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2007 DIGILAW 541 (UTT)

Smt. Pratibha Bisht and others v. Smt. Shanta Sah

2007-11-02

J.C.S.RAWAT, RAJEEV GUPTA

body2007
Judgment J.C.S. Rawat, J. This appeal under section 173 of the Motor Vehicle Act has been filed against the award dated 19-10-2005 passed by the Motor Accidents Claims Tribunal I District Judge, Nainital (hereinafter referred as 'Tribunal') in M.A.,C.P. No. 38/2005 Smt. Pratibha Bisht & others Vs. Smt. Shanta Shah & another, whereby the leamed Tribunal had awarded a sum of Rs. 6,50,000/ - as compensation alongwith the interest thereon @ 6% p.a. from the date of filing the claim petition till the date of payment. The liability to pay the compensation was fixed upon the Oriental Insurance Company Ltd. 2. Brief facts of the case are that claimants had filed a claim petition before the learned Tribunal for compensation of Rs. 25 lacs alleging therein that on 01-12-2004 deceased Satya Prakash Singh was travelling towards Dehradun from Srinagar Garhwal in the Jeep No. UA-07 -B 2219, which was being driven rashly and negligently by its driver. When the aforesaid vehicle reached at Bachelikhal, Devprayag it fell into a gorge due to rash and negligent driving of its driver. The deceased had sustained the grievous injuries on his person and died at the spot. It had also been alleged that the deceased was working in the Winsome Laboratories Ltd; was earning Rs. 13,0001- p.m. on the date of accident; and he was aged about 34 years. Hence, the claim had been preferred by the dependents of the deceased. 3. The opposite parties filed their written statements and contested the case. The Oriental Insurance Company has denied the allegations made in the claim petition due to lack of knowledge. It was further pleaded by the Insurance Company that the driver of the vehicle was not having valid driving licence at the time of accident. Shanta Shah, who was the owner of the vehicle, has filed her written statement alleging therein that the documents of the vehicle were valid at the time of accident. It was further alleged that the jeep was insured with the Oriental Insurance Company Ltd. and as such, the liability to pay the compensation if any, is of the Oriental Insurance Company. 4. It was further alleged that the jeep was insured with the Oriental Insurance Company Ltd. and as such, the liability to pay the compensation if any, is of the Oriental Insurance Company. 4. 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 deceased died on account of the injuries sustained by him in the motor accident on 01-12-2004; the accident occurred due to rash and negligent driving of the driver of the jeep; and the insurer of the jeep was liable to pay the compensation to the claimants. The Tribunal on a thorough scrutiny of the evidence led by the claimants about the income of the deceased assessed his income at Rs. 4700/- per month or Rs. 56,400/- per annum, The Tribunal had assessed the age of the deceased as 34 years on the date of accident. After deducting 1/3rd for the personal expenses of the deceased, the dependency of the claimants was assessed at Rs. 37,6001- per annum. The Tribunal had applied the multiplier of "17" and the amount of compensation was assessed at Rs. 6,33,200/-. Apart from this, a lumpsum of Rs. 16,800/- was awarded to the claimants towards the funeral expenses, loss of consortium and love & affection. Thus, the Tribunal had awarded a sum of Rs. 6,50,000/- to the claimants as compensation alongwith interest @ 6% p.a. from the date of filing the claim petition till the date of payment. It was further held that the Oriental Insurance Company Ltd. is liable to pay the compensation to the claimant. . 5. Feeling aggrieved by this, the appellants-claimants have preferred the present appeal for enhancement of compensation. 6. Heard learned counsel for the parties and perused the record. 7. Mr. Vinay Kumar, learned counsel for the appellants-claimants submitted that the Tribunal has erred in not accepting the claimants' evidence about the income of the deceased the Tribunal has erred in assessing the monthly income of the deceased at Rs. 47001- per month; and in awarding low interest @ 6% per annum. 8. Mr. KK Sah, Advocate for the Insurance Company on the other hand supported the award and submitted that the Tribunal has correctly assessed the annual income of the deceased on the basis of the salary certificate produced by the claimants before the Tribunal. 9. 47001- per month; and in awarding low interest @ 6% per annum. 8. Mr. KK Sah, Advocate for the Insurance Company on the other hand supported the award and submitted that the Tribunal has correctly assessed the annual income of the deceased on the basis of the salary certificate produced by the claimants before the Tribunal. 9. The findings recorded by the Tribunal that deceased Satya Prakash Singh died on account of the injuries sustained by him in the motor accident on 01-12-2004; the accident occurred due to the rash and negligent driving of the driver of the jeep; and the insurer of the jeep was liable to pay compensation to the claimants are not under-challenge before us in this appeal. Even otherwise, there is overwhelming evidence on record in support of the findings recorded by the Tribunal in this regard. We, therefore, affirm the findings recorded by the Tribunal in that behalf. 10. Now, we shall examine as to whether the compensation of Rs. 6,50,000/- 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. S. Rajapriya reported in J.T. 2005(4) SC 531 has held that : "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 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 the dependants may not life 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. 9. The manner of arriving at the damages is to ascertain the net income of 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 year's 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." 11. Deceased Satya Prakash Singh was aged about 34 years on the date of the accident. The assessment of the income of the deceased made by the Tribunal was at Rs. 4,700/- per month. The Tribunal has assessed the income of deceased on the basis of the salary certificate which reads as follows: Payments Deductions Salary 5000.00 EP.F. 600.00 D.A. 0.00 E.S.I. 95.00 HR.A. 400.00 I. Tax 0.00 Arrear 0.00 Advance 0.00 Bonus 0.00 Misc-Ded. 0.00 Kit Allowance 0.00 Exps Mia Aug. 04 7499.00 Gross Salary 12899.00 Total 695.00 Deductions NET PAYMENT 12,204.00 12. Perusal of the aforementioned pay-slip clearly reveals that the basic-pay of the deceased was Rs. 5000/- on the date of accident. This pay-slip also reveals that the deceased has drawn a sum of Rs. 7,499/- as Expenses for the month of August, 2004. The Tribunal has rightly deducted the said amount while computing the income of the deceased. Perusal of the pay-slip clearly reveals that an amount Rs. 7499/- has been shown as expenses incurred by the deceased during the month of August, 2004. We do not find any fault in the approach of the Tribunal in assessing the income of the deceased at Rs. 4700/- per month. Thus the evidence led before the Tribunal has established that the income of the deceased was Rs. 4700/- per month or Rs. 56,400/- per annum. 13. By deducting 1/3rd of Rs. 56,400/- as the personal expenses of the deceased, the claimants' dependency is assessed at Rs. 37,600/- per annum. 4700/- per month. Thus the evidence led before the Tribunal has established that the income of the deceased was Rs. 4700/- per month or Rs. 56,400/- per annum. 13. By deducting 1/3rd of Rs. 56,400/- as the personal expenses of the deceased, the claimants' dependency is assessed at Rs. 37,600/- per annum. The deceased was 34 years of age on the date of the accident. The claimants are his widow; two minor daughters; one minor son and his mother & father. His widow Smt. Pratibha Bisht is shown aged about 33 years; whereas their minor children were aged about 3 years to 7 years and father & mother were aged about 70 & 60 years respectively. Considering this, we are satisfied that the Tribunal has rightly selected the multiplier of '17' in the facts and circumstances of the case. 14. By multiplying the annual dependency of Rs. 37,600/- with the multiplier of '17', the compensation works out to Rs. 6,39,200/-. (However, by multiplying the annual dependency with the aforesaid multiplier the Tribunal has wrongly calculated the amount of compensation at Rs. 6,33,200/- instead of Rs. 6,39,200/-). The Tribunal has awarded a lumpsum of Rs. 16,800/- towards funeral expenses, loss of consortium and love & affection. Thus, the claimants become entitled to receive a total sum of Rs. 6,56,000/- (Rupees Six Lakhs Fifty Six Thousand only) as compensation for the death of Satya Prakash Singh in the motor accident. 15. The interest awarded by the Tribunal at the rate of 6% per annum is certainly on the lower side. In our opinion, the interest ought to have been awarded at the rate of 7% (seven percent) per annum. With a view to avoid any possible delay in the computation of the amount of interest by the Claims Tribunal and any possible dispute between the parties about the period for which the claimant should get interest, we deem it proper to quantify the same ourselves. The accident, in the present case, took place on 01-12-2004 and the claim petition was filed in the month of February, 2005. The impugned award was passed on 19-10-2005 and the entire amount awarded by the Tribunal was deposited by the insurer of the jeep immediately after the pronouncement of the award. Taking all the above-mentioned relevant factors into consideration, we quantify the amount of interest on the enhanced amount of compensation at Rs. 9,000/-. The impugned award was passed on 19-10-2005 and the entire amount awarded by the Tribunal was deposited by the insurer of the jeep immediately after the pronouncement of the award. Taking all the above-mentioned relevant factors into consideration, we quantify the amount of interest on the enhanced amount of compensation at Rs. 9,000/-. This amount of Rs. 9,000/- also includes the amount of difference between the interest @ 6% awarded by the Tribunal and the enhanced interest @ 7% awarded by us on the amount of compensation awarded by the Tribunal. 16. Thus, the claimants become entitled to receive a total sum of Rs. 6,65,000 (Rs. 6,56,0001- + Rs. 9,000/- quantified as interest). 17. For the foregoing reasons, the appeal filed by the claimant under section 173 of the Motor Vehicles Act for enhancement of the compensation is allowed in part. The compensation of Rs. 6,50,000/- awarded by the Tribunal is enhanced to Rs. 6,56,000/- with further quantified interest at Rs. 9,000/-. 18. The insurer of the jeep Le.-respondent no. 2 - the Oriental Insurance Company Ltd. is directed to deposit the enhanced amount of compensation of Rs. 6,000/- and the quantified interest of Rs. 9,000/- (Rs. 6,000/- + Rs. 9,000/- = Rs. 15,000/-) within a period of two months from today before the concerning Claims Tribunal. 19. No order as to costs.