New India Assurance Company vs Asha Devi & Others

Sudhanshu Dhulia, J

This appeal has been filed by the New India Assurance Company against the judgment and order dated 15.03.2017 passed by the Motor Accident Claims Tribunal/IInd Additional District Judge, Rudrapur, Udham Singh Nagar in MACP No.35 of 2015 whereby a compensation of Rs.20,81,500/- (Rupees Twenty Lakh Eighty One Thousand Five Hundred Only) has been awarded to the claimants.

Brief facts of the case are that on 18.07.2014, one Virendra Singh (deceased) who was 39 year of age at the relevant time was going on his motorcycle from Maharana Pratap Chowk, Kashipur to his house at Subhash Nagar. On the motorcycle, the son of the deceased, namely, Anshul was also sitting as pillion rider. It is alleged that when they reached near "Sethi Petrol Pump", at about 2:30 PM, a white Santro car bearing registration no.UK-06U-8026 which was being driven rashly and negligently by its driver dashed the motorcycle from the wrong side, as a result of which the deceased sustained grievous injuries and ultimately passed away on 19.07.2014. Thereafter a claim petition was filed by the claimants and compensation was claimed on account of death of Shri Virendra Singh.

Written statements were filed by the Insurance Company, the driver as well as the owner of the vehicle.

On the basis of the pleadings, the learned Tribunal framed the following issues:-

"1. Whether on 18.07.2014 at about 2:30 PM at Kashipur-Bazpur Road, near "Sethi Petrol Pump", Kasba and Police Station Kashipur, District Udham Singh Nagar, Virendra Singh, husband of claimant no.1, who was coming to his house on his motorcycle (registration no.UK-06S-7224) was hit by the driver of Santro Car bearing registration no. UK-06U-8026 who was driving the said vehicle rashly and negligently, as a result of which, Virendra Singh sustained grievous injuries and subsequently passed away, if yes, then its effect"

Whether there was contributory negligence of the driver of the motorcycle in causing the accident in question, if yes, then its effect?

Whether on the date and time of accident, the driver of the vehicle involved in the accident was not having a valid and effective driving licence and the owner of the vehicle in question was not having all the relevant papers and insurance?

Whether the claim petition is defective due to non-joinder of necessary parties?

Whether the claimants are entitled for any compensation, if yes, then from which of the parties and to what extent?"

The learned Tribunal while deciding the issue nos.1 and 2 came to the conclusion that the accident in question occurred due to rash and negligent driving of the car by its driver and due to the said accident Shri Virendra Singh had sustained injuries which resulted in his death.

While deciding issue no.3, the learned Tribunal came to the conclusion that the driver of the vehicle was having a valid and effective driving licence on the date and time of the accident and the owner of the vehicle was having relevant papers and valid insurance.

While deciding issue no.4, the learned Tribunal came to the conclusion that since there was no contributory negligence on the part of the driver of the motorcycle, therefore, the Insurance Company with which the motorcycle was insured is not made a party, there is no non-joinder of necessary party.

As regarding the amount of compensation, the learned Tribunal came to the conclusion that the deceased was employed at Dalmia Bharat Sugar Industries Limited Unit and earning an amount of Rs.8632/- (Rupees Eight Thousand Six Hundred Thirty Two Only) per month and the deceased was also running a dairy from which he was earning an amount of Rs.12,000/- (Rupees Twelve Thousand Only) per month and therefore from both the sources he was earning more than Rs.20,000/- (Rupees Twenty Thousand) per month.

However, the learned Tribunal has considered other various factors and after making such deductions determined the annual notional income of the deceased as Rs.1,95,210/- (Rupees One Lakh Ninety Five Thousand Two Hundred Ten Only), out of which, after deducting one-third from the said amount towards personal expenses, the annual notional income for the purposes of compensation was calculated as Rs.1,30,140/- (Rupees One Lakh Thirty Thousand One Hundred Forty Only). The learned Tribunal thereafter applied a multiplier of 15 and calculated the compensation to the tune of Rs.19,52,100/- (Rupees Nineteen Lakh Fifty Two Thousand One Hundred Only).

Apart from the above, the learned Tribunal awarded a compensation of Rs.4,400/- (Rupees Four Thousand Four Hundred Only) towards medical expenses, Rs.25,000/- (Rupees Twenty Five Thousand Only) towards funeral expenses and Rs.1,00,000/- (Rupees One Lakh Only) towards loss of care and guidance to minor children. Thus a total compensation of Rs.20,81,500/- (Rupees Twenty Lakh Eighty One Thousand Five Hundred Only) has been awarded to the claimants.

There was an objection from the side of the Insurance Company that there is a contributory negligence on the part of the motorcycle driver as he was driving on the wrong side. The evidence to this effect has been examined by the Tribunal and it came to the conclusion that there is an eye witness to the incident i.e. PW 3 Pradeep Kumar who was present at the time of the accident and gave a statement that the accident occurred at 2:30 PM at Kashipur-Bazpur Road near "Sethi Petrol Pump" as the white Santro Car was being driven rashly and negligently on the wrong side. The car dashed on the motorcycle as a result of which Shri Virendra Singh fell down and sustained grievous injuries. It was also a hit and run case as the driver of the car after the accident instead of looking after the injuries of the deceased ran away from the spot. However, he was subsequently caught and thereafter a first information report was lodged against him and after the investigation the police has filed the charge sheet against the accused. Therefore, there is a categorical finding that there is no negligence on the part of the deceased.

Learned counsel for the appellant, however, submits that the site plan shows that actually the motorcycle driver was on the wrong side. However, this cannot be believed inasmuch as it was a turn. The accident actually happened when the motorcycle driver (i.e.deceased) was turning towards another road. Therefore it cannot be categorically said that the deceased was on the wrong side. In fact there is a categorical finding of the learned Tribunal that the Santro Car was on the wrong side.

Rest of the issues regarding validity of the insurance and driving licence have also gone in favour of the claimants.

Learned counsel for the appellant submits that the amount of Rs.1,00,000/- (Rupees One Lakh Only) towards loss of care and guidance has wrongly been fixed by the Tribunal. However, considering the facts and circumstances of the case, this Court finds no anomaly on this aspect.

This Court finds no fault with the award passed by the learned Claims Tribunal.

Consequently the appeal fails and is hereby dismissed.

Let the entire amount be deposited by the appellant within a period of six weeks from the date of production of a certified copy of this order before the concerned Tribunal after adjusting the amount already deposited, which shall be given to the claimants forthwith. The statutory amount of Rs.25,000/- (Rupees Twenty Five Thousand Only) deposited by the appellant be also remitted to the concerned Tribunal.