Smt. Prema Devi v. Rajat Sharan

No. 28 of 2004, Smt. Prema Devi & others Vs Rajat Sharan & another.

Brief facts of the case are that on 04.09.2004 at about 03:40 p.m., Surat Ram Bhatt (deceased) was driving Tata Indica No. UA09/2233 and was going from Rishikesh to New Tehri. When he reached near Chamba, Village Than, the said vehicle met with an accident due to technical failure. According to the claim petition, on the date of accident, the deceased was 38 years of age and used to earn Rs. 5,000/- per month. The deceased was the only bread earner of the family. Therefore, they have filed the claim petition before the Tribunal for a sum of Rs. 13,52,000/- as compensation.

Thereafter notices were issued to the opposite parties. In spite of sufficient service, upon the owner of the vehicle, he could not appear before the Court below, therefore, 2 the Tribunal proceeded against him ex-parte. The Insurer of the vehicle (cid:150) Iffco Tokio contested the claim petition by filing its written statement before the Tribunal stating therein that the claimants have not produced any documents pertaining to the age as well as of the income of the deceased on the date of accident, therefore, the claim petition against the insurer was liable to be dismissed.

On the basis of the pleadings of the parties, the Tribunal has framed relevant issues, which were discussed in a great detail. Thereafter, both the parties led evidence in support of their case. After hearing learned counsel for the parties and perusing the entire material available on record, the Tribunal decreed the claim petition for a sum of Rs. 1,82,000/- along with interest @ 6% per annum from the date of impleading the Insurance Company i.e. 18.10.2006 till the actual date of payment vide judgment and award dated

30.06.2007.

Feeling aggrieved by the aforesaid judgment and award, the claimants/appellants have preferred this appeal before this Court for enhancement of the amount of compensation.

Heard Sri B.S. Negi, learned counsel for the appellants, Sri H.C. Pandey, learned counsel respondent No. 2 and perused the record.

From the perusal of the record, it reveals that the Tribunal decided the issue No. 1 relating to the rash and negligence driving. The Tribunal while deciding this issue taking into account the statement of the witnesses as well as there is nothing on record, which may show that the deceased 3 was driving the car in a very rash and negligent manner. Shakti Prasad Semwal (P.W.3), who was the actual witness of the accident has stated that on the date of accident, he was coming from Uttarkashi to Rishikesh. At about 03:30 p.m., the said car was going in front of his bus, when they reached near Village Than, the said car met with an accident. The Tribunal relied upon the statement of this witness, who has nowhere indicate that the said car was on the high speed. I am in total agreement with the findings recorded by the Tribunal in this regard. The Tribunal considering the evidence available on record has rightly held that the accident took place due to technical failure.

The Tribunal decided the issue Nos. 2 and 4 together, as both the issues related to each other. The Tribunal considered the paper No. 41C, which is a cover note of the policy, which reveals that the vehicle in question was insured with the Iffco Tokio from 21.04.2004 upto 20.04.2005 and the accident in this case took place on 04.09.2004. Therefore, on the basis of this document, the Tribunal has held that the vehicle in question was insured with the Iffco Tokio on the date of accident. The findings recorded by the Tribunal is absolutely just and proper.

Learned counsel for the appellants has submitted that the Tribunal while calculating the income of the deceased has considered the notional income of the deceased as Rs. 15,000/- per annum and the Tribunal has committed error by not taking into consideration the notional income of the deceased as Rs. 36,000/- per annum. Therefore, the amount of compensation is liable to be enhanced. 4

As far as the amount of compensation to be awarded in favour of the claimants is concerned, the Tribunal has discussed this point while deciding the issue No. 3. The approach adopted by the Tribunal in adopting the multiplier as well as taking into consideration the notional income of the deceased appears to be wrong. The deceased at the time of the accident was 38 years, therefore, keeping in view the age of the deceased as well as in the light of the judgment of the Hon(cid:146)ble Apex court in The New India Assurance Company Ltd. Vs Smt. Kalpana & others reported in (2007) 2 Supreme Court Cases (Cri) 94, T.N. State Transport Corporation Vs S. Rajapriya & others reported in (2005) 6 SCC 276 and The Managing Director, TNSTC Vs Sripriya & others reported in 2007 (5) Supreme 301 in the instant case, the multiplier cannot travel more than (cid:145)11(cid:146) in any case.

The Tribunal adopted the formula of notional income, but while applying the principle of notional income, the trial court fixed the notional income of the deceased as Rs. 15,000/- per annum, which appears to be certainly on lesser side. The accident took place in the year 2005 and in view of the Division Bench of this Court in Appeal No. 02 of 2005, Shobhan Singh & another Vs New India Insurance Company Ltd. & another decided on 01.11.2006 has considered the notional income of the deceased as Rs. 36,000/- per annum due to price hike. Hence, in this case the suitable amount of notional income shall be taken as Rs. 36,000/- per annum and after deducting 1/3rd as personal income of the deceased, the financial dependency of the claimants should be assessed as Rs. 24,000/- per annum. After adopting the multiplier of (cid:145)11(cid:146) on the financial dependency of the claimants, it comes to Rs. 2,64,000/- (24000 X 11). The amount awarded by the Tribunal under the 5 head of funeral expenses for a sum of Rs. 2,000/- shall remain intact. However, the claimants shall not get the amount of Rs. 20,000/- for pain and suffering and loss of love and affection.

On the basis of the aforesaid discussion, the claimants are entitled for a sum of Rs. 2,66,000/- instead of Rs. 1,82,000/- along with interest @ 6% per annum from the date of filing the claim petition till the actual date of payment.