AO/871/2006 of MAYANK SINGH MINOR AND ORS Vs THE NEW INDIA ASSURANCE COM LTD AND ORS

IN THE HIGH COURT OF UTTARAKHAND AT

NAINITAL.

A.O. No. 871/2006

Mayank Singh and 3 others

… Appellants.

Versus

The New India Assurance Company Ltd and two others

.. Respondents.

Mr. Pankaj Purohit, Advocate for the appellants. Mr. P.C. Maulekhi, Advocate for respondent No.1 None has appeared for respondent Nos. 2 and 3.

Dated: 26-6-2008

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 27-10-2006, passed by Motor Accident Claims Tribunal/District Judge, Chamoli, in MACT Case No. 15 of 2006.

2- Brief facts of the case, are that on 13.2.2006 Mahendra Singh Mehra along with his wife Smt. Tulasi Devi and two sons Mayank Singh and Yogesh Singh, was travelling in Bus No. U.P. 07-C-3469 from Karanprayag to Gwaldam. When the said bus at about 1-00 P.M. reached two kilometers away from Nalgaon on Karanprayag-Gwaldam Motor Road, the bus met with an accident due to the rash and negligence of its driver and Mahendra Singh Mehra died at the spot. The deceased at the time of accident was 35 years of age and he used to earn Rs. 10,000/- per month from the general store and agricultural work. The claimants filed petition for compensation for the death of Mahendra Singh Mehra.

3- The New India Assurance Company contested the claim petition by filing its written statement. The insurance company has alleged that the offending bus was not having valid registration, insurance and permit and the driver was not having valid driving license.

4- The opposite party Nos. 2 and 3, owner and driver respectively, also filed joint written statement and alleged that the vehicle was possessing valid documents and its driver had valid driving license. They also alleged that the accident has occurred due to falling of tree on the bus.

5- On the pleadings of parties, the learned Tribunal has framed relevant issues in the claim petition. Thereafter, parties adduced evidence in support of their case. The Tribunal after hearing learned counsel for the parties and considering the material on record, allowed the petition for sum of Rs. 1,52,000/- along with interest @ 5% per annum from the date of filing the petition till the date of final payment against the New India Assurance Company.

6- Feeling aggrieved, the claimants have preferred this appeal for enhancement of compensation.

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

8- The impugned judgment and award has been challenged only on the point of quantum of compensation. Learned counsel for the appellants has submitted that the Tribunal has taken the notional income on lesser side and thereby awarded meager amount of compensation. He has further submitted that

the interest awarded by the Tribunal is also on lesser side.

9- On the other hand learned counsel for the Insurance Company/respondent has opposed the submission of the learned counsel and submitted that the Tribunal has already awarded adequate amount of compensation and the appeal of the appellants for enhancement has no merit.

10- On perusal of the record, it reveals that the deceased was aged about 35 years at the time of accident as has been indicated in the claim petition. The post mortem report reveals that the age of the deceased was 40 years, but keeping in view the High School Certificate filed by the claimants, the age of the deceased has been considered as 35 years by the Tribunal. As this evidence is based on the material document available on record, therefore the finding pertaining to the age of the deceased does not require any interference and the age of the deceased is considered to be 35 years at the time of the accident. The claim petition indicates that the deceased had been earning Rs. 10,000/- per month from the agricultural work as well as from the shop of general store. No cogent and reliable evidence has been adduced by the claimants in order to establish the actual income of the deceased, therefore, the Tribunal has taken into consideration the notional income of the deceased for calculating the amount of compensation. The notional income of the deceased has been considered as Rs. 15,000/- per annum and after deducting 1/3[rd] of out this amount, the dependency has been reckoned as Rs. 10,000/- per annum. The annual notional income as has been calculated by the Tribunal appears to be absolutely on lower side, in view of the decision of the

Division Bench of this Court,in A.O. No. 2 of 2005, Sobhan Singh and another Vs. New India Insurance Company and another, decided on 1.11.2006, in which the notional income has been fixed at Rs. 36,000/- per annum due to price hike. In the instant case, in my opinion, the notional income should have been fixed Rs. 36,000/- per annum as the accident pertains to the year 2006 and after 1/3[rd] deduction towards personal expenses the amount comes to Rs. 24,000/- per annum.

11- The Tribunal has adopted the multiplier of 15. The deceased was 35 years of age and in my view the multiplier of 15 does not appear to be justified in view of the observation made by the Hon’ble Apex Court in the case of New India Assurance Co. Ltd. vs. Smt. Kalpana and others, reported in 2007(1)Supreme 514, where the deceased was 33 years of age and the Hon’ble Apex Court applied the multiplier of 13 and the case of Tamil Nadu State Transport Corporation Ltd. vs. S. Rajapriya & Ors, reported in 2005(4) Supreme 87, where the Hon’ble Supreme Court has adopted the multiplier of ‘12’ at the age 38 years. Further, in the case of The Managing Director, TNSTC Vs. Sripriya & Ors., reported in 2007(5) Supreme 301, the Hon’ble Apex Court applied the multiplier of ‘12’ where the deceased was 37 years of age. Therefore, the multiplier which has been applied by the Tribunal in the instant case appears to be wrong in view of the aforesaid judgments of the Hon’ble Apex Court. The proper multiplier in the instant case is 12. After adopting the multiplier of 12 the total amount of dependency comes to Rs. 24,000/- x 12= Rs. 2,88,000/-. The Tribunal has awarded sum of Rs. 2,000/- under the head of expenses towards fimera; expenses, which appears to be justified. The total amount of compensation thus comes to Rs. 2,90,000/-. Further it appears to methat the interest awarded by the Tribunal is absolutely on lower side. The interest should be 7.5% per annum instead of 5% per annum as has been awarded by the Tribunal. Therefore, the amount of compensation shall be paid along with interest @ 7.5% per annum by the insurance company from the date of filing the petition till the date of actual payment.

12- For the reasons recorded above, the appeal is liable to be partly allowed.

13- Accordingly, the appeal is partly allowed. The impugned judgment and award dated 27-10-2006 is modified upto the extent that the claimants are awarded compensation of Rs. 2,90,000/- instead of Rs. 1,52,000/- as has been awarded by the Tribunal, along with interest @ 7.5.% per annum from the date of filing the petition till the date of actual payment ( instead of interest @ 5% per annum as has been awarded by the Tribunal).

ISB

(B.C. Kandpal, J.)