AO/417/2006 of SMT. CHANCHALA KOTHIYAL and OTHERS Vs ORIENTAL INSURANCE CO. LTD. and OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT

NAINITAL.

A.O. No. 417 of 2006

Smt. Chanchala Kothiyal and 3 others .. Appellants.

Versus Oriental Insurance Company Ltd. and 3 others .. Respondents.

Mr. N.S. Negi, Advocate for the appellants. Mr. D.K. Sharma, Advocate for the respondent/ Insurance Co. None has appeared on behalf of respondents 2 and 3.

Dated: 07-05-2008

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 20-4-2006 passed by Motor Accident Claim Tribunal/District Judge Chamoli, in MACT Case No. 56 of 2005.

2- Brief facts of the case are that on 20-3-2005, Sri Krishna Kothiyal was travelling Bus No. U.A. 11-0263 from Biraj Kunj to Langasu. When the said bus reached near Village Baidanu at about 10 A.M., it met with accident due to the rash and negligent driving of its driver, in which Srikrishna Kothiyal sustained grievous injuries and he died due to profused bleeding. At the time of accident he was 46 years of age and was working as skilled labour in Uttaranchal Power Corporation. He was getting salary of Rs. 10,327/- per month. The claimants filed claim petition for award of compensation of Rs. 15,40,000/- in lieu of death of Srikrishna.

3- The Opposite Party No.1, the Oriental Insurance Company has filed its written statement before the Tribunal and denied the allegations made in the petition. It alleged that the offending bus was not having

valid insurance, permit, registration etc and it was being plied by person having no valid driving license.

4- The Opposite Party No.2, owner of the Bus also filed his written statement and admitted the accident. He further asserted that the Bus was insured with Oriental Insurance Company and it had valid documents. The driver was also having valid driving license.

5- The Opposite Party No.3, the driver of the Bus inspite of service did not appear to contest the claim and the petition was heard exparte against him.

6- The Tribunal on the basis of pleadings of parties, framed relevant issues in the claim petition. The claimants in support of their case adduced oral as well as documentary evidence. The Insurance Company also filed documentary evidence. Thereafter, the Tribunal, on hearing learned counsel for the parties and perusing the evidence on record, allowed the petition for sum of Rs. 4,93,340/- against the Oriental Insurance Company along with interest @ 5% per annum from the date of filing the claim petition till the date of actual payment.

7- Being dissatisfied with the awarded money, the claimants have preferred this appeal before this Court.

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

9- The learned counsel for the appellants has submitted that the Tribunal has committed an error by not taking into account the deductions of the salary of the deceased for the purpose of calculating the amount

of compensation. He further contended that the multiplier has been adopted on lower side.

10- On the other side the learned counsel for the insurance company has opposed the above submissions of the learned counsel for the claimants and submitted that the Tribunal has rightly calculated the compensation at the amount after deducting the compulsory deductions and proper multiplier has been adopted, therefore, the impugned judgment and award need no interference.

11- After having considered the rival submissions of the learned counsel for the parties, I do not find any force in the submissions advanced by the learned counsel for the appellant. The reason is that the learned tribunal has adopted right approach for calculation of the dependency of the claimants. Salary certificate paper No. 11-C has been filed on behalf of the claimants. Perusal of this document, reveals that the total salary of the deceased was Rs. 10,327/- and out of this amount Rs. 4279-60 were compulsory deductions towards, G.P.F., L.I.C. Income Tax, Electricity Charges & duty and Compulsory Time Deposit. After this deduction the net salary payable to the deceased was Rs. 6,048/- and after deducting 1/3[rd] the total monthly dependency of the claimants comes to Rs. 4,032/-. The deceased at the time of accident was about 46 years of age. The Tribunal has adopted the multiplier of ‘10’ and in my view the Tribunal has adopted proper multiplier in view of the decision of Hon’ble Apex Court in the case of Tamil Nadu State Transport Corporation Ltd. vs. S. Rajapriya & Ors, reported in 2005(4) Supreme 87.Therefore the dependency of the claimants upon the deceased comes to Rs. 4,032/-X12 X 10= Rs. 4,83,840/.

The Tribunal also awarded Rs. 2,000/- towards funeral expenses, Rs. 2,500/- for loss of estate and Rs. 5,000/- for loss of consortium, and in my opinion the claimants are entitled to get these amounts. Thus the total compensation comes to Rs. 4,83,840/- + Rs. 2,000/- + Rs. 2,500/- + Rs. 5,000/- = Rs. 4,93,340/-. In the facts and circumstances of the case I do not find it case for enhancement.

12- So far as the rate of interest awarded by the Tribunal is concerned, the learned counsel for the appellants has submitted that the same is on lower side and should be enhanced. The Tribunal has awarded the interest @ 5% per annum. The interest is certainly on lower side and in my opinion it should be 7.5% per annum instead of 5%.

13- For the discussion made above the appeal is liable to be partly allowed so far as the interest part is concerned.

14- Accordingly the appeal is partly allowed. The impugned judgment and award dated 20-4-2006, is modified upto the extent that the claimants are entitled to get compensation of Rs. 4,93,340/- from the Oriental Insurance Company, along with interest @ 7.5% per annum from the date of filing the petition till the date of actual payment, instead of interest @5% as has been awarded by the Tribunal. The order of apportionment of awarded amount passed by the Tribunal shall remain intact.

(B.C. Kandpal, J.)