AO/243/2007 of SMT. UGARI DEVI AND OTHERS Vs KESAR SINGH AND OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT

NAINITAL.

A.O. No. 243/2007

Smt. Ugari Devi and others …. Appellants.

Versus Kesar Singh and others …….. Respondents. With

A.O. No. 242/2007

Jeet Singh

…. Appellant.

Versus

Kesar Singh and others …….. Respondents.

Sri Arvind vashist, learned counsel for the appellants/claimants. Sri Deepak Rawat, learned counsel for the Oriental Insurance Company/respondent.

None has appeared for other respondents in spite of service.

Hon’ble B.C. Kandpal, J.(Oral)

As both these appeals arise out against the same accident and common controversy is involved, hence, they are being decided by this common judgment.

2- A.O. No. 243/2007, has been preferred against the judgment and award dated 31.5.2006 passed by Motor Accident Claim Tribunal/District Judge, Dehradun, in MAC No. 167/2004, Smt. Ugari Devi and others Vs. Kesar Singh and others, in which the learned tribunal has awarded sum of Rs. 1,86,000/- as compensation along with interest @ 6% per annum from the date of filing the petition till the date of actual payment and cost of Rs. 4,000/- in lieu of death of Ram Singh in motor accident. The tribunal directed that the entire amount shall be payable by Oriental Insurance Company Ltd.

3- A.O. No. 242/2007, has been preferred against the judgment and award dated 31.5.2006 passed by Motor Accident Claim Tribunal/District Judge, Dehradun, in MAC No. 171/2004, Jeet Singh Vs. Kesar Singh and others, in which the learned tribunal has awarded sum

of Rs. 25,790/- as compensation along with interest @ 6% per annum from the date of filing the petition till the date of actual payment and cost of Rs. 4,000/- in lieu of injuries sustained by Jeet Singh in motor accident. The tribunal directed that the entire amount shall be payable by Oriental Insurance Company Ltd.

4- Brief facts of the case giving rise to these appeals are that on 16-5-2004 deceased Ram Singh along with his father Jeet Singh was carrying about 20 quintals of wheat in Truck No. U.A. 07/6815 from the fields to his house via Dehradun-Tyungi village road and when they reached near village Sainjh, it turned turtle due to rash and negligence of the driver resulting into injuries to Jeet Singh and Ram Singh. Ram Singh succumbed to the injuries. According to the claimants Ram Singh was 38 years of age and he was earning Rs. 9,000/- per month from the agricultural work as well as contractor of fruits etc.

5- Injured Jeet Singh was rushed to Doon Hospital, where he was medically examined and was discharged on 27.5.2004. Therefore separate claim petitions were filed for compensation for the death of Ram Singh and the injuries suffered by Jeet Singh.

6- Both the claim petitions were contested by the driver and owner opposite party Nos. 1 and 2 respectively by filing joint written statements. They alleged that the accident was the result of sudden brake failure. However, the vehicle in question was insured with Oriental Insurance Company and its driver was having valid and effective driving license.

7- The Oriental Insurance Company also contested the petitions and alleged that the deceased and the injured were gratuitous passengers in the truck. The driver was not having valid and effective driving license, therefore the insurance company cannot be held liable to pay the compensation.

8- The learned tribunal framed relevant issues in the claim petitions and perusing the entire evidence on record and hearing learned counsel for the parties the tribunal decreed the claim petitions against the Oriental Insurance Company.

9- Feeling aggrieved by the aforesaid judgment and awards the claimants have preferred these appeals for enhancement.

10- I have heard learned counsel for the claimants/appellants and the learned counsel for the Oriental Insurance Company /Respondent and perused the record. None has appeared on behalf of the other respondents in spite of sufficient service of the notices.

11- The common question to be decided in both the appeals is as to whether the deceased Ram Singh and his father injured Jeet were gratuitous passengers in the offending truck or not and the accident had occurred due to some mechanical defect or it was occurred due to rash and negligence of its driver. It is also to be decided whether the offending truck was insured with Oriental Insurance Company and its driver was having valid and effective driving license or not?.

12- So far as the factum of accident is concerned, the learned tribunal has discussed this point while deciding

issue No.1 in both the claim petitions. The case of the claimants is that the accident has occurred due to rash and negligence of the driver on the other hand the owner and driver have taken the plea that the accident had occurred due to mechanical defect. Jeet Singh an eyewitness who was travelling in the offending truck has been produced in the case. He has deposed that the driver was driving the truck rashly and negligently. From the side of opposite parties owner of the truck has been produced. This witness has not told about the mechanical failure in the truck and the plea taken by them in the written statement about mechanical failure in the truck remains disprove. The owner of the truck was not in the truck at the time of accident and conductor could have been fruitful witness to the opposite parties but he has not been produced. It has come in evidence that the truck fell down the road in field and turned turtle and this fact itself shows the negligence of the driver of the truck.

13- So far as the driving license of the driver of the offending truck is concerned, the surveyor of the insurance company in column No.5 of his report has noted that the driving license of Kesar Singh was verified and was found in order. Therefore the tribunal has rightly held that the driver was having valid and effective driving license.

14-On issue No.5 the learned tribunal has discussed the point of gratuitous passenger. Jeet Singh father of deceased Ram Singh has deposed on oath that he and his son Ram Singh were carrying wheat in the truck from their fields and they were travelling in the truck in the capacity of owner of the goods and they had paid the transporting charges of the wheat. D.W.1, Bhopal Datt

owner of the truck has admitted that his truck was booked for Rs. 50/- to transport the wheat. He also told that 20 quintals of wheat was loaded in his truck. The learned tribunal has discussed this point at great length and has arrived at the finding that the deceased Ram Singh and his father Jeet Singh were travelling in the offending truck in the capacity of owner of the goods and they were not gratuitous passengers. I do not find any infirmity in the conclusion drawn by the tribunal.

15- As far as the amount of compensation to be awarded in favour of the claimants in lieu of death of deceased Ram Singh in A.O. No. 243/2007 is concerned, the tribunal has discussed this point while deciding issue No.4, but the approach adopted by the trial court appears to be wrong, as the tribunal has taken the notional income of the deceased as Rs. 15,000/- per annum which is apparently on lower side, in view of the decision of Division Bench of this Court in A.O. No. 2 of 2005, Sobhan Singh and another vs. New India Insurance Company and another ( decided on 1.11.2006), and it should have been Rs. 36,000/- per annum due to price hike. Therefore, in case if the notional income of the deceased is assessed as Rs. 36,000/- per annum then after deducting 1/3[rd] towards personal expenses the total annual dependency of the claimants comes to Rs. 24,000/-. The tribunal again fell in error in adopting the multiplier of 17 in this case, which is on higher side. The age of the deceased on the date of the accident has been considered between 35-40 years, as no cogent and reliable evidence has been adduced so as to ascertain the accurate age of the deceased. I do not find any ground to interfere in the finding of the tribunal that the age of the deceased was between 35-40 years. Therefore, keeping in view the age of the deceased just and proper multiplier

to be adopted in this case in view of 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, would be ‘12’. After adopting the multiplier of 12 the total dependency of the claimants upon the deceased comes to Rs. 24,000/- X 12= Rs. 2,88,000/-. The tribunal also awarded sum of Rs. 2000/- towards funeral expenses, Rs. 2,000/- towards loss of estate and sum of Rs. 5,000/- towards loss of consortium and in my opinion the claimants are entitled to get these amounts also. The tribunal also awarded sum of Rs. 7,000/- towards cost of half share of wheat of the deceased and the same shall remain intact. Therefore the total compensation comes to Rs. 2,88,000/-+ Rs. 2,000/-+ Rs. 2000/-+ Rs. 5,000/- +Rs. 7,000/- = 3,04,000/-. The interest indicated in the impugned judgment and award shall remain intact.

16- So far as A.O. No. 242/2007, pertaining to the injured Jeet Singh is concerned, the tribunal has awarded sum of Rs. 3,750/- towards loss of earning for the period he remained under treatment and also awarded sum of Rs. 10,000/- towards medical expenses and further sum of Rs. 5,000/- under the head of pain and agony. The learned tribunal also awarded sum of Rs. 7,000/- towards loss of half share of wheat. I do not find any infirmity in the above finding recorded by the tribunal and the same does not require any interference.

17- For the reasons stated above A.O. No. 243/2007 is liable to be partly allowed and A.O. No. 242/2007 is liable to be dismissed.

18- Accordingly A.O. 243/2007 is partly allowed and the impugned judgment and award is modified upto the extent that the claimants are entitled to get sum of Rs. 3,04,000/- as compensation along with the interest and cost indicated in the impugned judgment and award instead of Rs.1,86,000/- as has been awarded by the tribunal.

19- The A.O. No. 242/2007 is dismissed.

20- Let copy of this judgment be placed in the file of A.O. No. 242/2007.

(B.C. Kandpal, J.)

Dated: 16-7-2009

ISB