AO/366/2005 of THE ORIENTAL INSURANCE CO. LTD. Vs SUNITA RANI and ORS.

IN THE HIGH COURT OF UTTARAKHANDAT NAINITAL

Appeal From Order No. 366 of 2005

The Oriental Insurance Co. Ltd. …Appellant

Versus

Smt. Sunita Rani & others

…Respondents

With

Appeal From Order No. 196 of 2006

Sunita Rani & others

…Appellants

Versus

Riyasat Ali & others …Respondents

Mr. V.K. Kohli, Senior Advocate assisted by Mr. I.P. Kohli, Advocate for appellant-insurance company Mr. Mohd. Azim, Advocate for claimants-respondents no. 1 to 4

Dated: December 3, 2008

Hon’ble B.C. Kandpal, J.

Both these appeals arise out against the same judgment and award and common question of fact of law is involved in both of them, hence, they are being decided by this common judgment.

These appeals, under Section 173 of Motor Vehicles Act, 1988, have been preferred against the judgment and award dated 23.06.2005 passed by Motor Accident Claims Tribunal/1[st] Additional District Judge, Udham Singh Nagar, in Motor Accident Claim Case No. 72/2003, Smt. Sunita Rani and others versus Shri Riyasat Ali and others.

Brief facts of the case, according to the claimants, are that on 7.4.2002 at about 5.00 when deceased-Surendra Kumar was fixing the bulb by climbing at ladder beneath the terrace of his house, then Mini Truck 407 bearing Registration No.U.P.-21/G 9570 being driven by its driver rashly and negligently came there taking its back gear and hit the ladder, due to which husband of claimant no. 1-deceased was seriously injured by felling from ladder. The deceased was taken to Government Hospital, Gadarpur and thereafter he was referred to Haldwani. The deceased was also referred to Moradabad and Delhi and at AIIMS, Delhi during treatment deceased died. The deceased was aged about 38 years at the time of his death and used to earn sum of Rs.3500/- by working as Salesman in Hind Medical Store, Gadarpur. The claimants claimed sum of Rs.10,00,000/- as compensation along with interest of 12% per annum against the opposite parties.

Opposite party no. 1-owner of vehicle in question filed his wrtiten statement denying almost all the contents of claim petition for want of knowledge. In the additional pleas, it has been stated that answering opposite party is registered owner of Mini Truck Tata 407 No. U.P.21G/9570 and vehicle in question was insured with The Oriental Insurance Co. Ltd. at the time of accident, which validity was with effect from 4.1.2002 to 3.1.2003. On 7.4.2002 vehicle in question was being driven by its driver-Nawabjan, who was having valid driving licence. It has also been stated that on the date of alleged accident vehicle in question was having all valid papers relating to it

i.e. Registration, Permit, Goods Tax, Fitness etc. Therefore, the liability to pay the compensation, if any, is of opposite party no. 2-insurance company.

Opposite party no. 2-The Oriental Insurance Co. Ltd. filed its written statement pleading therein that death of deceased had not taken place due to alleged accident. The amount of compensation has been shown exaggeratedly. The claimants did not make available all particulars and information with regard to alleged accident in the claim petition, which may prove that accident had occurred on account of fault of vehicle. The claimants are not entitled to get any compensation. Therefore, the claim petition is liable to be dismissed.

Parties led evidence in support of this case. The learned Tribunal on the basis of pleadings adduced by the parties framed relevant issues in the claim petition, which were discussed in great detail.

The learned Tribunal after having considered the entire material available on record and hearing learned counsel for the parties, decreed the claim petition for sum of Rs.2,93,300/-, against opposite party no. 2-The Oriental Insurance Co. Ltd. vide judgment and award dated 23.06.2005. The Tribunal further directed the insurance company to deposit the said amount of compensation within period of 30 days, failing which, claimants shall also be entitled to interest @ 6% per annum, on the said amount of compensation, from the date of filing the petition till the date of actual payment.

Feeling aggrieved by the aforesaid impugned judgment and award, the appellant-The Oriental Insurance Co. Ltd. has preferred the present appeal before this Court.

The claimants have also preferred an appeal i.e. A.O. No.196 of 2006 for enhancement of amount of compensation.

Heard Mr. V.K. Kohli, Senior Advocate assisted by Mr. I.P. Kohli, learned counsel for appellant-The Oriental Insurance Co. Ltd., Mr. Mohd. Azim, learned counsel for claimants-respondents and perused the record.

Heard on the application filed by the appellant-The Oriental Insurance Co. Ltd., under Order 41 Rule 27 C.P.C.

The application is allowed. The papers be placed on record of A.O. No.366 of 2005.

I have perused the documents filed by the appellant-insurance company along with an application under Order 41, Rule 27 C.P.C. and I am of the view that these papers do not help the appellant at this stage in any manner.

As far as factum of accident is concerned, the learned Tribunal considered all the evidence adduced by the parties before it and thereafter came to the conclusion that on 7.4.2002 Mini Truck 407 bearing Registration No.U.P-21/G-9570 being driven by its driver rashly and negligently came there taking its back gear and hit the ladder of

deceased-husband of claimant no. 1, due to which husband of claimant no. 1-deceased was seriously injured by felling from ladder and subsequently died during his treatment in AIIMS, Delhi. Thus, claimants have been fully successful in establishing the said statements as stated in the claim petition. I also find myself in total agreement with the findings recorded by the Tribunal in this regard and I do not find any reason to disturb the same.

As far as amount of compensation to be awarded in favour of claimants is concerned, the record shows that deceased was aged about 38 years on the date of accident. As far as income of deceased is concerned, the Tribunal has assessed the income of deceased at Rs.2100/- per month and after deducting one-third out of it financial dependency of claimants has been assessed at Rs.1400/- per month. I do not find any reason to disturb this finding. However, multiplier adopted by the Tribunal appears to be on higher side in view of the latest pronouncement of the Hon’ble Apex Court given in the cases of Tamil Nadu State Transport Corporation Ltd. Versus S. Rajpriya & others,reported in 2005 (4) SC 87, The Managing Director, TNSTC versus Sripriya & others, reported in 2007(5) Supreme 301, New India Assurance Co. Ltd. vs. Kalpana (Smt) and others, reported in (2007) 2 SCC (Cri) 94 and Laxmi Devi & others vs. Mohammad Tabbar & another,reported in 2008 UAD 587. Keeping in view the age of the deceased the multiplier in this case cannot travel more than ‘12’ in any case and if the multiplier of ‘12’ is adopted in this case, then the amount of compensation comes to Rs.1400 x 12

x12=201600/-. The Tribunal has further awarded sum of Rs.15,000/- to the claimants against medical expenses as well as Rs. 2000/- for funeral expenses. The Tribunal has further awarded sum of Rs.5000/- for loss of love and affection and Rs.2500/- for loss of estate. I think that the amount awarded by the Tribunal under the aforesaid heads appears to be just and reasonable and needs no interference.

For the reasons stated above, the claimants are entitled for sum of Rs.201600 + Rs.15,000 + Rs.2,000 + Rs.5,000 + Rs.2,500=Rs.2,26,100 (rounded Rs.2,26,000/-).

So far as A.O. No. 196 of 2006 is concerned, this appeal has been filed by the claimants-Sunita Rani and others, for enhancement of amount of compensation against the judgment and award dated 23.06.2005 passed in M.A.C.C. No. 72 of 2003. In view of findings recorded by me while deciding A.O. No. 366 of 2005 arising out of same claim petition, this appeal has no force, as the impugned judgment and award has been partly modified and A.O. No. 366 of 2005 has been allowed by me. As far as interest awarded by the Tribunal is concerned, it appears that the Tribunal has awarded the conditional interest to the claimants in this case. I do not find any justification for awarding the conditional interest. To my mind, the claimants are entitled an interest of 6% per annum on the amount of compensation from the date of filing the petition till the actual payment.

Accordingly, A.O. No. 366 of 2005 is partly allowed. The impugned judgment and award is modified to the extent that claimants are entitled for sum of Rs.2,26,000/- (Rupees Two Lacs Twenty Six Thousand only) as compensation, instead of Rs.2,93,300/- as awarded by the Tribunal, along with interest @ 6% per annum from the date of filing the petition till the date of actual payment, instead of conditional interest of 6% as has been awarded by the Tribunal in the impugned judgment and award.

A.O. No. 196/2006 filed by claimants, is partly allowed as far as interest is concerned. The impugned judgment and award is modified to the above extent.

The statutory amount deposited by the appellant-insurance company with this Court be remitted to the Tribunal concerned.

Let copy of this judgment be placed in the file of A.O. No. 196 of 2006.

(B.C. Kandpal, J.)