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2020 DIGILAW 7 (UTT)

NEW INDIA ASSURANCE CO. LTD. v. MANJU DEVI

2020-01-02

LOK PAL SINGH

body2020
JUDGMENT Hon'ble Lok Pal Singh, J. (Oral) Present appeal under Section 173 of Motor Vehicle Act has been preferred against the judgment and award dated 19.08.2014 passed by the Motor Accident Claim Tribunal/ District Judge Bageshwar in M.A.C. No. 13 of 2011, Smt. Manju Devi & others vs Smt. Prabha Gaur & others, whereby the Tribunal has awarded a sum of Rs.13,90,000/- in favour of the claimants along with interest thereon @ 9% per annum against the New India Assurance Company. 2. Factual matrix of the case is that the deceased Sanjay Kumar Joshi, husband of Smt. Manju Devi, was working in BAIF as District Programme Officer in Chamoli. On 13.07.2011 when he was going for departmental work through bus No. UA07R7476 from Chamoli to Haridwar, near Thana Devprayag, the bus stopped for taking lunch. Thereafter, the bus was started; however, due to rash and negligent driving of the driver, the vehicle was collided with hill; and consequently the bus came backside and fell down; the deceased was travelling in the same bus and he tried to escape from the bus, but he sustained serious injuries in the incident, thereafter he was taken to Rishikesh Hospital through 108 Ambulance from where he was referred to higher center. During his treatment, he died. The claimants (wife of the deceased and children) filed the claim petition. So, they claimed Rs.30,20,000/- as compensation. 3. The appellant/ insurance company filed its reply to the claim petition and denied the averments of the claim petition. It is contended that the driver of the vehicle was having driving licence and the owner of the vehicle was having valid documents of the vehicle and due to failure of the brake, the incident took place. In the additional statement, it was stated that the FIR was not lodged nor any postmortem of the deceased was conducted. 4. On the basis of pleadings of the parties, the learned Tribunal framed following issues:- 1. Whether on 13.07.2011 at about 5:45 p.m. at Teendhara Thana Devprayag, District Tehri Garhwal the bus turtle on the road in which the husband of the claimant Sanjay Kumar Joshi sustained serious injuries; During treatment, he died? If so, its effect? 2. Whether the vehicle was being plying according to Motor Vehicle Act with having valid papers? If yes its effect? 3. Whether the claimants are entitled for compensation, if any and against whom? 5. If so, its effect? 2. Whether the vehicle was being plying according to Motor Vehicle Act with having valid papers? If yes its effect? 3. Whether the claimants are entitled for compensation, if any and against whom? 5. On behalf of the claimants, copy of GD, FIR, death certificate, discharge slip and salary slip of the deceased etc. were filed. On behalf of the claimants Manju Devi was examined as PW-1 and Atal Kansari was examined PW-2. 6. On behalf of the respondents the copy of the registration certificate, copy of the permit, fitness certificate, insurance policy, Magistrate report was produced. No one was examined on behalf of the respondents. 7. The learned Tribunal having considered the documentary evidence as well as oral evidence and recorded the findings that the deceased died due to injuries sustained in the accident and recoded its findings on issue nos.1, 2 & 3 in favour of the claimants. While recording the findings on issue no. 3 the tribunal has considered the annual income of the deceased Rs. 1,73,688/- and applied the multiplier of 16; considering that the deceased was aged about 41 years, and having considered the plight, it applied the multiplier of 16. The tribunal has also deducted 1/3 for the personal expenses of the deceased, if he could alive. Accordingly, the tribunal calculated the compensation to be Rs.80,000 x 16 (Rs.12,80,000 dependency, Rs.50,000/- for consortium, Rs.10,000/- for funeral expenses) and it awarded the total amount of Rs. 13,90,000/-. 8. Learned counsel for the appellant would submit that the age of the deceased about 41 years at the time of accident and the tribunal has committed illegality in applying multiplier of 16, and in view of the judgment of Hon'ble Apex Court in the case of Sarla Verma & others vs. Delhi Transport Corporation & another reported in (2009) 6 SCC 121 , the age of deceased at the time of incident 41 years and thus, the multiplier of 14 should have been applied. 9. Learned counsel for the appellant further submitted that the tribunal has awarded 9 % interest which is on higher side. 10. 9. Learned counsel for the appellant further submitted that the tribunal has awarded 9 % interest which is on higher side. 10. Having heard learned counsel for the parties and the perusal of the record, it would reveal that though the tribunal has wrongly applied the multiplier of 16 instead of 14, but the fact remains that the tribunal has not granted any future prospects to the claimants at the age of 41 years. The deceased was working in a private company and the future prospects of 25% ought to have been awarded to the claimants in view of the Five Judges' Bench of the Hon'ble Apex Court in the case of National Insurance Company vs. Pranay Sethi, reported in AIR 2017 SC 5157 , 2018 (2) UAD 52 . The Tribunal has awarded Rs.50,000/- towards loss of consortium instead of Rs.40,000/- in view of the Pranay Seth's judgment (supra), thus the Tribunal has awarded Rs.10,000/- excess amount under this head. Similarly, Tribunal has awarded an amount of Rs.10,000/- towards funeral expenses instead of Rs.15,000/-. Thus the Tribunal has awarded Rs.80,000/- by using wrong multiplier (Rs.80,000 X 16); Rs.10,000/-excess towards loss of consortium and lesser amount of Rs.10,000/- instead of Rs.15,000/- on account of funeral expenses. Thus under two heads, the Tribunal has awarded Rs.90,000/- higher amount, but it has not awarded any future prospects. The claimants were entitled for 25 % future prospects, which comes to Rs.2,80,000/- (Rs.80,000 X 25% X 14). The claimants are entitled to get much compensation in view of the Five Judges' Bench of Hon'ble Apex Court in the case of National Insurance Company vs. Pranay Sethi. The Tribunal has not awarded appropriate compensation to the claimants in appropriate heads; however, the claimants have not filed an appeal for enhancement of the compensation. Though, in view of this Court this is a case of enhancement of compensation, but this Court cannot enhance the compensation on the appeal of Insurance Company, on the principle that an appellant cannot be reduced to a position worse than that if did not have file the appeal. 11. For the reasons recorded above, the appeal lacks merit and is hereby dismissed. No order as to costs. 12. Let the statutory amount along with interest accrued on it, if any, be remitted to the Tribunal concerned. Lower court record be also sent back.