AO/748/2006 of MATBAR SINGH AND OTHERS Vs SMT. DEEPA DEVI AND ANOTHER

IN THE HIGH COURT OF UTTARAKHAND AT

NAINITAL.

A.O. No. 748/ 2006

Matbar Singh and 3 others .. Appellants.

Smt. Deepa Devi and another … Respondents.

Mr. B.S. Negi, Advocate for the appellants. Mr. D.C. S. Rawat, Advocate for the respondent /owner Mr. P.C. Maulekhi, Advocate for respondent No.2.

Dated: 26-6-2008

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 29-7-2006, passed by Motor Accident Claims Tribunal/District Judge, Tehri Garhwal, in MACT Case No. 61 of 2005.

2- The relevant facts of the case are that Pratap Singh was travelling in Bus No. UP 06- 1636 from Ghuttu to Ghansali on 21.12.2004 and at about 1.00 P.M. the Bus fell in Bhilangana river due to rash and negligence of its driver due to which Pratap Singh died at the spot. The deceased was an Assistant Teacher in Government School and his salary was Rs. 12,000/- per month. The claimants who are parents and children of the deceased, have preferred claim petition for compensation of Rs. 25,17,088/-.

3- The Opposite Party No.1, owner of the bus filed his written statement and alleged that bird came inside the bus from the window and dashed with face of the driver due to which he lost control over the bus and accident was occurred. The driver also died in the said accident. He also alleged that the vehicle was valid

insurance and its driver was possessing valid driving license.

4- The New India Assurance Company also filed written statement, denying the allegations made in the petition. According to the insurer, the offending bus was not having valid documents and its driver was also not possessing valid driving license. The petition has been filed with the collusion of the owner of the bus.

5- Parties adduced evidence after the issues were framed in the petition. The learned Tribunal, after hearing learned counsel for the parties and perusing the material on record, awarded sum of Rs. 8,41,500/- as compensation. The Tribunal directed to deposit the amount of compensation within two months, failing which interest @ 7% per annum shall be payable from the date of filing the petition.

6- Feeling aggrieved the claimants have preferred this appeal for enhancement.

7- The New India Assurance Company also preferred cross objection against the impugned judgment and award.

8- Heard learned counsel for the appellants and the learned counsel for the Insurance Company and perused the record.

9- The learned counsel for the appellants has submitted that the Tribunal has computed the dependency on the lesser amount and thereby awarded meager amount of compensation. He also submitted that the interest has also been awarded on lower side.

10- On the other hand, learned counsel for the Insurance Company, has alleged that the Tribunal has adopted higher multiplier, and thereby awarded exorbitant amount of compensation.

11- The sole point involved in this appeal is as to whether the quantum of compensation as has been awarded by the Tribunal is just and adequate or it is exorbitant or is on lower side.

12- Perusal of record reveals that the deceased, at the time of his death, was an Assistant Teacher in Government Inter College Thati. Salary certificate paper No. 12-C/7 has been filed by the claimants, according to which the deceased was getting net salary of Rs. 10,525/- per month. Paper No. 12-C/8 pertains to income tax return filed by the deceased in which the net annual income has been mentioned as Rs. 83,451/-. The Tribunal has taken this amount for purpose of calculation of dependency of the claimants and after deducting 1/3[rd] towards personal expenses, an amount of Rs. 55,624/- has been assessed per annum. I do not find any infirmity in the method adopted by the Tribunal while assessing the dependency of the claimants upon the deceased.

13- The Tribunal has adopted multiplier of 15, at the age of 42 years and the same does not appear to be justified in view of the decisions of 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, where the deceased was 33 years of age and the Hon’ble Apex Court applied the multiplier of 13 and the case of Tamil Nadu State Transport Corporation Ltd. vs. S. Rajapriya & Ors, reported in 2005(4) Supreme 87, where

the Hon’ble Supreme Court has adopted the multiplier of ‘12’ at the age 38 years. Therefore, keeping in view the age of the deceased as 42 years and the observation of the Hon’ble Apex in the cases cited above, suitable multiplier in the instant case will be ‘12’ and after adopting the multiplier of 12, the compensation comes to Rs.55,624/- X 12= Rs. 6,67,488/-, rounded to Rs. 6,67,500/-.

14- The Tribunal has awarded sum of Rs. 2,000/- towards funeral expenses and sum of Rs. 5,000/- towards loss of love and affection, which appear to be justified and needs no interference. Therefore, the total compensation comes to Rs. 6,67,500/- + Rs. 2,000/- + Rs. 5,000/-= Rs. 6,74,500/-. The Tribunal has awarded interest @ 7% per annum in case the insurance company does not deposit the amount of compensation within two months, which is not justified and is on lower side. In my opinion the Tribunal should have awarded the interest @ 7.5% per annum from the date of filing the petition till the date of actual payment.

15- On the basis of the aforesaid discussion the claimants are entitled to compensation of Rs. 6,74,500/- along with interest @ 7.5% per annum from the date of filing the petition till the date of final payment against the New India Assurance Company, instead of Rs. 8,41,500/- as has been awarded by the tribunal.

16- Accordingly, the appeal filed by the claimants for enhancement is dismissed.

17- The Cross Objection filed by the New India Assurance Company, respondent No.2, is allowed. The impugned judgment and award dated 29-7-2006 is

modified upto the extent that the claimants are awarded compensation of Rs. 6,74,500/- against the New India Assurance Company, along with interest @ 7.5% per annum, from the date of filing the petition till the date of actual payment, instead of Rs. 8,41,500/- as has been awarded by the Tribunal.

18- The excessive amount of compensation, if any, deposited by the Insurance Company, be released in favour of the Insurance Company, by the Tribunal concerned. In case if the claimants have withdrawn the entire amount of compensation awarded by the Tribunal, then the Insurance Company is given the right to recover the excessive amount from the claimants.

ISB

(B.C. Kandpal, J.)