AO/257/2008 of DISTRICT SOIL CONSERVATION OFFICER and ORS. Vs MANJU PARIHAR and ORS.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL.

A.O. No. 257/2008

(Old No. 349/2004)

District Soil Conservation Officer, Bageshwar, and another

.. Appellants.

Versus Manju Parihar and others

.. Respondents.

Sri R.C. Arya, learned Standing Counsel for the appellants. Sri Awtar Singh Rawat, learned counsel for the respondents/claimants.

Dated: 20-10-2008

Hon’ble B.C. Kandpal, J.

This appeal, under Section 173 of the Motor Vehicles Act, 1988, has been preferred against the judgment and award dated 28-7-2004, passed by Motor Accident Claims Tribunal/ District Judge, Bageshwar, in MACT Case No. 04/2004.

2- Brief facts of the case, giving rise to the present appeal, are that Sri Suresh Singh Parihar was driver before his death and was earning Rs. 5,000/- per month. He was 24 years of age at the time of his death. On 28.1.2004, at 5.45 P.M. he was going his home Bahuli along with his friend Sri Anand Singh riding on Motor Cycle No. UA 02-289 and when they reached near Adauli, jeep owned by Soil Conservation Department, Bageshwar came there from opposite side, in rash and negligent manner, and hit the said Motor Cycle, due to which the Motor Cycle fell into ditch and Anand Singh and deceased Suresh Singh Parihar received injuries. The injured persons were taken to Bageshwar Hospital in the said Government Jeep, where Anand Singh recovered after treatment, but Suresh Singh Parihar died in the hospital due to the injuries received by him in the accident. The legal heirs of the deceased filed the claim petition for sum of Rs. 10,00,000/-.

3- The opposite party Nos.1, 2 and 4, Soil Conservation Officer, driver of offending jeep and State of Uttaranchal respectively, filed their written statements and alleged that the accident has taken place due to the rash and negligence of Motorcyclist. The jeep driver had no negligence in causing the accident. They also alleged that the claim petition is not maintainable, as no notice U/S 80 C.P.C. has been sent to the State, before filing the claim petition.

4- The opposite party No.3, driver of Motor Cycle No. UA 02-289, also filed his written statement admitting the allegations made in the claim petition. He alleged that at the time of accident he was carrying the deceased Suresh Singh Parihar in the Motor Cycle to his home. When they reached near village Adauli, Jeep No. UGP 2795 came there at high speed from opposite side and dashed the Motorcycle, due to which Suresh Singh Parihar, the pillion rider of the Motor Cycle fell down in ditch, who succumbed to the injuries in the Hospital. He also alleged that the Motor Cycle was climbing at the spot whereas the Government Jeep was coming on the slope.

5- The learned Tribunal, on the pleadings of parties, framed relevant issues in the claim petition. Thereafter, parties led evidence in support of their case. The learned tribunal after hearing learned counsel for the parties and perusing the material on record, decreed the claim petition for sum of Rs. 7,20,000/- against the opposite parties Nos. 1, 2, and 4, the Soil Conservation Officer, driver of the offending jeep and the State of Uttaranchal respectively, and directed to pay the aforesaid compensation to the claimants within period of 60 days, failing which interest @ 9% per annum shall be payable from the date of filing the petition till the date

of actual payment. The opposite party no.3, driver of Motor Cycle, involved in the accident, was exonerated from the liability of compensation.

6- Feeling aggrieved, the opposite parties 1,2 and 4, have preferred the appeal before this Court. The Division Bench of this Court, after hearing learned counsel for the parties and considering the evidence on record decided the appeal vide judgment and order dated 22-5-2006, thereby partly allowing the appeal and reducing the amount of compensation to the tune of Rs. Two lacs along within interest @9% per annum from Rs. 7,20,000/-.

7- The claimants feeling aggrieved by the aforesaid judgment and order passed by Division Bench of this Court, preferred civil appeal before the Hon’ble Supreme Court. The Hon’ble Apex Court vide order dated 9-5-2008 has allowed the appeal and remanded the matter back to this court for consideration of the matter afresh.

8- Now I have heard Sri R.C. Arya, learned Standing Counsel on behalf of the appellants and Sri Awtar Singh Rawat, Advocate, appearing for the claimants/respondents and perused the record.

9- The learned Standing Counsel has submitted that the Tribunal has wrongly assessed the income of the deceased at the rate of Rs. 5,000/- per month without there being any reliable evidence on record, therefore, the impugned award is not sustainable in the eye of law. He also argued that the accident did not occur due to rash and negligent driving of the driver of

Jeep of Soil Conservation Department, therefore, the appellants cannot be held liable to pay the compensation.

10- On the other hand learned counsel for the claimants/respondents has supported the impugned judgment and award and argued that the learned Tribunal has calculated the amount of compensation based on evidence on record and the same is liable to be confirmed.

11- From perusal of record, it reveals that the Tribunal has framed issue nos.1 and 6 on the point of rash and negligence of the vehicles involved in the accident and has decided these issues against the offending jeep and recorded categorical finding that the accident was occurred due to sole negligence of jeep driver. The claimants have produced P.W.2, Ramesh Prasad and P.W.4, Anand Singh Takuli as eyewitnesses of the accident. P.W.2, Ramesh Prasad has deposed that at the time of accident he was coming towards village Garud. He was 10-15 yards away from the place of accident. According to him the jeep UGP 2795 came from opposite side at high speed and dashed the Motor Cycle in rash and negligent manner. P.W.4, Anand Singh Takuli, is the driver of the offending Motor Cycle. He himself was driving the Motor Cycle at the time of accident. This witness has also deposed that the jeep driver had dashed his Motor Cycle in rash and negligent manner. D.W.1, Sri C.D. Dhaundiyal, Soil Conservation Officer, who was travelling in the offending jeep at the time of accident, in his cross-examination has admitted this fact that at the time of accident his jeep was going on slope and the Motor Cycle was climbing on height. The F.I.R. of the accident has been lodged by Anand Singh Takuli, the driver of the Motor Cycle, on the

same day at the police station and mentioned this fact that the offending jeep has dashed the Motor Cycle. It is pertinent to mention here that after investigation the police has submitted charge sheet against the driver of the offending jeep U/S 304-A I.P.C. and the case is pending. Therefore, on the basis of evidence adduced in the case, the Tribunal has rightly held the jeep driver solely responsible for the rash and negligence. The finding recorded by the Tribunal on this point is hereby confirmed.

12- As far as the quantum of compensation is concerned, the claim case is that the income of the deceased from the work of driver was Rs. 5,000/- per month. To prove the income of the deceased Suresh Singh, P.W.3, Shyam Singh has been produced. This witness has deposed that deceased was driver on his jeep and he used to give him Rs. 5,000/- per month including the expenses towards his meal etc. In his cross examination he has alleged that he has not been obtaining any receipt with regard to the salary paid to the deceased. No other reliable and independence evidence has been adduced to prove the income of the deceased. Therefore, there is no cogent and reliable evidence from the side of the claimants to show that the deceased had been earning Rs. 5,000/- per month as salary. In my opinion the dependency of the claimants, in the instant case, should be assessed on the basis of the notional income of the deceased, in absence of any cogent and reliable evidence regarding the income of the deceased.

13- The accident in the present case took place in the year 2004, therefore, in view of the decision of the Division Bench in A.O. No. 2 of 2005, Sobhan Singh and another Vs. New India Insurance Company and another,

decided on 1.11.2006, the notional income should be taken at Rs. 36,000/- per annum, due to price hike for the purpose of calculating the annual dependency of the claimants and after deducting 1/3[rd] towards the personal expenses, the total dependency comes to Rs. 24,000/- per annum. The deceased was aged 28 years, therefore, keeping in view the age of the deceased the multiplier of 15 would just and proper in this case, in view of the observation made by Hon’ble Apex Court in the cases of Tamil Nadu State Transport Corporation Ltd. vs. S. Rajapriya & Ors, reported in 2005(4) Supreme 87, and The Managing Director, TNSTC vs. Sripriya & Ors. reported in 2007 (5) Supreme 301. Therefore, the compensation comes to Rs. 24,000/- X 15= Rs. 3,60,000/-. The Tribunal has not awarded any sum towards funeral expenses, mental agony, transportation expenses and loss of love and affection. In my opinion under these heads total sum of Rs. 20,000/- should be awarded to the claimants. Therefore, the total amount of compensation to be awarded in favour of the claimants comes to Rs. 3,60,000/- + 20,000/-= Rs. 3,80,000/-.

14- The Tribunal has awarded conditional interest @ 9% per annum. In my opinion the claimants should be awarded interest @ 7% per annum from the date of filing the claim petition till the date of actual payment.

15- In view of above discussion the appeal is liable to be allowed partly.

16- Accordingly, the appeal is partly allowed. The impugned judgment and award dated 28-7-2004 is modified up-to the extent that the claimants/respondents are entitled to get sum of Rs. 3,80,000/- as compensation, from the opposite parties Nos. 1, 2 and 4

(severally and jointly as has been held by the Tribunal), along with interest @ 7% per annum from the date of filing the claim petition till the date of actual payment, instead of Rs. 7,20,000/- along with conditional interest, as has been awarded by the tribunal concerned.

17- The statutory amount of compensation deposited in this court be remitted to the tribunal concerned.

ISB

( B.C. Kandpal, J.)