AO/229/2006 of NATIONAL INSURANCE CO. LTD. Vs SMT. MANJU JOSHI and ORS.

IN THE HIGH COURT OF UTTARAKHAND AT

NAINITAL.

A.O. No. 229 of 2006

National Insurance Company Ltd.

..Appellant.

Versus

Smt. Manju Joshi and 3 others ..Respondents.

Mr. K.K. Sah, learned counsel for the appellant. Mr. P.S. Rawat, learned counsel for respondents 1 to 3. None for respondent No.4.

Dated: April 24,2008

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 20-1-2006, passed by Motor Accident Claim Tribunal/Additional District Judge/ I F.T.C., Haldwani, in MACT Case No. 168 of 2003.

2- Brief facts of the case, giving rise to this appeal, are that on 5-4-2003 Sri L.D. Joshi, after finishing his duty was returning to his home Ganipur Mauna, P.O. Lamchaud, in Motor Cycle No. U.A. 04-A/0267. Suddenly three persons in drunken state came over the road, truck was also coming from opposite direction at the spot and due to the flash of light of the said truck the Motorcyclist could not see the things on the road but any how in order to save the persons loitering there, he fell down with the Motor Cycle on the road. He was immediately rushed to Soban Singh Jeena Base Hospital Haldwani and from there he was referred to Bareilly for better treatment but in the way he succumbed to the injuries. The deceased was employed in Uttaranchal Power Corporation as technical worker and was getting Rs. 9,283/- as salary. The claimants filed claim for sum of Rs. 11,55,000/- in lieu of death of the deceased.

3- The Opposite Party No.1 National Insurance Company contested the claim petition by filing written statement and alleged that the vehicle involved in the accident had no valid fitness and permit at the time of accident and deceased, who was the driver of the Motor Cycle, was also not having valid driving license. The Insurance Company also alleged that the accident had occurred due to own negligence of the Motorcyclist. It also alleged that the amount claimed is highly exaggerated.

4- The Opposite Party No.2, owner of the offending Motor Cycle, has admitted the accident and alleged that the deceased had valid driving license and the vehicle was being driven at low speed.

5- The Tribunal, on the basis of pleadings of parties, framed relevant issues in the petition. Thereafter parties led evidence in the case. The Tribunal after having heard learned counsel for the parties and perusing the material on record, awarded sum of Rs. 5,94,808/- as compensation payable by National Insurance Company. The Tribunal also directed that the amount of compensation should be deposited within one month, failing which interest @ 9% per annum from the date of petition till the date of final payment.

6- Feeling aggrieved, National Insurance Company has preferred this appeal before this Court.

7- I have heard learned counsel for the parties and perused the record.

8- Learned counsel for the appellant has submitted that the deceased was not the owner of the Motor Cycle and no extra payment was made for the driver under the head of Personal Accident and as such the deceased do not come within the purview of third party for which the Motor Cycle was insured and premium was paid by the owner of the Motor Cycle. Learned Counsel also urged that the Tribunal has applied the higher multiplier for calculating the amount of compensation and the amount of compensation should be reduced.

9- From perusal of record reveals that the Motor Cycle No. U.A.04-A-0267 was insured with the National Insurance Company and the insurance papers 39-C/4 to 39-C/6 have been filed on record. The driving license of the driver/deceased has also been brought on record as paper No. 45-C. The vehicle had also valid registration. From perusal of insurance policy is reveals that there was no bar in driving the Motor Cycle by person having valid driving license. This fact has also been admitted by D.W.1, Sri B.C. Pandey, Divisional Manager of the Insurance Company, in his cross-examination. In the policy the owner and the driver have been insured for Personal Accident and premium of Rs. 50/- has been paid under this head. Therefore, it is quite clear that the driver was insured for Personal Accident. Paper No. 42-C/1, terms and conditions of insurance, has been filed by the insurance company. At its page No.2 conditions have been given for Personal Accident in the head ‘Cover for Owner-Driver’. In the table given therein the scale of compensation in case of death of Owner- Driver has been noted 100%. In the above facts and circumstances of the case it cannot be said that the legal heirs of the

driver/deceased in the instant case cannot be fully compensated for his death occurred in an accident.

10- So far as the quantum of compensation is concerned, pay certificate of the deceased has been filed paper No. 5-C/4, according to which his monthly salary was Rs. 9,283/- out of which Rs. 3,631/- were deducted as compulsory deductions, therefore, the monthly income of the deceased as Rs. 5,652/- has rightly been assessed by the Tribunal, the annul income comes to Rs. 67,824/. After deducting 1/3[rd] towards personal expenses, the net annual dependency comes to Rs. 45,216/-. The deceased at the time of accident was 48 years of age and the Tribunal applied the multiplier of 13, which in my opinion is on higher sidein view of the decisions of the Hon’ble Apex Court in the case of Tamil

Nadu State Transport Corporation Ltd. vs. S. Rajapriya & Ors, reported in 2005(4) Supreme 87, in whichthe Hon’ble Supreme Court has adopted the multiplier of ‘12’ where the deceased was 38 years of age, and in the case ofThe Managing Director, TNSTC Vs. Sripriya & Ors., reported in 2007(5) Supreme 301, in which the Hon’ble Apex Court applied the multiplier of ‘12’ where the deceased was 37 years of age.

11- In the instant case, keeping in view the age of the claimant, the multiplier of ‘10’ in the light of the judgments of the Hon’ble Apex Court cited above, would be just and proper. Therefore, after adopting the multiplier of ‘10’ the total amount comes to Rs. 45,216/- X 10 = Rs. 4,52,160/-.

12- For the discussion made above, the appeal is liable to be partly allowed.

13- Accordingly the appeal is partly allowed. The impugned judgment and award dated 20-1-2006 is modified upto the extent that the claimant shall be entitled to get sum of Rs. 4,52,160/- as compensation instead of Rs. 5,94,808/-, as has been awarded by the Tribunal. The interest part and other directions pertaining to deposit of the amount in the names of minor sons of the deceased, mentioned in the impugned award, shall remain intact.

14- The statutory amount of compensation, if any, deposited at the time of filing the appeal, be remitted to the Tribunal concerned.

ISB

( B.C. Kandpal, J.)