Suman Devi v. Oriental Insurance Company Ltd.

Haridwar in M.A.C.T. Case No. 138 of 2003, Smt. Suman Devi & others Vs Bhagwati Prasad & others.

#2. Brief facts of the case are that on 07.10.2003 at about 12:45 a.m., the deceased Dalchand Suman was coming from Mathura Road on his motorcycle bearing registration No. DL35AB/4240. Suddenly, a bus bearing registration No. IPB/1276 which was being driving by its driver in a very rash and negligent manner hit the said motorcycle, due to which he sustained serious injures and died thereafter. According to the claim petition, the deceased was 38 years of age and used to earn Rs. 13,501/- per month as salary from Municipal Board, New Delhi (Junior Engineer). The claimants are the dependent upon the deceased. Therefore, they filed the claim petition before the Tribunal for a sum of Rs. 37,40,000/- as compensation.

#3. The opposite parties No. 1 and 2 contested the claim petition by filing their joint written statement before the Tribunal denying the accident occurred by the bus in 2 question. It has also pleaded that the claim petition was liable to be dismissed against the owner of the bus.

#4. The opposite party No. 3 (cid:150) Oriental Insurance Company Ltd. also contested the claim petition by filing its written statement before the Tribunal. It has alleged that the claimants did not make party, the owner of the motorcycle and Insurer of the motorcycle, therefore, the claim petition was liable to be dismissed for want of non-joinder of the parties. The accident took place due to negligence of the deceased himself, therefore, the claimants are not entitled to get any compensation. It has also pleaded that the accident took place in New Delhi, therefore, this court has no jurisdiction to hear the matter and the owner of the bus was also not having the valid papers relating to the bus. Therefore, the claim petition was liable to be dismissed against applicant/Oriental Insurance Company Ltd.

#5. 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 produced 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. 5,25,000/- as compensation vide judgment and award dated

21.05.2006.

#6. Feeling aggrieved by the aforesaid judgment and award, the appellants/claimants preferred this appeal before this Court for enhancing the amount of compensation. 3

#7. Heard Sri Parikshit Saini, learned counsel for the appellants, Sri K.K. Shah, learned counsel for the respondent No. 1 and perused the record.

#8. While deciding the issue No. 1, relating to the rash and negligent driving, the Tribunal relied upon the evidence available on record and held that the accident took place due to negligence of both the drivers. The Tribunal, on the basis of the evidence of the driver of the bus, who has admitted this fact that the motorcycle collided from the back of the bus, has held that the bus was parked on the side of the road without any indicator and the motorcycle collided to it. The Tribunal has further considered this aspect that the motorcyclist dashed the standing bus from behind and if the driver of motorcycle would have been driving the motorcycle in a slow speed, then the accident could have been avoided and he could see the standing bus in the light of the motorcycle. It shows that the motorcyclist was on the high speed and could not control the motorcycle and dashed with the standing bus from behind. The Tribunal has held that both the vehicles are equally responsible for the said accident. I am in total agreement with the finding with regard to the contributory negligence of both the vehicles.

#9. Learned counsel for the appellants has pressed this appeal only on the sole point that the Tribunal has not considered the monthly income of the deceased on the right footing. He has contended that the deceased was a Junior Engineer in Municipal Council, New Delhi and used to earn Rs. 13,703/- per month but the Tribunal has considered only Rs. 8,191/- as his monthly salary. Therefore, the amount awarded by the Tribunal appears to be quite unjustified. 4

#10. After hearing learned counsel for the appellant and going through the record, I am of the view that the Tribunal has rightly awarded the amount after considering the evidence available on record. From the perusal of paper No. 41C1, which is the salary receipt of the deceased, it reveals that the basic pay of the deceased on the date of accident was Rs. 6,725/-, D.A. was Rs. 3,968/- and it shows the deduction of Rs. 2,502/-. In this way, after deducting the above amount from the salary, the monthly income of the deceased comes to Rs. 8,191/- and the Tribunal considered it in a rounded figure of Rs. 8,200/- and the annual income comes to Rs. 98,400/-. After deducting 1/3rd towards personal expenses, the annual dependency comes to Rs. 65,600/-. The Tribunal after considering the age of the deceased as 38 years, adopted the multiplier of (cid:145)16(cid:146), which appears to be perfectly justified. After adopting the multiplier of (cid:145)16(cid:146), the amount of compensation comes to Rs. 10,49,600/-. As I have already discussed above, that the Tribunal has rightly held responsibility of both the vehicles in equal share, therefore, the responsibility to pay the compensation by each vehicle comes to Rs. 5,25,000/-. Thus, the total amount of compensation payable by the Insurance Company comes to Rs. 5,25,000/- along with interest @ 6% per annum from the date of filing the claim petition till the actual date of payment. I do not find any infirmity in the impugned judgment and award. The amount awarded by the Tribunal is perfectly justified which cannot require any interference at this stage.

#11. With the aforesaid observations, the appeal is dismissed. No order as to costs.

01.09.2008 ASWAL (B.C. Kandpal, J.)