AO/508/2008 of NATIONAL INSURANCE COMPANY LTD Vs VIRENDRA PRATAP SINGH and OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT

NAINITAL.

A.O. No. 508 of 2008

National Insurance Company Ltd. .. Appellant.

Versus

Virendra Pratap Singh & others.. Respondents.

Sri D.S. Patni, learned counsel for the appellant. Sri G.C. Kandpal, Advocate for respondent Nos. 1 and 2. Ms. Sangeeta Bhardwaj holding brief of Sri H.C. Pande, learned counsel for respondent No.3, owner of the vehicle. None has appeared on behalf of respondent No.4.

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 24-10-2008, passed by Motor Accident Claims Tribunal/District Judge, Udham Singh Nagar, in MACT Case No. 240/2007, Birendra Pratap Singh and another Vs. Chandan Joshi and others.

2- Brief facts of the case giving rise to this appeal are that on 13-5-2007, the deceased Km. Usha was going to her house Lalkuan as pillion rider on Scooter No. UA-06- 2532. When they reached in front of Vikas Bhawan on Nainital Road Rudrapur, Tata Bus No. U.P. 02-C- 5224 which was coming from SIDCUL side in rash and negligent manner, dashed the Scooter from front side, due to which the scooter riders Ram Avtar and Km. Usha sustained grievous injuries. Both the injured were brought to Jawahar Lal Nehru Hospital, Rudrapur where Km. Usha succumbed to the injuries. At the time of her death Km. Usha was 18 years of age and she used to earn Rs. 3,000/- per month from the work of sewing, knitting and tuition work. The claimants are the parents of the deceased. The parents of the deceased have preferred claim petition for compensation.

3-The opposite party no.1, Chandan Joshi, owner of the offending bus filed his written statement and denied the allegations of the claim petition. He however alleged that bus was insured with National Insurance Company for the period 4.4.2007 to 3.4.2008. The driver of the bus had valid and effective driving license and the bus was having all the valid documents at the time of accident.

4-The opposite party no.2, driver of the bus in spite of sufficient service did not appear before the tribunal hence the petition was heard exparte against him.

5- The opposite party no.3, National Insurance Company also contested the claim petition and alleged that the scooterist had come in the middle of the road and the accident had occurred due to his own negligence. The insurance company also alleged that the scooter driver as well as the driver of the offending bus were not in possession of valid and effective driving license. Therefore the petition is liable to be dismissed against the insurer of the bus.

6- The learned tribunal on the basis of pleadings of parties framed relevant issues in the claim petition. Thereafter parties led 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. 3,96,000/- as compensation 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 come up in 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 tribunal has dealt with this point while deciding issue no.1. The allegation of the claimants is that due to the rashness of the driver of Bus No. U.P. 02-C-5224 the accident had occurred, as the Bus collided with the scooter in rash and negligent manner, on which the deceased was pillion rider and in the deceased Km. Usha sustained grievous injuries and succumbed to the injuries during the course of her treatment. To prove the accident P.W.3 Dhanesh Kumar Singh has been examined. He has deposed that at the time of accident he was returning to his home from Vikas Bhawan Rudrapur and he had seen that man and girl were travelling on scooter No. UA –06-2532 and they were going to Haldwani from Rudrapur side. Suddenly, Bus No. U.P. 02-C-5224 coming from Haldwani side, dashed with the scooter. The driver of the bus was driving the bus at high speed and in rash and negligent manner he had dashed the scooter. The F.I.R. of the accident has been lodged by Vinod Kumar in which the negligence on the part of Bus driver had been mentioned. The opposite parties did not adduce any evidence in rebuttal. Therefore, the learned tribunal was justified in holding the sole negligence on the part of the bus driver. Further the photo copy of the driving license of bus driver has been brought on record and from perusal of the same it is quite clear that the driver was possessing valid and effective driving license at the time of accident. Copy of insurance policy has also been filed on record and the same reveals that the insurance policy was effective at the time of accident. In the above facts and

circumstances of the case the insurance company has rightly been held liable to pay the amount of compensation.

10- So far as the quantum of compensation is concerned, the tribunal has assessed the notional income of the deceased, as the claimants could not adduce any cogent and reliable evidence to prove the income of the deceased. The tribunal has taken the notional income of Rs. 36,000/- and after deducting 1/3[rd] towards personal expenses, the net annual dependency of the claimants was assessed as Rs. 24,000/-. I do not find any infirmity in the manner the tribunal has assessed the notional income of the deceased. However, the tribunal has erred in adopting the multiplier of 16, which is certainly on higher side. The deceased was unmarried, therefore, the age of parents is to be taken into consideration for applying the multiplier. The age of the parents of the deceased was 38 and 34 years respectively, therefore, keeping in view the judgments rendered 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, in my opinion the multiplier in this case could not have travelled more than 12. Therefore, after adopting the multiplier of 12, the total dependency comes to Rs. 24,000/- X 12= Rs. 2,88,000/-. The tribunal also awarded sum of Rs. 2,000/- towards funeral expenses and sum of Rs. 10,000/- towards loss of love and affection and the same shall remain intact. In this way the total compensation comes to Rs. 2,88,000/-+Rs.2,000/- + Rs. 10,000/-= Rs. 3,00,000/-. The rate of interest awarded by the tribunal shall also remain intact.11- For the reasons recorded above the appeal is liable to be partly allowed.

12- 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. 3,00,000/- from National Insurance Company, along with interest indicated in the impugned judgment and award, instead of Rs. 3,96,000/- as has been awarded by the tribunal.

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

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

ISB