New India Assurance Co. Ltd. vs Legal Heirs and Representative of Deceased Dinesh Oghadbhai and Others

Bhaskar Bhattacharya, C.J.—This First Appeal is at the instance of insurance company and is directed against an award dated November 1, 2004 passed by the Motor Accident Claims Tribunal (Aux.), Surendranagar in MAC Petition No. 38 of 1996 thereby awarding a sum of Rs. 6,10,000/- for the death of the victim with interest at the rate of 9% per annum from the date of filing of the application till actual realisation. Being dissatisfied, the insurance company has come up with the present First Appeal.

It appears from record that the deceased while he was travelling on a Suzuki motor bike owned by him met with an accident with a truck coming from opposite direction, as a result, he died on the way to hospital. The victim died leaving four minor children, a widow and the parents. The claimants, therefore, prayed for compensation of Rs. 6 lakh.

In spite of service of notice, neither the owner of the offending truck nor the driver thereof appeared or filed any written statement. However, the insurer of the truck after taking leave u/s 170 of the Motor Vehicles Act contested the proceeding. According to the insurance company, the victim was negligent in driving and as such, was not entitled to get any compensation. The age of the victim, as claimed in the application, was also disputed.

The learned Tribunal below, on consideration of the materials on record, came to the conclusion that the victim was more than 35 years of age, though it was claimed that he was 30 years of age. Regarding the income of the victim, the Tribunal held that the victim being a professional driver of heavy motor vehicle, his income should be treated to be Rs. 2500/- a month. Thereafter, the Tribunal proceeded to apply the principle which is in conformity with the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, and arrived at a figure of Rs. 5,40,000/-. In addition to the said amount, the Tribunal added further Rs. 70,000/- as conventional expenses and arrived at a figure of Rs. 6,10,000/-.

Mr. Shah, the learned advocate appearing on behalf of the insurance company has strenuously contended before me that in the facts of the present case, the Tribunal should have held that the victim had also contributory negligence in the accident inasmuch as the panchnama produced in the court below indicated that the accident occurred almost at the middle of the road. Mr. Shah further submits that the complainant who was a pillion rider in the motor cycle should have been examined to show that the victim was not negligent at all.

So far the aspect of negligence is concerned, it appears that the driver of the offending vehicle has been made opponent No. 1. In spite of service, he did not contest the proceeding denying the allegation of negligence. Even he did not appear in the witness box on behalf of the insurance company. The insurance company in spite of taking leave u/s 170, for the reason best known to it, did not examine the driver of the offending vehicle. In such circumstances, in my opinion, the Tribunal was quite justified in concluding 100% negligence of the offending vehicle when such driver is afraid of facing cross-examination by the claimants regarding his negligence and more so, when no other definite evidence of any eyewitness is available showing that he was not negligent. I, thus, find no reason to interfere with the finding of negligence arrived by the Tribunal.

The next question is, whether the Tribunal was justified in holding that the victim had income of Rs. 2500/- a month and additional agricultural income.

In my opinion, the income of Rs. 2500/- a month cannot be disbelieved after taking into consideration the fact that the victim had a wife and four minor children to maintain and, at the same time, he was also owner of a Suzuki motor cycle. There is no suggestion given to the widow of the victim that the victim was not the owner of the said Suzuki motor cycle. In such circumstances, I propose to treat the income of the victim to be Rs. 2500/- a month.

As regards the age of the victim, it has appeared from the certificate produced by the claimants that his date of birth was in the month of November 1959 and the accident occurred in the month of November 1995. Therefore, he was aged 36 years at the time of accident. Such being the position, in terms of the decision of the Supreme Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, applicable multiplier is 15 and the Tribunal below also applied multiplier of 15. For the purpose of taking into consideration the future prospects, in my opinion, one-fifth should be deducted from the monthly income and half of the monthly income should be added and the amount will come to Rs. 3000/- which is equivalent to Rs. 36,000/- per annum. By applying multiplier of 15, the amount will come to Rs. 5,40,000/-. Further, following the principle laid down in the case of Sarla Verma vs. Delhi Transport Corporation & Anr. (supra) further Rs. 25,000/- should be added to the aforesaid amount and thus, the amount will come to Rs. 5,65,000/- instead of Rs. 6,10,000/- arrived at by the Tribunal below.

It, however, appears that the Tribunal granted interest at the rate of 9% per annum. Having regard to the fact that the accident occurred in the year 1995, in my opinion, the rate of interest should be 12% per annum from the date of filing of the application till December 31, 1999 and thereafter, at the rate of 9% per annum till realisation.

Thus, although I reduce the amount of compensation to Rs. 5,65,000/- instead of Rs. 6,10,000/-, I grant interest at the above rate.

Since the claimants have not preferred any appeal but it is the insurance company which has preferred appeal, if on the basis of calculation of interest granted by this Court on the reduced amount of Rs. 5,65,000/-, the total amount exceeds the amount which will be payable on the basis of the award impugned, such additional amount need not be paid by the insurance company. If it is less than the amount, such amount should be refunded to the insurance company.

The appeal, thus, stands disposed of in the above terms. Let the lower court record be sent down to the Tribunal immediately.