The New India Assurance Company Ltd. vs Gajran Singh Yadav and Others

Rajesh Tandon, J.—Heard Sri M.K. Goel, counsel for the appellant and Sri Rakesh Thapliyal, counsel far the respondents.

By the present. A.O. tiled u/s 173 of the Motor Vehicles Act, 1988, appellant has prayed for setting aside the award dated 23,1.2004 passed by Motor Accident Claims Tribunal/Additional District Judge,/First F.T.C. Udham Singh Nagar, Rudrapur in Motor Accident Claim Petition No. 249/02 Gajraj Singh and Ors. v. Sri Sanjay Kumar Srivastava and Ors.

Briefly stated, a claim petition was filed by the respondents No. 1 to 3 being Motor Accident Claim Petition No. 245/02 Gajraj Singh and Ors. v. Sri Sanjay Kumar Srivastava and Ors. claiming a sum of Rs. 7,00,000/-towards compensation.

According to the claimants, on 9.10.2002 at about 9 a.m., Om Prakash Yadav (hereinafter referred to as the deceased) was going to his Village via Kashipur Road on Moped No. O.P. 022/B 2794 along with his brother, as soon as he reached near Bhurarani Bend, all of a sudden a Truck No. U.P. 04-A/0487 (hereinafter referred to as the truck in question), which was corning from the back side and being driven rashly and negligently dashed the Moped, due to which both deceased as well as his brother fell down and received multiple grievous and simple injuries. The deceased received injuries on his head and on his whole body and succumbed to injuries. His younger brother Har Pal Singh Yadav lodged the First Information Report against the Truck Driver Sajay Kumar Srivastava at P.S. Rudrapur, which was registered as Case Crime No. 1152/02 under Sections 279/304A/337/427 I.P.C. At the time of accident, the deceased was 58 years of age and was earning a sum of Rs. 1,00,000/- per month. The deceased is survived by his wife and two sons.

Sanjay Kumar Srivastava (the Driver) has contested the claim by filing a written statement, wherein it has been stated the claimants are claiming the compensation without any basis. It has further been stated that at the time of accident, the opposite party No. 1 was driving the vehicle in a moderate speed, but the moped was being driven rashly and negligently and it collided with the truck. It has been stated that at the time of accident, the driver had a valid driving licence bearing Licence No. 63724/K/2000, which was valid upto 19.2.2005 and the vehicle in question is insured with the New India Assurance Company with Cover Note No. 935785, which is valid from 30.10.2001 to 30.10.2002. It has also been stated that if the claimants are entitled to get any compensation, Insurance Company is liable to pay the same.

Owner of the vehicle Sri Govind Pandey has contested the claim by filing a written statement, wherein it has been stated that the claimants have claimed the amount of compensation without any basis. It has further been stated that at the time of accident, the truck was being driven by the driver cautiously. It has also been stated that at the time of accident, the truck in question was having valid papers and the truck in question was insured with the New India Insurance Company. It has also been stated that the Insurance Company is liable to pay the compensation.

New India Assurance Company has contested the claim by filing a written statement, wherein it has been stated that the company has not been given any information regarding the occurrence u/s 158(6) of the Motor Vehicles Act. It has further been stated that the claimants have not filed the copy of the F.I.R, Charge Sheet, Site Plan, Medical Report, Bills, X ray report, certificates of the Chief Medical Officer and income certificate with the plaint. It has also been stated that at the time of accident, the driver of the truck in question was not holding valid driving licence, therefore, the claimants are not entitled to get any compensation.

On the pleadings of the parties, the claims tribunal has framed following issues:

1- Whether on 9.10.2002 at about 11 a.m. due to rash and negligent driving of the driver of Truck No. U.P. 04A/0487 accident took place near Bhurarani Bend, P.S. Rudrapur, in which Om Prakash Yadav died, if yes, its effect?

2- To what amount of compensation, the claimants are entitled?

3- Any other relief, which claimants are entitled to get?

On behalf of the claimants, Sri Gajraj Singh and Harpal Singh have been examined as P.W. 1 and P.W. 2 respectively. Towards documentary evidence, claimants have filed Photocopy of the First Information Report Paper No. 5Ga/2, copy of the post mortem report 5Ga/11.

On behalf of the opposite parties, per list 21Ga photocopy of the Insurance Cover Note, driving licence of the driver, Fitness certificate and copy of the permit have been filed.

While deciding the Issues No. 1 as to whether on 9.10.2002 at about 11 a.m. due to rash and negligent driving of the driver of Truck No. U.P. 04A/0487 accident took place near Bhurarani Bend, P.S. Rudrapur, in which Om Prakash Yadav died, claims tribunal has placed reliance on the statement of Gajraj Singh P.W. 1 and Sri Har Pal Singh P.W. 2. Har Pal Singh P.W. 2 is an ocular witness. He has stated that driver of the track in question was driving the vehicle rashly and negligently at the time of the accident, in which the elder brother received grievous injuries and succumbed to injuries. Further the claims tribunal has relied upon the First Information Report and Post Mortem Report, which has supported the contention of the claimants. The Claims Tribunal has further relied upon the Paper No. 5Ga/5, which is registration certificate of the truck in question, which shows that the same was valid at the time of accident. Further reliance has been placed on the Insurance Cover Note of the Insurance, which shows that the truck in question was insured for the period from 30.10.2001 to 30.10.2002 with New India Insurance Company. Other important documents have also been relied upon. The claims tribunal has, thus, recorded a finding that at the time of accident, the driver of the truck in question was holding valid driving licence and the truck in question was insured with the New India Assurance Company, thus, the Insurance Company is liable to pay the compensation.

I find no infirmity with the findings recorded by the claims tribunal and the same deserves to be confirmed.

While deciding the Issue No. 2 as to what amount of compensation, the claimants are entitled to get, the claims tribunal has assessed the age of the deceased as 62 years after relying upon the Post Mortem Report & claim petition and according to the age, multiplier of 8 has been selected. For determining the income of the deceased, the claims tribunal has recorded a finding that since the deceased was possessing 12 acres of land and his income will not be affected and has worked out Rs. 1800/- per month (i.e. Rs. 21,600/- per annum) on the basis of the documentary evidence available on the record and deducted 1/3(tm) of the personal expenses from the said amount. Thus, the annual dependency comes to Rs. 14,400/-. Multiplying the annual dependency with 8, amount of compensation has been worked out to Rs. 1,15,200/-.

I do not find any infirmity in the aforesaid finding recorded by the claims tribunal and the same deserves to be confirmed.

While deciding the Issue No. 3 regarding other relief, the claims tribunal has further awarded a sum of Rs. 2,000/ - towards funeral expenses and Rs. 5,000/- towards loss of consortium. Thus the claims tribunal has awarded total sum of Rs. 1,22,200/- (One Lac Twenty Two Thousand Two Hundred Only) along with interest @ 5%.

I do not finding any error or illegality in the findings recorded by the claims tribunal concerned and the same deserves to be confirmed.

Counsel for the appellant has submitted that the post mortem report shows that the deceased was 62 years of age and therefore, the multiplier of 5 will be applicable.

I have perused the record. It has specifically been mentioned in the cross examination of Gajraj Singh that the age of the deceased was between 55 to 56 years. Further in the claim petition, the age of the deceased has been shown to be 58 years. Thus, I find no force in the submission of the appellant and the appeal deserves to be rejected.

The Apex Court in Tamil Nadu State Transport Corporation Ltd. v. S. Rajapriya and Ors. 2005 (4) Sup 87 has observed as under:

The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that the deceased may not have lived or the dependants many not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income together.

The manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his in come as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalized by multiplying it by a figure representing the proper number of year''s purchase.

Much of the calculation necessarily remains in the realm of hypothesis "and in that region arithmetic is a good servant but a bad master" since there are so often many imponderables. In every case "it is the overall picture that matters", and the court must try to assess the best as it can the loss suffered.

There were two methods adopted to determine and for calculation of compensation in fatal accident actions, the first the multiplier mentioned in Davies case (supra) and the second in Nance v. British Columbia Electric Railway Co. Ltd. (1951(2) All ER 448).

The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interst. In ascertaining this, regard should also be hald to the fact that ultimately the capital sum should also be consumed up over the period for which the dependency is expected to last. 1

The considerations generally relevant in the selection of multiplicand and multiplier were adverted to by Lord Diplock in his speech in Mallett v. Mc Mongle 1969 (2) All ER 178 where the deceased was aged 25 and left behind his widow of about the same age and three minor children. On the question of selection of multiplicand Lord Diplock observed:

The starting point in any estimate of the amount of the dependency is annual value of the material benefits provided for the dependants out of the earnings of the deceased at the date of his death. But...there are many factors which might have led to variations 9up or down in the future. His earnings might have increased and with them the amount provided by him for his dependants. They might have diminished with a recession in trade or he might have had spells or unemployment. As his children grew up and became independent the proportion of his earnignds spent on his dependants would have been likely to fall. But ion considering the effect to be given in the award of damages to possible variations in the dependency there are two factors to be borne in mind. The first is that the more remote in the future is the anticipated change the less confidence there can be in the chances of its occurring and the smaller the allowance to be made for it ion the assessment. The second is that as a matter of the arithmetic of the calculation of present value, the later the change takes place the less will be its effect upon time toral award of damages. Thus at interest rates of 4-1/2% the present value of an annuity for 20 years of which the first ten years are at $100 per annum and the second ten years at $200 per annum, is about 12 years'' purchase of the arithmetic average annuity of $150 per annum, whereas if the first ten years are at $200 per annum and the second ten years at $100 per annum the present value is about 14 years'' purchase of the arithmetical mean of $150 per annum. If therefore the chances of variations in the dependency are to be reflected in the multiplicand of which the years'' purchase is the multiplier, variations in the dependency which are not expected to take place until after ten years should have only a relatively small effect in increasing or diminishing the ''dependency'' used for the purpose of assessing the damages.

The claims tribunal has rightly awarded a sum of Rs. 1,22,200/- along with interest @ 5% per annum and I do not find any infirmity in the award passed by the claims tribunal. Consequently, A.C. is dismissed. No order as to costs.