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2013 DIGILAW 791 (HP)

Himachal Pradesh Forest Corporation v. Usha Devi

2013-09-03

SANJAY KAROL

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JUDGMENT : Sanjay Karol, J. Himachal Pradesh Forest Corporation (for short HPFC) has filed the instant appeal, under the provisions of Section 173 of the Motor Vehicles Act, 1988, assailing the impugned award dated 5.8.2006, passed by Motor Accident Claims Tribunal, Chamba, in MAC Petition No.116 of 2004, titled as Smt. Usha Devi and another v. Jagdish Singh and others. 2. In this appeal, Smt. Usha Devi and Ms Deep Shikha (claimants) have also filed Cross-objections No.123 of 2007, seeking enhancement of compensation. 3. Swaroop Chand, husband of claimants Smt. Usha Devi and father of Ms Deep Shikha, was employed as a driver in the Office of the Deputy General Manager, Telecom Project, BSNL, Shimla (respondent No.4 herein). On 17.3.2004, he was driving vehicle (Truck) bearing registration No.HP-07-2919 towards Banikhet. Vehicle bearing registration No.HP-31-5780, owned by the Divisional Manager, H.P. Forest Corporation, driven by Jagdish Singh (respondent No.3 herein), hit the vehicle driven by Swaroop Chand, as a result of which the truck rolled down the Khud, in which Swaroop Chand expired. His legal heirs, i.e. wife and minor daughter (claimants) filed a petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation of a sum of Rs. 15,00,000/-. 4. Based on the pleadings of the parties, the Tribunal framed the following issues: 1. Whether Shri Swaroop Chand, late husband of petitioner No.1 and father of petitioner No.2 died in a vehicular mishap on 17.3.2004 at 4.15 PM at Gandiar near Goli on Banikhet Chamba road due to rash and negligent driving of respondent No.1, as alleged? OPP 2. If issue No.1 is proved, to what amount of compensation the petitioners are entitled to and from whom? OPP 3. Whether the petition is not maintainable in the present form, as alleged? OPR 4. Whether the petitioners have no cause of action to file this petition, as alleged? OPR 5. Whether this accident took place due to the rash and negligent driving of vehicle No.HP-07-2919 driven by deceased Swaroop Chand, as alleged? If so, its effect? OPR 6. Relief. 5. Issues stand decided in favour of the claimants. Tribunal held Jagdish Singh (respondent No.3) to be negligent, which in fact was the cause of accident, resulting into death of Swaroop Chand. Tribunal took the income of the deceased for the purpose of dependency to be Rs. 2,400/- per month and by applying a multiplier of 14, determined the compensation. 5. Issues stand decided in favour of the claimants. Tribunal held Jagdish Singh (respondent No.3) to be negligent, which in fact was the cause of accident, resulting into death of Swaroop Chand. Tribunal took the income of the deceased for the purpose of dependency to be Rs. 2,400/- per month and by applying a multiplier of 14, determined the compensation. In all, Tribunal awarded following sums under different heads: a) Loss of benefits to the petitioners Rs. 4,03,200/- b) Loss of a living being of the family Rs. 50,000/- c) Expenses on post death ceremonies Rs. 15,000/- d) Litigation cost Rs. 2,000/- e) Loss of consortium to the widow, petitioner No.1, Smt. Usha Devi Rs. 10,000/- Interest at the rate of 9% also stands awarded from the date of passing of award till the receipt of payment. 6. Facts are not much in dispute. The fact that Swaroop Chand was driving the vehicle in his authorised capacity at the time of occurrence of the accident, i.e. on 17.3.2004 is not in dispute. That the vehicle driven by Jagdish Singh was involved in the accident is also not in dispute. That swaroop Chand expired as a result of accident is also not in dispute. 7. That the claimants are the dependents (wife and minor daughter) of the deceased is also not in dispute. That deceased was having a salary of Rs. 3,600/- per month also cannot be disputed. 8. It is urged by the learned counsel for the appellants that claimants are not entitled to compensation for the reason that the accident occurred on account of fault and negligence of Swaroop Chand and not Jagdish Singh. Findings to the contrary, on Issue No.5, are stated to be incorrect. Attention of the Court is invited to testimonies of relevant witnesses. 9. Having heard learned counsel and perused the record, I am of the considered view that there is neither any illegality nor perversity with regard to the same, as they are based on correct and complete appreciation of testimonies of all the witnesses. 10. Learned counsel for the appellants has invited my specific attention to the testimonies of Jagdish Singh (RW-1), Salam Ram (RW-2) and Ashok Singh (RW-3) to prove negligence of the deceased. Tribunal has effectively dealt with these testimonies in paras-15, 16 and 17 of the award. 10. Learned counsel for the appellants has invited my specific attention to the testimonies of Jagdish Singh (RW-1), Salam Ram (RW-2) and Ashok Singh (RW-3) to prove negligence of the deceased. Tribunal has effectively dealt with these testimonies in paras-15, 16 and 17 of the award. I find that there is no error in the reasoning adopted by the Tribunal. 11. Significantly, Jagdish Singh (RW-1) and Salam Ram (RW-2) are interested witnesses, as their vehicle was involved in the accident. Ashok Singh (RW-3) has clarified that the deceased was driving the vehicle at a normal speed. On the question of negligence, one cannot ignore the testimony of independent witness Ashok Singh (RW-3). He is an eye witness. He has clarified that Swaroop Chand was driving the vehicle at a slow speed and driver of the offending vehicle bearing registration No.HP-31-5780 came from the opposite side in a rash and negligent manner, as a result of which vehicles collided. Speed of the vehicle was such that it pushed the vehicle driven by Swaroop Chand into a gorge, which resulted into his death. 12. It may also be observed that after proper investigation of the crime at the spot, police found Jagdish Singh to have committed the crime and accordingly registered FIR No.29/04 (Ex. PW-5/A) at Police Station Dalhousie, under the provisions of Sections 279, 337, 338, 304-A of the Indian Penal Code against him. Consequently, I see no reason to differ with the findings so rendered by the Tribunal with regard to negligence of Jagdish Singh. 13. Coming to the question of compensation, it be only observed that the Tribunal erred in applying a multiplier of 14 to the income so determined, for the purposes of dependency. That the claimants were dependent upon the deceased cannot be disputed. At the time of death, Swaroop Chand was drawing a salary of Rs. 3,600/- per month and for the purposes of dependency figure taken is Rs. 2,400/- per month. He was 39 years of age at that time. As per the Schedule prescribed under Section 163-A of the Motor Vehicles Act, multiplier of 16 ought to have been applied. With regard to compensation under other heads, I find that the same is just, fair and reasonable. 14. 2,400/- per month. He was 39 years of age at that time. As per the Schedule prescribed under Section 163-A of the Motor Vehicles Act, multiplier of 16 ought to have been applied. With regard to compensation under other heads, I find that the same is just, fair and reasonable. 14. However, with regard to question of interest, I find that keeping in view the ratio of law laid down by the apex Court in New India Assurance Co. Ltd. v. Charlie and another, (2005) 10 SCC 720 : AIR 2005 SC 2157 , interest at the rate of 9% ought to have been awarded with effect from the date of filing of the petition and not its decision. 15. As such, impugned award is modified. In addition to the amounts awarded under various heads, claimants shall be entitled to compensation of Rs. 4,60,800/- instead of Rs. 4,03,200/- towards loss of dependency and interest at the rate of 9% from the date of filing of claim petition. 16. Appeal and Cross-objections stand disposed of, so also the pending application(s), if any.