AO/551/2007 of UNITED INDIA INSURANCE CO. LTD. Vs SMT. GUDDI DEVI AND OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL.

A.O. No. 551/2007

United India Insurance Company Ltd. .. Appellant.

Versus

Smt. Guddi Devi and others

…….. Respondents.

With

A.O. No. 108/2008

Smt. Guddi Devi and others

.. Appellants.

Versus

Sultan Singh Kanderi and another .. Respondents.

Sri Pankaj Purohit, learned counsel for United India Insurance Co. Ltd. Sri Yogesh Pacholia, learned counsel for the claimants. Sri R.P. Nautiyal, learned counsel for respondent/owner of the vehicle.

Hon’ble B.C. Kandpal, J.(Oral)

Both these appeals arise out against the same judgment, dated 4-9-2007, passed by Motor Accident Claim Tribunal/District Judge Chamoli, in MACT Case No. 33/2006 Smt. Guddi Devi and others Vs. Sultan Singh and another, hence, they are being decided by this common judgment.

2- Brief facts of the case are that deceased Jai Lal purchased mule from one Mohd. Liyakat from Govind Ghat District Chamoli. On 16-7-2006 he booked Truck No. UA-07R-8113 to transport the mule to his village Nandprayag. At about 3.30 P.M. when the said truck along with the mule and Jai Lal reached near Vishnu Prayag bridge on Rishikesh- Badrinath Motor Marg, it met with an accident due to the rash and negligence of the driver due to which Jai Lal as well as his mule died at the spot. The deceased at the time of accident was 36 years of age and he used to earn Rs. 10,000/- per month by transporting the goods through mule and the

agricultural work. The claimants filed claim petition for compensation in lieu of death of Jai Lal.

3- Opposite party No.1, owner of the offending truck contested the claim petition by filing written statement and alleged that the accident took place due to some mechanical defect in the truck. He however alleged that truck was insured with United India Insurance Company and it was being plied by valid license holder driver.

4- The opposite party no.2, United India Insurance Company filed its written statement denying the facts mentioned in the claim petition. The insurance company alleged that the truck in question was not having valid documents and it was being plied against the terms of insurance policy, as it was carrying large number of passengers in it and four of them have died at the spot and three were injured.

5- On the pleadings of parties, the learned tribunal has framed the following issues in the claim petition:-

1- Whether on 16-7-2006 at about 3.30 P.M. the truck No. UA –07-R-8113 met with accident due to the rash and negligence of its driver near Vishnu Prayag bridge on Rishikesh-Badrinath Motor Road, within P.S. Joshimath, in which Jai Lal had died? If so, its effect?. truck No. UA –07-R-8113 met with accident due to the rash and negligence of its driver near Vishnu Prayag bridge on Rishikesh-Badrinath Motor Road, within P.S. Joshimath, in which Jai Lal had died? If so, its effect?.

2- Whether the vehicle involved in accident was not being driven in terms of insurance policy, as alleged by opposite party no.2 in its written statement? If so, its effect?. being driven in terms of insurance policy, as alleged by opposite party no.2 in its written statement? If so, its effect?.

3- To what relief, if any, the claimants are entitled to get and from whom and how much?. to get and from whom and how much?.

6- Parties adduced evidence in support of their cases. Thereafter the learned tribunal on hearing learned counsel for the parties and considering the entire material available on record, decreed the claim petition for sum of Rs. 1,59,500/- as compensation against the United India Insurance Company along with interest @ 5% per annum from the date of filing the petition till the date of actual payment.

7- Feeling aggrieved the Insurance Company has preferred A.O. No. 551/2007 and the claimants filed A.O. No. 108/2008 for enhancement.

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. According to the claimants on 16-7-2006 deceased Jai Lal booked truck No. U.A. 07-R-8113 for transporting his mule from Govind Ghat to his village Nandprayag and when he reached near Vishnu Prayag bridge, the truck met with accident due to the rash and negligence of the truck driver, in which the mule and Jai Lal died at the spot. The opposite party No.1, owner of the truck has admitted the death of Jai Lal in the accident. P.W.1, Smt. Guddi Devi in her affidavit has deposed that the accident had occurred due to rash and negligence of the truck driver. D.W.1, Sultan Singh owner of the offending truck and D.W.2, Rakesh Lal have deposed that the accident had occurred due to some mechanical defect but they have not adduced any cogent and reliable evidence in this regard. It has not come in evidence as to whether the technical inspection of the truck had been done or not. The accident itself tells the rash and negligence on

the part of the driver. On the basis of evidence available on record I am in total agreement with the conclusion drawn by the tribunal that the accident has occurred due to the rash and negligence of the driver.

10- On issue No.2, the learned tribunal has given finding that at the time of accident the offending truck was insured with United India Insurance Company; its driver was having valid and effective driving license and the deceased Jai Lal was travelling in the truck as bonafide passenger in the capacity of owner of the mule. Photocopies of insurance cover note, driving license, permit, registration etc have been filed on record. On the basis of above documents on record the learned tribunal was justified in recording finding that the offending truck at the time of accident was insured with United India Insurance Company and it has valid documents and the driver was also having valid and effective driving license. Further, paper No. 40-C is the receipt of booking of the truck by Jai Lal. P.W.2, Liyakat Ali has deposed that the deceased Jai Lal had purchased mule and he was carrying the mule in Truck No. UA –07R-8113 on booking. In view of above evidence on record it is quite clear that Jai Lal was travelling in the offending truck as owner of mule and the insurance company is liable to pay compensation for his death, as he was bonafide occupants in the said truck.

11- As far as the amount of compensation to be awarded in favour of claimants is concerned, the tribunal while deciding issue No. 3 has discussed this point, but the approach adopted by the tribunal in this regard appears to be erroneous. The accident in this case took place on 6-7-2006 and 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 due to price hike the notional income should been assessed as Rs. 36,000/- per annum. The tribunal has assessed the notional income of Rs. 15,000/- per annum which is certainly on lower side. Therefore after deducting 1/3[rd]towards the personal expenses of the deceased the dependency of the claimants comes to Rs. 24,000/- per annum. The age of the deceased at the time of accident was 36 years. The tribunal again fell in error in adopting the multiplier of 15 in this case which is on higher side view of the ratio propounded 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. I think that just and proper multiplier in this case to be adopted, specially in the light of the age of the deceased, would be 13 and after adopting the multiplier of 13, the amount of compensation comes to Rs. 24,000/- X 13 = Rs. 3,12,000/-. The amount awarded by the tribunal under other different heads as Rs. 2,000/- towards funeral expenses; Rs. 2,500/- towards loss of estate and Rs. 5,000/- towards loss of company of the husband to the widow are concerned, the same shall remain intact. In this way the total compensation comes to Rs. 3,12,000/- + Rs. 2,000/- + Rs. 2,500/- + Rs. 5,000/- = Rs. 3,21,500/-. The rate of interest indicated in the impugned award shall remain intact.

12- For the reasons recorded above, A.O. No. 108/2008 filed by the claimants for enhancement is liable to be partly allowed and the A.O. No. 551/2007, filed by the Insurance Company is liable to be dismissed.

13- Accordingly the A.O. No. 108/2008, is partly allowed. The impugned judgment and award is modified up-to the extent that the claimants are entitled to get sum of Rs. 3,21,500/- as compensation from the United India Insurance Company along with interest indicated in the impugned award instead of Rs. 1,59,500/- as has been awarded by the tribunal.

As the amount of compensation has been enhanced in this appeal, hence the apportionment of the same shall be as under:-

Rs. 70,000/- each shall be deposited in fixed deposit in the names of claimants 2, 3 and 4 instead of Rs. 25,000/- and Rs. 25,000/- shall be payable to the mother of the deceased instead of Rs. 15,000/-, as has been directed by the tribunal, and the rest amount along with interest shall be payable to claimant Smt. Guddi Devi for herself as well as for the maintenance of the children.

14- A.O. No. 551/2007 is hereby dismissed.

15- Let the statutory amount deposited by the insurance company before this court, be remitted to the tribunal concerned.

16- Let copy of this judgment be placed in the file of A.O. No. 108/2008.

Dated:13-7-2009ISB

( B.C. Kandpal, J.)