AO/3/2007 of UNITED INDIA INSURANCE CO LTD Vs SMT SUSHEELA DEVI AND ORS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL.

A.O. No. 3 of 2007

United India Insurance Company Ltd. .. Appellant.

Versus

Smt. Susheela Devi and others

.. Respondents.

Mr. D.S. Patni, Advocate for the appellant. Mr. N.S. Kaniyal, holding brief of Sri M.C. Pant, Learned counsel for respondents 1 and 2.

UDated: 4-11-2008

’UHonble B.C. Kandpal, J.

This appeal, under Section 173 of the Motor Vehicle Act, 1988 has been preferred against the judgment and award dated 7-10-2006, passed by Motor Accidents Claims Tribunal/F.T.C. 5P[th]P, Dehradun, in MACT Case No. 260/2003.

2- The facts of the case, in nutshell, are that on 2-9-2003 at about 9.30 P.M., Prem Dutt was travelling in jeep bearing registration No. U.P. 07-D-9618, and the said jeep met with an accident near Suwakholi, ahead of Mussorrie due to the rash and negligence of its driver. Prem Dutt sustained grievous injuries in the said accident and later on succumbed to the injuries in the way to Hospital. The claimants filed the claim petition alleging therein that the deceased was the only bread-earner in the family. The deceased was earning Rs. 5,500/- per month.

The facts of the case, in nutshell, are that

9618, and the said jeep met with an accident near

3- The opposite party No.1, owner of the offending jeep filed his written statement and alleged that the vehicle was not being driven in rash and negligent manner at the time of accident. He also alleged that excessive amount of compensation has been claimed.

4- The opposite party No.2, driver of the vehicle in question also filed his written statement and alleged that he was driving the vehicle at moderate speed and the claimants have no right to institute the claim.

5- The opposite party No.3, United India Insurance Company also contested the claim petition and alleged that the deceased was doing the work of mule-driver, his income has been shown on higher side in the petition. The insurer also took the plea that the driver was not having valid driving license. According to it, the offending vehicle was being driven by Dharam Singh and not by Surendra Singh. Therefore, breach of insurance policy was committed, hence the insurer cannot be held liable to pay any compensation.

alleged that the deceased was doing the work of

6- On the pleading of parties, the learned Tribunal framed issues in the petition. Thereafter, parties adduced evidence in support of their claim.

7- The learned Tribunal, after hearing learned counsel for the parties and perusing the evidence on record, awarded sum of Rs. 4,18,000/- as compensation along with interest @ 6% per annum from the date of filing the petition till the date of actual payment, payable by United India Insurance Company.

8- Feeling aggrieved the United India Insurance Company has filed this appeal before this Court.

9- Learned counsel for the appellant has submitted that the offending jeep was being driven by Dharam Singh and not by Surendra Singh driver as has been alleged by the claimants/respondents, therefore,

the insurance company could not have been held liable to pay the compensation.

10- I do not find any force in the above submission advanced by learned counsel for the appellant. The learned Tribunal has recorded categorical finding that the accident has taken place due to rash and negligent driving of Surendra Singh, the driver of the offending vehicle. The driving license of Surendra Singh has been brought on record. The opposite parties did not adduce any cogent and reliable evidence to establish this fact that actually the vehicle was being driven by Dharam Singh and not by its driver Surendra Singh. It is admitted case of the parties that the vehicle in question was insured with the appellant, United India Insurance Company and it was having valid insurance coverage, therefore, the Tribunal was justified in fixing the liability upon the insurer of the offending vehicle.

11- As far as the quantum of compensation is concerned, although the claimants have stated that the deceased used to earn Rs. 5000/- to 5500/- per month from the work of mule-driver, but no cogent and reliable evidence has been adduced to establish the income of the deceased. The Tribunal has assessed the notional income of the deceased at Rs. 3,000/- per month and after 1/3P[rd]P deduction towards the personal expenses, the annual dependency of the claimants was assessed as Rs. 24,000/-. In my opinion the Tribunal has rightly assessed the annual dependency of the claimants upon the deceased. The Tribunal has adopted the multiplier of ‘17’, which 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 suitable multiplier in the case in hand, would be ‘14’ and not ‘17’. After adopting the multiplier of ‘14’ the total compensation comes to Rs. 24,000/- X 14= Rs. 3,36,000/-. The Tribunal also awarded sum of Rs. 2,000/- towards funeral expenses; Rs. 3,000/- towards loss of estate and Rs. 5,000/- towards loss of consortium, which would be payable to the claimants. Therefore, the total compensation comes to Rs. 3,36,000/- + Rs. 10,000/- = Rs. 3,46,000/-. The Tribunal also awarded interest @ 6% per annum from the date of filing the petition till the date of actual payment. In my opinion the tribunal has awarded reasonable rate of interest and the same does not require any interference by this court.

12- For the reasons stated above, the appeal is liable to be partly allowed.

13- Accordingly, the appeal is partly allowed. The impugned judgment and award is modified upto the extent that the claimants are entitled to get compensation of Rs. 3,46,000/- along with interest @ 6% per annum from the date of filing the claim petition upto the date of actual payment payable by the appellant/United India Insurance Company, instead of Rs. 4,18,000/- as has been awarded by the Tribunal.

14- The statutory amount of compensation deposited with this court, be remitted to the tribunal concerned.

(B.C. Kandpal, J.)