AO/444/2006 of NAVIJAAN and ANOTHER Vs VIPIN KUMAR and ANOTHER

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL.

A.O. No. 444 of 2006

Navijaan and another

… Appellants.

Versus

Vipin Kumar and another .. Respondents.

Mr. B.S. Parihar, learned counsel for the appellants. Mr. M.K. Goel, Advocate for the respondent/insurance co. None appeared for respondent No.1.

Hon’ble B.C. Kandpal, J.

Dated: 5-5-2008

This appeal, under Section 173 of the Motor Vehicles Act, 1988, has been preferred against the judgment and award dated 28-4-2006, passed by Motor Accident Claim Tribunal/Additional District Judge/F.T.C. Kashipur, in MACT Case No. 211 of 2005.

2- Brief facts of the case are that on 10-9-2005, Ali Jaan, son of the claimants, along with his brother Mohd. Jaan was waiting for the bus at Gopiwala Chauraha situated on Thakurdwara-Moradabad motor road. At about 11-00 AM, when Ali Jaan tried to cross the road in order to urinate, some buffalos also started crossing the road and suddenly Motor Cycle bearing registration No. U.A. 06-D-2663, came from Moradabad side in high speed and dashed Ali Jaan, due to which he sustained grievous injuries. During his treatment in L.D. Bhatt Government Hospital, Kashipur, Ali Jaan succumbed to the injuries on the day of accident itself. The claimants filed claim petition with the allegation that the deceased was aged about 20 years and was doing tailoring work and his monthly income was Rs. 3,500/-.

3- The Opposite Party No.1, owner of the offending Motor Cycle filed his written statement and

denied the allegations of the petition. He alleged that his Motor Cycle was insured with the Oriental Insurance Company. According to him the Motor Cycle was being driven by Khan Chand, who had valid driving license. Therefore, he alleged that the claim petition is liable to be dismissed against him.

4- The Oriental Insurance Company also contested the claim petition by filing its written statement and denied the allegations made in the petition. It alleged that the claimant should file the copy of F.I.R., charge sheet, site-plan, injury report, papers relating to treatment, X-ray etc and documents pertaining to offending Motor Cycle to prove the case.

5- The learned Tribunal, on the basis of pleadings of parties, framed relevant issues in the claim petition. Thereafter, parties adduced evidence in support of their cases. The Tribunal after considering the evidence on record and hearing learned counsel for the parties, allowed the claim petition for compensation of Rs. 1,94,800/- payable by Oriental Insurance Company along with interest @ 9% per annum from the date of filing the petition till the date of actual payment.

6- Being dissatisfied, the claimants have preferred this appeal before this Court.

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

8- Perusal of record reveals that the claimants have pleaded in their petition that the death of deceased Ali Jaan had occurred due to rash and negligence of the Motorcyclist. P.W.2, Mohd. Jaan is the eyewitness of the

occurrence. This witness was with the deceased and he has deposed that at the time of accident his brother was crossing the road in order to urinate and suddenly the offending Motor Cycle came there from opposite side in high speed and dashed his brother. This evidence has not been rebutted from the opposite parties. The learned Tribunal has rightly relied on the evidence of P.W.2, and decided the issue against the opposite parties. I do not find any infirmity in the finding recorded by the tribunal.

9- As far as the amount of compensation to be awarded in favour of the claimants is concerned, it reveals that the deceased was 20 years of age at the time of accident. It is admitted fact that the deceased was unmarried. However, in calculating the dependency in the case of unmarried person, the age of the parents would be taken. The age of the parents of the deceased was 54 and 53 respectively at the time of the accident. It has been alleged in the claim petition that the deceased was in occupation of the tailoring work and his monthly income was Rs. 3,500/-, but no cogent and reliable evidence has been adduced by the claimants in order to support the actual income of the deceased. Therefore, in absence of cogent and reliable evidence pertaining to the income of the deceased, the notional income would be taken into consideration. The Divisional Bench of this Court in A.O. No. 2 of 2005,Shobhan Singh andanother vs. New India Insurance Company and another, decided on 1.11.2006, has fixed the annual notional income as Rs. 36,000/- due to hike in price. Therefore, the notional income of the deceased in the instant case is to be taken as Rs. 36,000/- and after deducting 1/3[rd] from the notional income as personal expenses of the deceased the annual dependency of the claimants comes to Rs. 24,000/-. As I have already observed that the parents of

the deceased were 54 and 53 years of age respectively, at the time of the accident, therefore, keeping in view the age, as well as 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, the proper multiplier in the instant case would be ‘10’. After adopting the multiplier of ‘10’, the total amount of compensation to be awarded in favour of claimants comes to Rs. 24,000/- X 10= Rs. 2,40,000/-. The amount awarded by the Tribunal under the head of cremation is Rs. 10,000/- and the same shall remain intact.

10- The Tribunal has awarded interest @ 9% per annum, which appears to be excessive, as the present rate of interest is 7.5 per annum. I am , therefore, of the view that the amount awarded in favour of the claimant i.e. Rs. 2,40,000/- + 10,000/-= Rs. 2,50,000/- will be payable to the claimants along with interest @ 7.5% per annum from the date of filing the petition till the date of actual payment.

11- For the reasons recorded above the appeal is liable to be partly allowed.

12- Accordingly, the appeal is partly allowed. The impugned judgment and award dated 28-4-2006 is modified upto the extent that the claimants are entitled to get the compensation of Rs. 2,50,000/- from the Oriental Insurance Company, along with interest @ 7.5% per annum from the date of filing the claim petition till the date of actual payment, instead of Rs. 1,94,800/-

along with interest @ 9% per annum, as has been awarded by the Tribunal.

ISB

(B.C. Kandpal, J.)