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2008 DIGILAW 615 (HP)

ASHA CHANDEL v. RAJINDER KUMAR

2008-12-19

KULDIP SINGH

body2008
JUDGMENT : Kuldip Singh, J. 1. The appellants, who were the claimants have filed this appeal against award dated 12.11.2003 passed by Motor Accidents Claims Tribunal, Bilaspur in M.A.C. Case No. 75 of 2002, awarding Rs. 6,00,000 compensation in favour of appellants and against respondents. The respondent No. 3 was directed to deposit the amount of compensation within two months from the date of award, failing which, simple interest at the rate of 9 per cent per annum from the date of award till realization shall also be payable. The award amount was made payable to appellants in the ratio of 5:1. 2. Facts in brief are that Rakesh Kumar Chandel, aged 30 years, on 15.7.2002 at about 5.30 p.m. was riding motor cycle No. HP 23-A 1049 and was proceeding from Bilaspur to Naina Devi Ji. The truck No. HP 24-2841 which was being driven by respondent No. 1 and owned by respondent No. 2 was coming from the opposite side and Rakesh Chandel was going uphill near Swarghat. The respondent No. 1 was driving the truck in a rash and negligent manner and he knocked down Rakesh Chandel who suffered multiple injuries, he was taken to Civil Dispensary, Swarghat for medical aid. The injured was referred to District Hospital, Bilaspur where he succumbed to his injuries. The deceased was working as the Junior Telecommunication Officer and was receiving Rs. 11,370 salary per month. The appellant No. 1 is the widow and appellant No. 2 is the mother of the deceased. The truck and the motor cycle were insured with respondent No. 3. On these grounds petition for claiming Rs. 20,00,000 as compensation was filed by the appellants. 3. The respondent Nos. 1 and 2 had contested the petition. They admitted the ownership of the truck and the fact that on the relevant date, truck was being driven by respondent No. 1, they denied that accident took place due to rash and negligent driving on the part of respondent No. 1. They attributed accident to the negligence of the deceased while driving motor cycle. It has been alleged that Rakesh Chandel had died due to injuries sustained by him as a result of his own negligence. They denied the age, income and occupation of the deceased. The truck was insured and liability, if any, is of the insurer. 4. They attributed accident to the negligence of the deceased while driving motor cycle. It has been alleged that Rakesh Chandel had died due to injuries sustained by him as a result of his own negligence. They denied the age, income and occupation of the deceased. The truck was insured and liability, if any, is of the insurer. 4. The respondent No. 3 had contested the claim petition and admitted that the truck was insured at the time of accident. It was, however, pleaded that respondent No. 1 was not holding valid and effective driving licence at the time of the accident. There is contravention of the terms and conditions of the insurance policy, hence, the insurer is not liable to indemnify the respondent No. 1. The learned Tribunal took the dependency of the appellants at Rs. 5,000 per month and after applying the multiplier of 10 awarded Rs. 6,00,000 with conditional interest as noticed above. In these circumstances appellants have filed the appeal. 5. I have heard Mr. T.S. Chauhan, learned Counsel for the appellants, Mr. K.D. Sood, learned Counsel for the respondent No. 3 and gone through the record, none appeared on behalf of respondent Nos. 1 and 2. Mr. T.S. Chauhan, learned Counsel for the appellants submitted that learned Tribunal has erred in assessing the dependency of the appellants at Rs. 5,000 per month, similarly multiplier of 10 has been applied on the lower side while awarding compensation to the appellants. Learned Tribunal has awarded conditional interest. The appellants are entitled to compensation as claimed by them in the petition along with at least interest at the rate of 9 per cent per annum from the date of petition till realization. The learned Counsel for the insurer has submitted that the appellants are not entitled to any enhancement over and above amount awarded by the learned Tribunal. In this way, the learned Counsel for respondent No. 3 has supported the impugned award. 6. The controversy between the parties in the present case is confined only to the quantum of compensation. The respondents have accepted the award and not challenged it. The respondent Nos. 1 and 2 opted not to contest the appeal as none appeared on their behalf at the time of hearing of the appeal. Exh. PW2/A is the salary certificate of Rakesh Kumar Chandel, J.T.O. for the month of June 2002 and in Exh. The respondents have accepted the award and not challenged it. The respondent Nos. 1 and 2 opted not to contest the appeal as none appeared on their behalf at the time of hearing of the appeal. Exh. PW2/A is the salary certificate of Rakesh Kumar Chandel, J.T.O. for the month of June 2002 and in Exh. PW2/A his total salary Rs. 11,370 has been shown, deduction of Rs. 2,500 towards GPF and Rs. 30 towards CGEGIS has been shown in Exh. PW2/A. The net carry-home salary of the deceased has been shown as Rs. 8,840. The date of birth of the deceased was 15.2.1972 as per matriculation examination certificate, Exh. PR. Thus the deceased was 30 years of age at the time of accident and death. The learned Tribunal has taken carry-home salary of Rakesh Chandel at Rs. 8,840 and out of this an amount of Rs. 3,840 was deducted on account of expenses expected to be incurred by the deceased. The contribution to the family was assessed at Rs. 5,000 per month. The learned Tribunal has committed basic error in taking carry-home salary as Rs. 8,840 per month of the deceased. The learned Tribunal has ignored that the deceased was deducting Rs. 2,500 per month on account of GPF which was to come back to the deceased in absence of his death, Rs. 2,500 per month was otherwise accretion to the estate of the deceased to which appellants are entitled. In the salary certificate there is another deduction of Rs. 30 towards CGEGIS, therefore, income of the deceased by way of salary can safely be taken at Rs. 11,340 (Rs. 11,370 - Rs. 30). On the basis of unit system keeping in view the number of claimants, who were dependent upon the deceased, the personal expenses of deceased comes to Rs. 3,790 or say Rs. 4,000 per month and in this way per month dependency of the appellants comes to Rs. 7,340 (Rs. 11,340 - Rs. 4,000). The annual dependency of the appellants comes to Rs. 7,340 x 12 = Rs. 88,080. In Oriental Insurance Company Ltd. Vs. Jashuben and Others, the deceased was 35 years and the Hon'ble Supreme Court has applied multiplier of 13. In The New India Assurance Company Limited Vs. Smt. Kalpana and Others, the deceased was 33 years and the Supreme Court has applied multiplier 13. 7,340 x 12 = Rs. 88,080. In Oriental Insurance Company Ltd. Vs. Jashuben and Others, the deceased was 35 years and the Hon'ble Supreme Court has applied multiplier of 13. In The New India Assurance Company Limited Vs. Smt. Kalpana and Others, the deceased was 33 years and the Supreme Court has applied multiplier 13. In the present case, the deceased was 30 years of age and, therefore, 14 is the appropriate multiplier, hence, appellants are entitled to compensation Rs. 88,080 x 14 = Rs. 12,33,120. On this amount the appellants are entitled to interest at the rate of 9 per cent per annum from the date of filing of the petition till payment. 7. Learned Counsel for the respondent No. 3 has submitted that suitable deduction on account of payment of income tax is to be made from the per month salary of the deceased. Salary certificate, Exh. PW2/A indicates only two deductions as noticed above. In the salary certificate no deduction on account of income tax has been referred. There is nothing on record to show, even if the plea of respondent No. 3 is accepted, what should be the deduction on account of payment of income tax. At the time of hearing it has not been elaborated at what rate and on what amount income tax should be deducted from the salary of the deceased, therefore, in absence of evidence, no deduction from the income of the deceased on account of income tax can be made and the contention of learned Counsel for the respondent No. 3 is rejected. The learned Tribunal has not properly assessed the compensation payable to the appellants on account of death of Rakesh Kumar Chandel, similarly interest has also not been awarded as per law. Therefore, impugned award is liable to be modified. 8. No other point was urged. 9. The result of above discussion, the appeal is allowed, the impugned award is modified, an award of Rs. 12,33,120 is passed in favour of appellants-claimants and against the respondent Nos. 1 and 2, driver and owner of the truck as well as the respondent No. 3 insurer along with interest at the rate of 9 per cent per annum from the date of filing of the petition, i.e., 26.10.2002 till payment of the amount. 12,33,120 is passed in favour of appellants-claimants and against the respondent Nos. 1 and 2, driver and owner of the truck as well as the respondent No. 3 insurer along with interest at the rate of 9 per cent per annum from the date of filing of the petition, i.e., 26.10.2002 till payment of the amount. Truck was insured with respondent No. 3, therefore, whole of the amount of compensation along with interest shall be paid by respondent No. 3 to appellants in the ratio of 5:1 as held by the Tribunal. The amount of compensation shall include amount, if any, awarded or paid to appellants u/s 140 of the Act. No costs.