AO/378/2005 of UNITED INDIA INSURANCE LTD Vs SMT. SEEMA MASSEY and ORS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

A.O. No. 378 of 2005

United India Insurance Company Limited Through Divisional Manager,

Haldwani, District Nainital ... Appellant.

1.Smt. Seema Massey W/o late Ashok Kumar

Massey,

2.Albert S/o late Ashok Kumar Massey,

3.Km. Rabeika Massey D/o late Ashok

Kumar Massey,

4.Km. Rebeika Massey D/o Late Ashok Kumar Massey, Kumar Massey,

5.Mohabbat Massey S/o Peter Massey, Respondent 3 and 4 minors, through their mother and legal guardian Respondent No.1, R/o of Gurudwara Road, Prem Nagar Bazar, P.S. Doiwala, District Dehradun.

1.Ramesh Chand S/o Than Chand (dead)

6/1. Smt. Tula Rani W/o late Ramesh Chand R/o R.K. Mission Road, Himgiri Colony, Kankhal, P.S. and District Haridwar.

2.Lal Chand S/o Jhutan Singh,

R/o Village Babura P.S. Jahanaganj,

District Ajamgarh

.. Respondents.

Sri D.S. Patni, Advocate for the appellant. Sri Rajendra Dobhal, learned counsel for the respondents 1 to 5. Sri N.C. Gupta, Advocate for respondent Nos. 6 & 7.

Dated: 14-03-2008

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 16-5-2005, passed by Motor Accident Claim Tribunal/Additional District Judge/IV F.T.C., Dehradun, in MACP No. 317 of 2002.

2- Brief facts of the case, giving rise to this appeal, are that deceased Ashok Kumar, was posted as Collection Amin. On 24-9-2002 at about 3.45 P.M. he along with Surendra Yadav was coming Haridwar from Doiwala riding in Scooter No. H.Y.X. 7024. When they reached near Aryanagar, Haridwar, Truck bearing registration No. U.P.N. 1020 came there at very high speed and dashed the Scooter on wrong side, due to which both the scooter riders died at the spot. The claimants filed the claim petition for compensation in lieu of death of Ashok Kumar.

3- The opposite parties, owner and driver of the offending truck filed written statement and denied the allegations made in the petition. They alleged that the accident had occurred due to own negligence of the scooter riders. The truck was insured with United India Insurance Company and the compensation, if any, is liable to be paid by the insurer.

4- The United India Insurance Company also filed written statement alleging therein that the driver of the offending truck had no valid driving license and the vehicle was being run against the terms of the insurance policy.

5- The learned Tribunal framed relevant issues in the case. Thereafter parties adduced evidence in support of their cases. The Tribunal after considering the material on record and hearing argument of learned counsel for parties, allowed the claim petition for sum

of Rs. 7,03,420/- along with interest @ 6% per annum from the date of presentation of petition till the date of final payment payable by United India Insurance Company.

6- Feeling aggrieved, the United India Insurance 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 the accident had occurred due to contributory negligence of the Truck driver as well as the Scooter, but the Tribunal has committed manifest error by not fixing contributory negligence on the part of scooter. He also submitted that the Tribunal has misinterpreted the salary certificate filed by the claimants and assessed the wrong net income of the deceased. He also contended that the multiplier adopted by the Tribunal is also on higher side and the amount of compensation is liable to be reduced.

9- On the other side learned counsel for the claimants/respondents has submitted that the accident took place due to sole negligence of Truck driver, therefore, the Tribunal was justified in fixing the sole liability of the Truck. The Tribunal has taken correct approach while considering the salary certificate and the impugned award is liable to be maintained.

10- So far as the submission raised by the learned counsel for the appellant, pertaining contributory negligence is concerned, the Tribunal has framed issue No.2 on the point. The allegation of the

So far as the submission raised by the

claimants is that the offending Truck was being driven at high speed and at the place of accident, it went to wrong side extreme to the right side of the road and dashed the truck due to which the Truck dragged the scooter for some distance and accident has occurred. The above fact has been narrated by eye witness P.W.1, Suresh Chand, who was present at the spot as he was returning his home after filling petrol in his Motorcycle. From perusal of the site plan, prepared by the police during investigation, it is also clear that the Truck involved in the accident had reached to the wrong side and dashed the scooter and thereafter it went down in stream. To rebut the above evidence adduced by the claimants, no cogent and reliable evidence has been adduced from other side. I find that the Tribunal was quite justified in holding the sole negligence on the part of the offending truck involved in the accident. The submission of the learned counsel for the appellant raised on the point of contributory negligence has no substance.

11- So far as quantum of compensation is concerned, from perusal of record reveals that the deceased Ashok Kumar at the time of accident was posted as Collection Amin in Tehsil Office Rishikesh. Salary certificate of the deceased has been produced before the tribunal, according to which after government deduction he was getting Rs. 5803/- net salary per month and after making 1/3[rd] deduction towards personal expenses the dependency of the claimants come to Rs. 3,869/- per month the annual dependency comes to Rs. 3,869/- x 12 = Rs. 46,428/-. The finding of the Tribunal on point of assessment of salary of the deceased is perfectly justified and do not require interference by this Court.

12- However, the multiplier of 15 adopted by the Tribunal appears to be wrong. The age of the deceased at the time of accident was 41 years. The Hon’ble Apex Court in the Case of New India Assurance Co. Ltd. vs. Smt. Kalpana and others, reported in 2007(1) Supreme 514, has held that the highest multiplier has to be adopted for the age group of 21 years to 25 years when an ordinary citizen starts independently earning. In the above case the deceased was 33 years of age and the Hon’ble Apex Court applied the multiplier of ‘13’. In an another case of Tamil Nadu State Transport Corporation Ltd. vs. S. Rajapriya & Ors, reported in 2005(4) Supreme 87, the Hon’ble Supreme Court has adopted the multiplier of ‘12’ where the deceased was 38 years of age. In the case of The Managing Director, TNSTC Vs. The Managing Director, TNSTC, reported in 2007(5) Supreme 301,the Hon’ble Apex Court applied the multiplier of ‘12’ where the deceased was 37 years of age. Therefore, the multiplier which has been applied by the Tribunal in the instant case appears to be wrong in view of the aforesaid judgments of the Hon’ble Apex Court. The principle which has been propounded by the Hon’ble Apex Court in applying the multiplier in the cases of the fatal accident has been elaborately discussed and in view of the several pronouncements of the Hon’ble Apex Court the multiplier in the present case should have been applied as ‘10’. Therefore after applying the multiplier of ‘10’ the total amount of compensation comes to Rs.46,428/- x 10= Rs. 4,64,280/-. The Tribunal also awarded Rs. 5000/- towards loss of consortium and love and affection and Rs. 2,000/- for funeral expenses., which shall remain intact. Therefore, the total compensation comes to Rs.4,71,280/-. The interest

indicated by the Tribunal in the impugned judgment is also to remain intact.

13- Accordingly, the appeal is partly allowed. The

impugned judgment and award is modified to the extent that the amount of compensation to be awarded in favour of the claimants will be Rs. 4,71,280/- instead of Rs. 7,03,420/- as has been awarded by the Tribunal.

14- As the amount of compensation has been reduced by this Court, therefore, the apportionment of the amount to the claimants is to be arranged as follows:-

(i) Out of the total amount of compensation, Rs. one lac will be paid to Km. Rubeika, and Km. Monika, minor daughters of the deceased, and this amount will be deposited in the Fixed Deposit in some nationalized bank till they attain the majority.

the

(ii) Out of the balance amount Rs. 50,000/- will be paid to Master Albert, minor son of the deceased and this amount will be invested in Fixed Deposit

in some nationalized bank till he attains the majority.

(iii) Rs. 50,000/- will be paid to Mohabbat Massey, father of the deceased.

(iv) Rest of the amount shall be paid to Smt. Seema Massey, widow of the deceased.

15- The excess amount, if deposited, by the Insurance Company, shall be withdrawn by it.

(B.C. Kandpal, J.)