AO/14/2007 of THE NEW INDIA ASSURANCE COL LTD Vs SMT. SHAKUNTLA DEVI and ORS

IN THE HIGH COURT OF UTTARAKHAND AT

NAINITAL.

A.O. No. 14/2007

The New India Assurance Company

Ltd. …. Appellant.

Versus

Smt. Shakuntla Devi and

others ……… Respondents.

Sri V.K. Kohli, learned Senior Advocate assisted by Sri T.C. Pandey, learned counsel for the appellant. Sri G.C. Kandpal, and Sri D.C.S. Rawat, learned counsel for Claimants/ respondents. Ms. Mamta Joshi, Advocate for respondent No.7, owner of the offending vehicle.

Hon’ble B.C. Kandpal, J. (Oral)

This appeal, under Section 173 of the Motor Vehicle Act, has been filed against the judgment and award dated 16-12-2006, passed by Motor Accident Claim Tribunal/ II Additional District Judge, Dehradun, in MACT Case No. 164/1997, Smt. Shakuntala and others Vs. Ajit Singh and others.

2- Brief facts of the case are that on 3-9-1997 at about 1.30 P.M. deceased Shiv Prasad Benjwal was coming to his house from his office situated at Saint Joseph Academy Crossing Subhash Road, Dehradun, suddenly Yamaha Motorcycle U.P. 07-B/0880 dashed him in rash and negligent manner due to which he sustained grievous injures and died. The deceased at the time of accident was 52 years of age and he was getting Rs. 11,170/- per month salary.

3- Opposite party no.1, owner of the offending motorcycle filed his written statement and alleged that his motorcycle was carried by some one without his consent and when he went at the police station then he

came to know about the accident. He also alleged that the motorcycle was insured with New India Assurance Company and the petition is liable to be dismissed against him.

4- Opposite party no.2, Shiv Prasad alleged that he was not driving the motorcycle at the time of accident. Neither he is owner of the said motorcycle nor he possessed driving license.

5- The opposite party no.3, New India Assurance Company alleged that opposite party no.1, Ajit Singh is the owner of the motorcycle and the said vehicle was insured with it. However, the motorcycle was not being plied by valid license-holder person and breach of condition of policy has been committed. Therefore the insurance company is not liable to pay the compensation.

6- The learned tribunal on the basis of pleadings of parties, framed relevant issues. Parties led evidence before the tribunal. 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. 9,42,504/- as compensation against the New India Assurance Company along with interest @ 6% per annum from the date of filing the petition till the date of actual payment.

7- Feeling aggrieved by the aforesaid judgment and award the insurance company has filed this appeal.

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

9- As far as the factum of accident is concerned, the learned tribunal has discussed this point on issue no.1 and found that the death of deceased Shiv Prasad Benjwal has occurred due to the motorcycle U.P. 07-B-0880. I do not find any ground to interfere with the above finding of the learned tribunal.

10- As regards the breach of condition of policy is concerned, the learned tribunal has discussed this point on issue no.7. The insurance company has admitted that the offending motorcycle was insured with it but the allegation of the insurance company is that the motorcycle was being plied by person who was not having driving license at the time of accident. On this point the assertion of the owner of the motorcycle is that his motorcycle was carried by some one from the College campus and he came to know about the accident from the police station where his motorcycle was standing. He has specifically denied that his motorcycle was being driving by opposite party no.2, Shiv Prasad Gurang. The insurance company could not adduce any cogent and reliable evidence before the tribunal that the motorcycle was being driven by person who was not holding valid and effective driving license. The learned tribunal also recorded finding that the motorcycle was not taken with the consent of the owner of the vehicle, hence the liability of the compensation is upon the insurer of the vehicle. The above finding of learned tribunal does not require interference.

11- As far as the quantum of compensation awarded by the tribunal is concerned, the tribunal has discussed this point on issue No.5. The learned tribunal has assessed the dependency of the claimants upon the deceased in right manner on the basis of salary slip, but the

approach of the tribunal in adopting the multiplier, appears to be erroneous. The deceased at the time of his death was 55 years of age, hence keeping in view the verdict 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, the multiplier could not have travelled more than 7 in any manner. Therefore, after adopting the multiplier of 7 the amount of compensation comes to Rs. 89,364/- X 7= Rs. 6,25,548/- as compensation. The amount awarded by the tribunal under other different head like Rs. 2,000/- towards funeral expenses , Rs. 2,500/- towards loss of estate, and Rs. 5,000/- towards loss of consortium shall remain intact. Therefore the total amount of compensation comes to Rs. 6,25,548/- + Rs. 2,000/-+ Rs. 2,500/-+ Rs. 5,000/-= Rs. 6,35,048/-. The rate of interest indicated in the impugned judgment shall also remain intact.

12- For the reasons stated above the appeal is liable to be partly allowed.

13- 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. 6,35,048/- as compensation payable by New India Assurance Company along with the interest indicated in the impugned judgment and award, instead of Rs. 9,42,504/- as has been awarded by the tribunal.

As the amount of compensation has reduced by this court, therefore, the apportionment of amount of compensation shall be as under:-

Rs. One lac each shall be payable to claimants Km. Swarnlata, Km. Ambika, Km. Arti, Master Rishi and

Master Saurav and rest amount shall be payable to Smt. Shakuntala Devi. The share of master Saurav, who is minor, shall be invested bank in fixed deposit in some nationalized bank till he attains the age of majority.

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

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