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2008 DIGILAW 266 (UTT)

ORIENTAL INSURANCE COMPANY LTD. v. DEEWANI CHAND

2008-06-23

B.C.KANDPAL

body2008
JUDGMENT Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicle Act has been filed by the appellant against the judgment and award dated 6.4.2005 passed by the M.A.C.T./A.D.J./IIIrd F.T.C., Udham Singh Nagar in M.A.C.P. No. 29 of 2004 whereby the Tribunal awarded a sum of Rs. 7,99,842/- along with interest @ 7% per annum from the date of filing the claim petition till the actual payment. 2. Brief facts of the case, according to the claim petition are that on 18.07.2003 at about 6:30 p.m., the deceased was standing near Tigri Choraha Tanakpur Road, for going to his village Naugmanath at the same time a Canter bearing registration No. UP14J/9268 coming from the Tanakpur side which was being driven by its driver in very rash and negligent manner hit the deceased, due to which he sustained fatal injuries. He was immediately rushed to C.H.C., Khatima for his treatment but in the way he has died. The deceased was 24 years of age and used to earn Rs. 5,863/- per month as salary. He was working sepoy in 10th Brigade of the Guards in Army. The claimants are the father, mother, brother and sister of the deceased and have filed the claim petition before the Tribunal for a sum of Rs. 20,00,000/- as compensation. 3. The opposite party No. 1 – Jagtaar Singh owner of the vehicle in question has contested the claim petition by filing his written statement alleging therein that the accident was not caused by any negligence of Canter driver but it was took place due to sole negligence of the deceased himself. It has further pleaded that on the date of accident, the vehicle in question insured with the Oriental Insurance Company Ltd., therefore, the liability, if any, lies upon the Insurance Company. 4. The Oriental Insurance Company Ltd. also contested the claim petition by filing its written statement before the Tribunal concerned alleging therein that the Company has not been furnished with the information in respect of the alleged accident under Section 156(6) of the Motor Vehicle Act, 1988. Therefore, the burden lies on the claimant to remove the doubt raised on this ground. Therefore, the burden lies on the claimant to remove the doubt raised on this ground. It has further pleaded that the decease has not been caused by the alleged accident due to which the claimant is not will within his rights to claim any compensation without proving the fact that the death was caused as a direct result of the alleged accident. It has also pleaded that the First Information Report was lodged against the Canter No. UP04A/0044 but the claim has not been filed against vehicle No. UP14J/9258 which raises a serious apprehension about the claim petition. 5. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues, which were discussed at a great length. Both the parties led the evidence in support of their cases. After hearing learned counsel for the parties and perusing the entire material available on record, the Tribunal decreed the claim petition for a sum of Rs. 7,99,842/- along with interest @ 7% per annum from the date of filing the claim petition vide judgment and award dated 6.4.2005. 6. Feeling aggrieved by the aforesaid judgment and award, the appellant has preferred this appeal before this Court. 7. Heard Sri M.K. Goyal, learned counsel for the appellant, Sri S.K. Mandal, learned counsel for the respondents no. 1 to 4 and perused the record. 8. Learned counsel for the appellant has first of all submitted that the Tribunal failed to consider this aspect that the First Information Report was initially lodged against the vehicle No. UP04A/0044 by Sri Kailash Chand who claimed himself to be the eyewitness of the accident and after a gap of few months another report was given by the Investigating Officer in which another vehicle No. UP14J/9258 was impleaded. 9. Learned counsel for the respondent has invited my attention towards the statement of Narendra Singh who was the driver of UP14J/9258 and he admitted that on 18.07.2003, the accident took place due to his rash and negligent driving. He has further submitted that the Tribunal has rightly decided the issue relating to the rash and negligent driving of the vehicle No. UP14J/9258. 10. After hearing learned counsel for the parties and examining the entire record available before me, I am of the view that the Tribunal has rightly decided the issue related to the rash and negligent driving. He has further submitted that the Tribunal has rightly decided the issue relating to the rash and negligent driving of the vehicle No. UP14J/9258. 10. After hearing learned counsel for the parties and examining the entire record available before me, I am of the view that the Tribunal has rightly decided the issue related to the rash and negligent driving. I do not find any force in the submission advanced by learned counsel for the appellant. The Tribunal relied upon the statement of Narendra Singh (D.W.1) who was the driver of the vehicle No. UP14J/9258. He has stated in his statement that on 18.07.2003 he was going from Tanakpur to Khatima, when he reached near Tigri Choraha at about 06:30 p.m., in order to save the coming jeep from the opposite direction, the canter in question dashed with the standing scooter and the deceased. Thus, the Tribunal, on the basis of his statement held that the accident took place due to rash and negligent driving of the driver of the canter No. UP14J/9258. I am in total agreement with the finding recorded by the Tribunal. 11. Learned counsel for the appellant has further submitted that age of the father of the deceased was 48 years and the age of the mother was 45 years and the Tribunal adopted the multiplier of ‘17’, which appears to be on the higher footing. Learned counsel for the appellant has further submitted that the same cannot be traveled more than ‘10’ in any way. 12. Learned counsel for the respondent has submitted that the appellant himself mentioned that the Tribunal has to adopt the multiplier of ‘13’ instead of ‘17’, therefore, it cannot be taken into consideration less than ‘13’. 13. After hearing learned counsel for the parties as well as in view of the ground taken in the memo of appeal, as far as the amount of compensation is concerned, the Tribunal has considered the monthly income of the deceased as Rs. 5,863/- and the annual income of the deceased comes to Rs. 70,356/- and after deducting 1/3rd amount towards personal expenses, then the annual dependency of the claimants comes to Rs. 46,904/-. As far as the monthly income of the deceased is concerned, the Tribunal has rightly calculated the amount of compensation on the basis of the salary drawn by the deceased at the time of the accident. 70,356/- and after deducting 1/3rd amount towards personal expenses, then the annual dependency of the claimants comes to Rs. 46,904/-. As far as the monthly income of the deceased is concerned, the Tribunal has rightly calculated the amount of compensation on the basis of the salary drawn by the deceased at the time of the accident. At the time of awarding the amount of compensation, the age of the father and mother of the deceased was 48 and 45 years respectively. Learned counsel for the appellant has argued that keeping in view the dictum of the Hon’ble Apex Court in Municipal Corporation of Greater Bombay Vs. Laxman Iyer & another reported in (2003) 8 SCC 731, the multiplier cannot travel more than ‘10’. 14. I do not find any force in the arguments advanced by learned counsel for the appellant. The in the ground of appeal, which reads as follows :- “f. Because, the learned Motor Accident Claim/Tribunal failed to consider, that, as has been mentioned in the claim petition on the date of accident, Sri Deewani Chand the father of the deceased was 48 years old and Smt. Rukmani Devi, Mother of the deceased was 45 years old, therefore the multiplier of 13 ought to have been applied, but the learned Motor Accident Claim/ Tribunal has erroneously applied the multiplier of 17”. 15. Learned counsel for the appellant himself pleaded in the memo of appeal that the multiplier cannot exceed more than ‘13’ considering the facts and the circumstances of the present case. In view of the ground taken by the appellant himself with regard to the multiplier to be adopted in the case, the principle enunciated in the judgment (supra) is not applicable to the facts and circumstances of the present case and as mentioned above, the annual financial dependency of the parents comes to Rs. 46,904/- and after adopting the multiplier of ‘13’, the amount of compensation comes to Rs. 6,09,752/-. 16. Accordingly, the appeal is partly allowed. The impugned judgment and award is modified upto the extent that the claimants are entitled to get Rs. 6,09,752/- instead of Rs. 7,99,842/- along with interest as indicated in the impugned judgment and award. 17. The amount deposited before this Court be remitted to the Tribunal concerned.