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2008 DIGILAW 461 (UTT)

Smt. Beby Ray & others v. Sawan Thapa

2008-10-17

B.C.KANDPAL

body2008
JUDGMENT This appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed by the appellants/ claimants against the judgment and award dated 15.03.2008 passed by Additional District Judge/2nd Fast Track Court, Dehradun in M.A.C.P. No. 75 of 2007 whereby the Tribunal awarded a sum of Rs. 9,54,500/- in favour of the claimants/appellants. 2. Brief facts of the case are that on 22.12.2006, Sri Shakti Prasad Rai (deceased) was going from IRDE, Raipur to his house on the left side of the road. When he reached near Apran Ayudh Nirmani Factory, suddenly, motorcycle bearing No. UA07Q/1039, which was being driven by its driver in a very rash and negligent manner, hit him from behind, due to which the deceased sustained serious multiple injuries on his head as well as on the whole body. He was immediately admitted in the Ordinance Factory Hospital and thereafter he was referred to the Doon Hospital, Dehradun, where the doctor declared him dead during course of the treatment. At the time of the accident, the deceased was 56 years of age and working as a Technical Officer (A) and used to earn Rs. 23,125/- per month as salary. The claimants are the dependent upon the deceased, hence filed the claim petition before the Tribunal for a sum of Rs. 23,23,000/- per month as compensation. 3. Opposite party No. 1 contested the claim petition denying most of the allegations made in the claim petition. In order to support his case, he has filed driving licence, registration certificate and insurance cover note before the Tribunal. 4. Opposite party No. 2 also contested the claim petition by filing its written statement before the Tribunal alleging therein that the accident occurred due to contributory negligence of the deceased. It has further pleaded that the driver of the said motorcycle was not having the valid driving licence. Therefore, the claim petition against the Insurance Company was liable to be dismissed. 5. The Tribunal, on the pleadings of the parties, framed necessary issues and on the basis of the evidence, decreed the claim petition for a compensation of Rs. 9,54,500/- against the respondent No. 2/I.C.I.C.I. Lombard General Insurance Company Ltd. by its judgment and award dated 15.03.2008. The amount of compensation was directed to be paid within one month along with interest @ 6% per annum from the date of filing the claim petition. 6. 9,54,500/- against the respondent No. 2/I.C.I.C.I. Lombard General Insurance Company Ltd. by its judgment and award dated 15.03.2008. The amount of compensation was directed to be paid within one month along with interest @ 6% per annum from the date of filing the claim petition. 6. Feeling aggrieved by the aforesaid judgment and award, the claimants have come up in appeal for enhancing the amount of compensation before this Court. 7. Heard Sri Mohd. Azim, learned counsel for the appellants, Sri Survesh Agarwal, learned counsel for the respondent No. 2 and perused the record. 8. As far as the factum of accident is concerned, the finding recorded by the Tribunal that the accident took place on account of the rash and negligent driving of the driver of the motorcycle that appears to be completely justified and I am also in total agreement with the findings recorded by the Tribunal in this regard. It is also not disputed that the vehicle in question was insured with the respondent No. 2/ICICI Lombard General Insurance Company Ltd., therefore, the Tribunal has rightly fastened the liability of compensation upon the Insurance Company. 9. Learned counsel for the appellants/claimants has submitted before the Court that the Tribunal has committed error while adopting the multiplier of '3' in order to calculate the income of the deceased after retirement. He has further submitted that the multiplier adopted by the Tribunal appears to be on the lower side and it could be at least '5' in order to calculate the amount of compensation. 10. Learned counsel for the respondent No. 2 / Insurance Company did not raise any rival contention against the submission of the learned counsel for the appellants. 11. In order to resolve the sole controversy in this appeal, I have gone through the entire record available before me. Ao far as the quantum of compensation to be awarded in favour of the claimants is concerned, from the evidence on record, it reveals that the age of the deceased was 56 years as has been mentioned in the claim petition. The deceased was working as a Technical Officer (A) in the IRDE. The Tribunal on the basis of salary receipt filed by the claimants has taken into consideration the income of the deceased for calculating the amount of compensation as Rs. 23,125/- and after deducting Rs. 1,500/- toward income tax, the same amount comes to Rs. The deceased was working as a Technical Officer (A) in the IRDE. The Tribunal on the basis of salary receipt filed by the claimants has taken into consideration the income of the deceased for calculating the amount of compensation as Rs. 23,125/- and after deducting Rs. 1,500/- toward income tax, the same amount comes to Rs. 21,625/-. Further, the Tribunal deducted 1/3rd towards personal expenses and then the same amount comes to Rs. 14,417/-. The Tribunal has taken into account that the age of the deceased was 56 years at the time of the accident. Keeping in view the age of the deceased, the Tribunal has considered this aspect that the deceased would have been active in service for further four years. Therefore, the Tribunal keeping in view the income earned by the deceased, calculated the amount of compensation by adopting the multiplier of '4'. Thus, the Tribunal has awarded a sum of Rs. 6,92,016/- on the basis of adopting the multiplier of '4'. Thereafter, the Tribunal has taken into account the multiplier of '3' in order to calculate the amount of compensation on annual pension i.e. Rs. 86,502/-. The Tribunal fell in error by adopting the multiplier of '3' after retirement of the deceased. This multiplier should have been '5' on a sum of Rs. 86,502/- and after adopting the same, the amount of compensation comes to Rs. 4,32,510/- (86502 X 5). Thus, the total amount of compensation on the basis of the aforesaid calculation comes to Rs. 11,24,526. Therefore, in view of the above, the claimants are entitled for an amount of Rs. 11,24,526/- in lieu of death of Sri Shakti Prasad Ray. The amount of compensation shall be paid by the ICICI Lombard General Insurance Company Ltd. to the claimants along with interest of 6% per annum from the date of filing the claim petition till the actual date of payment. As far as the apportionment part is concerned, it need not require any interference. The enhanced amount be paid to the claimant No. 1 Beby Ray. 12. For the reasons recorded above, the appeal is partly allowed. The impugned judgment and award dated 15.03.2008 passed by the Tribunal is modified to the extent that the claimants/appellants shall be entitled for payment of compensation of Rs. 11,24,526/- in stead of Rs. 9,54,400/- as has been awarded by the Tribunal from the respondent No. 2. 12. For the reasons recorded above, the appeal is partly allowed. The impugned judgment and award dated 15.03.2008 passed by the Tribunal is modified to the extent that the claimants/appellants shall be entitled for payment of compensation of Rs. 11,24,526/- in stead of Rs. 9,54,400/- as has been awarded by the Tribunal from the respondent No. 2. The amount of compensation shall be paid along with 6% interest from the date of filing the claim petition till the actual date of payment.