AO/452/2007 of MADAN PAL YADAV AND ANOTHER Vs NEW INDIA ASSURANCE CO LTD. AND OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT

NAINITAL

A.O. No. 452/2007

Madan Pal Yadav and another …. Appellants.

Versus

The New India Assurance Company Ltd.

and others … Respondents.

Sri Pramod Tewari, Advocate holding brief of Sri Rajendra Singh, learned counsel for the claimants/appellants. Sri P.C. Maulekhi, learned counsel for respondent No.l/New India Assurance Company Ltd.

Dated: 16-4-2009

Hon’ble B.C. Kandpal, J.

This appeal, under Section 173 of the Motor Vehicle Act, arises out against the judgment and award dated 6-7-2007, passed by Motor Accident Claim Tribunal/Additional District Judge, Roorkee, District Haridwar, in MACT Case No. 133/2006, Madan Pal Singh and another Vs. Jugmandar Singh and others.

2-Brief facts of the case are that on 1.6.2006, at about 7.30 A.M. Amardeep @ Mukul was going to Roorkee from his village Majhol riding in Bullet Motorcycle. Aswani was also as pillion rider in the said motorcycle. When he reached near village Harchandpur Majra, Maruti WagonR No. U.P. 11-P- 7613 came there from Iqbalpur and dashed the motorcycle on wrong side due to which Amardeep died at the spot. Therefore, the parents of Amardeep filed claim petition for compensation.

3- Opposite party No.1, owner of WagonR Car filed his written statement and alleged that the accident has occurred due to own negligence of motorcyclist. The Wagon-R was insured with New India Assurance

company and the compensation, if any, is payable by the insurer of the Maruti Car.

4- The opposite party/ New India Assurance Company also filed its written statement and admitted the insurance of the Maruti Wagon-R involved in the accident. However, the insurance company alleged that exorbitant amount of compensation has been claimed and the petition is bad for non-joinder of owner and insurer of the offending motorcycle.

5- The opposite party No.3, driver of the offending Maruti Wagon-R also filed his written statement and alleged that he was driving his Car in slow speed and the accident has occurred due to own negligence of Motorcyclist.

6- The tribunal on the pleadings of parties framed issues in the petition. Thereafter, parties adduced evidence in support of their case. 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. 3,16,500/- as compensation along with interest @ 6% per annum from the date of filing the petition, till the date of actual payment against the New India Assurance Company.

7- Feeling aggrieved, the claimants have preferred this appeal for enhancement. The New India Assurance Company also filed Cross Appeal No. 3473 of 2007, against the aforesaid impugned judgment and award for setting aside the same.

8- Heard learned counsel for the

claimants/appellants as well as learned counsel for the

respondent/New India Assurance Company and perused the record.

9- As far as this factum that the accident took place on 1-6-2006 at about 7.30 A.M., is concerned, the same has been established by the eye-witnesses account. P.W.2, Prem Pal has been examined as an eye witness, who has stated that at the time of the accident he was going to Chutmulpur from his village on the motorcycle. The deceased Mukul along with another person Aswani were also going on motorcycle ahead of him. He has stated that Maruti Wagon-R U.P. 11-P- 7613 coming from Iqbalpur side dashed the motorcycle in rash and negligent manner on account of which Amardeep @ Mukul, who was driving the motorcycle, succumbed to the injuries at the spot. Therefore, as far as the factum of accident is concerned, it is established from the evidence on record. The tribunal fell in error in holding that the driver of Maruti Car Wagon-R was solely responsible for rash and negligent. The site-plan prepared by the police in criminal case, which is available on record as paper No. 46-C, shows that the place of accident is shown with letter ‘A’ and it is in the mid of the road. It is thus, quite clear that the motorcyclist had an opportunity to see the Maruti Wagon-R coming from the opposite direction, from long distance and as the accident has taken place in the mid of the road, therefore, it can be safely inferred that the drivers of both the vehicles were rash and negligent at the time of the accident. Prem Pal, P.W.2, who is an eye witness in this case, has deposed that the accident had taken place in his presence. He has also stated that it was head-on collision and both the vehicles were coming from opposite directions to each other at the time of the accident. As I have already observed that the road at the place of the accident is

straight and there is no turn at all, therefore, drivers of both the vehicles had sufficient opportunity to see the vehicles coming from opposite directions to each other from long distance. Had the drivers of both the vehicles been vigilant, they could have avoided the accident. But the manner in which the accident has taken place and the place of accident where both the vehicles had collided is indicating towards this aspect of the matter that the drivers of both the vehicles were rash and negligent and on account of the same the accident took place, in which Amardeep, who was driving the motorcycle succumbed to the injuries.

10-Now it is to be seen that what should be the apportionment for determining the contributory negligence of the drivers of the vehicles. I have already observed that either party could, by exercise of reasonable care, have avoided the consequence of other’s negligence. It is true that the motorcycle is smaller vehicle in comparison to the Maruti Wagon-R. The negligence on the part of the motorcycle in this case appears to be 30% and the driver of Wagon-R had the greater responsibility on his shoulder while driving the car on the highway. Therefore, the rash and negligence, i.e. 70% lies on the part of the driver of Maruti Wagon-R. 11- As far as the amount of compensation to be awarded in favour of the claimants is concerned, the tribunal has taken into account the annual income of the deceased as Rs.36,000/-. It is true that the deceased was an unmarried person hence for the purpose of calculating the compensation the age of the parents would be relevant. There is no clinching evidence with regard to the accurate amount of income of the deceased, therefore, the tribunal has rightly adopted the method of calculating the amount of compensation on the basis ofnotional income. The annual notional income was taken as Rs. 36,000/- and after deducting 1/3[rd] towards personal expenses of the deceased the total financial dependency of the claimants comes to Rs. 24,000/- per annum, which appears to be justified and does not require any interference.

12- The tribunal fell in error in adopting the multiplier of 13 in this case which is absolutely on higher side. The age of the parents of the deceased was 48 years and 44 years respectively at the time of accident, therefore, keeping in view the age of the parents of the deceased, the multiplier in any case, could not have travelled more than ‘9’. The 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, has clearly observed that multiplier is to be adopted after considering the age, income and other relevant facts. I am, therefore, of the view that after adopting the multiplier of ‘9’ the total amount of compensation comes to Rs. 24,000/- X9= Rs. 2,16,000/-. The tribunal further awarded sum of Rs. 2000/- towards funeral expenses and Rs. 2,500/- towards loss of estate, and in my opinion the same shall remain intact. Therefore, the total compensation comes to Rs. 2,16,000/-+ Rs. 2,000/-+ Rs. 2,500/-= Rs. 2,20,500/-.

13- It is further to be noted that the claimants have not arrayed the owner and insurer of the offending motorcycle as opposite party in the case. The claimants thus are not entitled to get the amount of compensation up-to an extent of 30%, which is on account of the reason of rash and negligence on the part of the

motorcycle driver, i.e. deceased Amardeep himself. Thus after deducting 30% from the total awarded amount, the compensation payable by New India Assurance Company comes to Rs. 1,54,350/-, rounded to Rs. 1,54,000/-.

14- Learned counsel for the respondent/insurance company has submitted that the driving license of the driver filed on record by the owner of the Wagon-R Car was fake license, as the same was not issued by the R.T.O., and the tribunal has failed to consider this aspect and committed an error by holding that the driver of the offending car was possessing valid and effective driving license.

15- I do not find any substance in the aforesaid argument advanced by the learned counsel for the insurance company. perusal of record reveals that paper No. 54-C, report of the R.T.O. Dehradun, clearly shows that driving license No. 9570/D/90, was issued in favour of Maqbool, driver of the offending Maruti Wagon-R. Copy of driving license has also been filed on record as paper No. 53-C. It seems that the learned counsel has misread the driving license No. 9520 in place of 9570, as has been mentioned on paper No. 53-C. The insurance company has produced D.W.1, Sundar Lal Pandey, Clerk from the office of the R.T.O. Dehradun, who has although stated in his deposition that D.L. No. 9520/D/90 was issued in the name of Birendra Dutt Bhatt, but this witness has also, at the same time, stated that the D.L. No. M-9570/D/90 was issued in the name of Maqbool S/o Mahmood on 15.11.90. Original copy of the driving license of Maqbool is available on record, which is paper No. 60-C and it reveals that the driving license was valid from 15.11.90 to 23.6.2009. This license was issued on 15.11.90. Therefore, now there is

no doubt left that the driver of the offending vehicle was having valid and effective driving license on the date of the accident. The learned Tribunal after scrutinizing the evidence on record has rightly come to the conclusion that the driver of the offending Maruti Wagon-R was possessing valid and effective driving license. I do not find any infirmity in the conclusion drawn by the tribunal. Therefore, the New India Assurance Company is liable to pay the amount of compensation on account of the rash and negligence on the part of driver of Maruti Wagon-R.

16- For the reasons stated above, I am of the view that the claimants are entitled to get sum of Rs. 1,54,000/- as compensation along with interest @ 6% per annum from the date of filing the claim petition till the date of actual payment from the New India Assurance Company, instead of Rs. 3,16,500/- as has been awarded by the tribunal.

17- Accordingly, the A.O. No. 452/2007 filed by the claimants for enhancement of the compensation is dismissed. The cross appeal filed by the New India Assurance Company is allowed. The impugned judgment and award is modified upto the extent that the claimants/appellants are entitled to get sum of Rs. 1,54,000/- as compensation from the New India Assurance Company along with the interest indicated in the impugned judgment and award by the tribunal, instead of Rs. 3,16,500/- as has been awarded by the tribunal.

(B.C. Kandpal, J.)

ISB