AO/184/2008 of MUNFAIT and OTHERS Vs SURENDER KUMAR and OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL.

A.O. No. 184 of 2008

Munfait and others

…….Appellants.

Versus

Surendra Kumar and others …..Respondents.

Mr. Manish Arora, learned counsel for the appellant. Mr.Neeraj Upreti, Advocate for respondent No.1. Mr. Lalit Sharma, learned counsel for respondent No.2. Mr. Bharat Tiwari, Advocate for respondent No.3.

Dated: 3-10-2008

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 10-1-2008, passed by Motor Accident Claims Tribunal/District Judge, Haridwar in MACT Case No. 21 of 2006, Munfait and others Vs. Surendra Kumar and others.

2- Brief facts of the case are that on 28-1-2006 at about 1.30 P.M. when deceased Munna was going to his village sitting in Tempo, near Gothi Hospital on Roorkee-Haridwar road, the vehicle H.R. 56-2482, owned by Haryana Roadways, came there at high speed and dashed the said Tempo due to which Munna and two others succumbed to the injuries sustained by them in the accident. Hence, the claim petition has been filed by the claimants/appellant for compensation in lieu of death of Munna.

3- The opposite party no.1, driver of the offending vehicle filed his written statement and alleged that the accident has occurred due to the fault of Tempo driver and even if the offending roadways bus is found responsible for paying the compensation the same shall

be payable by the insurance company as the bus was insured with opposite party/I.C.I.C.I.

4- The opposite party no.2, Regional Manager Haryana Roadways, also filed his written statement and reiterated the facts mentioned by opposite party no.1 in his W.S. He also alleged that the accident has occurred due to the negligence of Tempo driver.

5- The opposite party no.3, I.C.I.C.I. also contested the petition by filing its written statement and denied the allegations made in the claim petition. It also alleged that the insurance company was not given information about the accident. The offending vehicle was not having valid documents, hence the insurance company has no liability to pay compensation.

6- The learned Tribunal, on the pleadings of parties, 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 entire material available on record, decreed the claim petition for compensation of Rs. 1,85,000/- along with interest @ 5% per annum from the date of filing the petition till the date of actual payment, against the opposite party no.3, I.C.I.C.I. At the same time the Tribunal has given recoverable right to the I.C.I.C. against the opposite party/respondent no.2, the owner of the offending bus, as the accident was the result of sole negligence of bus driver.

7- Feeling aggrieved the claimants have preferred this appeal before this court for enhancement of the compensation.

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

9- From perusal of record it reveals that the Tribunal on the point of negligence has framed issue Nos. 1 and 2. Meharwan, eye witness of the accident has been produced in the case. He has deposed that the accident has occurred due to sole negligence of the driver of Roadways Bus bearing registration No. H.R. 56-2482. In the F.I.R., lodged about the accident, this fact has been mentioned. Although the driver of the Roadways Bus has alleged that the accident was occurred due to the negligence of the Tempo driver but this statement is not supported by any reliable and cogent evidence. He has not lodged the F.I.R. of the accident. The police after investigation has submitted charge sheet against the driver of Roadways Bus to face the trial. It is admitted to the I.C.I.C.I. that the Bus was insured with it at the time of accident, therefore, the I.C.I.C.I. has rightly been held liable to pay compensation. However, the Tribunal has given recoverable right to the I.C.I.C.I. against the respondent No.2, the owner of the offending bus, holding that the accident had occurred due to sole negligence of the bus driver. I do not find any infirmity and illegality in the above findings recorded by the Tribunal.

10- As far as the quantum of compensation is concerned, learned counsel for the appellant/claimants have submitted that the accident has occurred in the year 2006 and the tribunal has taken the notional income of the deceased on lesser side, hence the compensation should be calculated on the notional income of Rs. 36,000/- per annum. He also submitted that the rate of interest awarded by the Tribunal is also on lower side.

11- The record shows that the tribunal has calculated the dependency of the claimants on the notional income of Rs. 15,000/- per annum. Although the claimants have stated that the deceased Munna was Tempo driver and used to earn Rs. 5,000/- per month, but no reliable and independent evidence has been adduced before the Tribunal to prove the same, hence the Tribunal has rightly taken the notional income. But the notional income of Rs. 15,000/- per annum taken by the Tribunal, is certainly on lesser side. The accident relates to the year 2006 and in view of the verdict of the Division Bench of this Court given in A.O. No. 2 of 2005, Sobhan Singh and another Vs. New India Insurance Company and another, decided on 1.11.2006, the notional income should be taken at Rs. 36,000/- per annum due to price hike for the purpose of calculating the annual dependency of the claimants and after deducting 1/3[rd] towards the personal expenses, the total dependency comes to Rs. 24,000/- per annum. The deceased at the time of accident was 28 years of age. The tribunal has adopted the multiplier of 18, and in my view the multiplier adopted by the tribunal is on higher side, in view of the observation made by Hon’ble Apex Court in the cases of 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. In my opinion the proper multiplier should be 12 instead of 18. Therefore, the dependency of the claimants comes to Rs. 24,000/- X 12= Rs. 2,88,000/-. The Tribunal also awarded sum of Rs. 5,000/- towards other heads and the same shall remain intact. In this way the total compensation comes to Rs. 2,88,000/- + Rs. 5,000/-= Rs. 2,93,000/-.

12- The Tribunal has awarded interest @ 5% per annum from the date of filing the petition till the date of actual payment. In my opinion the rate of interest awarded by the Tribunal is on lower side and it should be 7% per annum.

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

14- Accordingly, the appeal is allowed. The impugned judgment and award dated 10-1-2008 is modified upto the extent that the claimants/appellant are entitled to get sum of Rs. 2,93,000/- as compensation along with interest @ 7% per annum from the date of filing the petition till the date of actual payment payable by I.C.I.C.I. instead of Rs. 1,85,000/- along with interest @ 5% per annum as has been awarded by the tribunal. The Tribunal has given the right of recovery to the insurance company from the owner of the vehicle and same shall remain intact.

ISB

(B.C. Kandpal, J.)