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2013 DIGILAW 516 (UTT)

Bhajan Singh S/o Sri. Aliram v. Jarnail Singh S/o Sri. Dileep Singh

2013-08-06

PRAFULLA C.PANT

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JUDGMENT : Prafulla C. Pant, J. This appeal, preferred under Section 173 of Motor Vehicles Act, 1988, is directed against award dated 26.07.2010, passed by Motor Accident Claims Tribunal/District Judge, Udham Singh Nagar, in Motor Accident Claim Case No. 27 of 2008, whereby said Tribunal has directed the appellant Bhajan Singh (owner of the tractor) to pay compensation of Rs. 4,44,000/- to the claimants (respondents No. 1 to 5) 2. Heard learned counsel for the parties, and perused the record of the Tribunal. 3. Brief facts of the case are that on 18.12.2007, Smt. Chindo Kaur (deceased) was going on a motorcycle bearing Registration No. UA06E-8293 with one Moin Khan from Village Diyodi to Bargadpur. When she reached near Bargadpur bend, a tractor trolley bearing Registration No. UA-06-6256 of Sonalika make, which was being driven rashly and negligently by its driver Rajendra Singh (present respondent No. 8) collided with the motorcycle, Moin Khan, and Smt. Chindo Kaur suffered injuries. Immediately, the injured were taken to the hospital, where Smt. Chindo Kaur succumbed to injuries. A First Information Report of the accident was lodged at Police Station Nanakmatta, on the basis of which, Crime No. 3211 of 2007, was registered, relating offences punishable under Section 279, 304A, 427 and 338 of I.P.C., against the driver of the tractor. After investigation, charge sheet was filed against the respondent No. 8 Rajendra Singh (driver of the tractor). Claimants Jarnail Singh (husband of the deceased) and his four children namely Paramjeet Kaur, Sona Singh, Manjeet Kaur and Diler Singh filed claim petition under Section 166 of Motor Vehicles Act, 1988, before the Motor Accident Claims Tribunal/District Judge, Udham Singh Nagar. It is stated in the claim petition that the deceased was aged 35 years and she used to earn Rs. 6000/- per month. The claimants claimed Rs. 15,35,000/- as compensation from the owner of the tractor bearing Registration No. UA06-6256 and National Insurance Company Ltd., with whom, the tractor was insured, on the date of accident (18.12.2007). 4. The claim petition was contested by the owner and the driver of the tractor and the National Insurance Company Ltd., with whom the tractor was insured. Haseenuddin (owner of the motorcycle) also filed his written statement, but in substance, he admitted the contents of the claim petition. 4. The claim petition was contested by the owner and the driver of the tractor and the National Insurance Company Ltd., with whom the tractor was insured. Haseenuddin (owner of the motorcycle) also filed his written statement, but in substance, he admitted the contents of the claim petition. Bhajan Singh (owner of the tractor) who is present appellant before this Court in his written statement before the Tribunal denied the contents of the claim petition. In his additional pleas, he stated that the accident occurred due to the negligence on the part of the motorcyclist. He also pleaded that the tractor was insured with the National Insurance Company Ltd., under the Policy No. 461800/47/06/9700001155. The National Insurance Company Ltd., in its written statement denied the contents of claim petition, but in the additional pleas pleaded that the vehicle (tractor) was being driven in violation of the conditions of the policy. It is also specifically pleaded by the Insurance Company that the claimants have concealed in clandestine manner, the negligence on the part of the motorcyclist. 5. On the basis of the pleadings of the parties, the Tribunal framed following issues: (1) Whether on 18.12.2007, at about 3.00 p.m. near Bargadpur bend tractor bearing Registration No. UA06-6256 was being driven rashly and negligently by its driver, due to which, it collided with the motorcycle and Smt. Chindo Kaur died on account of injuries suffered by her in the accident? If so, its effect? (2) Whether the driver of the tractor was in possession of the valid license? If not, its effect? (3) Whether the motorcyclist had valid license to drive the motorcycle? If not, its effect? (4) Whether the claim petition is bad for non-joinder of the owner of the motorcycle? (5) To what amount of compensation, if any, the claimants are entitled? And from whom? 6. The Tribunal recorded evidence of the parties, and after hearing them opined that notional income of the deceased was Rs. 36,000/- per annum, and after deducting 1/4th of her income, which she would have spent on herself, applied the multiplier of 16 and awarded compensation of Rs. 4,44,000/-, after adding funeral expenses, and consortium. And from whom? 6. The Tribunal recorded evidence of the parties, and after hearing them opined that notional income of the deceased was Rs. 36,000/- per annum, and after deducting 1/4th of her income, which she would have spent on herself, applied the multiplier of 16 and awarded compensation of Rs. 4,44,000/-, after adding funeral expenses, and consortium. The Tribunal further found that since the tractor was being driven with trolley fitted with it, in violation of the terms of the policy, as such, the Insurance Company is not liable to pay the amount, and appellant Bhajan Singh (owner of the tractor) was directed to pay the compensation. Hence this appeal by the owner of the tractor. 7. On going through the statements of PW2 Kulwant Singh (eyewitness of the accident) it is clear that there was head on collision between the motorcycle and the tractor. Considering the evidence adduced by the eyewitness, this Court is of the view that the Tribunal has erred in law in not considering the contributory negligence on the part of the motorcyclist. Assuming that the bigger negligence was on the part of the driver of the tractor, as he stood charge sheeted, after by the Police for negligent driving, but in the facts and circumstances of the case at least 25% contributory negligence on the part of the motorcyclist cannot be ignored. That being so, negligence attributed on the part of the driver of the tractor can be fixed at the most at 75%. 8. It is also relevant to mention here in the present case that since PW1 Jarnail Singh (husband of the deceased) has admitted that he too was earning member in the family, as such, it cannot be said that he was financially dependent on his wife Smt. Chindo Kaur. If that fact is taken into account in view of principle laid down in Sarla Verma v. D.T.C. 2009 (2) T.A.C 677 (SC), the dependency of the heirs (children) should have been assessed at 2/3rd, as number of minor children (dependents) was less than four on the day of accident. In other words, out of the notional income of Rs. 36,000/- per annum of the deceased, she would have spent 1/3rd on her expenses. 9. In other words, out of the notional income of Rs. 36,000/- per annum of the deceased, she would have spent 1/3rd on her expenses. 9. In the above circumstances, financial dependency of the claimants on the deceased (who was aged 35 years at the time of accident) after applying the multiplier of 16 comes out to be (Rs. (36000 × 16 = 5,76,000) - Rs. (36,000 × 1/3rd × 16 =1,92,000) - contributory negligence Rs. (3,84,000 × 1/4th =96,000)) i.e. Rs. 2,88,000/ 10. As far as compensation awarded on account of funeral expenses and consortium is concerned, the same requires no interference. Adding the same to the above dependency the total amount of compensation payable comes out to be Rs. 3,00,000/- 11. On behalf of the appellant, it is argued that the Tribunal has erred in law in holding that the insurance company is not liable to make the payment. However, perusal of the policy on the record shows that no premium was paid in respect of trolley attached to the tractor. As such, plying the tractor on the road with trolley amounts to violation of the terms of the policy mentioned in it. That being so, this Court is of the view that the Tribunal has committed no error of law in holding that the Insurance Company is not liable to make payment, as PW2 Kulwant Singh has admitted in his cross examination that there was a trolley attached to the tractor, on which the labourers were boarded. The reply of the insurance company in the matter deserves to be accepted that when the tractor is attached with the trolley, it has more chances of meeting with the accident as compared to the tractor without such attachment. 12. For the reasons as discussed above, this appeal deserves to be partly allowed. The appellant Bhajan Singh shall pay to the claimants Rs. 3,00,000/- as amount of compensation with 6% interest per annum thereon, from the date of claim petition till the payment is made. The statutory amount deposited before this Court shall be remitted to the Tribunal concerned, which shall be adjusted from the amount directed to be paid by this Court.