AO/872/2006 of YOGESH SINGH MINOR AND ORS Vs THE NEW INDIA ASSURANCE COMP LTD. AND ORS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL.

A.O. No. 872 of 2006

Yogesh Singh and others … Appellants.

Versus

The New India Assurance Company Ltd and others

.. Respondents.

Sri Pankaj Purohit, learned counsel for the appellants. Sri M.K. Goel, learned counsel for the respondent/New India Ass. Co.

Dated: 11-12-2008

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. 16/2006, Yogesh Singh and others Vs. The New India Assurance Company and others.

2- Brief facts of the case are that on 13-2-2006, Smt. Tulasi Devi along with her husband and two sons, was travelling in Bus No. U.P. 07-C-3469 from Karanprayag to Gwaldam. At about 1.00 P.M. when the said bus reached two kilometers ahead of Nalgaon on Karanprayag-Gwaldam Motor Marg, it met with an accident due to rash and negligence of the driver and Smt. Tulasi Devi died at the spot. The deceased at the time of accident was 30 years of age and was teacher getting monthly salary of Rs. 10,200/-. Therefore, the claimants has filed the claim petition for award of compensation in lieu of death of Smt. Tulasi Devi.

3- The opposite party/ New India Assurance Company contested the claim petition and denied the allegations made in the petition. The insurance company also alleged that the driver was not possessing valid

driving license and the offending bus was not having valid registration, permit etc.

4- The opposite party Nos. 2 and 3, owner and driver of the bus in question filed joint written statement and admitted the accident. They further alleged that the driver was possessing valid driving license and it was insured with New India Assurance Company. They also alleged that the accident has occurred due to falling of tree on the bus, therefore, the claim petition is liable to be dismissed.

5- The Tribunal on the basis of pleadings of parties, framed relevant issues in the claim petition. Thereafter parties adduced evidence in support of their case.

6- The learned Tribunal after having considered the material available on record and hearing the learned counsel for the parties, decreed the petition for sum of Rs. 6,37,440/- along with interest @ 5% per annum from the date of filing the petition till the date of actual payment against the New India Assurance Company.

7- Feeling aggrieved by the aforesaid judgment and award the claimants have preferred this appeal for enhancement.

8- Heard Sri Pankaj Purohit, learned counsel for the appellants and Sri M.K. Goel, learned counsel for the respondent/New India Assurance Company, and perused the record.

9- From perusal of impugned award, it is quite clear that the driver and owner of the offending has

admitted the accident, but their contention is that the accident has occurred due to falling of tree on the offending bus. To prove the rash and negligence of the driver of the bus, affidavit of P.W.1, Durlabh Singh Mehra has been produced in the case. He has deposed that the accident has occurred due to rash and negligence of the driver of the bus. This witness has not been cross-examined from the side of opposite parties. The driver of the bus has also not been produced before the Tribunal in order to tell that the accident had actually occurred due to falling of tree on the said bus. In this way the learned Tribunal has rightly believed the stand taken from the side of the claimants that the accident has occurred due to the rash and negligence of bus driver. The photo copies of driving license, cover note of insurance policy, registration certificate, permit etc. have been filed on record and these papers clearly establish that driver of the offending bus was having valid driving license and the bus was having valid documents and was insured with New India Assurance Company at the time of accident. The finding of the learned tribunal on issue Nos. 1 and 2, pertaining to rash and negligence of the driver and possessing valid driving license by the driver and valid insurance, documents etc. by the offending bus, is quite justified and need no interference by this court.

10- As far as the compensation to be awarded in favour of the claimants is concerned, the Tribunal has decided issue No.3 in this regard. The approach adopted by the tribunal in calculating the amount of compensation appears to be erroneous. The tribunal has taken into consideration as take home salary of the deceased as Rs. 7,943/- per month. The documents available on record in this regard are paper No. 12-C and

49-C. From perusal of both these documents it is quite clear that after deducting the different allowances from the monthly pay of Rs. 10,129/-, sum of Rs. 9529/- per month is to be taken the take-home salary of the deceased for the purpose of calculating the dependency of the claimants. The court below has ignored this aspect that the G.P.F. deducted from the salary of the deceased is to be taken into account for calculating the amount of compensation. The approach adopted by the Tribunal cannot be said to be justified in view of the judgment of Hon’ble Supreme Court reported in J.T. 2005 (4) S.C. 531Tamil Nadu State Transport Corporation Ltd. Vs. S. Rajapriya, as well as the judgment of this Court rendered in A.O. No. 431/2007, United India Insurance Company Versus Lalit Sharma and others . The income of the deceased would be assessed on the basis of Basic Pay + Dearness Pay + Dearness Allowance. In case if the income of the deceased is taken as Rs. 9529/- per month, then after deducting 1/3[rd] towards personal expenses of the deceased, the financial dependency comes to Rs. 6,353/- per month.11- The age of the deceased at the time of accident was 30 years. The Tribunal has again fell in error in adopting the multiplier on lower side. Keeping in the age of the deceased as 30 years, as well as the observations made by the Hon’ble Apex Court in 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, the suitable multiplier in the instant case would be ‘14’ and after adopting the multiplier of ‘14’, the amount of compensation comes to Rs. 6,353/- X 12 X 14= Rs. 10,67,304/-. The amount of Rs. 2,000/- awarded towards funeral expenses shall remain intact.

12- Therefore on the basis of aforesaid calculation the total amount of compensation to be awarded in favour of the claimants comes to Rs. 10,69,304/-.

13- The tribunal again fell in error in awarding the interest on lower side. The tribunal has awarded the interest @ 5% per annum from the date of filing the petition till the date of actual payment which cannot be said to be just and proper in any manner. I am of the view that the interest on the amount of compensation should be 6% per annum from the date of filing the petition till the date of actual payment ( instead of 5% per annum as has been awarded by the Tribunal).

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

15- Accordingly, the appeal is partly allowed. The impugned judgment and award dated 27-10-2006 is modified upto the extent that the claimants are entitled to get sum of Rs. 10,69,304/- as compensation, from the respondent/ New India Assurance Company, along with interest @ 6% per annum from the date of filing the petition till the date of actual payment (instead of Rs. 6,37,440/- along with interest @ 5% per annum, as has been awarded by the Tribunal).

ISB

(B.C. Kandpal, J.)