AO/4/2005 of THE ORIENTAL INSURANCE CO.LTD. Vs SEEMA RAWAT and ORS.

IN THE HIGH COURT OF UTTARAKHANDAT NAINITAL

Appeal From Order No. 4 of 2005

The Oriental Insurance Co. Ltd.

… Appellant

Versus

Seema Rawat & others

… Respondents

Sri Tanveer Alam Khan, Advocate for appellant Sri B.P. Nautiyal, Advocate for respondents no. 1 to 4

Dated: July 30, 2008

Hon’ble B.C. Kandpal, J.

This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred against the judgment and award dated 9.11.2004 passed by Motor Accident Claims Tribunal/Additional District Judge/Fast Track Court IV, Dehradun, in Motor Accident Claim Case No. 144 of 1999, Seema Rawat & others vs. Anil Saini & others.

Brief facts of the case are that on 30.5.1998 at about 3.00 p.m. deceased Chandramohan Singh Rawat was coming Joshimath from Badrinath in Car No. D.L. 5C-0591, which was being driven by opposite party no. 1 and Sri Ajay Agrawal was also sitting in that vehicle. When the said vehicle reached at the distance of half furlong from Dev Darshani Gate, the driver of Car which was being driven by opposite party no. 1, lost control over the car and car fell into 150 meter deep ditch of Alaknanda river. In the accident, Chandra Mohan Singh Rawat and Ajay

Agrawal died. The deceased at the time of his death was working in Nirma Company and used to earn Rs.5500/- per month. The claimants thus claimed sum of Rs.8,00,000/- as compensation against the opposite parties.

Opposite party no. 1-Anil Saini, who is owner-cum-driver of offending vehicle, filed written statement and that on pleaded 30.5.1998 at about 3.00 p.m. he was coming back through his Maruti Car No. D.L.5C/0591 after visiting Badrinarayan in Badrinath. Sri Chandra Mohan Singh Rawat, Sri Ajay Agrawal and Sri Sapan Bangali were also sitting in that car. He also pleaded that he was driving the car carefully and slowly, but as soon as the said car reached at the distance of half furlong from Badrinath Devdarshani Gate, suddenly the said car overturned on account of congestion on road and it fell into Alaknanda. He further pleaded that he was not at fault in the accident, rather the accident occurred due to act of God. He further stated that he was having valid and effective driving licence and said car was insured with Oriental Insurance Co. Ltd., Rajpur Road, Dehradun at the time of accident. The insurance company is liable to pay compensation, if any.

Opposite party no. 2-Oriental Insurance Co. Ltd. filed written statement denying almost all the contents of the claim petition. It has pleaded that on the date of accident driver of offending vehicle was not having valid and effective driving

licence. It has further pleaded that dead body of deceased has not been recovered and cremation of deceased has not been performed, therefore, the deceased cannot be declared dead legally.

The learned Tribunal on the basis of pleadings of parties framed relevant issues in the claim petition. Parties led evidence in support of their cases. The Tribunal after having considered the material available on record and hearing learned counsel for the parties decreed the claim petition for sum of Rs.7,37,840/- in favour of claimant, payable by opposite party no. 2-The Oriental Insurance Company Ltd., along with interest @ 6% per annum from the date of filing the petition till the date of actual payment.

Feeling aggrieved by the aforesaid impugned judgment and award, the appellant-Oriental Insurance Co. Ltd. has filed this appeal before this Court.

Heard Sri Tanveer Alam Khan, learned counsel for appellant, Sri B.P. Nautiyal, learned counsel for respondents no. 1 to 4 and perused the record.

As far as factum of accident is concerned, the Tribunal has discussed all the evidence adduced by the parties and thereafter has recorded categorical finding that on 30.5.1998 Car No. D.L. 5C/0591, in which Chandra Mohan Singh Rawat was travelling and which was being

driven by its driver rashly and negligently, fell into Alaknanda river and Chandra Mohan Singh Rawat died. I do not find any illegality in the finding recorded by the Tribunal in this regard.

As far as amount of compensation to be awarded in favour of claimants is concerned, the claimants stated in the claim petition that deceased was employed in Nirma Company and used to earn Rs.5500/- per month and used to give sum of Rs.4500/- per month to his family. The claimants filed original pay slip (paper no. 27B) and as per pay slip the monthly salary of deceased was Rs.5315/- at the time of his death. The deceased was 34 years of age as per date of birth i.e. 4[th] April, 1965, as mentioned in School Certificate. Therefore, the annual income of deceased comes to Rs.5315 x 12=Rs.63780/- and after deducting 1/3[rd] out of it towards personal expenses of deceased, the annual income of deceased has been worked out at Rs.42,520/-, which appears to be justified and needs no interference. The Tribunal keeping in view the age of deceased as 34 years selected the multiplier of ‘17’ which appears to be on higher side. In view of the latest pronouncement of the Hon’ble Apex Court given in the cases of Tamil Nadu State Transport Corporation Ltd. Versus S. Rajpriya & others, reported in 2005 (4) SC 87, The Managing Director, TNSTC versus Sripriya & others, reported in 2007(5) Supreme 301,New India Assurance Co. Ltd. vs. Kalpana (Smt) and others, reported in (2007) 2 SCC (Cri) 94 and

Laxmi Devi & others vs. Mohammad Tabbar & another, reported in 2008 UAD 587, the multiplier in the present case would not exceed more than ‘15’. After applying the multiplier of ‘15’ the total amount of compensation to be awarded in favour of claimants comes to Rs.42,520 x 15=Rs.6,37,800/-. The Tribunal also awarded sum of Rs.5,000/- for loss of consortium and sum of Rs.10,000/- for mental and physical loss, which is not to be disturbed. Thus, the total amount of compensation to be awarded in favour of claimants comes to Rs.6,37,800 + Rs.5,000 + Rs.10,000=Rs.6,52,800/-. The interest awarded by the Tribunal in the impugned judgment and award shall remain intact.

For the reasons stated above, the appeal is liable to be partly allowed.

Accordingly, appeal is partly allowed. The impugned judgment and award is modified to the extent that claimants are entitled for sum of Rs.6,52,800/- (Rupees Six Lacs Fifty Two Thousand Eight Hundred) as compensation (instead of Rs.7,37,840/- as has been awarded by the Tribunal), along with interest @ 6% per annum from the date of filing the petition till the date of actual payment.

The statutory amount deposited by the appellant-insurance company with this Court be remitted to the Tribunal concerned.

(B.C. Kandpal, J.)