Sulochna & Ors. v. Kuldeep Singh & Ors.

CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present Mr. Dheeraj Narula, Advocate, for the appellants. Mr. R.K.Bashamboo , Advocate, for respondent No.3-Insurance Company. VIJENDER SINGH MALIK, J. This is an appeal brought by the claimants, the dependents of the Shri Vinod Kumar, who died in a road side accident that took place on

10.8.2007, for enhancement of compensation, awarded in a sum of Rs. 11,07,612/- by the Motor Accidents Claims Tribunal, Fast Track Court, Sirsa (for short, "the Tribunal") vide award dated 9.5.2009. The claim petition brought by Smt. Sulochna has been decided together with the claim petition brought by Vijay Kumar, vide the aforesaid award. The facts of the claim petition brought under the provisions of section 166 of Motor Vehicles Act, 1988 (for short, "the Act") are as under: On 10.8.2007, Vijay Kumar alongwith his cousin brother, Vinod F.A.O. No.4731 of 2009 .. 2 Kumar, had gone to Shri Laxmi Narain Mandir, Ellenabad on a motorcycle bearing registration No. HR-44B/7096. At 4.00/4.15 p.m., they were returning from that place. The motorcycle at that time was driven by Vinod Kumar at a moderate speed and on his left side of the road. When they were near Reliance Petrol Pump and were crossing the road as there was construction work in progress, on the other side of the road, respondent No.1 driving Jeep bearing registration No. DL- 5CA/8004 came from the side of the petrol pump in a rash and negligent manner and had hit the motorcycle of the petitioner. Vinod Kumar and Vijay Kumar came down on the road and suffered injuries. Respondent no.1 managed to escape leaving his Jeep at the spot. Darshan Singh, who was following Vinod Kumar, had seen the accident and had brought Vijay Kumar and Vinod Kumar to Janta Hospital, Ellenabad. The family members of the victims had reached the hospital in the meanwhile and brought them to the hospital of Dr. Raj Kumar at Sirsa. The accident was reported to the Police Station, Ellenabad, where a case was registered against respondent No.1. However, Vinod Kumar died at Ludhiana due to the injuries suffered in the accident. The claim petitions have been resisted by the owner, driver and insurer of the offending Jeep. The accident is denied by respondents no.1 and 2 to have taken place due to rash and negligent driving of Jeep by respondent no.1. The same is, however, claimed to be an outcome of rash and negligent driving of motorcycle by Vinod Kumar. The offending Jeep is, however, claimed to be insured with respondent No.3. Respondent no.3, the insurer, has denied respondent No.1 to be holding a valid and effective driving licence at the time of accident. F.A.O. No.4731 of 2009 .. 3 The accident is denied to have occurred due to rash and negligent driving of motorcycle by Vinod Kumar himself. The liability to pay the compensation has been denied. On the pleadings of the parties, the following issues were framed by the Tribunal. I. Whether the accident in question had taken place on

10.8.2007 in the area of Reliance Petrol Pump, Ellenabad and the petitioner had received injuries in this accident on account of rash and negligent driving on the part of respondent No.1, while driving jeep No. DL5CA/8004 as alleged? OPP II. If issue No.1 is proved whether the petitioners are entitled to award compensation and if so how much and from whom? OPP III. whether the petitions are not maintainable in the present form? OPR IV. Whether the petitioners have got no cause of action to file the present petitions? OPR V. Whether the petitions are bad for non joinder and mis-joinder of necessary parties? OPR VI. Relief. Parties led their respective evidence. Hearing learned counsel representing them, learned Tribunal allowed the claim petitions and awarded a sum of Rs. 11,07,612/- as compensation on the death of Vinod Kumar to Smt. Salocha and other claimants Dissatisfied with the award, the present appeal has been brought by the appellants. F.A.O. No.4731 of 2009 .. 4 I have heard Mr. Dheeraj Narula, learned counsel for the appellants and Mr. R.K.Bashamboo, learned counsel for respondent No.3. I have gone through the record carefully. The award of the Tribunal has been assailed on the point of cut imposed by the Tribunal to the income of the deceased for taking out personal expenses of the deceased on himself. According to him, the claimants had been 5 in number and when the dependents of deceased are 4 to 6, the cut held applicable by Hon`ble Apex Court in Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another 2009 (3) RCR (Civil) 77 is 1/4th. He has submitted that learned Tribunal has applied the cut of 1/3rd to assess the dependency of the claimants. On the other hand, learned counsel for the respondent- insurer has submitted that the multiplier suitable in this case is of 17 instead of 18, which has been applied by the Tribunal. Learned Tribunal has taken the income of the deceased at Rs.7,200/- per month. He has also found the deceased to have lost his life at the age of 28 years. Hon`ble Apex Court in Smt. Sarla Verma's case (supra) has laid down a cut of 1/4th to be applicable to a case, where dependent family members of the deceased are 4 to 6 in number. In the very same judgment, the multiplier of 17 is suggested for the age group of 26 to 30 years. So, the award of the Tribunal suffers on both counts. The compensation is to be assessed by applying the cut of 1/4th on the F.A.O. No.4731 of 2009 .. 5 one hand and by reducing the multiplier to 17. Calculated in this manner, the annual dependency of the claimants comes to Rs.64,800/- and multiplying it by 17, it comes to Rs. 11,01,600/-. A sum of Rs. 35,812/- had been proved before the Tribunal as the expenses incurred in the treatment of the deceased and adding to it a sum of Rs. 10,000/- as compensation for loss of consortium, Rs. 5,000/- for loss of estate and Rs.5,000/- for funeral expenses, I find the claimants to be entitled to Rs. 11,57,412/- as compensation. Consequently, the appeal is allowed enhancing the compensation from Rs. 11,07,612/- to Rs. 11,57,412/-. The other terms regarding rate of interest and apportionment, as mentioned in the award of the Tribunal, shall remain the same. (VIJENDER SINGH MALIK) JUDGE November 2nd, 2011