AO/379/2008 of SMT. DEVKI DEVI Vs ICICI, L.O.W.E.A.R.D. GENERAL INSURANCE CO. and ANR

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal from Order No. 379 of 2008

Smt. Devki Devi

…….Appellant

Vs. ICICI L.O.W.E.A.R.D General Insurance Co. and another

…….Respondents

Mr. Vijay Khanduri, Advocate for the appellant. Mr. Sarvesh Agarwal, Advocate for respondent no. 1 Mr. M.S. Bisht, Advocate for respondent no. 2.

Hon’ble Lok Pal Singh, J.(oral)

This appeal, is directed against the judgment and order dated 08.04.2008, passed by Motor Accident Claims Tribunal, Chamoli in Motor Accident Claim Case No. 9 of 2007, whereby the Tribunal has awarded ` 50,000/- as amount of compensation to the claimant.

2. Heard learned counsel for the parties, and perused the lower court record.

3. Brief facts, of the case, are that on 10.12.2006 at about 7:30 p.m., Trilok Singh (deceased) was going to Joshimath from Chamoli from the vehicle, bearing registration no. UA-11-0788. When he reached near Gadora Sambhav Ashram, Police Station Chamoli, the driver of the vehicle who allegedly was driving the vehicle rashly and negligently, as result of which the vehicle got crashed, and the deceased succumbed to the injuries. The post mortem of the deceased was conducted on 11.12.2006 at Government Hospital Gopeshwar. The mother of the deceased Smt. Devki Devi filed the claim petition against the respondents stating therein that due to rash and negligent driving of respondent no. 1, the accident occurred. She further averred that her son Trilok Singh (deceased) was engaged in business of hotel

and lodging and also earned ` 3,000/- from tuition and his total earning was ` 19,000/- per month.

4. The claim petition was contested by the insurance company and the owner of the vehicle and they filed their written statements. The owner of the vehicle pleaded that due to technical fault in the vehicle the alleged incident took place. He further contended that at the time of accident the vehicle was driven by the skilled driver having valid driving license. The insurance company did not deny the fact of rash and negligent driving, however, raised the plea that at the time of the accident the driver of the vehicle was not having the valid driving license and valid papers.

5. The claimant in support of her case filed the certified copy of the FIR, post mortem report and charge sheet submitted against the driver in regard to the plying the vehicle rashly and negligently.

6. On the basis of the pleadings of the parties, the trial court framed the following issues:-

(i) Whether on 10.12.2006 at about 7:30 p.m., driver of the vehicle bearing registration no. UA-11-0788 was driving the vehicle rashly and negligently and due to rash and negligent driving the accident was occurred at Gadora, Sabhav Ashram, P.S. Chamoli and due to the injuries sustained in the accident, Trilok Singh (deceased) died at the spot. If so, its effect?

(ii) Whether the alleged vehicle was not driven in accordance with the terms and condition of

insurance policy, as stated in the written statement of the Insurance company. If so, its effect?

(iii) Whether the claimant is entitled for any relief. If so, from whom?

7. None of the parties lead oral evidence in support of their case. On behalf of the claimant documentary evidence i.e. certified copy of the FIR and post mortem report of Trilok Singh has been filed. It has been mentioned in the charge sheet that the driver of the offending vehicle was driving the vehicle rashly and negligently, therefore documentary evidence was sufficient to arrive to the conclusion that the driver of the offending vehicle was at fault. Therefore, finding recorded by the tribunal on issue no. 1 is set aside. Issue no. 2 was framed to the effect that at the time of the accident, the vehicle was not plying with the valid papers and in accordance with insurance policy. The tribunal recorded its finding on issue no. 2 and held that at the time of the incident the driver of the offending vehicle was having the valid driving license and it was not plied against the condition of the policy and decided issue no. 2 in against the insurance company and same is affirmed.

8. The tribunal while recording its finding on issue no. 3 arrived to the conclusion that age of the claimant is about 66 to 67 years and assessed notional income of deceased ` 15,000/ per annum and awarded ` 50,000/- against respondent no. 1. I have gone through the impugned award and also evidence on record. The Tribunal has committed illegality in holding the notional income of the deceased as ` 15,000/- per annum and in awarding ` 50,000/- as compensation, which is meager

amount. In view of the judgment passed by this Court in Smt. Mayawati and others vs. New India Assurance Company Ltd. And another reported in 2006 (2) U.D. 657, the notional income of the deceased is to be assessed @ ` 36,000/- per annum. It would be just and proper to assess the notional income of deceased ` 36,000/- per annum. The Hon’ble Apex Court in the case of Amrit Bhanu Shali and others vs. National Insurance Co. Ltd. And others reported in 2012 (11) SCC 738 has laid down the principle of deduction for personal and living expenses. The relevant paragraphs

are reproduced below:-

15. The question relating to deduction for ‘personal and living expenses’ and selection of multiplier fell for consideration before this Court in the case of Sarla Verma (Smt) and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121. In the said case this Court taking into consideration the decisions in Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176; U.P. SRTC v. Trilok Chand, (1996)4 SCC 362; New India Assurance Co. Ltd. v. Charlie, (2005) 10 SCC 720 and Fakeerappa v. Karnataka Cement Pipe Factory, (2004) 2 SCC 473, held as follows:

“(i) Re Question – Deduction for personal and living expenses:

30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be 9 Page 10 one -third (1/3rd) where the number of dependent family members is 2 to 3, one fourth (1/4th) where the number of dependent family members is 4 to 6, and onefifth (1/5th) where the number of dependent family members exceeds six.

31. Where the deceased was bachelor and the claimants are the parents, the deduction follows different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have

his own income and will not be considered as dependant and the mother alone will be considered as dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.

32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in case where he has widowed mother and large number of younger non -earning sisters or brothers, his personal and living expenses may be restricted to one third and contribution to the family will be taken as two third.” (ii) Re Question Selection of multiplier42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative 1 Page 11 multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M17 for 26 to 30 years, M16 for 31 to 35 years, M 15 for 36 to 40 years, M14 for 41 to 45 years, and M13 for 46 to 50 years, then reduced by two units for every five years, that is, M11 for 51 to 55 years, M9 for 56 to 60 years, M7 for 61 to 65 years and M5 for 66 to 70 years.”

9. It is settled preposition of law that the multiplier is appropriate method of calculating peculiar loss and there should not be any departure from it or the multiplier should be used at the age of the deceased and not at the age of the dependants/parents.

10. At the time of the incident, the age of the deceased was 31 years. In view of the judgment of Hon’ble Apex Court (supra) it would be just and proper that multiplier of 17 should be applied. By deducting 50% of ` 36,000/- towards personal expenses of the deceased, the claimants’ dependency is assessed at ` 18,000/- per annum and is entitled to receive an amount of: 18,000X17= ` 306000/-. In view of the Judgment of Hon’ble Apex Court in Rajesh & others vs. Rajbir

Singh and others reported in (2013) 9SCC 54, the claimant is also entitled for ` 1,00,000/- towards love and affection and ` 25,000/- towards funeral expenses. In toto, the claimant is entitled for (306000+100000 +25000 = 4,31,000) an amount of ` 4,31,000 as compensation alongwith 9% interest from the date of filing of the claim petition till the date of realization.

11. The appeal is allowed with the direction to respondent no. 1 to pay ` 4,31,000/- as amount of compensation to the claimant with 9% interest thereon from the date the date of filing of the claim petition. If any of the amount has been paid by the insurance company in pursuant to the judgment and award dated 08.04.2008, same shall be deducted.

12. In the facts and circumstances of the case, parties shall bear their own cost.

13. Let lower court be sent back to the tribunal concerned.

Parul

(Lok Pal Singh, J.) 16.08.2017