AO/348/2008 of NATIONAL INSURANCE CO. LTD Vs SMT. LEELA DASILA AND OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL.

A.O. No. 348 of 2008

National Insurance Company Ltd. …… Appellant. Versus

Smt. Leela Dasila and others ……..Respondents.

Sri V.K. Kohli, learned Senior Advocate, assisted by Sri I.P. Kohli, learned counsel for the appellant. Mr. Z.U. Siddiqui, learned counsel for claimants/respondents.

Dated: 09-06-2009

Hon’ble B.C. Kandpal, J.

This appeal U/S 173 of the Motor Vehicle Act, arise out against the judgment and award dated 3-6-2008, passed by Motor Accident Claims Tribunal/Addl. District Judge/ F.T.C.-I, Haldwani, District Nainital, in MAC Case No. 107/2006, Smt. Leela Dasila & others Vs. National Insurance Company Limited and another.

2- Brief facts of the case are that on 5.3.2006, at about 11.00 A.M. when deceased Bharat Singh was returning to Gora Parao Haldwani, after obtaining token, truck No. U.T.F. 9748 dashed him in rash and negligent manner, due to which he sustained grievous injuries. He was brought to City Hospital Haldwani, where looking his precarious condition, he was referred to Sushila Tiwari Forest Hospital, Haldwani. Thereafter he was referred to Delhi and on 8-3-2006 when he was being carried to Delhi, he succumbed to the injuries at Garh. The claimants filed petition for compensation in lieu of death of Bharat Singh. According to the claimants the deceased was owner of truck No. U.P. 02/ 5456 and he used to earn about Rs. 1,00,000/- per annum

3- The opposite party No.1, National Insurance Company contested the claim petition by filing written statement denying the allegations made in the petition. The insurance company also alleged that the accident

has occurred due to own fault of the deceased. The petition is bad for non-joinder of owner of truck No. U.P. 02/5456, as the said truck was also involved in the said accident. The insurance company also alleged that the insurance company can be held liable when it is proved that the offending truck was being driven by valid license holder person and it has all valid documents.

4- The opposite party No.2, owner of truck No. U.T.F. 9748, also contested the petition and denied the accident by his truck. According to him the accident has occurred due to own negligence of the deceased. He also alleged that the driver had valid driving license and the truck was insured with National Insurance Company.

5- On the basis of pleadings of parties the learned tribunal framed relevant issues in the claim petition. Thereafter, parties adduced evidence in support of their case. The learned tribunal after hearing learned counsel for the parties and considering the entire material available on record, decreed the claim petition for sum of Rs. 6,70,000/- against the National 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 National Insurance Company has filed this appeal before this Court.

7- The claimants also filed cross objection in the appeal for enhancement of the compensation.

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

9- Perusal of impugned judgment reveals that the learned tribunal has discussed the point of rash and negligence on the part of the truck driver or on the part of the deceased himself on issue Nos. 1 and 2. The eyewitness of accident is witness Kundan Singh. Affidavit of Kundan Singh P.W.2, has been filed on record. He has deposed that on 5-3-2006 at about 11.00 A.M. he was standing at Gola Gate, Gora Parao, Haldwani and Bharat Singh deceased was returning after taking token from Gola Gate, suddenly truck No. U.T.F. 9748 came there in high speed and dashed Bharat Singh. This witness also deposed that the truck driver did not give horn. The owner of the offending truck also admitted the accident. In the above facts and circumstances of the case the learned tribunal has rightly held that the accident has occurred due to sole negligence of truck driver in question.

10- As far as the amount of compensation to be awarded in favour of the claimants is concerned, although no cogent and reliable evidence has been adduced by the claimants in order to show the actual income of the deceased, the document filed by the claimants before the court below, indicates that the deceased was truck owner. The claimants neither adduced any plausible income tax return nor any documentary evidence in order to show the actual income of the deceased was provided by the claimants before the tribunal. The tribunal on the basis of the guesswork has assessed the annual income of the deceased as Rs. 72,000/- per annum. The fixing of monthly income as Rs. 6,000/- of the deceased is based on no evidence on record. The income tax return which is available on the record indicates that the same has been filed in the month of August 2006, which is after the death of thedeceased, therefore, this document could not have been taken into account for the purpose of computing the income of the deceased. However, this fact cannot be ignored that the deceased was truck owner and stood on better footing than labourer whose notional income is to be assessed as Rs. 3,000/- per month. In the absence of any plausible documentary evidence I am of the view that the income of the deceased should not be assessed less than Rs. 4,000/- per month. Out of the aforesaid amount in case if the deceased would have been spending 1/3[rd] for his personal expenses, then the amount of financial dependency of the claimants comes to Rs. 2,667/- rounded to Rs. 2,700/- and the annual dependency comes to Rs. 2,700/- X 12= Rs. 32,400/-. The age of the deceased has been indicated in the claim petition as 45 years. Although there is no evidence available on record in order to show the actual age of the deceased at the time of his death, but this age has not been controverted by the opposite parties before the tribunal, therefore, for the purpose of the assessment of the compensation, the age of the deceased is to be treated as 45 years. The tribunal fell in error in adopting the multiplier of 13 in this case. In view of the decisions of the Hon’ble Apex Court rendered in 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 in this case cannot travel more than 10 in any manner and after adopting the multiplier of 10, the amount of compensation comes to Rs. 3,24,000/-. The tribunal again fell in error in awarding the compensation under other different heads in an exorbitant manner. The claimants are entitled for sum of Rs. 2,000/- towards funeral expenses, Rs. 10,000/- for loss of company to the widow as well as

loss of love and affection to the children. Further as per the papers filed by the claimants before the court below the amount of Rs. 11,200/- was spent on the medical expenses of the deceased, therefore, the claimants are entitled to get this much amount also under the head of medical expenses.

11- On the basis of the aforesaid calculation the total amount comes to Rs. 3,24,000/- + Rs. 2,000/- + Rs. 10,000/-+ Rs. 11,200/-= Rs. 3,47,200/- instead of Rs. 6,70,000/- as has been awarded by the tribunal.

12- Further tribunal fell in error in awarding the interest @ 7% per annum. As per the present rate of interest being given by the bank it should be 6% per annum.

13- For the aforesaid reasons the appeal is liable to be partly allowed.

14- Accordingly, the appeal is partly allowed. The impugned judgment and award is modified up-to the extent that the claimants are entitled to get sum of Rs. 3,47,200/- as compensation from the National Insurance Company along with interest @ 6% per annum from the date of filing the petition till the date of actual payment ( instead of Rs. 6,70,000/- along with interest @ 7% per annum, as has been awarded by the tribunal).

15- The cross objection filed by the claimants/respondents stands dismissed.

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

(B.C. Kandpal, J.)