AO/420/2005 of YESHPAL SINGH and ANR. Vs ORIENTAL INSURANCE CO. LTD. and ORS.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL.

(1) A.O. No. 420/2005

Yashpal Singh and another …… Appellants.

Oriental Insurance Company & others .. Respondents.

Sri Parikshit Saini, learned counsel for the appellants.

Sri T.A. Khan, learned counsel for respondent/Oriental Insurance Company

None appeared for other respondents in spite sufficient service.

(2) A.O. No. 121/2003

Oriental Insurance Company …… Appellant.

Smt. Rama Devi and others .. Respondents.

Sri T.A. Khan, learned counsel for the appellant.

Sri R.P. Nautiyal, learned counsel for claimants/respondents.

None appeared for other respondents in spite sufficient service.

(3) A.O. No. 384/2005

Oriental Insurance Company …… Appellant.

Km. Ranu Rawat and others .. Respondents.

Sri T.A. Khan, learned counsel for the appellant.

None appeared for respondents in spite sufficient service.

(4) A.O. No. 403/2005

Oriental Insurance Company …… Appellant.

Yeshpal Singh and others .. Respondents.

Sri T.A. Khan, learned counsel for the appellant.

Sri Parikshit Saini, learned counsel for claimants/respondents.

None appeared for other respondents in spite sufficient service.

(5) A.O. No. 404/2005

Oriental Insurance Company …… Appellant.

Yashpal Singh and others .. Respondents.

Sri T.A. Khan, learned counsel for the appellant.

Sri Parikshit Saini, learned counsel for claimants/respondents.

None appeared for other respondents in spite sufficient service.

(6) A.O. No. 405/2005

Oriental Insurance Company …… Appellant.

Sher Singh and others

.. Respondents.

Sri T.A. Khan, learned counsel for the appellant.

Sri Parikshit Saini, learned counsel for claimants/respondents.

None appeared for other respondents in spite sufficient service.

(7) A.O. No. 406/2005

Oriental Insurance Company …… Appellant.

Smt. Anita and others .. Respondents.

Sri T.A. Khan, learned counsel for the appellant.

Sri Parikshit Saini, learned counsel for claimants/respondents.

None appeared for other respondents in spite sufficient service.

(8) A.O. No. 409/2005

Yeshpal Singh & another …… Appellants.

Oriental Insurance Co. & others .. Respondents.

Sri Parikshit Saini, learned counsel for claimants/appellants.

Sri T.A. Khan, learned counsel for the respondent/Oriental Insurance Co.

None appeared for other respondents in spite sufficient service.

(9) A.O. No. 419/2005

Anita and others

…… Appellants.

Oriental Insurance Co. & others .. Respondents.

Sri Parikshit Saini, learned counsel for claimants/appellants.

Sri T.A. Khan, learned counsel for the respondent/Oriental Insurance Co.

None appeared for other respondents in spite sufficient service.

(10) A.O. No. 421/2005

Sher Singh and another …… Appellants.

Oriental Insurance Co. & others .. Respondents.

Sri Parikshit Saini, learned counsel for claimants/appellants.

Sri T.A. Khan, learned counsel for respondent/Oriental Insurance Company

None appeared for other respondents in spite sufficient service.

(11) A.O. No. 4/2007

Oriental Insurance Company …… Appellant.

Smt. Manju and others .. Respondents.

Sri V.K. Kohli, learned Senior Advocate, assisted by Mr. I.P. Kohli, Advocate

for the appellant.

Sri Navnish Negi, learned counsel for claimants/respondents.

None appeared for other respondents in spite sufficient service.

(12) A.O. No. 5/2007

Oriental Insurance Company …… Appellant.

Smt. Sunita Devi and others .. Respondents.

Sri V.K. Kohli, learned Senior Advocate, assisted by Mr. I.P. Kohli, Advocate

for the appellant.

Sri D.C.S. Rawat, learned counsel for claimants/respondents.

None appeared for other respondents in spite sufficient service.

Judgment [Hon’ble B.C. Kandpal, J. (Oral)]

As all the above appeals relate to the same motor accident and common question is involved in them, hence they are being decided by this common judgment.

2- A.O. No. 420/2005 and A.O. No. 403/2005, have been filed against the judgment and award dated 8.7.2005, passed by M.A.C.T./District Judge Haridwar in MACT Case No. 113/2001, A.O. No. 121/2003 has been filed against the judgment and award dated 21.2.2003, passed by MACT/District Judge, Chamoli in MACT Case No. 43/2001, A.O. No. 384/2005 has been filed against the judgment and award dated 23-6-2005, passed by MACT/District Judge Chamoli in MACT Case No. 47/2004, A.O. No. 404/2005 and A.O. No. 409/2005 have been filed against the judgment and award dated 8.7.2005 passed by MACT/District Judge Haridwar in MACT Case No. 115/2001, A.O. No. 405/2005 and A.O. No. 421/2005 have been filed against the judgment and award dated 8.7.2005, passed by MACT/District Judge, Haridwar in MACT case No. 112/2001, A.O. No. 406/2005 and A.O. No. 419/2005 have been filed against the judgment and award dated 8.7.2005, passed by

MACT/District Judge, Haridwar in MACT Case No. 114/2001, A.O. No. 4/2007 has been filed against the judgment and award dated 17-10-2006 passed by A.D.J./MACT/F.T.C. Pauri Garhwal in MACT Case No. 114/2001 and A.O. No. 5/2007 arise out against the judgment and award dated 17-10-2006 passed by A.D.J./MACT/F.T.C. Pauri Garhwal in MACT Case No. 59/2001.

3- Brief facts of the case giving rise to these appeals are that Bus No. U.P. 06-3233 met with an accident 100 meters behind to Chamoli Bus Stand at about 1 P.M. on 30-4-2001, in which large number of persons traveling in it had died. The legal representatives of the deceased persons filed claim petitions for compensation.

4- Rajendra Singh Topal is the owner of the offending bus and it was insured with Oriental Insurance Company at the time of accident. The owner of the Bus took the plea that the bus met with accident due to some mechanical defect. He further pleaded that the driver of the Bus was having valid and effective driving license and the bus was insured with Oriental Insurance Company. Further assertion of the owner and driver was that the Bus was having registration, fitness, permit etc.

5- The Oriental Insurance Company also contested the claim petitions before the tribunal concerned and alleged that it has no information as to whether the offending bus was having valid documents and its driver was also in possession of valid and effective driving license or not and in absence of any documents in this regard the insurance company cannot be held liable to pay any compensation. The Insurance

Company also alleged that exorbitant amount of compensation has been claimed by the claimants.

6- The learned tribunal framed relevant issues in the claim petitions. 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 petitions.

7- Feeling aggrieved the parties have preferred these appeals before this Court.

8- None has appeared on behalf of the owner/driver of the offending Bus in spite of sufficient service. I have heard learned counsel for the claimants and the Oriental Insurance Company and perused the record.

9- So far as the factum of accident is concerned, the learned tribunal has recorded finding that the accident has occurred due to rash and negligence of the driver of the offending Bus. On this point oral evidence of witnesses has been recorded and they have narrated that the accident was occurred due to rash and negligence of the driver. Further F.I.R. had been lodged against the driver of the bus and the police after investigation, finding the fault on the part of the driver, has submitted charge sheet against him to face criminal case. On the other hand the owner/ insurance company did not adduce any evidence in order to show that the accident had occurred due to some mechanical defect in the Bus, as has been pleaded in the written statement by the owner. I find that the finding of the learned tribunal on the point of rash and negligence on the part of the

driver of the Bus is quite justified and do not require any interference.

10- On the point, as to whether the offending Bus was having insurance coverage at the time of accident or not, Sri V.K. Garg, Deputy Manager, Oriental Insurance Company has been examined before the tribunal, who has deposed that the owner of the vehicle in question had got the insurance cover in collusion with Vimal Bahuguna, Development Officer by playing fraud with the insurance company and for the said act Vimal Bahuguna was punished. Further, on behalf of the Insurance Company it has been admitted that the premium money of the insurance company with regard to the vehicle in question is deposited with the insurance company. The tribunal has recorded finding that since the insurance policy has not been revoked and the money towards premium of the insurance policy is lying with the insurance company, the insurance company cannot be absolved from its liability to indemnify the claims. Further the driving license, registration certificate etc have also been filed on record and these documents establish that the Bus was having valid documents and its driver was also having valid driving license at the time of accident. In the above facts and circumstances of the case I do not find any illegality in the finding recorded by the tribunal holding the insurance company liable to pay the amount of compensation.

11- Now I deal with the quantum of compensation awarded in the claim petitions. In A.O. No. 5/2007, it has been pleaded by the claimants that the deceased Bijendra Singh was driver on offending bus and he was getting Rs. 2,200/- per month as salary and Rs. 50/- per day as diet money. However the tribunal fell in error in

adding the amount of Rs. 50/- per day in the amount of compensation. It is also evident from the records that the owner of the bus has alleged that whenever the deceased used to go as conductor on his bus then he used to get Rs. 50/- per day as diet money. I do not think that the diet money is to be included in the salary in order to calculate the amount of compensation for the reason that the diet money is an allowance beyond the settled rate of pay given on occasions of extraordinary service. There is no evidence that the deceased had been doing the duty in the bus throughout and getting Rs. 50/- per day as diet money every day. Therefore, I am of the definite view that the diet money do not form part of wages as per the definition of the wages. In case if the deceased used to get Rs. 2200/- per month salary then the annual income comes to Rs. 2200/- X 12= Rs. 26,400/- and after deducting 1/3[rd] towards the personal expenses of the deceased the total annual dependency of the claimants comes to Rs. 17,600/-. The age of the deceased was 42 years as is clear from the evidence on record. The tribunal has adopted the multiplier of 15. Keeping in view the circumstances of the case, I do not find any ground to interfere on the point of multiplier adopted by the tribunal in the instant case. After adopting the multiplier of 15 the amount of compensation comes to Rs. 17,600/- X 15= Rs. 2,64,000/-. The amount of Rs. 5000/- towards funeral expenses and Rs. 5,000/- towards consortium shall remain intact. In this way the total compensation comes to Rs. 2,64,000/- + Rs. 5000/- + Rs. 5000/-= Rs. 2,74,000/-, instead of Rs. 4,12,000/-. The tribunal has awarded interest @ 6% per annum from the date of filing the petition till the date of actual payment and the same shall remain intact.

12- In A.O. No. 4/2007, deceased Girish Lal employed in Forest Department and was getting Rs. 4,579/- per month salary and his annual income comes to Rs. 4,579/- X 12= Rs. 54,948/-. Had the deceased been investing 1/3[rd] on him as personal expenses, the financial dependency comes to Rs. 36,632/-. The approach adopted by the tribunal pertaining to financial dependency of the claimants appears to be justified and it requires no interference. However the multiplier adopted by the tribunal is on higher side. The age of the deceased at the time of accident was 38 years. The tribunal has adopted the multiplier of 16 in this case. In view of the ratio propounded 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 in this case would not have traveled more than 13 in any manner and after adopting the multiplier of 13, the amount of compensation to be awarded in favour of the claimants comes to Rs. 36,632/- X 13= Rs. 476,216/-. The tribunal also awarded Rs. 5,000/- towards consortium and Rs. 5,000/- for funeral expenses and the same shall remain intact. In this way the total amount of compensation comes to Rs. 4,76,216/- + Rs. 5,000/- + Rs.5,000/= Rs. 4,86,216/- instead of Rs. 5,96112/-. The tribunal has awarded interest @ 6% per annum from the date of filing the petition till the date of actual payment and the same shall remain intact.

13- In A.O. No. 421/2005, A.O. No. 420/2005 and A.O. No. 409/2005, the tribunal has rightly assessed the dependency of the claimants and computed the amount of compensation and the same needs no interference. However, the tribunal has not awarded any sum towards

consortium. In my view they are entitled to get sum of Rs. 5,000/- towards consortium. Therefore in A.O. No. 421/2005 the amount of compensation comes to Rs. 85,000/- instead of Rs. 80,000/-. In A.O. No. 420/2005, the amount of compensation comes to Rs. 1,05,000/- instead of Rs. 1,00,000/-. Likewise in A.O. No. 409/2005 the amount of compensation to be awarded in favour of the claimants comes to Rs. 1,05,000/- instead of Rs. 1,00,000/-.

14- So far as the quantum of compensation awarded in other A.O. Nos. 121/2003, 384/2005, 403/2005, 404/2005, 405/2005, 406/2005 and 419/2005, is concerned I have gone through the finding recorded by the tribunal and I do not find any ground to interfere in it. The tribunal has awarded just and proper compensation in these cases. Therefore, these A.Os. are liable to be dismissed.

15- Accordingly the A.O. No. 05/2007 is partly allowed and the impugned judgment and award is modified upto the extent that the claimants are entitled to get sum of Rs. 2,74,000/- along with interest @ 6% per annum from the date of filing the petition till the date of actual payment as compensation, instead of Rs. 4,12,000/-, as has been awarded by the tribunal concerned. Learned counsel for the claimants has stated that the claimants have already withdrawn sum of Rs. One lac, I, therefore, direct that the rest of the money be kept in fixed deposit in some nationalized bank in the name of Master Hrithik till he attains the age of majority. However, the claimant Smt. Sunita Devi shall be at liberty to withdraw the interest to be accrued on the fixed deposit.

16- A.O. No. 04/2007 is partly allowed and the impugned judgment and award is modified upto the extent that the claimants are entitled to get sum of Rs. 4,86,216/- along with interest @ 6% per annum from the date of filing the petition till the date of actual payment as compensation, instead of Rs. 5,96,112/-, as has been awarded by the tribunal concerned.

17- A.O. No. 421/2005 is partly allowed and the impugned judgment and award is modified upto the extent that the claimants are entitled to get sum of Rs. 85,000/- along with interest @ 6% per annum from the date of filing the petition till the date of actual payment as compensation, instead of Rs. 80,000/-, as has been awarded by the tribunal concerned.

18- A.O. No. 420/2005 is partly allowed and the impugned judgment and award is modified upto the extent that the claimants are entitled to get sum of Rs. 1,05,000/- along with interest @ 6% per annum from the date of filing the petition till the date of actual payment as compensation, instead of Rs. 1,00,000/-, as has been awarded by the tribunal concerned.

19-A.O. No. 409/2005 is partly allowed and the impugned judgment and award is modified upto the extent that the claimants are entitled to get sum of Rs. 1,05,000/- along with interest @ 6% per annum from the date of filing the petition till the date of actual payment as compensation, instead of Rs. 1,00,000/-, as has been awarded by the tribunal concerned.

20- A.O. Nos. 121/2003, 384/2005, 403/2005, 404/2005, 405/2005, 406/2005 and 419/2005 are

hereby dismissed and the impugned judgment and awards are confirmed.

21- Let the statutory amount deposited with this court in the appeals filed by the Oriental Insurance Company, be remitted to the tribunal concerned.

22- Let copy of this judgment be placed in the files of A.O. Nos. 121/2003, 384/2005, 403/2005, 404/2005, 405/205, 406/2005, 409/2005, 419/2005, 421/2005, 04/2007 and 05/2007.

Dated: 25-06-2009 ( B.C. Kandpal, J.)

ISB