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2012 DIGILAW 514 (UTT)

SUMAN v. RAFIQ AHMAD

2012-09-03

B.S.VERMA

body2012
JUDGMENT [Hon’ble B.S. Verma, J. (Oral)] Heard learned counsel for the appellants as well as learned counsel for the Insurance Company-respondent no.3 and perused the record. 2. This is claimants’ appeal under Section 173 of the Motor Vehicles Act, 1988 (for short the Act) is directed against the judgment and award dated 14-5-2009 passed by the Motor Accident Claims Tribunal/Additional District Judge, Kashipur, District Udham Singh Nagar (for short the Tribunal) in Motor Accident Claim Petition No. 111 of 2008, Smt. Suman and others Vs. Rafiq Ahmad and others, whereby the claim petition filed by the claimants has been decreed for compensation of Rs. 2,71,000/- along with simple interest @ 9% per annum payable by the Insurance Company-respondent no.2, as mentioned in the impugned award. 3. Brief facts giving rise to the present appeal are that Mahendra Chaudhary (deceased), husband of the claimant no.1, lost his life in a motor accident which occurred on 28-1-2008 at 5 p.m., near the culvert (Puliya) of Wishwakarma Paper Mill involving Truck No. UP 80 AQ/9043, which was being driven rashly and negligently by its driver. The deceased at the relevant time was riding a cycle. As a result of injuries suffered in the accident, the deceased died on the spot. A report of the accident was lodged with police outpost Kundeshwari, P.S. Kashipur against the driver of the truck. The post-mortem of the dead body was conducted in Government Hospital, Kashipur. The deceased was a healthy person aged 39 years and was employed as Cleaner earning Rs. 4,500/- per month. He was also earning Rs. 3,500/- from the agriculture and was used to contribute the same towards his family. The deceased was the only bread-earner in the family. The claimants have claimed a sum of Rs. 20,00,000/- as compensation for the death of the deceased against the owner and insurer of the offending vehicle. 4. The owner of the offending truck filed his written statement (paper no.1 3Kha) and contested the claim petition. It has been asserted that the owner was possessing all valid documents of the vehicle at the time of accident and that the truck was being driven by its driver Mohd. Saleem on thefateful day and that he was having a valid and effective driving licence. The truck in question was duly insured with the National Insurance Company at the time of accident. Saleem on thefateful day and that he was having a valid and effective driving licence. The truck in question was duly insured with the National Insurance Company at the time of accident. The liability to pay the compensation, if any, rests upon the insurer. 5. The O.P. No. 2-Insurance Company also filed its written statement and contested the claim petition inter alia on the ground that no intimation was given to the insurance company by the owner of the vehicle. It has been asserted that the owner has to prove that the owner was possessing valid documents in respect of the truck in question and that the vehicle was being driven by a person having valid driving licence and there had been no violation of the conditions of insurance. 6. The opposite party no.3- driver of the offending truck also resisted the claim petition by filing his separate written staement mainly on the ground that the answering opposite party was having a valid and effective driving licence on the relevant date and that the liability to pay compensation, if any, lies with the owner and the insurer of the vehicle. 7. On the pleadings of the parties, the learned Tribunal framed three Issues in the case. Issue no.1 related to rash and negligent driving by the driver of the offending truck which resulted into grievous injuries to the deceased leading to the death of the deceased. Issue no. 2 related to the holding of valid and effective driving licence by the driver of the offending truck and Issue No.3 related to relief. 8. On behalf of the claimants, documentary as well as oral evidence have been filed before the Tribunal. No evidence either documentary or oral has been led on behalf of the opposite parties before the Tribunal. 9. The learned Tribunal after hearing learned counsel for the parties and on perusal of the evidence led by the parties came to the conclusion that that the motor accident in question had occurred due to rash and negligent driving on the part of the driver of the offending truck with the result that the deceased suffered fatal injuries and died in the motor accident. Issue no.1 has been decided in affirmative in favour of the claimants. 10. Issue no.1 has been decided in affirmative in favour of the claimants. 10. On issue no.2, the learned Tribunal has come to the conclusion that the driver of the offending truck was having a valid and effective driving licence. The Insurance Company has not filed any evidence to the contrary. Issue No.2 has been decided in favour of the claimants and as against the insurance company. 11. On the point of quantum of compensation, the learned Tribunal took notional income of Rs. 36,000/- per annum of the deceased to workout the loss of dependency and compensation. 1/3rd thereof has been deducted towards personal expenses of the deceased. Thus, the learned Tribunal assessed loss of dependency Rs. 24,000/-per annum. 12. So far as multiplier is concerned, the learned Tribunal has determined the age of the deceased as 45 years at the time of his death. The learned Tribunal however applied multiplier of 11 and worked out total loss of dependency as 24,000/- x 11= Rs. 2,64,000/-. In addition to that, learned Tribunal has awarded a sum of Rs. 2,000/- towards funeral expenses and Rs. 5,000/- loss of consortium to the claimants and accordingly, decreed the claim petition for compensation of Rs. 2,71,000/- by the impugned award dated 14-5-2009. Since the offending truck was duly insured, the compensation was made payable by the National Insurance Company. 13. In this appeal, the appellant has assailed the impugned award mainly on the ground that the learned Tribunal failed to consider the income of the deceased on correct footing and that the appropriate multiplier has not been applied considering the age of the deceased. 14. It may be noted here that in this appeal neither any cross-objection has been filed on behalf of the Insurance Company nor any cross-appeal has been preferred to assail the impugned award. It is settled law that the Insurance Company cannot question the findings on the point of rash and negligent driving as well as quantum of compensation. Moreover, as has been held by the learned Tribunal, the Insurance Company has not led any oral or documentary evidence. 15. Learned counsel for the appellant has contended that the learned Tribunal has erred in not applying the multiplier in view of the Apex Court verdict in the case of Sarla Verma (SMT) and others Vs. Delhi Transport Corporation and another [(2009), 6, S.C.C., Page 121]. 15. Learned counsel for the appellant has contended that the learned Tribunal has erred in not applying the multiplier in view of the Apex Court verdict in the case of Sarla Verma (SMT) and others Vs. Delhi Transport Corporation and another [(2009), 6, S.C.C., Page 121]. Learned counsel for the appellant has also contended that the deduction of 1/3rd towards personal expenses of the deceased should not have been made because considering the number of dependents of the deceased, who are in fact 4 in number, the deduction of 1/4th should have been made. Learned counsel for the appellant also submitted that the Tribunal should have awarded interest from the date of claim petition without imposing any condition. 16. In the case at hand, the number of dependents of the deceased have been mentioned six including the mother and father. In the case of Sarla Verma (supra), it is provided that where there are 4 to 6 dependents, the deduction towards personal expenses would be 1/4th and not 1/3rd as has been made by the learned Tribunal. Therefore, out of the notional income of Rs. 36,000/-, only Rs. 9,000/- will be deducted towards personal expenses of the deceased. The annual loss of dependency thus comes to Rs. 27,000/- instead of Rs. 24,000/-. 17. So far as multiplier is concerned, the learned Tribunal has determined the age of the deceased at the time of his death as 45 on the basis of post mortem report, while the age of the deceased has been mentioned 39 years in the claim petition. Be that as it may. Considering the judgment in the case of Sarla Verma (supra), the appropriate multiplier would be 14 and not 11, as has been held by the learned Tribunal. Thus, the total loss of dependency comes to 2 7,000/-x 14 = Rs. 3,78,000/-. Besides, adding the amounts of Rs. 7,000/- awarded by the learned Tribunal towards loss of consortium and funeral expenses, the total amount of compensation payable to the claimants would be Rs. 3,85,000/- instead of Rs. 2,71,000/-. 18. So far as interest part is concerned, the motor accident had taken place on 28-1-2008, therefore, in my view, to do complete justice, simple interest @ 7% per annum shall be payable to the claimant-appellants from the date of claim petition till the date of payment. 19. 3,85,000/- instead of Rs. 2,71,000/-. 18. So far as interest part is concerned, the motor accident had taken place on 28-1-2008, therefore, in my view, to do complete justice, simple interest @ 7% per annum shall be payable to the claimant-appellants from the date of claim petition till the date of payment. 19. For the reasons and discussion above, the appeal deserves to be partly allowed. The claimant-appellants are held entitled to get compensation of Rs. 3,85,000/- along with simple interest @ 7% per annum from the date of the claim petition till the date of payment. The compensation shall be payable by the Insurance Company-respondent no.2. The impugned award deserves to be modified accordingly. 20. The appeal is partly allowed. Costs easy. The claimant-appellants are entitled to get compensation of Rs. 3,85,000/- (Rs. three lacs eighty-five thousand only) along with simple interest @ 7% per annum from the date of the claim petition till the date of payment, payable by the National Insurance Company-respondent no.2. Rest of the findings recorded by the learned Tribunal are upheld. The impugned award stands modified to the above extent.