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2013 DIGILAW 772 (HP)

NATIONAL INSURANCE COMPANY LTD. v. SANDHYA DEVI

2013-08-26

SANJAY KAROL

body2013
JUDGMENT : SANJAY KAROL, J. 1. Insurer has preferred the present appeal under the provisions of Section 173 of the Motor Vehicles Act, 1988, assailing the award dated 3.10.2005, passed by the Motor Accident Claims Tribunal, Fast Track Court, Kangra at Dharmshala in MACP No. 11-N/2005, titled as Smt. Sandhya Devi & others v. M/s. Harpreet Bus Service & others, decided on 3.10.2005. 2. The operative portion of the award reads as under:- "In view of the aforesaid discussion while deciding issues No. 1 to 3 the petition is allowed by holding that the petitioners are entitled for compensation of Rs. 3,70,000/- against the respondents and respondent No.3 shall make the payment being the insurer of the vehicle. Out of the amount award as compensation the petitioner No. 1 is held entitled for 50% of the amount in addition is Rs. 20,000/- awarded for consortium and funeral rites and the petitioner No.2 to 4 are held entitled for the remaining amount in equal sharers. The petitioners are also held entitled to interest at the rate of 7.5% from the date of filing of the petition up till final deposit of the compensation alongwith cost. 60% of the compensation amount shall be deposited in any scheduled bank for at least for 5 years and in case of minor for at least 5 years up till the attaining of majority what so ever comes later. 40% of the remaining amount shall be released to the petitioners as per their shares. The file after due completion be consigned to records." 3. The challenge to the award is primarily with regard to the compensation so awarded to the claimants. Ms. Devyani Sharma, learned counsel for the appellant has urged that: (a) the amount awarded is on the higher side; (b) the amount towards consortium and performance of last rites (Rupees ten thousand each) is on the higher side; (c) with regard to the amount of Rs. 50,000/- paid on 14.2.2005 as no fault liability under the provisions of Section 114 of Motor Vehicles Act, there is no order of adjustment in the final award/judgment. 4. Having heard learned counsel for the parties as also perused the record of the case, I am of the considered view that there is not much merit in the appeal warranting interference, save and except, to a limited extent. 5. 4. Having heard learned counsel for the parties as also perused the record of the case, I am of the considered view that there is not much merit in the appeal warranting interference, save and except, to a limited extent. 5. The fact that the claimants are the widow and children of deceased Chauhar Singh, who died in a motor vehicle accident, which took place on 24.12.2002, is not in dispute. It also cannot be disputed from the material so placed on record by the parties. The factum of accident, the factum of death, negligence on the part of the driver of the offending vehicle owned by M/s Harpreet Bus Service, is also not in dispute. The offending bus was insured also stands established on record and the insurer, the present appellant, has also not disputed that fact. 6. It is not the case of the parties that Chauhar Singh had contributed to the accident. 7. Coming on the question of compensation, it be only observed that the deceased was 45 years of age at the time of his death. According to his wife Smt. Sandhya Devi (PW-1), deceased was having an income of Rs. 3,600/- per month out of which Rs. 2,600/- was spent on the claimants. Having perused the testimony of the relevant witnesses, I am of the considered view that the Tribunal has correctly appreciated the testimony of Smt. Sandhya Devi (wife of deceased) determining the monthly income of the deceased, for the purpose of awarding compensation, to be Rs. 2,400/- per month. The annual income was taken as Rs. 28,800/- and by applying a multiplier of 12, sum determined as loss of income is Rs. 3,45,600/-. The Tribunal has applied multiplier of 12, which in my considered view is on the lower side. I am of the considered view that the Tribunal has rightly awarded a sum of Rs. 10,000/- each as consortium and expenses incurred for the purpose of funeral and last rites. Keeping in view the settled principles of law and taking a holistic view, the amount rounded-up to Rs. 3,70,000/- is correct and no error can be found with the same. It is just and equitable. One cannot lose sight of the fact that at the time of death, out of four, three claimants were minor and were deprived of love and affection of their father. 3,70,000/- is correct and no error can be found with the same. It is just and equitable. One cannot lose sight of the fact that at the time of death, out of four, three claimants were minor and were deprived of love and affection of their father. Also, one of the claimants is a daughter and expenses of her education and marriage are required to be incurred by her mother. As such, it cannot be said that the amount of compensation so determined by the Tribunal is on the higher side. 8. However, it be only observed that there is no direction with regard to adjustment of the amount of Rs. 50,000/- paid by the insurer to the claimants. Hence factum of such payment cannot be ascertained by learned counsel for the respondents. 9. As such, amount awarded is modified to the extent that if a sum of Rs. 50,000/- already stands paid to the claimants, as is so claimed by the insurer/appellant, the same shall be adjusted against the final amount so determined by the Tribunal and only thereafter, balance payment shall be released to the claimants. The impugned award is modified accordingly. Petition stands disposed of. CMP(M) No. 282 of 2013 10. For release of amount an application (CMP(M) No. 282/2013) has been submitted which stands disposed of vide order dated 14.5.2013. Liberty granted to the claimants to file a fresh application for release of the amount, in accordance with law.