AO/497/2008 of THE ORIENTAL INSURANCE COMPANT LTD Vs SMT MAYA DEVI and OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT

NAINITAL

A.O. No. 497 of 2008

The Oriental Insurance Company

Ltd.

.. Appellant.

Versus

Smt. Maya Devi and others …. Respondents.

Sri V.K. Kohli, learned Senior Advocate, assisted by Sri I.P. Kohli, learned counsel for the appellant. Sri B.K. Gupta, learned counsel for claimants/respondents. Sri Ashish Joshi, learned counsel for respondent No.6.

Hon’ble B.C. Kandpal, J (Oral)

This appeal, under Section 173 of the Motor Vehicle Act, has been filed by the Oriental Insurance Company against the judgment and award dated 10-11-2008, passed by Motor Accident Claims Tribunal/ Addl. District Judge/ I F.T.C. Haldwani, District Nainital, in MACT Case No. 07 of 2008, Smt. Maya Devi and others Vs. Uttarakhand Transport Corporation and others.

2- Brief facts of the case are that on 17-11-2007, deceased Jeevan Singh Bisht, was travelling in Bus No. U.A. 07-H/3148 from Moradabad to Gajrola. The driver of the bus was driving the bus in high speed. At about 10.00 P.M. when the deceased Jeevan Singh was getting down from the Bus near Mela Hotel at Gajrola, he was hit with the door of the bus and sustained grievous injuries. He was brought to AIIMS for treatment and from there he was carried to Safdarjang Hospital, New Delhi but he succumbed to the injuries on 19-11-2007. The deceased was 34 years of age and was posted in Gajrola Spinning Mill. He was getting Rs. 5,500/- per month salary. The claimants filed claim petition for compensation in lieu of death of deceased Jeewan Singh Bisht.

3- The opposite party nos. 1 and 2, Uttarakhand Transport Corporation and the driver of the bus denied the allegations made in the petition. It is alleged that the bus was stopped at Gajrola and when the deceased was getting down with his bag he could not control himself and fell down. At the time of accident the Bus was insured with Oriental Insurance Company, hence, the opposite parties cannot be held liable to pay the compensation.

4- The opposite party no.3, Oriental Insurance Company also contested the claim petition and alleged that the petition is not maintainable. The information of the accident has not been communicated to the insurance company. The insurance company cannot be held liable to pay the compensation, until it is proved that the conditions of insurance policy have not been breached and the driver of the offending Bus was having valid and effective driving license.

5- The learned tribunal on the basis of pleadings of parties framed the relevant issues in the claim petition. Thereafter, parties adduced evidence in support of their cases. The tribunal after hearing learned counsel for the parties and considering the entire material available on record, decreed the claim petition for sum of Rs. 5,59,000/- as compensation against the Oriental Insurance Company along with interest @ 7% per annum from the date of filing the petition till the date of actual payment.

6- Feeling aggrieved the Oriental Insurance Company has preferred this appeal before this Court.

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

8- So far as the factum of accident is concerned, the tribunal while deciding issue no.1, has discussed this point. The stand taken by the owner and driver of the offending vehicle is that the deceased himself fell down as he could not control him when he was getting down from the bus along with his bag, and there was no rash and negligence on the part of driver/conductor of the bus, therefore, the claimants are not entitled to get compensation. The learned tribunal has recorded finding that the deceased was wearing tracksuit and there was no chance of his clothes getting stuck with his foot and then falling down after losing his control. The learned tribunal also recorded finding that the driver as well as the conductor of the bus are responsible for the safety of the passengers and the death of the deceased was the result of the injuries sustained by the him when he was getting down from the bus and the driver and the conductor did not perform their responsibility properly and they were responsible for rash and negligence. I do not find any infirmity in the above finding recorded by the tribunal and the same needs no interference.

9- The learned tribunal also recorded finding that the photo copies of driving license, insurance cover and the documents pertaining to the vehicle have been filed on record and from perusal of these document it is quite clear that the driver was possessing valid and effective driving license and the bus was insured with Oriental Insurance Company. Therefore, the tribunal has rightly fixed the liability of insurance company.

10- The point of quantum of compensation has been discussed by the tribunal on issue No.3. The pay certificate of the deceased has been filed on record and it is revealed from it that the deceased was getting Rs. 4,450/- salary per month + Rs. 1,050/- as house rent, therefore, the learned tribunal has rightly assessed the monthly salary of Rs. 4,450/- and the annual income was assessed Rs. 4,450/- X 12= Rs. 53,400/-. The learned tribunal also deducted 1/3[rd] towards personal expenses of the deceased and after deducting the said amount the net annual dependency of the claimants was assessed for Rs. 35,600/-. The age of the deceased was 35 years and the tribunal has adopted the multiplier of ‘15’, which is certainly on higher side. In view of the decisions of 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, in my opinion the multiplier in this court could not have travelled more than ‘13’. Therefore, after adopting the multiplier of ‘13’ the total compensation comes to Rs. 35,600/- X 13= Rs. 4,62,800/-. So far as the other amounts awarded by the tribunal under other heads is concerned, the same shall remain intact. The tribunal has awarded Rs. 5,000/- towards funeral expenses, Rs. 10,000/- towards loss of consortium to the widow and Rs. 10,000/- towards loss of love and affection to his daughter. Therefore, the total compensation comes to Rs. 4,62,800/-+ Rs. 5,000/- + Rs. 10,000/- + Rs. 10,000/- = Rs. 4,87,800/-. The rate of interest indicated in the impugned award shall also remain intact.

11- For the reasons recorded above, the appeal is liable to be partly allowed.

12- Accordingly, the appeal is partly allowed. The impugned judgment and award is modified upto the extent that the claimants are entitled to get sum of Rs. 4,87,800/- as compensation from the Oriental Insurance Company along with the interest indicated in the impugned judgment and award, instead of Rs. 5,59,000/- as has been awarded by the tribunal.

13- Let the statutory amount, deposited with this court by the appellant, be remitted to the tribunal concerned.

Dated: 24-7-2009 (B.C. Kandpal, J.) ISB