AO/867/2006 of SMT. BEENA DEVI AND OTHERS Vs NEW INDIA ASSURANCE CO. LTD AND OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL.

A.O. No. 867 of 2006

Smt. Beena Devi 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. 18/2006, Smt. Beena Devi and others Vs. The New India Assurance Company and others.

2- Brief facts of the case are that on 13-2-2006, deceased Luxmi Prasad Joshi, 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 Luxmi Prasad Joshi sustained grievous injuries in the accident. He was carried to different Hospitals, viz. P.H.C. Narayan Bagar; Community Health Center, Narayan Bagar, Base Hospital Srinagar and Doon Hospital at Dehradun. He died on 14.2.2006 at Doon Hospital, due to the injuries sustained by him in the accident. The deceased at the time of accident was 32 years of age and he was employed as conductor in the buses, plied under the control of Roopkund Tourist Samiti and his monthly income was Rs. 2,000/-. Therefore, the claimants has filed the claim petition for

award of compensation in lieu of death of Luxmi Prasad Joshi.

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. 3,02,420/- 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, Smt. Beena Devi has been produced in the case. She 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. P.W.2, Kunwar Singh also supported the version of P.W.1, on the point of rash and negligence of the bus driver. He was also travelling the bus and his testimony cannot be disbelieved. Although affidavit of D.W.1, Narendra Singh, owner of the Bus has been filed, and he has deposed that the accident had occurred due to falling of tree on the bus, but he is not an eyewitness of the occurrence and his deposition cannot be believed. The driver of the bus was the best witness to narrate the facts of the accident but he has not been produced before the Tribunal. 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 approach adopted by the Tribunal appears to be perverse. The Tribunal has assessed the monthly income of the deceased as Rs. 3,000/- but at the same time has deducted 1/3[rd] as personal expenses of the deceased twice which does not appear to be just and proper. In case if the income of the deceased is taken to be Rs.3,000/- per month, then after deducting 1/3[rd]towards personal expenses of the deceased, the financial dependency of the claimants comes to Rs. 2,000/- per month. The Tribunal has further deducted 1/3[rd] out of the sum of Rs. 2,000/- which cannot be said to be justified. In case if the financial dependency of the claimants is taken as Rs. 2,000/- per month then the annual dependency comes to Rs. 2,000/- X 12= Rs. 24,000/-. The age of the deceased at the time of accident was 33 years. The Tribunal has put an unnecessary emphasis on the post mortem report while the other documents establishing the age of the deceased as 33 years were available on the record. Therefore, the age of he deceased at the time of accident is to be taken as ‘33’ years.11- Further the multiplier adopted by the tribunal in the instant case as ‘15’, is certainly on higher side, keeping in view 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 and the suitable multiplier in the instant case would not have travelled beyond ‘13’ and after adopting the multiplier of ‘13’, the amount of compensation comes to Rs.24,000/- X 13= Rs. 3,12000/-. The other amounts awarded under different heads, 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. 3,12,000/- + Rs.2,000/-( funeral expenses) + Rs.2,500/- (loss of estate) + Rs. 5,000/- ( loss of consortium) + Rs. 920/- ( medical expenses) = Rs. 3,22,420/-.

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. 3,22,420/- 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. 3,02,420/- along with interest @ 5% per annum, as has been awarded by the Tribunal).

ISB

(B.C. Kandpal, J.)