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2012 DIGILAW 623 (UTT)

NEW INDIA ASSURANCE CO. LTD. v. JARIFAN

2012-09-27

B.S.VERMA

body2012
JUDGMENT [Hon’ble B.S. Verma, J. (Oral)] (Money Withdrawal Application No.10190 of 2012) Heard learned counsel for the appellant and perused the record. 2. This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short the Act) is directed against the judgment and award dated 29-9-2011 passed by the Motor Accident Claims Tribunal/Additional District Judge, Roorkee, district Haridwar (for short the Tribunal), in Motor Accident Claim Petition No. 95 of 2011, Smt. Zarifan Vs. Anil Kumar and others, whereby the learned Tribunal has decreed the claim petition for compensation of Rs. 2,26,000/- as against the insurance company-appellant along with interest @ 6% per annum from the date of filing of claim petition, i.e. 9-5-2011. 3. Brief facts giving rise to the present appeal are that the claimant-respondent no. 1 filed a claim petition under Section 163A of the Act before the Tribunal for compensation in respect of death of her son Akbar Ali (deceased) to the tune of Rs. 17,10,000/- in a motor vehicle accident, which occurred on 9-3-2011 involving Truck No. UP 08-3032. It has been alleged in the claim petition that on 9-3-2011, the deceased was going on motor cycle with his relative Shan Ali from Manglaur to Roorkee, which was being driven at moderate speed on left side. When they reached near Mission Inter College, the offending truck hit the motor-cycle with the result that the deceased as well as his companion suffered fatal injuries and died on the spot. The deceased was a bachelor and healthy person aged about 22 years. The accident is attributed to the negligence of the driver of the offending truck. 4. The claim petition was resisted by the opposite parties-owner and driver of the vehicle by filing their written statement. It was asserted that the owner and insurer of the motorcycle have not been impleaded as party to the proceeding, therefore, the claim petition is bad for non-joinder of necessary party. It was also asserted that the accident in question had occurred due to the own negligence of the motorcyclist, who could not control the motorcycle. The offending truck was insured with the insurance company-appellant and the owner of the vehicle was having all valid documents including the valid driving licence. 5. It was also asserted that the accident in question had occurred due to the own negligence of the motorcyclist, who could not control the motorcycle. The offending truck was insured with the insurance company-appellant and the owner of the vehicle was having all valid documents including the valid driving licence. 5. The Insurance Company also filed its written statement and alleged that the driver of the offending truck was not having valid papers and that the accident in question was a result of contributory negligence of the driver of the offending truck and the motorcyclist. The insurer is not liable to pay any compensation. 6. On the pleadings of the parties, the learned Tribunal has framed necessary issues in the case. 7. The claimants and the owner have filed documentary evidence in the case. The claimants also adduced oral evidence in the case. 8. The learned Tribunal after hearing both the parties and perusing the evidence on record has come to the conclusion that the deceased had died as a result of fatal injuries suffered by him involving Truck No. UP-08-3032. The learned Tribunal also found that that the owner of the offending truck was having valid documents of the vehicle involved in the accident including valid driving licence. The learned Tribunal has assessed the annual income of the deceased at Rs. 36,000/- and has deducted 1/3rd amount towards personal expenses of the deceased. The age of the mother of the deceased, i.e. claimant was assessed to be 56 years, therefore, by applying multiplier of 9, awarded a compensation of Rs. 2,16,000/- to the claimant. In addition, the learned Tribunal has awarded a sum of Rs.5,000/- each towards funeral expenses and loss of estate and ultimately the claim petition has been decreed for a sum of Rs. 2,26,000/- by the impugned award, which gave rise to the present appeal. 9. Learned counsel for the appellant has contended that the deduction of 1/3rd amount from the income of the deceased towards his personal expenses is not justified in view of the Apex Court judgment in the case of Sarla Verma (SMT) and others Vs. Delhi Transport Corporation and another [(2009), 6, S.C.C., Paged 121] and the learned Tribunal ought to have deducted 50% of the income of the deceased as he was a bachelor at the time of his death in the motor vehicle accident. 10. Delhi Transport Corporation and another [(2009), 6, S.C.C., Paged 121] and the learned Tribunal ought to have deducted 50% of the income of the deceased as he was a bachelor at the time of his death in the motor vehicle accident. 10. Since the deceased was a bachelor, the learned Tribunal ought to have deducted 50% of the income towards personal expenses of the deceased in view of the Apex Court judgment in the case of Sarla Verma (SMT) and others Vs. Delhi Transport Corporation and another [(2009), 6, S.C.C., Paged 121]. 11. Thus, after deducting 50% income towards personal expenses of the deceased, the annual loss of dependency comes to 18,000/- and by applying multiplier of 9, total loss of dependency comes to Rs. 1,62,000/- and by adding the amount of Rs. 10,000/- which has been awarded by the Tribunal towards funeral expenses of the deceased and loss of estate, the total compensation comes to Rs. 1,72,000/- instead of Rs. 2,26,000/- as held by the Tribunal. The claimant-respondent no. 1 is therefore entitled to compensation of Rs. 1,72,000/- along with interest @ 6% as awarded by the learned Tribunal. 12. So far as the multiplier applied by the Tribunal is concerned, I find that multiplier of 14 has been applied considering the age of the mother of the deceased, who is stated to be 56 years of age at that time. The learned Tribunal has relied upon the case of Sarla Verma (supra) on this point. 13. No other point was urged in this appeal. 14. In view of the discussion above, the appeal preferred by the Insurance Company is liable to be partly allowed and the impugned award deserves to be modified to the above extent. Rest of the findings recorded by the learned Tribunal deserve to the upheld. 15. The appeal is partly allowed. Costs easy. The impugned award is modified to the extent that the claimant-respondent no. 1 is entitled to compensation of Rs. 1,72,000/- along with interest @ 6% as awarded by the learned Tribunal, payable by the appellant-Insurance Company. Rest of the findings recorded by the learned Tribunal are upheld. 16. The amount, if any, deposited by the appellant in the Registry of this Court be remitted to the learned Tribunal for being paid to the claimant as directed above. 1,72,000/- along with interest @ 6% as awarded by the learned Tribunal, payable by the appellant-Insurance Company. Rest of the findings recorded by the learned Tribunal are upheld. 16. The amount, if any, deposited by the appellant in the Registry of this Court be remitted to the learned Tribunal for being paid to the claimant as directed above. The amount, if any, found in excess as deposited by the appellant shall be refunded to the Insurance Company by the learned Tribunal. Money withdrawal application also stands disposed of.