AO/377/2006 of THE NEW INDIA ASSURANCE LTD Vs SMT. SOMWATI DEVI and ORS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL.

A.O. No. 377 of 2006

The New India Assurance Company

Limited

… Appellant.

Smt. Somwati and 3 others … Respondents.

Mr. T.A. Khan, learned counsel for the Appellant. Mr. Z.U. Siddiqui, Advocate for the claimants/respondents.

Dated: 29-04-2008

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 1-4-2006 passed by Motor Accident Claim Tribunal/ Additional District Judge/ Ist F.T.C. Haldwani, in MACP No. 182 of 2004.

2- Brief facts giving rise to this appeal are that on 18-12-2002, Jai Ram @ Raj Kishore was going to Nanpara from Lalkuan travelling in Marshal Jeep No. U.A.-04/4869 and when the jeep reached at Dewaha River Bridge on Bareilly-Pilibhit Road, suddenly Bus No. U.P. 25-8699, which was being driven in rash and negligent manner, came there and dashed the Marshal Jeep, due to which Jai Ram @ Raj Kishore died instantaneously at the spot. The Bus driver fled away from the spot after leaving the vehicle there. According to the claimants the deceased was an employee of contractor of Century Paper Mill and was getting salary of Rs. 5,000/- per month.

3- The owner of offending Bus/Opposite Party No.1 contested the case by filing his written statement, denying the allegations of the petition. He also alleged that the Bus was insured with New India Assurance

Company. It was also alleged that the deceased was not getting Rs. 5,000/- and his salary might not be more than Rs. 3,000/- per month. He denied his liability to pay compensation.

4- The Opposite Party No.2/New India Assurance Company also contested the claim petition by filing its written statement and alleged that the accident has occurred due to own negligence of Jeep and the jeep owner and insurer were necessary parties to claim petition but they were not made parties to petition, therefore, the claim is bad for non-joinder of necessary parties. The owner of the offending Bus has to prove that the Bus was having valid documents and its driver was possessing valid driving license.

5- The learned Tribunal framed relevant issues in the claim petition. Thereafter, parties led evidence in support of their cases. The Tribunal after hearing learned counsel for the parties and considering the evidence on record, allowed the claim petition for sum of Rs. 5,47,000/- as compensation payable by New India Assurance Company. The Tribunal directed the Insurance Company to deposit the amount of compensation within one month of passing the award, failing which interest @ 9% per annum shall be payable from the date of filing the petition till the date of final payment.

6- Feeling aggrieved, the New India Assurance Company has filed this appeal before this Court.

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

8- Learned counsel for the appellant has submitted that since two vehicles were involved in the accident, the owner and insurer of vehicle No. UA 04-4869 should have been impleaded as necessary party to the petition, but the Tribunal has given wrong finding holding the sole negligence on the part of the Bus driver. He also contended that the Tribunal did not consider that Mr. Rajkishore and Jai Ram were not the same person and the claimant Smt. Somwati was not the wife of the deceased and therefore the claimants were not entitled to get compensation. Learned counsel also submitted that the multiplier adopted by the Tribunal in calculating the amount of compensation is on higher side in view of latest pronouncements by the Hon’ble Apex Court.

9- On the other hand learned counsel appearing on behalf of claimants/respondents refuted the above submissions and contended that the impugned award is perfectly justified and does not require interference in appeal.

10- I have gone through the impugned judgment and award. The learned Tribunal has framed issue No.4 in respect of non-joinder of owner and insurer of offending jeep. The learned Tribunal has recorded categorical finding that the accident had occurred due to sole negligence of Bus driver, therefore, the jeep driver and insurer were not necessary party to the petition. In the claim petition the petitioners have narrated that the accident was occurred due to the rashness of the Bus driver. To prove their allegation, claimants have examined P.W.1, Rama Shankar, an eye witness of the accident. This witness was himself travelling in the offending jeep sitting on the back seat of the jeep. According to him when the jeep No. UA 04-4869 was

going Pilibhit from Lalkuan, near Pilibhit By-pass, Bus No. U.P. 25/8699 coming from Bareilly side in rash and negligent manner, dashed the jeep on wrong side due to which deceased has died on the spot. In rebuttal, no evidence has been adduced on behalf of the opposite parties. Therefore, the learned Tribunal has rightly arrived at the conclusion that the accident has occurred due to the negligence of Bus driver and the owner and insurer of the jeep were not necessary party in the case.

11- So far as the entitlement of the claimants to get compensation is concerned, the claimants have filed certificate paper No. 61-C, issued by Chairman, Nagar Panchayat, Lalkuan, mentioning therein that Jai Ram @ Raj Kishore was the husband of claimant Smt. Somwati. Jai Ram was also called with the name of Raj Kishore. P.W.2, Pawan Kumar Chauhan, Chairman Nagar Panchayat has deposed this fact on oath and also proved the certificate issued by him. This witness has categorically deposed that he knew Smt. Somwati wife of Jai Ram very well from last 15-20 years. The opposite parties did not produce any reliable and cogent evidence contrary to the evidence adduced by the claimants. Hence, the finding of the Tribunal on this point also is not to be disturbed.

12- As far as the submission of learned counsel for the appellant pertaining to adopting higher multiplier is concerned, the same has got force and in my opinion the multiplier adopted by the Tribunal is certainly on higher side, in view of 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, and in the case ofThe

Managing Director, TNSTC Vs. Sripriya & Ors., reported in 2007(5) Supreme 301, in which the Hon’ble Apex Court applied the multiplier of ‘12’ where the deceased was 37 years of age.

13- In the instant case, keeping in view the age of the claimant, the multiplier of ‘12’ in the light of the judgments of the Hon’ble Apex Court cited above, would be just and proper. The Tribunal assessed the monthly income of the deceased as Rs. 4,500/- and after making 1/3[rd] deduction towards personal expenses, an amount of Rs. 36,000/- per annum was assessed the dependency of the claimants upon the deceased. Therefore, after adopting the multiplier of ‘12’ the total amount comes to Rs. 36,000/- X 12= Rs. 4,32,000/-. The Tribunal also awarded Rs. 5,000/- for loss of consortium and Rs.2,000/- towards funeral expenses and same is not to be disturbed. Therefore, the total compensation comes to Rs. 4,32,000/- + Rs. 5,000/-+Rs. 2,000/- = Rs.4,39,000/-. The interest indicated in the impugned judgment shall remain intact.

14- For the discussion made above, the appeal is liable to be partly allowed.

15- Accordingly the appeal is partly allowed. The impugned judgment and award dated 1-4-2006 is modified upto the extent that the claimant shall be entitled to get sum of Rs. 4,39,000/- as compensation instead of Rs. 5,47,000/-, as has been awarded by the Tribunal. The interest part shall remain intact.

16- The statutory amount of compensation, if any, deposited at the time of filing the appeal, be remitted to the Tribunal concerned.

( B.C. Kandpal, J.)

ISB