AO/206/2005 of U.P.S.R.T.C Vs SMT MAYA AGRAWAL and ORS

IN THE HIGH COURT OF UTTARAKHANDAT NAINITAL

Appeal From Order No. 206 of 2005

U.P.S.R.T.C.

Versus

…Appellant

Smt. Maya Agrawal & others

…Respondents

With

Appeal From Order No. 77 of 2005

United India Insurance Co. Ltd. …Appellant

Versus

Smt. Maya Agrawal & others …Respondents

Sri Ramji Srivastava, Advocate for UPSRTC Sri Manish Dalakoti, Advocate holding brief of Sri D.S. Patni, Advocate for United India Insurance Co. Ltd. Sri L.K. Tiwari, Advocate for claimant-Smt. Maya Agrawal

Dated: November 10, 2008

Hon’ble B.C. Kandpal, J.

Since both these appeals are arising out of the same judgment and award and common question of fact of law is involved in both the appeals, as such, they are being decided by this common judgment.

These appeals, under Section 173 of Motor Vehicles Act, 1988, have been preferred against the same judgment and award dated 23.11.2004 passed by Motor Accident Claims Tribunal/Fast Track Court Vth, Dehradun, in M.A.C.C. No. 40 of 2004, Smt. Maya Agrawal versus UPSRTC & others.

The claimant-Smt. Maya Agrawal filed claim petition under Section 166 of Motor Vehicles Act,

before Claims Tribunal, for grant of compensation on account of death of her son-Anurag Agrawal alleging therein that on 24.10.2003 her son deceased-Anurag Agrawal was going from Delhi to Dehradun through Vehicle Qualis No. H.R.01-L-2731, which was being driven by its driver-Anand Prakash and at 6.45 a.m. when the said vehicle reached at Pran-Kaliyan bend, District Haridwar, at the same time, Bus bearing Registration No. U.P.15-M-7925 coming from opposite direction hit the said Qualis being driven by its driver rashly and negligently, due to which deceased-Anurag Agrawal sustained injuries and died at the spot itself. According to the claimant, deceased was 27 years of age and had been working as Executive in Bharti Infotech and his annual income was Rs.3,50,000/- at the time of his death. The claimant claimed sum of Rs.31,85,000/- as compensation against opposite parties.

Opposite parties no. 1 and 2 filed written statement and admitted the factum of accident and death of deceased-Anurag Agrawal in the accident, but denied that Bus of UPSRTC was being driven by its driver in high speed and the said vehicle lost its control. They have pleaded that opposite party no. 2 driver of offending Bus of UPSRTC tried to save the accident, but it was further stated that on that direction the said Bus of UPSRTC was going, there is sharp bend and when the vehicle in question was coming in that direction there is straight road and vehicle coming in that direction appears from long distance. According to opposite parties no. 1 and 2, in the said accident opposite party no. 2 i.e. driver of offending vehicle was not at

fault, rather driver of vehicle in question himself is responsible for the said accident. Therefore, on the ground of these grounds the claimant is not entitled to get any compensation.

Opposite party no. 3 filed his written statement denying the contents of claim petition, but in the additional pleas it has been stated that at the time of accident vehicle in question was insured with opposite party no. 4 and vehicle in question was being plied by driver having valid driving licence. It has also been stated that no condition of insurance policy has been breached by driving the said vehicle and opposite party no. 3 was ready to cooperate fully with insurance company. He has also raised objection that in the said accident there was no rash and negligence on the part of driver of vehicle in question.

Opposite party no. 4-United India Insurance Co. Ltd. filed its written statement denying the contents of claim petition for want of knowledge. It has been stated that the said accident had occurred due to rash and negligence of driver of offending bus and therefore the claimant has not got any cause of action against opposite party no. 4. It has also been stated that opposite party no. 4 has been made party unnecessarily in the claim petition. It has further been stated that vehicle in question was not being plied by driver having valid and effective driving licence and the said vehicle was being plied in breach of conditions of insurance policy.

The Tribunal after having considered the entire evidence available on record and hearing learned

counsel for the parties, decreed the claim petition for sum of Rs.21,16,500/- along with interest at the rate of 6% per annum from the date of filing the petition till the date of actual payment, vide judgment and award dated 23.11.2004. The Tribunal further directed that 50% of awarded amount of compensation shall be paid by opposite party no. 1-UPSRTC, while rest of 50% shall be paid by opposite party no. 4-United India Insurance Co. Ltd.

Feeling aggrieved by the aforesaid impugned judgment and award, the appellant-UPSRTC has filed A.O. No. 206 of 2005 before this Court.

The appellant-United India Insurance Co. Ltd. has also filed A.O. No. 77 of 2005 before this Court.

Heard Sri Ramji Srivastava, Advocate for UPSRTC, Sri Manish Dalakoti, Advocate holding brief of Sri D.S. Patni, Advocate for United India Insurance Co. Ltd., Sri L.K. Tiwari, Advocate for claimant-Smt. Maya Agrawal and perused the record.

As far as factum of accident,the Tribunal has discussed all the evidence adduced by the parties and thereafter has come to the conclusion that the said accident took place on account of rash and negligent driving of both the drivers-Karan Singh and Anand Prakash of Bus No. U.P.15-M-7925 and Qualis No.H.R.-01-L-2731 respectively and both the drivers of vehicles involved in the accident are equally responsible for causing rash and negligence. The Tribunal has further recorded finding that

Anurag Agrawal died on account of injuries sustained by him in the said accident. I do not find any reason to disturb the said finding recorded by the Tribunal and the same deserves to be confirmed.

As far as amount of compensation to be paid in favour of claimant is concerned, the submission raised by the appellant is that the Tribunal has not assessed the income of the deceased in positive perception. It has been submitted that multiplier in this case has also been adopted by the Tribunal on higher side keeping in view the age of the mother of the deceased. Learned counsel for claimant-respondent no. 1 (Smt. Maya Agrawal) has made rival contention by submitting that the Tribunal has adopted the correct multiplier as well as the salary of the deceased has been considered on the basis of positive evidence available on record.

The record reveals that paper no. 9-C/1 has been filed before the Tribunal in order to show the income of the deceased. This document shows that the deceased was getting the salary of Rs.18,556/- per month including the mandatory allowances. The Tribunal has wrongly appreciated this paper by considering that monthly income of the deceased was Rs.24,306/-. Paper no. 9-C/1 shows that deceased had been getting sum of Rs.2500/- for petrol and maintenance, sum of Rs.2000/- for LTA reimbursement, sum of Rs.1250/- for medical reimbursement and this amount could not be included in the salary of the deceased. The Tribunal has thus wrongly included this amount in the salary of the deceased by considering that monthly

salary of deceased was Rs.24,306/-. By any stretch of evidence it cannot be inferred that deceased had been receiving sum of Rs.24,306/- as salary. The evidence shows otherwise and it reveals from the aforesaid document that deceased had been getting sum of Rs.18,556/- per month as salary. The finding recorded by the trial court to this effect appears to be wrong and liable to be set aside. I therefore hold that the deceased had been getting sum of Rs.18,556/- (rounded Rs.18,600/-) per month as salary from his Department at the time of accident.

As far as multiplier to be adopted in this case is concerned, it is an admitted case that deceased was unmarried at the time of accident. Therefore, the age of parents for assessing the amount of compensation is to be taken into account. The claim petition has been filed by mother of the deceased-Smt. Maya Agrawal, who was aged about 52 years at the time of accident. 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 and in the light of cumulative circumstances in the present case, I think that multiplier of ‘11’ which has been adopted by the Tribunal is certainly on higher side. It could not travel more than ‘9’ in any case.

As I have already observed that deceased had been getting sum of Rs.18,600/- per month as salary, therefore, after deducting 1/3[rd] amount out of it the financial dependency of claimants comes to Rs.12,400/- per month. In case, if the multiplier of ‘9’ is adopted in the present case, then the total amount of compensation comes to Rs.12,400 x 12 x 9=Rs. 13,39,200/-. The Tribunal also awarded sum of Rs.2000/- for funeral expenses and sum of Rs.2500/- for property, which appears to be justified and is not to be disturbed. Thus, the total amount of compensation to be awarded in favour of claimant comes to Rs.13,39,200 + Rs.2000 + Rs.2500=Rs.13,43,700 (rounded Rs.13,44,000/-).

On the basis of the aforesaid calculation, I come to the conclusion that the claimant is entitled for sum of Rs.13,44,000/- as compensation along with interest at the rate of 6% per annum, as has been indicated in the impugned judgment and award, from the date of filing the petition till the date of actual payment.

As it is collision between two vehicles i.e. Qualis No. H.R.01-L-2731 and Bus No. U.P.15-M-7925 owned by UPSRTC and the Tribunal has also recorded finding that both the vehicles involved in the accident are equally responsible for causing rash and negligence, hence, the amount of compensation awarded in favour of claimant shall be paid by the insurer of Qualis No. H.R.01-L-2731 as well as owner of Bus No.U.P.15-M-7925 (UPSRTC) in equal portion i.e. 50% shall be paid by the insurer of Qualis No. H.R.01-L-2731 (United India Insurance Co. Ltd.) and remaining 50% shall

be paid by the owner of Bus No. U.P.15-M-7925 (UPSRTC).

With the aforesaid findings, these appeals are partly allowed. The impugned judgment and award dated 23.11.2004 is modified to the extent that sum of Rs.13,44,000/- (Rupees Thirteen Lacs Forty Four Thousand only) as compensation is to be paid to the claimant, instead of Rs.21,16,500/- as awarded by the Tribunal, along with interest indicated in the impugned judgment and award.

The statutory amount deposited with this Court be remitted to the Tribunal concerned.

Let copy of this judgment be placed in the file of A.O. No. 77 of 2005.

(B.C. Kandpal, J.)