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Judgment
Both these appeals have arisen out of the same judgment and order dated 24.10.2016 hence, are being taken up together for adjudication.
The accident occurred on 09.10.2015 at 03:30 PM in the outskirts of Kotdwar towards Nazibabad when Mr. Akram scooty borne a youth of 24 years was dashed by the truck no. UA-12-A-2522. He was promptly shifted to the nearby hospital where he succumbed to his injuries on the next day 10.10.2015. Since, he was an unmarried youth hence, his father Shri Makbool along with his mother Shahjahan presented the motor accident claim petition no. 98/2015 claiming the compensation to the tune of Rs. 30 lakhs whereagainst the learned Tribunal has granted Rs. 21,93,500/- along with 9% conditional interest from the date of petition till the amount is actually released if the award is not satisfied within one month from the date of rendering the judgment.
The appeal no. 30/2017 has been presented on 21.7.2017 by the Insurance Company challenging the quantum of the award while cross appeal no. 420/2017 was presented on 20.7.2017 for the enhancement of such award by the claimants.
Such cross appeal has been preferred with a delay of 177 days. It is pertinent to mention that after the impugned judgment passed on 24.10.2016 the copy whereof was soon applied on 01.11.2016. It was prepared and supplied to the claimants on the same day but the appeal could be preferred almost after eight months and twenty days, wherefor the explanation has been offered that in the appeal no. 30/2017 a money withdrawal application was presented on 18.4.2017 which was allowed by this court on 20.4.2017, whereby Rupees Five Lakhs were permitted to be withdrawn. So, it has been contended on behalf of the claimants by learned counsel Ms. Chitranjali Negi that after release of the money the claimants could manage to file this cross appeal.
I think such ground is not convincing because the money was permitted to be withdrawn on 20.4.2017 even if it is assumed that claimants further took two weeks? time in procuring the certified copy of the money withdrawal order and submitting it to the Tribunal then also they further committed the lapse of 2? months to present this cross appeal on 20.7.2017.
So, I am not convinced with the delay condonation application seeking the condonation of 177 days and the delay condonation application is hereby rejected and as a consequence the cross appeal no. 420/2017 filed on 20.7.2017 is also dismissed. Now, I come to the merits of the appeal no. 30/2017 preferred by the insurer.
The accident, insurance cover and the losing of the life of Mr. Akram succumbing to the injuries caused in such accident has not been disputed but the learned counsel Mr. D.C.S. Rawat on behalf of the appellant-Insurance Company has argued that it was a case of contributory negligence. He has shown a map prepared by the Investigation Officer in the matter which manifests that initially Mr. Akram, scooty borne a youth, was on his left side coming from Nazibabad to Kotdwar but suddenly he turns right causing such accident with the front coming truck therefore, the plea of contributory negligence is quite acceptable and I accept the same. Contributory negligence of atleast 40% on the part of Mr. Akram is hereby approtioned.
It is pertinent to mention that Mr. Akram was said to be self engaged as a contractor in the painting works. His income tax return for the year 2014-15 has been displayed to the tune of Rs. 2,16,500/- while for the year 2015-16 it is Rs. 2,66,500/-. So, the learned Tribunal is right in taking the average of such income. It comes to Rs. 2,41,500/-. Since, he was the unmarried youth hence, Tribunal is right on that score also to deduct 50 percent towards his personal expenses and after such deduction the amount comes to Rs. 1,20,750/-.
The only question now remain is to the application of multiplier in this regard. I think the law laid down by the Hon''ble Apex Court in Ramesh Singh & Another vs. Satbir Singh & Another reported in (2008) 2 SCC Page 667 is clear. The Hon?ble Supreme Court has held that if a young man is killed in the accident leaving behind aged parents who may not survive long enough to match with a high multiplier provided by Sch. II, then the court has to offset such high multiplier and balance the same with the short life expectancy of the claimants. It was further held that the complicated questions of fact and law arising in accident cases cannot be answered always by relying on mathematical equations.
In Ramesh Singh''s case the multiplier was chosen by the Tribunal taking into consideration the age of the deceased?s father which was 55 years so, the Hon?ble Supreme Court held that the court below did not commit any illegality in applying the multiplier of 8 based on the father?s age.
In the controversy in hand father Makbool was of 50 years and mother Shahjahan was 46 years as they themselves displayed their age in the claim petition, so, the average of both comes to 48 years. On such age, as per the table prepared in the Sarla Verma Case, the multiplier of 13 ought to have been applied. Therefore, if multiplier of 13 is applied to Rs. 1,20,750/- then it comes to Rs. 15,69,750/-.
As indicated above, the court has attributed atleast 40% contributory negligence on the part of the scooty borne Akram. So, reducing 40% further the compensation comes to Rs. 9,41,850/-.
The court is not inclined to disturb the amount granted towards the cremation, loss of estate. So, the total compensation comes to Rs. 9,61,850/-.
The appeal preferred by the Insurance Company is allowed and the award is modified to the tune of Rs. 9,61,850/- which shall be payable to the claimants along with 6% interest from the date of institution of the petition till the amount is actually paid.
The amount has already been deposited by the Insurance Company. It shall be disbursed after due calculations to both the parties. Compulsory statutory deposit shall be remitted to the Tribunal. LCR be sent back.