AO/253/2006 of NATIONAL INSURANCE CO. LTD. Vs SMT. GEETA CHETTRI and ORS.

IN THE HIGH COURT OF UTTARAKHANDAT NAINITAL

Appeal From Order No. 253 of 2006

National Insurance Co. Ltd.

…Appellant

Versus

Smt. Geeta Chettri & others

…Respondents

Sri Prabhat Pande, Advocate for appellant Sri Pramod Bailwal, Advocate for respondents 1 to 3

Dated: September 17, 2008

Hon’ble B.C. Kandpal, J.

This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred by National Insurance Company Limited against the judgment and award dated 17.01.2006 passed by Motor Accident Claims Tribunal/Additional District Judge/VI F.T.C., Dehradun, in MACC No. 147 of 2005, Smt. Geeta Chhetri & others versus National Insurance Co. Ltd. & others.

Brief facts of the case as narrated in claim petition are that on 8.5.2005 at about 9.30 a.m. when deceased-Sri Prem Bahadur Chhetri was coming to his home by cycle, Dumper bearing Registration No. UP-07-K-9965 being driven by its driver rashly and negligently, dashed the cycle from behind at Chhiderwala, due to which deceased died at the spot. The deceased was 43 years of age at the time of his death and was earning Rs.5000/- per month from working as labourer on contract basis. The claimants claimed sum of Rs.8,00,000/- as compensation against opposite parties.

Opposite party no. 1-National Insurance Co. Ltd./appellant before this Court, filed written statement denying the contents of claim petition. It has been pleaded that deceased was not earning Rs.5000/- at the time of his death. It has also been pleaded that deceased was an ordinary labourer and therefore his income should be assessed on the basis of notional income. The accident did not take place due to rash and negligent driving of driver of offending vehicle. It has further been pleaded that at the time of accident driver of offending vehicle was not having valid and effective driving licence and therefore insurance company was not liable to pay any compensation to the claimants. The claim petition filed against opposite party no. 1 is liable to be dismissed.

Opposite parties no. 2 and 3 have not contested the case and the case was proceeded exparte against them.

The learned Tribunal on the basis of pleadings of parties framed relevant issues in the claim petition. Parties led evidence in support of their cases. The learned Tribunal after having considered the entire material available on record and hearing learned counsel for the partiesdecreed the claim petition for sum of Rs.2,75,000/- in favour of claimants, against opposite party no. 1-National Insurance Co. Ltd., vide judgment and award dated 17.01.2006. The Tribunal further directed that in case, if at any stage it is found that driver of offending vehicle was driving the offending vehicle without having valid and effective driving licence, then the insurance company shall have

recoverable right against the owner of vehicle to recover the amount of compensation.

Feeling aggrieved by the aforesaid impugned judgment and award dated 17.01.2006, the appellant-National Insurance Company Ltd. has preferred the present appeal before this Court.

Heard Sri Prabhat Pande, learned counsel for appellant, Sri Pramod Bailwal, learned counsel for claimants-respondents no. 1 to 3 and perused the record.

As far as factum of accident is concerned, the evidence on record reveals on 8.5.2005 at about 9.30 a.m. when deceased Sri Prem Bahadur Chhetri was coming to his home by cycle, Dumper bearing Registration No. UP-07-K-9965 being driven by its driver rashly and negligently, dashed the cycle from behind at Chhiderwala, due to which deceased died at the spot.

Nothing has been put forward by the insurance company or the owner of offending vehicle which may suggest that accident did not take place on account of rash and negligent driving of driver of offending Dumper. The Tribunal after having considered the entire material evidence available on record has come to the conclusion that accident had occurred due to rash and negligent driving of driver of offending vehicle No. UP-07-K-9965. Therefore, the factum of accident is established.

The Tribunal has further held that the offending vehicle was insured with National Insurance Co. Ltd. on the date of accident and driver of offending vehicle was having valid and effective driving licence.

As far as amount of compensation awarded by the Claims Tribunal is concerned, the learned Tribunal has taken into consideration the income of deceased as Rs.2400/- per month which is admittedly on lower side in view of the decision of Division Bench of this Court passedin A.O. No. 2 of 2005, Shobhan Singh and another vs. New India Insurance Company and another, decided on 1.11.2006. The Division Bench of this Court in view of price hike at present days, has taken into account the notional income of person as Rs.36,000/- per annum. Therefore, in this case also, the notional income of deceased is taken into consideration as Rs.36,000/- per annum. After deducting one-third out of notional income, financial dependency of claimants thus comes to Rs.24,000/- per annum. The age of the deceased as per the evidence available on record is between 45 to 50 years at the time of accident. Thus, in view of the age of deceased the multiplier which has been adopted by the Tribunal as ‘13’, is admittedly on higher side. 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, the multiplier in this case cannot travel more than 10 in any case.

Thus, on the basis of aforesaid calculation, in case, if the multiplier of ‘10’ is adopted in this case, the total amount of compensation comes to Rs.24,000 x 10=Rs.2,40,000/-, instead of Rs. 249600/- as has been awarded by the Tribunal. The Tribunal has further awarded sum of Rs.20,000/- for loss of love and affection as well as Rs.5,000/- for funeral expenses which again appears to be on higher side. The expenses towards funeral expenses cannot travel more than Rs.2,000/-. Therefore, the claimants are awarded sum of Rs.2,000/- for funeral expenses. Further, sum of Rs.20,000/- has been awarded by the Tribunal as loss of love and affection, which is also on higher side. In my opinion, it should be Rs.10,000/-, instead of Rs.20,000/-.

For the reasons stated above, I am of the view that claimants are entitled for sum of Rs.2,40,000 + Rs.10,000 + Rs.2,000=Rs.2,52,000/- as compensation, instead of Rs.2,75,000/- as has been awarded by the Tribunal. The interest indicated in the impugned judgment and award is on lower side. In my opinion, it should be 6% per annum instead of 5% per annum as has been awarded by the Tribunal.

With the result, the appeal is partly allowed. The impugned judgment and award is modified to the extent that claimants are entitled for sum of Rs.2,52,000/- as compensation, instead of

Rs.2,75,000/- as has been awarded by Tribunal, along with interest at the rate of 6% per annum from the date of filing the petition till the date of actual payment (instead of interest @ 5% per annum as has been awarded by the Tribunal).

The finding recorded by the Tribunal to the effect that in case, if at any stage, it is found that driver of offending vehicle was driving the offending vehicle without having valid and effective driving licence, then the insurance company shall have recoverable right against the owner of vehicle to recover the amount of compensation, shall remain intact.

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

(B.C. Kandpal, J.)