AO/196/2014 of New India Assurance Company Limited Vs Smt Sunita Rawat AND OTHERS

IN THE HIGH COURT OF UTTARAKHANDAT NAINITAL

Appeal from Order No.196 of 2014

The New India Assurance Company Ltd.

……....Appellant

Smt. Sunita Rawat & Others ……..Respondents

Mr. V.K. Kohli, Senior Advocate assisted by Mr. I. P. Kohli, Advocate for the appellant. Mr. Siddhartha Singh, Advocate for the respondent Nos.1 & 2. Ms. Menka Tripathi, Advocate for the respondent No. 6.

Hon’ble Lok Pal Singh, J. (Oral)

Present appeal has been preferred by the appellant against the judgment and award dated 15.03.2014 passed by the Motor Accident Claim Tribunal/ 2[nd] Additional District Judge, Rishikesh, District Dehradun in M.A.C. No. 19 of 2013, Smt. Sunit Rawat and another vs. Sanjay Pal and others, whereby the tribunal has awarded sum of Rs. 21,84, 174/- in favour of the claimants along with interest thereon @ 9% per annum against the New India Assurance Company Ltd.

2. Brief facts of the case are that the claimants (respondent Nos.1 & 2 herein) filed claim petition before the Motor Accident Claim Tribunal, Rishikesh, District Dehradun with the averments that on 30.10.2012, the driver of the tractor No. UA-07-CC-1477, who was driving the tractor rashly and negligently, deceased who was driving the motorcycle, he was coming after fill petrol from India Oil, Shyampur Gadi petrol pump to Raiwala

and was on the left side of road, instantly tractor was coming from the front, dashed the motorcycle No. UA-07-R-4214 of deceased Anil Rawat as result of which the motorcyclist fell down and sustained serious injuries. He was taken to Government Hospital and admitted in emergency ward, after half an hour he was succumbed to the injuries. At the time of death he was aged 42 years and was doing own business, he was getting monthly income of Rs. 40,000/-

3. At the time of incident, the owner of the tractor was not having valid paper and the driver was not having valid driving licence.

4.On the basis of the rival pleadings of the parties, learned tribunal framed the following issues:-

1.Whether on 30.10.2012 at about 2:15 PM when motorcycle No. U.A.-07R-4214 fill petrol from India Oil, Shyampur Gadi petrol pump to Raiwala and was on the left side of road, instantly tractor No. U.K.-07CC-1477 was coming from the front, due to rash and negligent driving of the driver of tractor dashed the motorcycle of deceased and sustained serious injuries and died? when motorcycle No. U.A.-07R-4214 fill petrol from India Oil, Shyampur Gadi petrol pump to Raiwala and was on the left side of road, instantly tractor No. U.K.-07CC-1477 was coming from the front, due to rash and negligent driving of the driver of tractor dashed the motorcycle of deceased and sustained serious injuries and died?

2.Whether at the time of accident the Tractor No. U.K.-07CC-1477 was having valid paper? No. U.K.-07CC-1477 was having valid paper?

3.Whether at the time of accident the driver of the Tractor No. U.K.-07CC-1477 and Motorcycle No. U.A.-07R-4214 were having valid driving licence? the Tractor No. U.K.-07CC-1477 and Motorcycle No. U.A.-07R-4214 were having valid driving licence?

4.Whether the claimants are entitled for any claim? If so, how much and from whom? claim? If so, how much and from whom?

5. On behalf of the claimants copy of the FIR, post mortem report, Punchayat Nama of the deceased of Kumari Manju w/o deceased were filed. On behalf of the Claimants Sunita Rawat PW-1, Vinod Kaparuwan PW-2,

Kriti Sajwan WP-3 and Hukum Singh PW-4 were examined for the claimant.

6. On behalf of the respondent Sanjay Pal OPW-1 was examined.

7. The learned tribunal after hearing of the parties awarded amount of Rs. 21,84,174/- alongwith 9% interest from the date of filling the claim petition to till date.

8. Learned counsel for the appellant has submitted that the learned Tribunal has committed illegality in awarding amount of Rs. 25,000/- for funeral expenses, Rs. 1,00,000/- for loss of care and guidance to the minor children and Rs. 1,00,000/- for loss of consortium in view of the judgment of Hon’ble Apex Court in Rajesh & others vs. Rajbir Singh & others reported in (2013) 9 SCC 54.

9. Learned counsel for the appellant has vehemently argued that in view of the Five Judges Bench of the Hon’ble Apex Court delivered the judgment on31.10.2017 National Insurance Company Limited vs. Pranay Sethi and Ors.,the principle of law laid down in regard to the loss of estate, loss of consortium and funeral expense. The relevant part of the paragraph No. 54 of the judgment (supra), which is reproduced herein under:

“54……. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads.” sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads.”

10. The learned counsel for the applicant did not challenge the annual income and the multiplier used by the learned tribunal, he confined his submission that the Tribunal has committed illegality in awarding of Rs. 25,000/- towards funeral expenses, however it should be Rs. 15,000/- and awarding of Rs. 1,00,000/- towards loss of care and guidance to the minor children. Since the Hon’ble Apex Court in the judgment (supra) has held that there should not be an amount towards loss of care and guidance to the minor children and Rs. 1,00,000/- for loss of consortium instead of Rs. 40,000/-in view of the judgment (supra). The learned counsel for the respondents has also agreed that in view of the judgment (supra) the appellants/claimants are not entitled an amount of Rs. 1,00,000/- towards loss of guidance to the minor children and they also admitted the fact that in view of the judgment (supra) the amount awarded towards funeral expenses is liable to be reduced up to 15,000/- instead Rs. 25,000/-. He further argued that the 9% interest awarded is on higher side and further submitted that the interest ought to be 8% as prevailing market rate of interest.11. In view of the arguments advanced by the learned counsel for the parties and in view of the judgment of the Hon’ble Apex Court has rendered in this Case. The amount awarded in favour of the claimants is modified as follows:-

1.Loss of consortium- Rs. 40,000/- instead of Rs. 1,00,00/-

2.Funeral expenses - Rs. 15,000/- instead of Rs. 25,000/-

In this way, the compensation and damages have to

be reassessed as follows:

12. In view of the interim order passed by this Court the entire amount has awarded by the tribunal was deposited before the tribunal concerned, including statutory amount deposited before this Court, the statutory amount deposited before this Court be remitted tribunal concerned. Out of the total amount 50% amount be released in favour of the claimants. The claimants shall be paid the remaining amount as per the judgment passed by this Court along with 8% interest from the date of filing the claim petition. The remaining amount ‘if any’ shall be returned to the appellant. 13. The appeal is partly allowed and award is modified as above.

14. Let the LCR be sent back to the concerned Tribunal. Considering the facts and circumstances of the case the parties shall bear their own costs.

balwant

(Lok Pal Singh, J.) 14.05.2018