AO/452/2005 of BRIJ NANDAN PRASAD Vs ASHOK KUMAR and ORS.

HIGH COURT OF UTTARAKHAND AT NAINITAL

(Court’s order whether the case is or not approved for reporting)

Description of the case AO No. 452 of 2005 Brij Nandan Prasad

Ashok Kumar and others. Approved for reporting

Date of Decision: - 14.03.2008

Initial of Judge:

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HIGH COURT OF UTTARANCHAL AT NAINITAL

A.O. No. 452 of 2005

Brij Nandan Prasad s/o Janeshwar Prasad

C/o Puran Singh Bhakuni, House No. 17, Chutki Devraia, Thana Kichha, District Udham Singh Nagar

………….. Appellant

Versus

1. Ashok Kumar s/o Sri Om Prakash R/o Rudrapur, Salavant Kichha Road, Lalput, Thana Kichha, District Udham Singh Nagar (Owner) Salavant Kichha Road, Lalput, Thana Kichha, District Udham Singh Nagar (Owner)

2. Gurumail Singh s/o Karnail Singh r/o B.P. Colony,

Civil Lines, Rampur. (Driver)

3. Divisional Manager, National Insurance Co, Ltd;, Haldwani, District Nainital Haldwani, District Nainital

………………….. Respondents

Dated: 14.3.2008

Hon. Rajesh Tandon J.

Heard Sri K.N. Joshi counsel for the appellant and Sri D.S. Patni counsel for the respondent no. 3.

The present appeal has been filed against the judgment and order dated 8.7.2005 passed by the Motor Accident Claims Tribunal, Udham Singh Nagar.

Briefly stated the facts giving rise to the present appeal are that the appellant has filed claim petition before the Motor Accident Claims Tribunal, Udham Singh Nagar for grant of

compensation on account of death of the son of the claimant in motor vehicle accident on 8.12.2003 at 6.00 PM near Panchaki, Kitchha. According to the claimant his son was going to village Devria by bicycle from Kichha. As soon as he reached near Panchaki Truck No. UPD 303, which was being driven rashly and negligently, dashed the cycle of the son of the claimant. Sri Durgesh Kumar was rushed to the Govt. Hospital Rudrapur from where he was referred to Sushila Tiwari Hospital, Haldwani but he succumbed to the injuries on way to Haldwani.

According to the claimant the deceased was 21 years old and was earning Rs.3,000/-per month by labour work and painting. He claimed Rs.10,00,000/- as compensation.

The opposite party No. 1 has contested the claim petition. The opposite party no. 1 who is the owner of the vehicle has denied that the accident took place due to rash and negligent driving of the truck. However, it was stated that the truck is insured with the National Insurance Company and the insurer is liable to pay compensation if any.

Opposite party no. 2 Gurmail Singh who is the driver of the truck has denied the allegations made in the application and has submitted that on the date of accident he was driving the truck cautiously and with moderate speed. The accident took place due to own negligence by the cycle rider.

The opposite party no.3 the National Insurance Co. has stated in its written statement that at the time of accident the driver of the vehicle had no valid driving licence and as such the insurance company is not liable to pay compensation.

On the pleadings of the parties the following issues were framed by the Claims Tribunal:

1.Whether Durgesh Kumar died due to the accident on 8.12.2003 at 6.00 AM at Kichcha Road, Panchakki, village Chutaki Devria, District Udham Singh Nagar due to rash and negligent driving of truck No. UPD 303? 8.12.2003 at 6.00 AM at Kichcha Road, Panchakki, village Chutaki Devria, District Udham Singh Nagar due to rash and negligent driving of truck No. UPD 303?

2.Whether the driver of truck No. UPD 303 namely Sri Gurmail Singh had no valid driving licence at the time of accident on 8.12.2003?? Gurmail Singh had no valid driving licence at the time of accident on 8.12.2003??

3.To what amount of compensation are the claimants entitled? entitled?

The Claimant has examined Sri Tarkendra Vaishnav and Puran Singh Bhakuni and had filed documentary evidence per list 7-C. The opposite parties have not adduced any evidence.

While deciding issue no. 1 the Claims Tribunal has held that the accident had taken place due to rash and negligent driving by the driver of the truck. The Claims Tribunal while deciding issue no. 2 has held that the owner of the truck had valid road permit, registration and the driver of the vehicle had valid driving licence. Therefore, the insurance company is liable to pay compensation.

So far as the compensation is concerned the Claims Tribunal has held that the claimant has not adduced any evidence to prove the income of the deceased. The claims Tribunal has assessed compensation on the basis of Rs.15,000/- as notional income and after deducting 1/3 amount held the annual dependency of Rs.10,000/-. The claims Tribunal has selected the multiplier of 15 on the basis of the age of the deceased which was 21 years at the time of accident and thus awarded 10000 x 15 = Rs. 1,50,000/- for pecuniary loss, Rs.2,0000/- for the last rites and Rs. 2,000/- for loss of estate.

Thus total sum of Rs.1,54,000/- was awarded to the claimant as compensation.

Feeling aggrieved the present appeal has been filed on the ground that even the income of the deceased was not proved and, therefore, the Tribunal was statutorily bound to pay just compensation on the basis of notional income.

So far as the findings of the Claims Tribunal regarding rash and negligent driving of the bus are concerned the same are based on the evidence on record and none has challenged the same in the appeal.

So far as the income of the deceased is concerned, in case where no income of the deceased in proved, notional income is taken for assessment of compensation in accordance with the schedule provided under section 163 of the Motor Vehicles Act.

It is an established principle of law that if claimant has not specifically pleaded for the grant of certain amount of compensation, even then the Tribunal itself is statutorily bound to pay just compensation and for that it has to examine facts, evidence and law, as held by the Apex Court in [2003 (2) SCC 274, Nagappa vs. Gurudayal Singh & others. The Apex Court has observed as under:

“7. Firstly, under the provisions of the Motor Vehicles Act, 1988, (hereinafter referred to as “the MV Act”) there is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case, where from the evidence brought on record if the Tribunal/court considers that the claimant is entitled to get more compensation than claimed,

the Tribunal may pass such award. The only embargo is – it should be “just” compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. This would be clear by reference to the relevant provisions of the MV Act. Section 166 provides that an application for compensation arising out of an accident involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of third party so arising, or both, could be made (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. Under the proviso to sub-section (1), all the legal representatives of the deceased who have not joined as the claimants are to be impleaded as respondents to the application for compensation. The other important part of the said section is sub-section (4) which provides that “the Claims Tribunal shall treat any report of accidents forwarded to it under sub – section (6) of Section 158 as an application for compensation under this Act”. Hence, the claims Tribunal in an appropriate case can treat the report forwarded to it as an application for compensation even though no such claim is made or no specified amount is claimed.”

The Apex Court in Sheikhupura Transport Co. Ltd. V. Northern India Transport Insurance Co. (1971) 1 SCC 785 has held as under:

“6. Under Section 110-B of the Motor Vehicles Act, 1939 the tribunal is required to fix such compensation which appears to it to be just. The power given to the tribunal in the matter of fixing compensation under that provision is wide. Even if we assume (we do not propose to decide that question in this case) that compensation under that provision has to be fixed on the same basis as is required to be done under Fatal Accidents Act, 1855 (Act 13 of 1855), the pecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately but must necessarily be an estimate or even partly conjecture. The general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever sources come to them by reason of the death, that is, the balance of loss and gain to dependant by the death must be ascertained.”

Counsel for the appellant relied upon the case of Manju and another vs. Musfir Pawan and another, 2005 (1) T.A.C. 609 (S.C.). In this case the Apex Court has observed as under:

“In the case of U.P. State Road Trans. Corpn. Vs. Trilok Chandra 1996 A.C.J. 831: 1996 (2) T.A.C. 286 (S.c.), it has been held by this Court that there should be no departure from the multiplier method on the ground that payment being made is just compensation. It has been held that the multiplier method must be accepted method for determining and ensuring payment of just compensation as it is the method which brings uniformity and certainty to awards made all over the country. In view of this authority, it will have to be held that the award of compensation had to be made by the multiplier method.”

After giving thoughtful consideration of the submissions of the appellants, I an of the opinion that the assessment of the income of the deceased by the Tribunal at Rs.15,000/- per annum on the basis of the notional income requires reconsideration as held by Division Bench of this High Court in the case Godawari Devi & others vs. U.P.S.R.T.C. 2006 (2) U.D. 665 and further in the case of Smt. Basanti Devi and others vs. Naresh Rangar and others, 2007 (1) U.D. 11.

The notional income of Rs.15,000/- per annum in the Second Schedule under section 163-A of the Motor Vehicles Act, was prescribed in the year 1994. The accident in the present case took place in the year 2003. I, therefore, on the basis of the settled principle of law in the above mentioned cases, re- compute the compensation taking the income of the deceased at Rs.30,000/- per annum. after deducting 1/3 amount i.e. Rs.10,000/- for his own expenses, the annual dependency of

the claimants on the income of the deceased comes to Rs.20,000/-.

At the time of accident the age of the deceased was 21 years. He was unmarried; as such multiplier has to be selected on the basis of the age of claimant i.e. farther of the deceased. The claimant in his application under section 166 of the M.V. Act has mentioned his age to be 50 years. The Claims Tribunal has selected multiplier of 15, which is much higher. Considering the age of the claimant as 50 years multiplier of 11 is just and proper. In my opinion the multiplier selected is of higher side and 11 would be just and proper multiplier in this case.

Thus the compensation comes to Rs.20,000 X 11 = Rs.2,20,000/-. Rs.2,000/- for funeral expenses and Rs.2,000/- for loss of estate is to be granted to the claimants. Thus the claimant is entitled to get Rs.2,24,000/- as compensation along with pendentelite and future interest @ 7.5% per annum. The impugned award passed by the Claims Tribunal Udham Singh Nagar is modified to that extent.

Consequently the appeal is allowed. There will be no order as to costs.

(Rajesh Tandon, J.)