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2009 DIGILAW 9 (UTT)

Rakesh v. Pramod Kumar

2009-01-07

B.C.KANDPAL

body2009
JUDGMENT: This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the appellants-claimants against the judgment and order dated 28.1.2006 passed by Motor Accident Claims Tribunal/Additional District Judge Haridwar/III F.T.C. District Haridwar in M.A.C.P. No.90/2004, Rakesh and others vs. Pramod Kumar and others, whereby the Tribunal has awarded a sum of Rs.1,14,000/- to the claimants as compensation. 2. The claimants-Rakesh and others filed a claim petition before the Tribunal for grant of compensation on account of death of deceased-Smt. Kusum in a motor accident alleging therein that on 19.7.2004 Smt. Kusum along with family members was going to Haridwar from Rishikesh in vehicle Vikram No. U.A.07C/9139. When the said vehicle reached in front of Midway Hotel at Rishikesh- Dehradun bend, Bus bearing Registration No. U.P.14M/9408 being driven by its driver Pramod Kumar rashly and negligently came there and hit the said Vikram at 7.00 a.m., as a result of which Smt. Kusum sustained injuries on her person and died at the spot itself and other passengers sitting in the Vikram also sustained serious injuries in the accident. Therefore, the claimants claimed a sum of Rs.10,95,000/- as compensation against the opposite parties. 3. Opposite parties filed their separate written statements denying the contents of the claim petition filed by the claimants. 4. The learned Tribunal on the basis of pleadings adduced by the parties framed necessary issues. Parties led oral as well as documentary evidence in support of their case. 5. The learned Tribunal after having considered the entire evidence available on record and hearing learned counsel for the parties decreed the claim petition for a sum of Rs.1,14,000/- along with interest at the rate of 8% per annum from the date of filing the petition till the date of actual payment, vide judgment and award dated 28.1.2006. The Tribunal at the same time directed that although 50% amount of compensation shall be paid by the insurer of Vikram in question i.e. Oriental Insurance Co. Ltd., but the insurer shall have the right to recover that amount from the owner of vehicle i.e. Vikram in question. 6. Feeling aggrieved by the aforesaid impugned judgment and award, the appellants-claimants have preferred the present appeal before this Court for enhancement of amount of compensation. Heard Sri Sanjeev Singh, learned counsel for appellants, Sri Ramji Srivastava, learned counsel for respondent no. 6. Feeling aggrieved by the aforesaid impugned judgment and award, the appellants-claimants have preferred the present appeal before this Court for enhancement of amount of compensation. Heard Sri Sanjeev Singh, learned counsel for appellants, Sri Ramji Srivastava, learned counsel for respondent no. 2, Sri V.K. Kohli, senior Advocate assisted by Sri I.P. Kohli, learned counsel for respondent no. 5 and perused the record. 7. As far as factum of accident is concerned, the learned Tribunal after having considered the entire evidence adduced before it came to the conclusion that on 19.7.2004 at 7.00 a.m. in front of Midway Hotel, the accident has occurred on account of contributory negligence of both the vehicles involved in the accident i.e. Bus No. U.P.M/9408 and Vikram No. U.A.07C/9139, in which Smt. Kusum sustained injuries and consequently succumbed to injuries. I do not find any illegality in the said finding recorded by the Tribunal and same deserves to be confirmed. 8. The Tribunal further held that at the time of accident driver of Vikram in question was having valid and effective driving licence. I also do not find any illegality in the said finding and same also deserves to be confirmed. 9. As far as amount of compensation to be awarded in favour of claimants is concerned, the Tribunal has discussed this point while deciding issue no. 4. The calculation made by the Tribunal in awarding the amount of compensation appears to be wrong. The Tribunal has also fell in error by making the calculation on the basis of notional income of deceased as Rs.15,000/- per annum. It is not in dispute that accident took place in the year 2004. In view of the decision of Division Bench of this Court passed in A.O. No. 2 of 2005, Shobhan Singh and another vs. New India Insurance Company and another (decided on 1.11.2006) as well as price hike, notional income of a person in the year 2004 has been assessed at Rs.36,000/- per annum and after deducting one third amount as personal expenses of the deceased, the financial dependency of the claimants thus comes to Rs.24,000/- per annum. The age of the deceased at the time of accident was between 35 to 40 years, therefore, in view of the latest pronouncement of the Hon’ble Apex Court given in the cases of Tamil Nadu State Transport Corporation Ltd. Versus S. Rajpriya & others, reported in 2005 (4) SC 87, The Managing Director, TNSTC versus Sripriya & others, reported in 2007(5) Supreme 301 and New India Assurance Co. Ltd. vs. Kalpana (Smt) and others, reported in (2007) 2 SCC (Cri) 94, the multiplier in this case cannot travel more than ‘12’ in any manner. The multiplier adopted by the Tribunal as ‘16’ appears to be improper and inadequate. The Tribunal also awarded a sum of Rs.2,000/- for funeral expenses and a sum of Rs.5,000/- for loss of consortium, which appears to be justified and needs no interference. 10. On the basis of the aforesaid calculation, the amount of compensation to be awarded in favour of claimants comes to Rs.24,000 x12=Rs.2,88,000/-. Thus, the total amount of compensation comes to Rs.2,88,000 + Rs.2,000 + Rs.5,000=Rs.2,95,000/-. 11. As far as interest awarded in favour of claimants is concerned, the Tribunal again fell in error in awarding the interest at the rate of 8% per annum. The amount of interest, in my opinion, should be 6% per annum (instead of 8% per annum) from the date of filing the petition till the date of actual payment. 12. On the basis of the aforesaid calculation, I am of the view that the claimants/appellants are entitled for an amount of compensation to the tune of Rs.2,95,000/- along with interest of 6% per annum from the date of filing the petition till the date of actual payment (instead of compensation of Rs.1,44,000/- along with interest of 8% per annum as has been awarded by the Tribunal). 13. As the Tribunal has already observed in the body of the judgment that in this case both the vehicles are equally responsible for causing rash and negligence, therefore, Oriental Insurance Co. Ltd., who is insurer of offending Vikram in question as well as UPSRTC i.e. owner of Bus in question, shall be responsible to pay the amount of compensation in equal proportion i.e. 50% each. In view of the aforesaid discussion, I am of the view that appeal is liable to be partly allowed. 14. Accordingly, appeal is partly allowed. Ltd., who is insurer of offending Vikram in question as well as UPSRTC i.e. owner of Bus in question, shall be responsible to pay the amount of compensation in equal proportion i.e. 50% each. In view of the aforesaid discussion, I am of the view that appeal is liable to be partly allowed. 14. Accordingly, appeal is partly allowed. The impugned judgment and award is modified to the extent that claimants are entitled for a sum of Rs.2,95,000/- as compensation along with interest of 6% per annum from the date of filing the petition till the date of actual payment (instead of compensation of Rs.1,44,000/- along with interest of 8% per annum as awarded by the Tribunal).