The United India Insurance Co. ... vs Bhagwan Singh And 3 Others
2015 Latest Caselaw 5556 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 3
 

 
Case :- FIRST APPEAL FROM ORDER No. - 3142 of 2015
 

 
Appellant :- The United India Insurance Co. Ltd.
 
Respondent :- Bhagwan Singh And 3 Others
 
Counsel for Appellant :- Rajeev Ojha
 
Counsel for Respondent :- Ram Singh
 

 
Hon'ble Krishna Murari, J.

Hon'ble Raghvendra Kumar, J.

This first appeal from order under Section 173 of the Motor Vehicles Act, 1988 has been filed by the Insurance Company challenging the judgment and award dated 16.09.2015 passed by the Motor Accident Claims Tribunal/Special Judge (E. C. Act), Aligarh awarding compensation for a sum of Rs.5,91,000.00.

An application under Section 166 read with Section 140 of the Motor Vehicles Act, 1988 was filed by the claimants-respondent seeking compensation of a sum of Rs.18,10,000/- on the allegation that on 06.06.2014 when Km. Varsha was going along with her brother and claimant-respondent no. 2 (her mother) and when they reached opposite H. P. Gas Agency in Qasba Sikanderarau, Hathras at about 12:00 noon, they stopped the motor-cycle on which they were travelling on the road side and the motor-cycle was parked, her mother went to purchase banana and deceased was sitting on the motor-cycle and talking with her brother, truck no. UP-84-T/1217 coming from Aligarh which was being driven rashly and negligently hit motor-cycle on account of which she died on spot. It was further pleaded that at the time of accident deceased was aged about 18 years and was earning Rs.9000/- per month from Beauty parlour, knitting, sewing and embroidery. Proceedings were contested by the Insurance Company by filing written statement denying the allegations.

Claimant-appellant no. 1, Bhagwan Singh, entered into witness-box and stated that accident was caused on 06.06.2014 at about 12:00 noon on account of rash and negligent driving of the offending truck in which his daughter died and claimant-respondent no. 2, his wife, received injuries. He stated that he reached at the site of accident after 15 minutes and thus tribunal rightly held that he was not an eye witness. Claimant-respondent also produced P. W. '2' Durgesh as an eye-witness. He stated in his examination-in-chief that on 06.06.2014 at about 12:00 noon when deceased was sitting at the parked motor-cycle at the side of the road, it was hit by truck bearing registration no.  UP-84-T-1217 which was being driven very rashly and negligently coming from Aligarh on account of which Varsha died on the spot and claimant-respondent no. 2 Bhagwan Devi received injuries. The witness categorically stated that he saw the accident taking place. The witness stood affirmed in his cross-examination.

First information report of the accident was lodged. Police investigated and submitted a charge-sheet against the driver of the offending truck. Tribunal also placed reliance on site plan in which motor-cycle was shown to be paved on the side of road. After analyzing the aforesaid evidence oral as well as documentary, tribunal recorded a finding that accident was caused due to rash and negligent driving of the offending truck which resulted into death of Km. Varsha. Tribunal further found that driver of offending truck was having a valid license and the vehicle was duly insured with the Insurance Company.

With respect of quantum of compensation to be paid, tribunal for want of cogent evidence to establish allegation that deceased was earning a sum of Rs.9000/- per month took notional income as Rs.4000/- and also awarded 50% towards future prospects in accordance with Rule 220-A of the Motor Vehicles Rules and accordingly determined  the income of the deceased to be Rs.72,000/- per annum and after deducting 1/2 towards personal expenses and applying multiplier of 16 in accordance with the decision of the Hon'ble Supreme Court in the case of Sarla Verma Vs. Delhi Transport Corporation  and another 2009 (2) TAC-677 determined a sum of Rs.5,76,000.00 towards compensation. Tribunal also awarded a sum of Rs.15,000.00 towards funeral expenses and loss of estate, love and affection. Thus, total a sum of Rs.5,91,000.00 was determined as compensation.

Learned counsel for the appellants contends that accident was due to negligence of the victim herself who was sitting on the motorcycle and talking with her brother. It is further submitted that for want of any evidence, the tribunal wrongly took her notional income to be Rs.4000/- and also wrongly awarded 50% income towards future prospects.  Learned counsel for the appellants next submitted that tribunal has wrongly applied multiplier of 16 on age of deceased whereas multiplier should have been applied on the age of the claimant.

We have considered the arguments advanced by the learned counsel for the appellants and perused the record.

In so far as first argument with respect to contributory negligence is concerned, tribunal has recoded a finding based on site plan that the motorcycle was parked on the side of the record. If a vehicle is parked on the side of the road and is hit by another vehicle then there cannot be any contributory negligence. It is altogether difference case if the vehicle would have been parked on the road itself. It was established by cogent oral evidence that motorcycle was parked on the Kachcha part on the side of road. In view of the fact duly established by cogent evidence, the argument advanced by the learned counsel for the appellants that it was a case of contributory negligence has no legs to stand.

With respect to second argument advanced on behalf of appellants regarding notional income of Rs.4000/- taken by tribunal being on higher side is also not liable to be accepted. A sum of Rs.4000/- during these days when price index has gone high and there is considerable increase in the wages, we do not find it to be on higher side. Hon'ble Supreme Court long back held that notional income should be taken to be Rs.3000/- when price index was much lower than what it is today. Thus, this argument by the learned counsel for the appellants is also devoid of merits and liable to be rejected. In so far as future prospect is concerned, the same has been awarded by the tribunal in accordance with Rule 220-A (3) of the Motor Vehicles Rules which was brought on the statute by way of amendment which was enforced with effect from 26.09.2011. Admittedly, accident took place after the said date. The rule does not draw any distinction between a salaried person and self employed person. Thus, in so far as U. P. is concerned, after enforcement of rule, future prospect is liable to be granted without any such distinction.

The last argument advanced by the learned counsel for the appellants that multiplier would have been applied in accordance with the age of the claimant and not the age of deceased is without any force.

The issue is no longer res integra. In a series of decisions, the Hon'ble Apex Court has held that the multiplier is to be applied on the basis of the age of the deceased and not on the basis of the age of the dependants and the age of the dependants have no nexus with the computation of the compensation. In the case of Amrit Bhanu Shali & Ors. Vs. National Insurance Company & Ors., 2012 (4) TAC 775 (SC), where the deceased was also an unmarried male aged about 26 years and his parents lodged the claim. The High Court had applied the multiplier taking into consideration the age of the claimants. In the Appeal before the Apex Court one of the issues raised was that the multiplier had been wrongly applied as the age of the deceased was relevant and to be considered for applying the multiplier. After considering the arguments and the law on the point the Apex Court in paragraph 17 of the report held that the multiplier is to be applied on the basis of the age of the deceased and not on the basis of the age of the dependents. It was further observed that the age of the dependents has no nexus with the computation of the compensation. Relevant part of the judgment is extracted below.

"15. The selection of multiplier is based on the age of the deceased and not on the basis of the age of dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of dependents has no nexus with the computation of compensation."

"16. In the case of Sarla Verma (supra) this Court held that the multiplier to be used should be as mentioned in Column (4) of the table of the said judgment which starts with an operative multiplier of 18. As the age of the deceased at the time of the death was 26 years, the multiplier of 17 ought to have been applied. The Tribunal taking into consideration the age of the deceased rightly applied the multiplier of 17 but the High Court committed a serious error by not giving the benefit of multiplier of 17 and bringing it down to the multiplier of 13."

The same view has been reiterated by the Hon'ble Apex Court in the case of Rajeshwari & Ors. Vs. Oriental Insurance Company, 2012 (4) TAC 782 (SC). Reference may also be made to the decision in the case of M. Mansoor & Anr. Vs. United India Insurance Co. Ltd. & Anr., 2013 AIR SCW 6497. The facts of this case were similar to the case of the present case. The deceased was a bachelor aged 24 years and survived by his parents who were the claimants. The Tribunal had applied the multiplier of 17 taking the age of the deceased to be applicable. On appeal by the Insurance Company the High Court held that multiplier of 12 was applicable taking into consideration the age of the claimants. On appeal by the claimants the Apex Court following the ratio laid down in the case of Amrit Bhanu Shali (supra) applied the multiplier of 18 taking into consideration the age of the deceased.

In view of above facts and discussions,  we do not find any illegality or irregularity in the impugned award which may require any interference. We also do not find any illegality or fundamental defect in approach or in the methodology adopted by the tribunal in determining the amount of compensation. No other ground was pressed or urged before us.

The appeal being devoid of merits stands dismissed in limine.

Order Date :- 18.12.2015

Dcs