AO/721/2006 of RANGA DEVI UPADHYAY and OTHERS Vs SURENDER SINGH NEGI and ANOTHER

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL.

A.O. No. 721/2006

Smt. Ranga Devi and others

Versus

Oriental Insurance Company Ltd. and another

… Appellants.

..Respondents.

Mr.Lalit Miglani, holding brief of Mr. Pankaj Miglani, Advocate for the appellants. Mr. K.K.Sah, learned counsel for respondent/Insurance Company.

Dated: 23-10-2008

’UHonble B.C. Kandpal, J.

This appeal, under Section 173 of the Motor Vehicles Act 1988, has been preferred against the judgment and award dated 9-3-2006, passed by Motor Accident Claims Tribunal/Addl. District Judge, Haridwar, in MACT Case No. 92/2004, Smt. Ranga Devi and others Vs. Surendra Singh Negi and another.

2- The background facts of the case in nutshell

are that on 18-4-2004 Jai Prakash Upadhyaya was moving on bridle-path in village Shyampur. At about 6.00 P.M. Bus No. U.P. 06/2683 came from Haridwar side in high speed and dashed him due to which he sustained grievous injuries. He was brought to Government Hospital, Haridwar, where he was declared dead by the doctors. The deceased at the time of his death was 30 years of age and his monthly income was Rs. 5,000/-. Therefore the claimants filed claim petition for compensation of Rs. 22,00,000/- in lieu of death of the deceased.

3- The opposite party No.1, owner of the offending Bus, filed his written statement and denied the allegations made in the petition. He also alleged that the vehicle in question was insured with Oriental Insurance

Company hence the liability, if any, is upon the insurance company.

4- The opposite party No.2, the Oriental Insurance Company also contested the claim petition and alleged that the vehicle was being run against the terms of insurance policy. The owner has to prove that the offending was having valid documents at the time of the accident.

5- The learned Tribunal on the pleadings of the parties framed relevant issues in the claim petition. Thereafter the claimants in support of their case adduced oral as well as documentary evidence. No evidence was adduced by of the opposite parties.

6- The learned Tribunal after hearing learned counsel for the parties and perusing the material on record, awarded sum of Rs. 2,79,000/- as compensation against the Oriental Insurance Company, along with interest @ 8% per annum from the date of filing the claim petition till the date of actual payment.

7- Feeling aggrieved, the claimants have preferred this appeal for enhancement. The Oriental Insurance Company also filed cross objection to set aside the impugned judgment and award.

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

9- Learned counsel for the claimants/appellants has submitted that the tribunal has awarded meager amount of compensation and the same is liable to be enhanced.

10- On the other hand, learned counsel for the Insurance Company has argued that the tribunal has awarded an exorbitant amount of compensation without any basis and the award is liable to be set aside.

11- The impugned judgment and award shows that the tribunal framed issues on the point of rashness of the driver of offending vehicle. P.W.2, Ajay Chaudhary, eyewitness of the occurrence has been produced. This witness has given categorical statement that at the time of accident he was coming Haridwar from Shyampur then he had seen the occurrence. The driver of the offending bus was driving the vehicle at high speed and he dashed the deceased due to which he sustained injuries and he along with other persons had brought the deceased to Haridwar in tempo. This witness himself had lodged the F.I.R. of the accident. The police after investigation has submitted charge sheet against the driver of the offending bus to face trial. No evidence has been adduced from the side of opposite parties to controvert the assertion of the claimants that the accident was the result of rash and negligence of the driver of offending bus. The Tribunal also recorded categorical finding that the driving license of the driver of the vehicle involved in accident has been filed on record and the bus was insured with Oriental Insurance Company. Therefore, I do not find any infirmity in the finding recorded by the tribunal that the accident was the result of rash and negligent driving of the driver of the bus and the liability to pay compensation is upon the insurer of the said vehicle.

12- So far as the amount of compensation is concerned, the record shows that the deceased at the

time of accident was 30 years of age at the time of accident. There is no reliable and cogent evidence on record in order to show the actual income of the deceased. Therefore, the notional income will have to be taken into account. The accident took place on 18-4-2004, therefore, in view of the judgment of the Division Bench of this Court in A.O. No. 2 of 2005, Sobhan Singh and another Vs. New India Insurance Company and another, decided on 1.11.2006, the notional income should be taken at Rs. 36,000/- per annum due to price hike for the purpose of calculating the annual dependency of the claimants and after deducting 1/3P[rd]Ptowards the personal expenses, the total dependency comes to Rs. 24,000/- per annum. The deceased at the time of accident was 30 years of age and in view of the observation made by Hon’ble Apex Court in the cases of Tamil Nadu State Transport Corporation Ltd. vs. S. Rajapriya & Ors, reported in 2005(4) Supreme 87, and The Managing Director, TNSTC vs. Sripriya & Ors. reported in 2007 (5) Supreme 301 the multiplier to be adopted in this case would be 13 instead of 17 as has been adopted by the Tribunal. The Tribunal also deducted 1/3P[rd]P amount twice, which is also erroneous.

13- Therefore, the amount of compensation to be awarded in this case comes to Rs. 24,000/- X 13= Rs. 3,12,000/-. The tribunal also awarded Rs. 5,000/- towards loss of love and affection and Rs. 2,000/- towards funeral expenses and in my view the claimants are entitled to get these amounts. Therefore the total compensation comes to Rs. 3,12,000/- + Rs. 5000/- + Rs. 2,000/- = Rs. 3,19,000/-. The tribunal awarded interest @ 8% per annum which is on higher side. In my opinion the claimants should be awarded interest @ 6%

per annum from the date of filing the petition till the date of actual payment.

14- Accordingly, the appeal is partly allowed. The impugned judgment and award dated 9-3-2006 is modified to the extent that the claimants shall be paid the compensation of Rs. 3,19,000/- by the Oriental Insurance Company along with interest @ 6% per annum from the date of filing the petition till the date of actual payment, instead of Rs. 2,79,000/- (along with interest @8% per annum) as has been awarded by the Tribunal.

15- The Cross Objection filed by the Insurance Company is dismissed.

ISB

(B.C. Kandpal, J.)