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2017 DIGILAW 430 (UTT)

Kaushal Gupta v. Shyamlal

2017-08-02

LOK PAL SINGH

body2017
JUDGMENT : Lok Pal Singh, J. 1. This appeal has been preferred against the judgment and award dated 24.1.2010, passed by Motor Accidents Claims Tribunal/District Judge, Dehradun, in Motor Accident Claim Petition No. 48 of 2008, whereby the Tribunal has allowed the claim petition in part and directed respondent No. 3 to pay compensation to the tune of Rs. 5,07,000 to the claimants along with 6 per cent interest per annum thereon. 2. Brief facts of the case are that on 28.12.2007 at about 1.30 p.m., Virendra Gupta (deceased) was going towards Rispana Pul from ISBT Dehradun, in his Alto car bearing No. UA 07-K 5858, when he reached in between railway crossing and Mahindra showroom, the truck bearing registration No. UGA 9225, coming from the opposite side, which was allegedly driven by its driver rashly and negligently, hit the car of Virendra Gupta from wrong side. In the accident Virendra Gupta sustained injuries and during treatment at Doon Hospital, Dehradun, he succumbed to the injuries. 3. Appellant Nos. 1 and 2 are widow and son of the deceased respectively. They filed claim petition before Motor Accidents Claims Tribunal claiming compensation of Rs. 45,00,000. 4. The owner and driver of the vehicle filed their joint written statements. They denied the fact that the driver of the offending vehicle was at fault. They also submitted that the driver of Alto car was driving the car rashly and negligently, due to his fault accident occurred. They further pleaded that compensation, if any, is liable to be paid by the insurance company with whom the vehicle was insured. The insurance company also filed its written statement and denied the occurrence of the alleged accident. It is also contended that driver of the truck was not at fault rather driver of Alto car was at fault. 5. On the basis of the pleadings of the parties following issues were framed by the Tribunal: "(i) Whether on 28.12.2007 at about 1.30 p.m. from ISBT Dehradun to Haridwar Bypass Road in between railway crossing and Mahindra showroom, truck bearing registration No. UGA 9225 coming from opposite side, which was being rashly and negligently driven by its driver hit Alto car No. UA 07-K 5858 from opposite side, due to which Virendra Kumar Gupta sustained injuries and at Doon Hospital, Dehradun, he succumbed to the injuries? (ii) Whether there is contributory negligence on the part of deceased. (ii) Whether there is contributory negligence on the part of deceased. If yes, its effect? (iii) Whether on the date of incident respondent No. 1 was not having a valid driving licence and permit? (iv) Whether the claimants are entitled for any relief. If yes, then how much amount and from which party?" 6. The Tribunal after recording evidence of the parties gave its finding that the accident occurred due to rash and negligent driving of the driver of the truck bearing registration No. UGA 9225 and decided issue Nos. 1 and 2 in favour of the claimants. The Tribunal further found that the vehicle was being driven with valid papers. The Tribunal awarded Rs. 5,07,000 as compensation and liability to pay compensation was fastened upon the insurance company. 7. Feeling aggrieved that adequate compensation has not been awarded, this appeal has been filed by the claimants for enhancement of the compensation. 8. The findings recorded by the learned Tribunal on issue Nos. 1 to 3 have not been challenged by the respondent against whom award has been made, thus, findings on issue Nos. 1 to 3 are affirmed. The present appeal has been preferred by the claimants for enhancement of compensation and on the findings recorded by the Tribunal on issue No. 4. 9. The learned Tribunal has held that at the time of death of the deceased his earning was Rs. 5,00,000 per annum and deducted one-third of the income towards his personal expenses and held dependency of the claimants at Rs. 3,30,000 and applied multiplier of 5 as per the age of the deceased. The Claims Tribunal awarded Rs. 5,00,000 as compensation plus Rs. 2,000 towards funeral expenses and Rs. 5,000 towards loss of love and affection along with 6 per cent interest thereon. 10. The counsel for the appellants submits that the learned Tribunal has wrongly applied multiplier of 5 and placed reliance upon the judgment of the Hon'ble Apex Court in the case of Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298 (SC), where the Hon'ble Apex Court has held that between the age of 56 to 60 years, multiplier of 9 is applicable. Thus, the counsel for the appellants is right in submitting that appropriate multiplier has not been applied by the Tribunal while calculating the amount of dependency. Thus, the counsel for the appellants is right in submitting that appropriate multiplier has not been applied by the Tribunal while calculating the amount of dependency. In view of this court the principle laid down by the Hon'ble Apex Court in the case of Sarla Verma (supra) is applicable. 11. It is further submitted that the learned Tribunal has not awarded just and proper compensation to the appellants. He further submitted that an amount of Rs. 2,000 towards funeral expenses and Rs. 5,000 towards loss of love and affection awarded by the Tribunal is such a meagre amount. The counsel for the appellants placed reliance upon the judgment of the Hon'ble Apex Court in Rajesh v. Rajbir Singh, 2013 ACJ 1403 (SC), whereby the Hon'ble Apex Court has held that the claimant(s) are entitled for Rs. 1,00,000 towards loss of love and affection and Rs. 25,000 towards funeral expenses. He further submitted that no amount has been awarded to appellant No. 1, widow of the deceased, towards loss of consortium and in view of judgment of Rajesh (supra) appellant No. 1 is also entitled to get Rs. 1,00,000 towards loss of consortium. 12. It is settled preposition of law that the multiplier is appropriate method of calculating pecuniary loss and there should not be any departure from it and the multiplier should be taken as per the age of the deceased and not at the age of the dependants. Thus, in view of the judgment (supra) the Tribunal has committed illegality in applying the multiplier of 5 and not considering the ratio of the judgment (supra). 13. At the time of incident, age of the deceased was 56½ years. In view of the judgment of Hon'ble Apex Court in the case of Sarla Verma (supra) it would be just and proper that multiplier of 9 should be applied. By deducting 1/3rd of Rs. 5,00,000 towards personal expenses of the deceased, the claimants' dependency is assessed at Rs. 3,30,000 per annum thus, they are entitled to receive an amount of Rs. 29,70,000 (Rs. 3,30,000 x 9). In view of the judgment of Hon'ble Apex Court in Rajesh v. Rajbir Singh, 2013 ACJ 1403 (SC), the claimants are also entitled for Rs. 1,00,000 towards loss of love and affection and Rs. 25,000 towards funeral expenses and claimant No. 1, widow of deceased, is entitled for Rs. 1,00,000 for loss of consortium. 29,70,000 (Rs. 3,30,000 x 9). In view of the judgment of Hon'ble Apex Court in Rajesh v. Rajbir Singh, 2013 ACJ 1403 (SC), the claimants are also entitled for Rs. 1,00,000 towards loss of love and affection and Rs. 25,000 towards funeral expenses and claimant No. 1, widow of deceased, is entitled for Rs. 1,00,000 for loss of consortium. In toto, the claimants are entitled for (Rs. 29,70,000 + Rs. 1,00,000 + Rs. 25,000 + Rs. 1,00,000) an amount of Rs. 31,95,000 as compensation along with 9 per cent interest from the date of filing of the claim petition till the date of realization. The compensation and damages is being re-assessed as follows: Sl.No. Heads Calculation (1) Loss of dependency (Rs.3,30,000x9) Rs.29,70,000 (2) Loss of love and affection Rs.1,00,000 (3) Loss of consortium Rs. 1,00,000 (4) Funeral expenses Rs.31,95,000 14. The appeal is allowed. The impugned judgment and award dated 24.1.2010 is modified to the extent that respondent No. 3 insurance company shall pay Rs. 31,95,000 as amount of compensation to the claimants with 9 per cent interest thereon from the date of filing of the claim petition. If any amount has been paid by the insurance company pursuant to the judgment and award dated 24.1.2010, the same shall be adjusted. 15. Let lower court record be sent back to the Tribunal concerned. 16. In the facts and circumstances of the case, parties shall bear their own costs.