AO/314/2008 of NATIONAL INSURANCE CO. LTD Vs SMT. GANGA JOSHI AND OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL.

A.O. No. 314 of 2008

National Insurance Company Ltd. … Appellant.

Versus

Smt. Ganga Joshi & others ……. Respondents.

Mr. D.S. Patni, learned counsel for the appellant. Mr. P.S. Rawat, learned counsel for the claimants/respondents.

Dated: 09-06-2009

Hon’ble B.C. Kandpal, J.

This appeal U/S 173 of the Motor Vehicle Act, has been filed by the insurer of the offending Tractor against the judgment and award dated 14-5-2008, passed by Motor Accident Claims Tribunal/Addl. District Judge/ F.T.C.-I, Haldwani, District Nainital, in MACT Case No. 196 of 2007, Smt. Ganga Joshi and another Vs. Sri Chandra Prakash and others.

2- Brief facts of the case are that on 14.6.2007, Mohan Chandra Joshi, was walking on Gola Road Jairam village at about 6.30 A.M. Tractor, bearing No. U.A. 04-C/6458 coming from Halduchaur to Gola, dashed Mohan Chandra Joshi in which he sustained grievous injuries. He was admitted in Soban Singh Jeena Hospital Haldwani where he was referred to higher center. Hence he was carried to Bareilly Sidhi Binayak Hospital where he succumbed to the injuries. The deceased was posted in P.A.C./R.T.C. Moradabad and he was getting Rs. 6,155/- per month salary.

3- The opposite parties Nos. 1 and 2 contested the petition denying the allegations of the petition. They also denied the accident by the Tractor in question. They

further alleged that the tractor was having valid insurance and it was being driven by person having valid and effective driving license.

4- The opposite party no.4, National Insurance Company also contested the claim petition and denied the averments mentioned in the claim petition. The insurance company alleged that the claim petition has been filed on wrong facts. It also alleged that the insurance company can be liable only when it is proved that the vehicle was having valid documents and its driver was possessing valid driving license and there was no breach of conditions of insurance policy.

5- The learned tribunal on the pleadings of parties, framed relevant issues.

6- Thereafter parties adduced evidence in support of their case. The tribunal after hearing learned counsel for the parties and perusing the entire evidence on record, decreed the claim petition for sum of Rs. 7,18,600/- along with interest @ 7% per annum from the date of filing the petition till the date of actual payment, against the National Insurance Company.

7- Feeling aggrieved the National Insurance Company has filed this appeal before this court.

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

9- So far as the factum of accident is concerned, the learned tribunal has discussed this point on issue No. 1. P.W.2, Ramesh Chandra Andola has been produced as an eyewitness of the accident. This witness

has deposed that in the month of June, 2007, the deceased has visited his home. On 14.6.2007 the deceased was returning from morning walk and when he reached near Gola Road Jai Ram village Halduchaur at about 6.30 A.M. tractor No. U.A. 04-C/ 6458 dashed him in rash and negligent manner. Copies of F.I.R. and charge sheet filed against the driver of the offending tractor have been filed on record. In view of above evidence on record the learned tribunal was justified in holding that the accident has occurred due to the negligence of driver of offending tractor.

10- The driver of the tractor in question also filed insurance cover note, registration driving license etc which were found to be valid and effective by the learned tribunal, hence the insurer has rightly be held liable to pay the compensation.

11- As far as the quantum of compensation is concerned, the tribunal has recorded finding that the deceased was posted as cook in 24[th] Battalion of P.A.C./R.T.C. Moradabad and he was getting Rs. 6,155/- per month salary. Salary certificate paper No. 20-C/2 has been filed on record. The tribunal fell in error while assessing the monthly salary of Rs. 6,155/-. In my opinion for purposes of calculating the dependency of the claimants upon the deceased the salary should have been counted as Rs. 5,655/-( deducting Rs. 500/- for nutritive diet). Therefore, the annual dependency comes to Rs. 67,860/- per annum and after deducting 1/3[rd]towards personal expenses the total annual dependency comes to Rs. 45,240/-. The tribunal has adopted the multiplier of 17, which is certainly on higher side 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 the instant case in the light of the age of the deceased, which was 34 years at the time of accident, could not have travelled more than 13 and after adopting the multiplier of 13 the total dependency of the claims comes to Rs. 45240/- X 13= Rs. 5,88,120/-. The amounts awarded by the tribunal under other different heads also appear to be unreasonable. The claimants are entitled for sum of Rs. 5,000/- for the expenses to transport the dead body from Bareilly to Bageshwar as well as its funeral. The claimants are also entitled for sum of Rs. 5,000/- for loss of company. They are further entitled for sum of Rs.5,000/- for loss of love and affection.

12- On the basis of the aforesaid discussion the amount of compensation to be awarded in favour of the claimants comes to Rs. 5,88,120/-+ Rs.5,000/-+ Rs.5,000/-+ Rs. 5,000/-= Rs. 6,03,120/-.

13- The tribunal has again fell in error in awarding the interest on the amount of compensation @ 7% per annum from the date of filing the petition till the date of actual payment. In view of the current interest being given by the banks, the rate of interest should 6% per annum instead of 7% as has been awarded by the tribunal.

14- 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. 6,03,120/- along with interest @ 6% per annum from the date of filing the petition till the date of actual payment

(instead of Rs. 7,18,600/- along with interest @ 7% per annum, as has been awarded by the tribunal).

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

ISB

(B.C. Kandpal, J.)