High Court · 2013

Judgment

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Singie Bench: Hon'bie Shri Justice SanjayK. Agrawa! Misc. Aoiieal (Cl No. 1276 of 2009 Motl Ram @. Bhukhu Ram and Jhalendra Kumar Sonwani ai others & Misc. Appea! (Ci No. 1517 of200i Branch Manager, Assurance Company Limited, The Nevrf RESPONDENTS : Motilal @ Bhukhuram & others. : Shri Goutam Khetrapal, counsel for the claimants. Shri Dashrath Gupta, counse! !ndia insurance Co. Ltd. Shri Jitendra Gupta, counsel for Owner & driver for respondent/The New

1. Misc. Appea! (C) No. 1276/2009 filed by the c'almants and Misc. Appeal (C) No. 1517 of 2009, filed by the Nev/ India Assurance Company Limited Insurance Co. Ltd. are being disposed of by this commpn order as both the appeals arise out of same accident and are directed against the award dated 29 June, 2009 passed by Xlth Additional Motor Motor Accident Claims Tribunal (F.T.C.), Durg (For short, 'the Claims Tribunal') in ciaim case No. 104/2006. .2. As against the compensation of Rs. 19,57,000/'- clalmed by unfortunate parents and sister of deceased Mukesh Kumar, by filing application under Section 166 of the Motor Vehicles Act, 1988 (for c :n t ^.^.^^-^•^•^. ^ "'<» ""^•s "-•sas^'w:. s fe^gES>. 1 ^^ .-^1 ^sSf^ ] i ! short 'MV Act') for his death in the motor accident on 10.04.; the Tribuna! awarded a total sum of Rs. 1,37,000/- in favour of claimants as compensation along with interest @ 8 percent per annum from the date of appi'ication tlll its actual payment.

3. The Tribunat, on a close scrutiny ofthe evidence !ed, held that the accident had occurred due to rash and negligent driving ofTractor bearing reglsfration No. CG-04/ZQ/0960 and Trolley bearins reglstration No. CG-07-D/1117 by its driver Jhalendra Kumar Sonwani; Mukesh Kumar died on account ofthe injuries sustained by him in the said accident; Nsw India Assurance Company Limited liable for payment of compensation to the claimants as it could not estabiish vio!ation of policy conditions; and assessed and awarded aforesaid sum as compensation to the ctaimants.

4. Learned counsel appearing for the appellant/lnsurance Company in M.A. (C) No. 1517 /2009 would submit that the Tribunai fallen fastening liabitity appeilant/insurance company, inasmuch as, on the date of accident offending vehicle tractor-troltey was not insured with the Insurance Company as the cover note issued by the then Development Officer - Ashok Deshmukh was fake & forged. He wqyld submit that the d'sceased v/as sltting in the engine of the tractor and the--engine is not meant for sitting passenger end, therefore, no liability can be fastenec' upon ths appellant'insursnce Company. He wouid further submit that amount of compensation awarded by the Tribunal is just and proper compensation in the facts & circumstances of the case wllich does not call for any interference. '^ ... -. v^f^ ''•':•'.: .'y£^'w': <

5. On the other hand, learned counsel for the owner & driver of the vshicie would submit there is overwhelming evidence avaiiable on record to show that the then Development Officer Ashok Deshmukh had issued cover note covering the risk of offending vehicle on the date of accident and the finding recorded by the learned Claims Tribuna! fastening the liability of payment of compensation upon the insurance Company is based on material ind evidence available on record, which does not call for any interference in this appeal.

6. Shri Goutam Khetrapal, learned counsel for ihe claimants would submit that the deceased was working as a labourer and was earning Rs.25 per day and, therefore, the Tribunal has erred in assessing the income of the deceased as Rs.6,000/- per annum and thereby has failen in error in awardlng !ow amount of compensation of Rs.1,37,000/- which deserves to be suitably enhanced. According to him, the Tribunal should have assessed the income of deceased as Rs.30,000/- psr annum. He would further submit that the Tribuna! has further erred in deductlng 1/3 ofthe income ofthe deceased towards 1-i,1's personal expenses.

7. I have heard learned counsel appearing for the parties and perused the materlal availabie on record including award impygned.

8. First of all, ! shall proceed to decide the plea of Insurance Company that the cover note was not issued covering the risk of offending vshicle on the date of accldent. The Insurance Company '. has taken such a plea in the written statement [^evelopmenl: Officer - Ashok Deshmukh did not issue cover note the then "^'•>'?''. ~'^ g covering the ris.k of offendlng vehicle on the date of accident, and pursuant to which, the application was made to the Court under Section 45 of the Indian Evidence Act for examination of the said fact by hand wrifing expert. On 25.08.2007 Hand Writing Expert Dr. Ku. Sunanda Dheg (NAW-2) appeared in the Court and she took the photographs of the hand writing of the said officer of the Insurance Company and ultimately submitted her report on 14.9.2007 and, thereafter, she entered into witness box and subjected to cross examination and, ihereafter, on the application of Insurance the document was again re-examined by Ulhas Ahaley (NAW-4) and he also submitted the report and he was also to cross examination.

9. I have gone through the record and in particularly scanned the testimonies of both the hand writlng experts on the point of issuance of cover note covering the risk of vehicle and upon the ciose scrutiny of both the reports, 1 am of the considered opinion that the vehicie was du!y insured by the then Development Officer of the Insurance Company Shri Ashok Deshmukh covering the liability of payment of compensation on the date of accident and the finding so recorded by the Ciaims Tribunai that the offending vehicle was duly insured with the Insurance Company on the date of accident cannot be faulted with and finding in that regard Is hereby affirmed;

10. For the reasons mentioned hereinabove, the appeal (M.A. (C) No. 1517/2009) preferred by the New India Assurance Co. Ltd. dismissed.

11. • Now, I shati proceed to declde the ciaimants' claim petition. ^'

12. The income of the deceased assessed and accepted by the Claims Tribunal as Rs.750/- per month upon considering the evidence available on record and price index as prevai!ing in the year 2005 is on the lower side. Upon perusa! of the documents available on record, in my opinion, Rs.2,500/- per month and Rs.30,000/- per annum would be appropriate in the facts & circumstances of the case.

13. Deceased was a bachelor and claimants are parents and sister, therefore, in view of judgment of Supreme Court in case Sarla Verma ?Smt.i & others V. Delhi Transoort CorDoration and another , after deducting 50 percent of it (Rs. 30,000/-) towards his personal expenses, the claimants' annual dependency would be Rs.

14. In the opinion of this Court, looking to the age of parents of the deceased as 45 & 42 years at the time of accident, the multiplier of 14 would be appropriate in view of the dictum of Supreme Court In case of Sarla Verma (Smt.i ^supra) wherein the Supreme Court has prescribed ihe multiplier of 1 4 for the age group betv/een 41 to 47 years. Therefore, 1 propose to re-compute the amount of compensation by applying the multiplier of 14 in place of 17 as applied by the Tribuna! and by deducting 50% of the income of deceased towards his personal expenses. ^:

15. By multiplying the ciaimant's annual dependency of Rs.

15.000/- with the multiplier of 14, the amount of compensatlon on account of !oss of dependency would be Rs. 2,10,000/-. The c!aimants are further entitled for Rs. 10,QOO/- (Rs. 5000/- each < '2009(6)SCC121 towards funera! expenses and loss of estate), and thus, claimants would become entitle for Rs. 2,20,000/- as compensation in place of Rs. 1 ,37,000/- as awarded by the Tribunal.

16. Appeal (M.A. (C) No. 1276/2009) preferred by the claimants is a!lowed in part. The compensation of Rs. 1,37,0001- awarded by the Tribunefl is enhanced t6 Rs. 2,20,000/- i.e. Rs. 83,000/- over and above the amount of compensation awarded by the Tribunal- Enhanced amount of compensation of Rs. 83, OOO/- shall carry interest @ 8 percent per annum from the date of filing of claim petition. Rest ofthe conditions mentioned in the award shall remain intact. The award stands modified to the above extent. No order as to costs.

17. The respondent No. 3/The New india Insurance Company Limited is granted three months time to deposit enhanced amount of compensatlon of Rs.83,000/- along with interest before the concerned Claims Tribunal.

18. Copy of this order be piaced on record of M.A. (C) No. 1 517 of2009. Sanjay K. Agrawal Judee Dubey/-