AO/357/2005 of KM. LAXMI. SHARMA Vs KAUSHALIYA DEVI and ORS.

IN THE HIGH COURT OF UTTARAKHAND AT

NAINITAL.

A.O. No. 357/2005

Km. Laxmi Sharma

…. Appellant.

Versus

Smt. Kaushalya Devi and 3 others .. Respondents.

Mr. Manoj Tewari, learned counsel for the appellant. Smt. Pushpa Joshi, learned counsel for the respondent/claimants. Mr. D.S. Patni, learned counsel for the respondent No.4.

With

A.O. No. 257/2007

Km. Laxmi Sharma

Versus

Smt. Bhuwaneshwari Chand and 5 others

… Appellant.

...Respondents.

Mr. Manoj Tewari, learned counsel for the appellant.

Mr. Neeraj Upreti, learned counsel for the respondent/claimants. Mr. B.K. Gupta, learned counsel for respondent No.6.

UDated: 26-8-2008

’UHonble B.C. Kandpal, J.

Both these appeals arise out of the same accident, hence they are being decided by this common judgment.

2- A.O. No. 357/2005 has been preferred against the judgment and award dated 27-8-2004, passed by Motor Accident Claims Tribunal/District Judge, Pithoragarh in MACT Case No. 125/2001, Smt. Kaushalya Devi and others Vs. Km. Laxmi Sharma and another, whereby the Tribunal awarded sum of Rs. 1,77,000/- along with interest @ 9% per annum from the date of petition till the date of payment against the owner of the vehicle Taxi Car No. U.P. 03/1834, Km. Laxmi Sharma, in lieu of death of Ram Singh in motor accident.

3- A.O. No. 257/2007 has been preferred against the judgment and award dated 5-4-2007, passed by

Motor Accident Claims Tribunal/District Judge, Pithoragarh in MACT Case No. 8 of 2004, Smt. Bhuwneshwari Devi and others Vs. Km. Laxmi Sharma and another, whereby the Tribunal awarded sum of Rs. 3,49,500/- and directed to pay the compensation within one month failing which interest @ 8% per annum from the date of petition till the date of payment shall be payable, against the owner of the vehicle Taxi Car No. U.P. 03/1834, Km. Laxmi Sharma, in lieu of death of Bhagwan Chand in motor accident.

4- Brief facts of the case are that on 9-8-2000 at about 8 P.M. Taxi/Maruti Car No. U.P. 03-1834 met with an accident due to the rash and negligence of its driver at place Halpiya situate on Pithoragarh-Dharchula Motor Marg and the Car fell in deep ditch. In the said Car Ram Singh and Bhagwan Chand were also travelling and they sustained grievous injuries in the accident. Ram Singh and Bhagwan Chand succumbed to the injuries.

5- According to the claimants deceased Ram Singh was aged about 30 years and he used to earn Rs. 4000/- per month from the merchandise shop and Rs. 1000/- per month from agriculture, whereas deceased Bhagwan Chand was aged 32 years and from the business of merchandise shop he used to earn Rs. 4000/- per month. Bhagwan Chand also used to produce vegetables and his income from this work was Rs. 500/- per month. The claimants filed claim petitions for compensation for the deaths of Ram Singh and Bhagwan Chand.

6- The opposite party No. 1, the owner of offending tax car filed her written statement and denied the rash and negligence of the driver. According to her

the driver was driving the Car in cautious manner but in order to save some animal on the road, the vehicle got slipped and accident took place. The offending car was insured with National Insurance Company and the documents were valid at the time of accident. The opposite party No.1, alleged that she is not liable to pay any compensation and the petitions are liable to be dismissed against her.

7- The opposite party No.2, National Insurance Company also contested the claim petitions by filing written statements and alleged that the accident has not been proved. The merchandise business of the deceased persons has not been proved. It also alleged that the driver of the offending vehicle had no valid driving license and the vehicle was being used against terms of insurance policy and breach of policy was committed. Therefore, the insurer cannot be held liable to pay compensation.

8- On the basis of pleadings of parties, the Tribunal framed relevant issues in both the claim petitions. Thereafter parties led evidence in support of their case.

9- The Tribunal after hearing learned counsel for the parties and considering the evidence on record awarded sum of Rs. 1,77,000/- for the death of deceased Ram Singh along with interest @ 9% per annum from 5-11-2001 till the date of payment against the owner of the offending vehicle and awarded Rs. 3,49,500/- for the death of Bhagwan Chand along with interest @ 8% per annum from the date of petition till the date of actual payment, if the payment is not made

within one month, against the owner of the offending vehicle.

10- Feeling aggrieved, the owner of offending vehicle Km. Laxmi has preferred these appeals before this Court.

11- Heard learned counsel for the parties and perused the record.

12- The learned counsel for the appellant has submitted that the offending car was insured with National Insurance Company and it was having valid insurance on the date of the accident, but the learned Tribunal has committed gross error in fixing the liability upon the owner of the vehicle. He also submitted that multiplier has been adopted on higher side and exorbitant amount of compensation has been awarded by the trial court.

13- On the other hand learned counsel for the insurance company has submitted that the offending taxi was insured with the National Insurance Company for private use only but at the time of accident it was being used as taxi and carry passengers after getting fare, therefore, breach of insurance policy was committed by the owner of the car and the Tribunal has rightly held liable the owner of the said vehicle for payment of compensation.

14- Perusal of record reveals that offending car bearing registration No. UP –03/1834 was insured with National Insurance Company and its insurance was valid from 6.4.2000 to 5.4.2001, but it was registered for private use only. The claimants have alleged that the

deceased persons were travelling in the car after paying the fare. P.W.2, Jagat Singh is the eyewitness of the accident and this witness has deposed that at the time of accident the deceased persons were sitting inside the car. P.W.3, Manohar Singh also deposed that he is resident of village Halpiya, Tehsil Didihat. He further alleged that the owner of the offending car use the car as taxi on the route in dispute. The report of the accident was lodged by the owner of the car at the police station in which it was alleged that there were four persons in the car at the time of accident. The Insurance Company also filed survey report on the record and the surveyor has also been produced as D.W.2, Jogendra Kochar, who has deposed that after investigation he has found that the deceased persons were travelling in the offending car after giving the fare. In the above circumstances of the case it is clear-cut case of breach of terms of insurance policy and the learned Tribunal has rightly held the owner of the offending car liable for payment of compensation. The contention of learned counsel for the owner has no substance and is hereby rejected. I do not find any illegality in the finding arrived at by the learned Tribunal so far as the liability of the owner of the offending car was fixed.15- Now coming to the point of quantum of compensation, in A.O. no. 357/2005, it is the case of the claimants that the deceased Ram Singh at the time of accident was 30 years of age and he used to do the business of merchandise shop thereby earning Rs. 4,000/- per month and also used to earn Rs. 1,000/- per month from agriculture and horticulture. However, the claimants did not adduce any documentary and cogent evidence to prove the income of the deceased, therefore, the tribunal has taken the notional income of Rs.

15,000/- per annum and after 1/3P[rd]P deduction towards personal expenses, the annual dependency was taken for Rs. 10,000/-. The Tribunal has adopted the multiplier of 17 in the age group of 30-35 years, and after adopting the multiplier of 17 the dependency comes to Rs. 1,70,000/-. The Tribunal has assessed the dependency on the annual notional income of Rs. 15,000/-, therefore, the Tribunal has rightly adopted the multiplier of 17 as has been given in Second Schedule appended to Section 163-A of the Motor Vehicles Act between the age group of 30-35 and I do not find the multiplier on higher side. The Tribunal also awarded sum of Rs. 2,000/- towards funeral expenses and further awarded sum of Rs. 5,000/- towards loss of consortium. In this way the total sum of Rs. 1,70,000/- + Rs. 2,000/- + Rs. 5,000/- = 1,77,000/- has been awarded as compensation. The calculation made by the learned Tribunal does not suffer from any infirmity and the same is liable to be upheld.

16- In A.O. No. 257/2007, the profession of deceased Bhagwan Chand was also shown to be merchandise shop, agriculture and growing the vegetable and the monthly income was shown to be Rs. 4,500/-. No documentary evidence was adduced before the Tribunal, which could show the monthly income of the deceased. However, the surveyor of the insurance company in his report paper No. 8-C/3 has admitted that the deceased Bhagwan Chand was having merchandise shop at Bisa Bajer. Therefore, the tribunal has taken the monthly income of the deceased as Rs. 2,500/- and after deducting 1/3P[rd]P towards personal expenses, took the total annual dependency of Rs. 19,999-99P. rounded to Rs. 20,000/-. However, the multiplier adopted by the Tribunal in this case is certainly on higher side in view of the latest

pronouncement of the Hon’ble Apex Court in New India Insurance Company Limited Vs. Smt. Kalpana and others, reported in 2007(1) T.A.C. 795, where the multiplier of 13 was applied on the age of 33 years; in the case of Tamil Nadu State Transport Corporation Ltd. vs. S. Rajapriya & Ors, reported in 2005(4) Supreme 87, where the multiplier of ‘12’ was adopted at the age of 38 years, and in the case of The Managing Director, TNSTC Vs. Sripriya & Ors., reported in 2007(5) Supreme 301, where the multiplier of ‘12’ was adopted at the age of 37 years. Therefore, in view of the dictum of Hon’ble Apex Court in the above cited rulings, in my opinion the proper multiplier in this case should have been ‘13’ instead of ‘17’. Therefore, after adopting the multiplier of 13 the dependency comes to Rs. 20,000/- X 13= 2,60,000/-. The Tribunal further awarded sum of Rs. 5,000/- for loss of love and affection, Rs. 2,000/- towards funeral expenses and Rs. 2,500/- for loss of estate, and in my opinion the claimants are entitled to get these sums awarded by the Tribunal. In this way the total compensation comes to Rs. 2,60,000/-+ Rs.5,000/- + Rs. 2,000/- + Rs. 2,500/-= Rs.2,69,500/-. Hence, the award is liable to be modified upto the above extent.

17- For the reasons stated above the A.O. No. 357/2005 is hereby dismissed. The impugned judgment and award dated 27-8-2004, is upheld.

18- However, the A.O. No. 257/2007 is partly allowed and the impugned judgment and award dated 5-4-2007 is modified upto the extent that the claimants are entitled to get compensation of Rs. 2,69,500/- from the owner/appellant Km. Laxmi Devi, instead of Rs.

3,49,500/- as has been awarded by the Tribunal. In other respects the award is upheld.

19- Let the statutory amounts deposed in both the appeals before this Court be remitted to the tribunal concerned.

20- Let copy of this judgment be placed in the file of A.O. No. 257/2007.

ISB

(B.C. Kandpal, J.)