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2015 DIGILAW 219 (UTT)

PARMANAND NETHANI v. SONU DIMRI

2015-04-17

SERVESH KUMAR GUPTA

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JUDGMENT Hon’ble Servesh Kumar Gupta, J. 1. This judgment will adjudicate both the above captioned appeals as those have arisen out of the same accident, which occurred on 14.08.2006, when the offending vehicle tractor no. UA-07-C-3675 dashed the scooter borne youth, named Suraj, who was driving his vehicle along with his friend Sonu Dimri as pillion rider. On account of the said accident, Suraj died whereas Sonu Dimri was injured. 2. The claim petition, launched by Smt. Ganga Devi (mother of Suraj), was decreed for the award of Rs.3,40,000/- (Rupees Three Lakh Forty Thousand) against the New India Assurance Company, which was the insurer of said tractor. Another Claim Petition launched by Sonu Dimri (injured) was decreed for the award of Rs.50,000/- (Rupees Fifty Thousand) against the owner of said tractor. 3. Learned Senior Counsel for the Insurance Company has argued that this tractor was being plied without having any permit while according to the insurance policy, it was registered as a commercial vehicle. This Court is not inclined to accept the said argument for the reason that the tractor is always used for agricultural purpose and it is not meant for commercial use. If the word “commercial” has been printed by the insurance company either in the Cover Note or in the Insurance Policy, then also, such printing will have no effect because printing of such words tantamount to the standard form of the contract which is almost imposed ex parte by the Insurer after taking premium from the insured person. 4. Learned Senior Counsel for the Insurance Company has also argued that as per the dictum of Hon’ble Apex Court in the case of ‘Sarla Verma (Smt.) & others v. Delhi Transport Corporation & another’ (2009) 6 SCC 121 , only one-half of the total annual income should have been taken into consideration for applying the multiplier because the deceased was an unmarried youth. The Court finds itself to be in agreement with this argument. So, the amount of compensation shall be calculated at one-half of the total annual income of deceased. By doing so, the multiplier of “13” should be applied to Rs.18,000/- making it as Rs.2,34,000/-. Rest of the amount awarded towards cremation as well as love and affection is not disturbed by this Court. So, the total amount comes to Rs. 2,62,000/- (Rupees two lakh sixty two thousand only). 5. By doing so, the multiplier of “13” should be applied to Rs.18,000/- making it as Rs.2,34,000/-. Rest of the amount awarded towards cremation as well as love and affection is not disturbed by this Court. So, the total amount comes to Rs. 2,62,000/- (Rupees two lakh sixty two thousand only). 5. Accordingly, the AO No.233 of 2008 is disposed of by modifying the award to the tune of Rs. 2,62,000/- (Rupees two lakh sixty two thousand), instead of Rs. 3,40,000/- (Rupees Three Lakh Forty Thousand), as awarded by the Court below. 6. The compulsory statutory amount, which was deposited in this Court, be remitted back to the Tribunal and after making payment to the claimants as per the order of this Court, the remaining amount shall be returned to the Insurance Company. 7. As regards the AO No. 121 of 2009, the Court feels that the premise as expressed by the Tribunal that since only the photocopy of insurance cover note was available, and thus, the same could not be relied upon, is unacceptable to this Court. 8. Further, it is also unacceptable to this Court that in Paragraph 17 of the Claim Petition, the name of some other Insurance Company was mentioned; for that the Court feels that the same may be an inadvertent mistake which, in the opinion of this Court, will not affect the claim petition adversely because in the cause title, the name of Insurance Company was mentioned correctly and the New India Assurance Company was also impleaded party as respondent no. 3. 9. The Court also feels that fastening of liability upon the owner of the tractor is improper. Looking to the facts of the case, the liability to pay compensation of Rs.50,000/- (Rupees Fifty Thousand) is shifted upon the New India Assurance Company from the owner of tractor. 10. Appeal from Order bearing No.121 of 2009 is allowed in the above terms. 11. The compulsory statutory amount, which was deposited in this Court, shall be remitted back to the Tribunal and then, the same shall be returned to the owner- Mr. Parmanand Nethani.