Uttarakhand High Court
The New India Assurance Company ... vs Smt. Jeewanti Tiwari And Others on 25 March, 2021
Reserved
HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal From Order No. 217 of 2008
The New India Assurance Company Limited ...... Appellant
Vs.
Smt. Jeewanti Tiwari and others ..... Respondents
Mr. P.C. Maulekhi, Advocate for the appellant.
Mr. Akhil Kumar Shah, Advocate for claimants.
With
Appeal From Order No. 348 of 2017
Smt. Jeewanti Tiwari and others ...... Appellants
Vs.
The New India Assurance Company Limited ..... Respondent
Mr. Akhil Kumar Shah, Advocate for the appellants.
Mr. P.C. Maulekhi, Advocate holding brief of Mr. Rajesh Joshi, Advocate for the
respondent.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
Both these appeals arise from the same impugned
judgment and order, therefore, they are being taken up together and
decided by this common judgment.
2. In this judgment reference to appellant and the respondent
shall have to reference to Appeal no.217 of 2008.
3. These appeals have been preferred against the judgment
and order dated 01.03.2008, passed in Motor Accident Claim Petition
No.45 of 2007, Smt. Jeewanti Tiwari and others vs. Harpal Singh and
others, by the Motor Accident Claim Tribunal, /District Judge, Nainital
(for short, "the case"). By the impugned judgment and order, the claim
petition filed by the respondent nos.1 to 4 for compensation has been
allowed and they have been awarded `15,71,680/- compensation along
with interest.
4. Deceased Girish Chandra Tiwari was an Assistant Teacher
at the relevant time. On 15.02.2007, at 03:30 p.m., he was returning to
his home on his motorcycle bearing registration no. UA-4D 4137 ("the
motorcycle"), Near Kattha Factory, Rampur Road, a truck bearing
registration no. HR-47/3114 ("the truck") hit the motorcycle, due to
which, Girish Chandra Tiwari sustained injuries and subsequently, he
died on 21.02.2007. A claim petition was filed, which is basis of the
case.
5. The appellant filed objection in the claim petition. Various
objections were taken with regard to non-furnishing of the information
about the accident; non-joinder of the parties and validity of
documents. It is also objected on behalf of the appellant that the
accident occurred due to the negligence on the part of the deceased.
Parties adduced evidence. After hearing the parties, by the impugned
judgment and order, the claim petition has been allowed and
compensation awarded, as stated hereinbefore. Aggrieved by it, the
appellant is in appeal.
6. The respondents nos.1 to 4 also preferred appeal for
enhancement, which is Appeal No.348 of 2017.
7. Learned counsel for the appellant would argue that the
accident occurred due to contributory negligence of the deceased. The
Tribunal did not record any finding on this point; the actual witnesses
have not been examined; PW2 Ramesh Singh is the neighbour of the
deceased, his evidence is not reliable. It is also argued that in the
instant case, the multiplier to be applied should be 14 and not 15.
8. Learned counsel for the appellant placed reliance upon the
principles of law, as laid down in the case of Sri Krishna Vishweshwar
Hedge Vs. General Manager Karnataka State Transport Corporation
(2008)15 SCC 767.
9. In the case of Sri Krishna Vishweshwar Hedge (supra), no
principle of law has been laid down, but the Hon'ble Court under the
facts and circumstances of the case, upheld, the ratio of liability as
assessed by the Tribunal at 50:50.
10. On the other hand, learned counsel for the respondent
nos.1 to 4 would submit that the compensation awarded is inadequate
and future prospects have not been added into the income, loss of
consortium has not been allowed. It is also argued that the multiplier
has been rightly applied, because the deceased was 40 years 09 months
and 25 days old at the time of incident. On the issue of contributory
negligence, learned counsel for the respondent nos.1 to 4 would submit
that the evidence of PW2 Ramesh Singh is enough to establish that the
accident occurred due to the negligence of the driver of the truck. It is
he, who came to the extreme right side and hit the deceased. In this
case, after investigation, charge-sheet has also been submitted against
the driver of the truck and there is no other evidence to suggest that the
accident occurred due to contributory negligence of the deceased.
11. Has the deceased contributed in the accident. PW1 Smt.
Durga Tiwari, who was examined in the case, is wife of the deceased.
She did not witness of the incident. It is PW2 Ramesh Singh, who has
stated about the accident. According to him, the offending truck
overtook him and thereafter, hit the deceased, who at the relevant time
was riding his motorcycle. According to PW2 Ramesh Singh, the
accident occurred at a bend. The offending truck was running with
utmost speed and was overloaded also, due to which, it skid and went
extreme right side of the road and there, it hit the deceased. According
to PW2 Ramesh Singh, he with the help of others took the deceased to
the hospital.
12. The Tribunal evaluated evidence on this question and took
note of the fact that charge-sheet has been submitted against the driver
of the offending truck and concluded that it is the driver of the truck,
who in a rash and negligent manner drove the truck and hit the
deceased. The Tribunal categorically recorded the finding that the
deceased did not contribute in the accident. There is no other evidence
on behalf of the appellant to establish or even to indicate that the
deceased at the relevant time was negligent in driving the motorcycle.
Therefore, this Court is of the view that there is no reason to make any
interference on this point on the finding recorded by the Tribunal.
13. Insofar as, the question of multiplier is concerned, the date
of birth of the deceased was 25.04.1966. The deceased died on
20.02.2007, it means that on the date of his death, the deceased was 40
years, 09 months and 25 days old. He has completed 40 years, but not
41years. In view of the judgment in the case of Sarla Verma & others
Vs. Delhi Transport Corporation & Another, (2009) 6 SCC 121, the
multiplier in the instant case will be of 15 and not 14 as argued by the
learned counsel for the appellant. The multiplier has rightly been
applied by the Tribunal. The Tribunal assessed the income as
hereunder:-
Sl.No. Amount
Head
1. Salary per month `13,014/-
Annual Income `13,014/- x 12 `1,56,168/-
3.
`46,850.4
4. Personal expenses `1,56,168 x 1/3
5. Annual Income of the deceased `1,04,112/-
`1,56,168 - `46,850.4
Loss of dependency `15,61,680/-
6. `1,04,112 x 15
In addition to it, `10,000/- was given `10,000/-
7. for funeral expenses, treatment, etc.
Total compensation `15,71,680/-
8.
14. This Court has already held that the Tribunal has rightly held that
the accident occurred due to rash and negligent act of the driver of the
offending truck and the deceased has not contributed in the accident.
But, the manner, in which, the compensation has been counted, is not in
accordance with the settled law.
15. The salary of the deceased is not disputed. It is `13,014/-
per month. There were four dependent members in the family,
therefore, in view of the judgment in the case of Sarla Verma (supra),
the amount on personal expenses would be 1/4th of the income (para 30
of the judgment in the case of Sarla Verma (supra)). 1/4th of `13,014/-
comes to `3,253.50/-. If personal expenses of `3,253.50/- is deducted
from the monthly salary of `13,014/-, it comes out to be `9760.50/-
16. In view of the judgment in the case of National Insurance
Company Limited Vs. Pranay Sethi and others, (2017) 16 SCC 680,
30% of the income should be added as future prospects (para 59.3 in
the case of Pranay Sethi (supra)). 30% of `9,760.50/- is equal to
`2,928.15/- and if this amount is added to `9,760.50/-, it comes to be
`12,688.65/-. It has to be multiplied by 12 to get annual income. Loss
of annual income is `1,52,263.8 ( `12,688.65/- x 12 = `1,52,263.8/-).
17. In the instant case, the multiplier of 15 would be applicable. If
`1,41,4636.80/- is multiplied by 15, it comes to be `22,83,957.00/-
The claimants are entitled to this compensation under the head of loss
of dependency.
18. The respondent nos.1 to 4 are also entitled to `15,000/- against
funeral expenses, `15,000/- against loss of estate. There are four
dependents, the wife, children and mother of the deceased. In view of
the judgment, in the case of New India Assurance Company Ltd. Vs.
Somwati and others, (2020) 9 SCC 644, all of them are entitled to loss
of consortium @ `40,000/- each. Therefore, the respondent nos.1 to 4
are also entitled to `1,60,000/- under the head of loss of consortium.
19. After his accident on 15.01.2007, the deceased died on
20.02.2007 and according to his wife, PW1 Smt. Durga has incurred
above `2 Lakhs on medical treatment and `10,000/- against expenses
on ambulance, etc. Even medical expenditure bills have not been filed.
But, the fact remains that the deceased died in Delhi. Therefore, this
Court is of the view that for transporting the deceased from the place of
accident and subsequently, to Delhi, the respondent nos.1 to 4 are also
entitled for `10,000/-. So the total compensation, which the respondent
nos.1 to 4 (claimants) are entitled is as hereunder:-
(i) Under the head of loss of dependency - `22,83,957/-
(ii) For funeral expenses - `15,000/-
(iii) For loss of estate - `15,000/-
(iv) For loss of consortium, for four
dependent members - `1,60,000/-
(v) For transporting the deceased to Delhi - `10,000/-
Total `24,83,957/-
20. Accordingly, this Court is of the view that the respondent
nos.1 to 4 are entitled to `24,83,957/- as compensation. Therefore, the
appeal filed by appellant deserves to be dismissed.
21. The respondent nos.1 to 4 are entitled to compensation of
`2321957/- along with interest @ 6% per annum. The amount of
compensation shall be apportioned among the respondent nos.1 to 4, in
term of the impugned judgment.
22. The appellant is directed to make complete payment to the
respondent nos.1 to 4, within a period of one month.
23. Appeal from Order no.217 of 2008, is dismissed.
24. Appeal from Order no.348 of 2017, is allowed,
accordingly.
(Ravindra Maithani, J.)
25.03.2021
Sanjay
