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2011 DIGILAW 2069 (HP)

ORIENTAL INSURANCE CO. LTD. v. DHARAM SINGH

2011-04-06

DEV DARSHAN SOOD

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JUDGMENT : Dev Darshan Sud, J. This appeal arises out of the award passed by learned Motor Accidents Claims Tribunal (II), Mandi. Learned Tribunal on consideration of the evidence awarded a sum of Rs.2,14,000 which included Rs.30,000 as the value of the goods being carried in the accidented vehicle. This aspect of the case need not detain this court any further as the Full Bench in Sh. Jagdish Chand Sharma Vs. Sh. Bachan Singh and Others, (2010) ACJ 1229, held : (40) In view of the above discussion, we answer both the questions posed to us in the following terms : (1) The phrase "any property of a third party" occurring in sections 147 and 165 of the Motor Vehicles Act will mean property which is outside the goods vehicle and not being carried in the goods vehicle. (2) The second question is answered by holding that the goods of a consignor/ consignee being carried in a goods vehicle cannot be termed to be property of a third party. (41) The appeals may now be listed before a learned single Judge for decision in accordance with law. Since the goods were being carried in the vehicle which met with the accident, the award of Rs. 30,000 cannot be sustained and it is held accordingly. 2. The second point urged by the learned counsel for the petitioner is that the learned Tribunal was wrong in holding that the driver of the vehicle Bhagat Ram was not possessed of a valid driving licence. Learned counsel submits that the statement of Hans Raj, RW 4, is conclusive on this aspect. This witness stated that the endorsement on the driving licence., Exh. DB, authorising the driver Bhagat Ram to drive heavy transport vehicle has not been entered in the register maintained by the authority. I cannot accept this submission for the reason that in cross-examination, this witness states that there are two licensing authorities in Shimla and this witness is unable to say anything about the endorsement Exhs. PW4/A and PW4/B authorising the petitioner to drive heavy transport vehicle having been made by the other authority with whom this witness is not working nor familiar with the record. According to him, this endorsement could have been made by the other licensing authority functioning in Shimla. He also says that he cannot identify the stamp, Exh. DB, of the licensing authority where he is posted. According to him, this endorsement could have been made by the other licensing authority functioning in Shimla. He also says that he cannot identify the stamp, Exh. DB, of the licensing authority where he is posted. This evidence has rightly prompted the learned Tribunal to hold that it does not conclusively establish that the driver was not possessed of a valid driving licence. I have seen Exh. DB and do find that it has been endorsed by the licensing authority authorising the petitioner to drive heavy transport vehicle. There is, thus, no force in the submission made by learned counsel appearing for the appellant and the same is accordingly rejected. Cross-Objection No. 367 of 2003: 3. The basic grievance of the cross-objector is that wrong multiplier has been applied by the learned Tribunal. Learned counsel refers to the Schedule to the Act which provides that in case the deceased is above 50 years but not exceeding 55 years, the multiplier to be used is 11. The learned counsel also urges that the learned Tribunal has taken the income of the deceased to be Rs. 2,000 per month and that which is against the law settled by the Supreme Court in Lata Wadhwa and Others Vs. State of Bihar and Others, (2001) 8 SCC 197 , and Arun Kumar Agrawal and Another Vs. National Insurance Company and Others, (2010) 9 SCC 218 . 4. On the aspect of the multiplier, there is no dispute that the multiplier applied by the Tribunal, which is 7, cannot be sustained and that multiplier of 11 should be applied as provided for in the Schedule to the Motor Vehicles Act. In this case, it is established on record that the deceased was, in fact, aged about 55 years. On the question of income also, what I find from the judgment of the Supreme Court in Lata Wadhwa and Others Vs. State of Bihar and Others, (2001) 8 SCC 197 , that the income even if considered notionally would work out to be Rs.3,000 per month. In that case, the court was assessing the notional income of a housewife as contribution to the family. In the present case, the deceased was carrying on business of shopkeeper and obviously his income would be more. In these circumstances, the cross-objections are partly allowed. 5. In that case, the court was assessing the notional income of a housewife as contribution to the family. In the present case, the deceased was carrying on business of shopkeeper and obviously his income would be more. In these circumstances, the cross-objections are partly allowed. 5. In the totality of the facts and circumstances of the case, it is directed that: (a) A sum of Rs.30,000 awarded by the learned Tribunal for loss of goods is set aside and cannot be sustained. However, the claimants would be free to pursue this claim in accordance with law if so permitted under the law. (b) The multiplier of 7 applied by the learned Tribunal is set aside and instead a multiplier of 11 is directed to be applied and the income is also increased from Rs. 2,000 to Rs. 3,000 per month. In these circumstances, the dependency would work out to Rs.1,500 per month. Total amount to be awarded would be Rs.1,500 x 12 x 11=Rs.1,98,000. The award is modified accordingly. This amount shall carry interest at the rate of 9 per cent per annum from the date of filing of the petition till realization. If any amount has been paid under the award that would naturally be deducted from this amount which has been awarded. So also, if the amount has been deposited as directed by the Tribunal, then interest will be payable only on the amount as increased by this court. Cross-objection disposed of accordingly.