. UP 04-B 4145 came there at a high speed and dashed the standing jeep and also dashed a person urinating near the jeep due to which he sustained serious injuries. No reason has been shown from the side of the opposite parties as to why this witness will depose falsely against them. It is also important to mention here that report of the accident was lodged at the police station and after investigation charge-sheet was submitted against the driver of the tractor-trolley in question. The certified copy of the charge-sheet has been filed as paper No. 45-C/3. The opposite parties have not adduced any evidence to rebut the above eyewitness account of the claimant side pertaining to the accident. The Tribunal was well within its jurisdiction to hold the tractor-trolley responsible for causing the accident. The certified copy of the charge-sheet has been filed as paper No. 45-C/3. The opposite parties have not adduced any evidence to rebut the above eyewitness account of the claimant side pertaining to the accident. The Tribunal was well within its jurisdiction to hold the tractor-trolley responsible for causing the accident. Admittedly the tractor-trolley was insured with Oriental Insurance Co. Ltd. at the time of accident and it had valid registration, driving licence, etc. Hence the appellant Oriental Insurance Co. Ltd. is solely liable to pay the compensation. 12. Learned Counsel for the claimants-appellants has argued that the Tribunal assessed the income of the deceased on lesser side and the multiplier adopted by the Tribunal was also wrong, therefore, the compensation should be enhanced. 13. The learned Counsel for Oriental Insurance Co. Ltd. has refuted the above submission and contended that the Tribunal has awarded exorbitant amount of compensation and the same is liable to be reduced. 14. Perusal of the record reveals that the claimants have shown the monthly income of the deceased from service as well as from the agriculture as Rs. 37,704.16. Claimants also filed pay certified paper No. 7-C/7, according to which the total monthly income of the deceased has been shown as Rs. 6,037.50. The opposite parties has not challenged the genuineness of this document by adducing evidence. The claimants also filed paper No. 7-C/8 which is lease in favour of the deceased. The said lease was valid up to 31.5.2002, therefore, the claimants have not been able to prove the income of the deceased from the agriculture at the time of the accident. In the aforesaid circumstances learned Tribunal has rightly assessed the monthly income of the deceased as Rs. 6,000. So far as the multiplier adopted by the Tribunal is concerned, the learned Tribunal has taken the age of the deceased as 40 years and has adopted the multiplier of 15, which is prescribed in Second Schedule appended to Section 163-A of the Motor Vehicles Act, 1988. The learned Tribunal also deducted 1/3rd amount towards personal expenses of the deceased, therefore, the total dependency of the claimants was assessed as Rs. 7,20,000 (Rs. 4,000 x 12 x 15). The Tribunal also awarded Rs. 2,000 towards funeral expenses, Rs. 5,000 towards loss of consortium and Rs. 2,500 as loss to the estate, thereby awarding a total amount of Rs. 7,20,000 + Rs. 7,20,000 (Rs. 4,000 x 12 x 15). The Tribunal also awarded Rs. 2,000 towards funeral expenses, Rs. 5,000 towards loss of consortium and Rs. 2,500 as loss to the estate, thereby awarding a total amount of Rs. 7,20,000 + Rs. 2,000 + Rs. 5,000 + Rs. 2,500 = Rs. 7,29,500. The rate of interest awarded by the Tribunal is 6 per cent per annum and in our view it cannot be said to be unjust. In view of above discussion, both the appeals lack merit and are liable to be dismissed. 15. Accordingly, both the Appeal Nos. 310 and 312 of 2005 are dismissed. The impugned judgment and award of the Tribunal concerned is upheld. The amount of compensation, if deposited, in this Court, shall be remitted to the Tribunal concerned. 16. Let a copy of this order be placed in the file of A.O. No. 312 of 2005.