Uttarakhand High Court
Smt. Sonal Verma And Another ... vs Sri Surender Mohan Chopra And ... on 16 March, 2021
HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal From Order No. 472 of 2008
Smt. Sonal Verma and another ............. Appellants
Vs.
Sri Surender Mohan Chopra and others ..... Respondents
Mr. Zafar Siddiqui, Advocate for the appellants.
Mr. M.K. Goyal, Advocate for respondents.
With
Appeal From Order No. 437 of 2008
The New India Assurance Co. Ltd. ............. Appellant
Vs.
Smt. Sonal Verma and others ..... Respondents
Mr. M.K. Goyal, Advocate for the appellant.
Mr. Zafar Siddiqui, Advocate for respondent No.1.
Mr. K.K. Shah, Advocate for respondent No.5.
With
Appeal From Order No. 460 of 2008
Surendra Kumar Chopra ............. Appellant
Vs.
Smt. Sonal Verma and Others ..... Respondents
Mr. Vijay Bhatt, Advocate for the appellant.
Mr. T.A. Khan, Senior Advocate assisted by Ms. Sadaf, Advocate for the
respondent No.3.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
All these above three appeals arise from a common
Judgment and Order dated 08.09.2008, passed in Motor Accident
Claim Petition No.151 of 2005, Smt. Sonal Verma and another Vs. Sri
Surender Mohan Chopra and others, by the Motor Accidents Claims
Tribunal/District Judge, Nainital (for short, "claim petition").
2. In this judgment, reference to appellants and respondents
shall be to the Appeal From Order No.472 of 2008.
3. The appellants filed the claim petition seeking
compensation on account of death of late Sameer Verma in a motor
accident, which took place on 09.07.2005 at 02:30 p.m. On the fateful
day, deceased Sameer Verma was riding on a motorcycle bearing
registration No.UA04B 5134 ("the motorcycle") and proceeding from
Bareilly to Haldwani. As soon as he reached near check post Bahedi,
Kiccha bend, district Bareilly, a Scorpio car bearing registration
No.UA06B 3309, ("the offending vehicle") came from behind, on the
wrong side, in a very rash and negligent manner and hit the motorcycle.
Resultantly, the deceased and the pillion rider, who is PW2, Sandeep
Verma, sustained injuries, who were taken to the hospital, where
Sameer Verma succumbed to the injuries.
4. In the claim petition, the respondent No.1, (the owner of the
offending vehicle) filed his objections. According to him, on the date of
incident they had parked their vehicle on the side of a road. Suddenly,
they heard that two persons riding on a motorcycle had slipped. They
visited the spot and found a person in the injured condition and another
standing near to him. At the request of the people, who gathered at the
spot, the respondent No.1 took them to the hospital. Apart from it, it
has also been stated by the respondent No.1, that all the documents
relating to the offending vehicle were valid and the driver had a valid
and effective driving license.
5. The respondent No.2, the insurance company of the
offending vehicle initially admitted that the motorcycle collided with
the offending vehicle, but subsequent to the filing of objections by the
respondent No.1, the respondent No.2, Insurance company also
amended their objections to reveal that the accident occurred due to the
rash and negligent driving of the motorcycle.
6. The respondent No.3, Smt. Vimla Verma, who is mother
of the deceased, has also supported the claim in her objections.
7. During the course of the arguments, on behalf of the
appellant a statement is given that the respondent No.3 died during the
pendency of these appeals. An application for substitution was filed by
the appellant, which was allowed on 18.06.2019, but yet memo of
parties have not been amended. Let it be done during the course of the
day itself. Similarly, in Appeal from Order No. 460 of 2008, the factum
of death of respondent No.4, Smt. Vimla Devi has not been recorded.
Let it may also be done by the appellant in AO No.460 of 2008 today
itself.
8. In the claim petition, parties adduced the evidence. On
behalf of the appellants, PW1 the appellant Smt. Sonal Verma and
PW2 Sandeep Verma, the pillion rider of the motorcycle were
examined. The respondent No.1, was examined as DW1. Parties
submitted documents also and after hearing the parties, the claim
petition was allowed and the appellants and the mother of the deceased
were awarded total `7,30,000/- as compensation along with interest @
6% per annum. By the impugned judgment and order, having
considered the conduct of respondent No.1, the Tribunal also directed
that one year delay was caused due to the respondent No.1, therefore,
he was directed to pay interest for one year on the awarded amount.
9. Appellants filed appeal for enhancement of the amount of
compensation, claiming it to be inadequate.
10. Respondent No.1, filed appeal on the ground that he has
been wrongly fastened with the liability to pay interest for one year on
the awarded amount.
11. Respondent No.2, Insurance company of the offending
vehicle has challenged the award on various grounds; mainly, on the
ground that the offending vehicle was not involved in the accident.
12. Heard learned counsel for the parties and perused the
record.
13. Learned counsel for the appellants would submit that the
amount of compensation is grossly inadequate; the amount that may be
payable under the head of the future prospects has not been considered
and compensation under other conventional head, has also not been
adequately granted.
14. It may be noted that the Tribunal awarded the
compensation as follows:-
(a) Based on the income tax return, submitted by the
deceased, his annual income has been assessed at
`60,000/-. There were less than three members in the
family. Therefore, 1/3 of the income was deducted on his
personal expenses. Accordingly, `40,000 was assessed
income for the purpose of assessing the loss of
dependency.
(b) The deceased was 28 years of age at the time of
accident, therefore, multiplier of 18 has been applied and
lost of dependency is calculated as 40,000 x 18 =
7,20,000/-.
(c) On this amount 10,000/- had also been added as
lumpsum for loss of consortium, funeral expenses, loss of
state, etc.
(d) `3,000/- were awarded towards litigation charges.
15. Accordingly, `7,30,000/- compensation and `3,000/- as
cost of litigation has been awarded.
16. In the death cases, arising out of motor accidents, the
calculation may be as herein under, in view of the settled legal position
particularly the law laid down in the cases of National Insurance
Company Limited Vs. Pranay Sethi and others (2017)16 SCC 680,
Sarla Verma and other Vs. Delhi Transport Corporation and another
(2009)6 SCC 121 and the New India Assurance Company Limited Vs.
Somwati and others (2020)9 SCC 644 .
(i) Total Income, which shall be calculated after
deducting the admissible tax. In the instant case, it is not argued
or submitted that any tax was to be deducted on the income
assessed at `40,000/- per month of the deceased after deduction
of 1/3 of his personal expenses.
(ii) On this monthly income future prospects are to be
calculated in view of Pranay Sethi (supra) case i.e. 40% in the
instant case, because the deceased was self employed and at the
time of death his age was 28 years. 40% of `40,000 is equal to
`16,000. Therefore, the multiplicand would be `56,000 (`40,000
+ `16,000).
(iii) The age of the deceased was 28 years at the time of
accident and in view of the judgment, in the cases of Pranay
Sethi and Sarla Verma (supra) the multiplier of 18 will be
applicable. Therefore, the loss of dependency is assessed at
`10,08,000 (`56000 x 18).
(iv) In view of the judgment in the case of Pranay Sethi
(supra), the appellants would also be entitled to funeral expenses
`15,000/- and loss of estate `15,000/-.
(v) In view of the judgment in the case of Somwati
(supra), each of the appellants as well as the respondent No.3,
who was mother of the deceased were entitled to loss of
consortium @ `40,000/- each. It makes no difference that now
mother of the deceased has also expired. The claim is to be
determined on the of date, when it was filed. Therefore, under
the head of loss of consortium the appellants are entitled to
`1,20,000 (`40,000 x 3).
(vi) In view of the forgoing discussion the total
compensation that may be awarded is `11,58,000 (`10,08,000 +
`30,000/- + `1,20,000 = `11,58,000).
17. This Court is of the view that the appellants are entitled to
`11,58,000.00 as compensation.
18. There is another issue with regard to the liability of a
person, who is liable to pay his compensation. There is no dispute to
the fact that offending vehicle was ensured with the New India
Insurance company, the respondent No.2.
19. The arguments, which had been made on behalf of the
respondent No.2 is that, the offending vehicle was not involved in the
accident; the respondent No.1, has stated it on oath in the claim
petition; it is argued that in the matter a police report was filed, but the
police did not find the involvement of the offending vehicle.
20. On the other hand, on behalf of the appellants, it is
submitted that the pillion rider of the motorcycle was examined as
PW2, Sandeep Verma, who has categorically stated as to how the
incident occurred; the Tribunal has very categorically, keeping in view
the attending circumstances, examined the issue relating to
involvement of offending vehicle in the accident and has rightly
concluded that it is rash and negligent act of the driver of the offending
vehicle, which caused the accident. Therefore, it is argued, that on this
point the determination as recorded by the Tribunal may not be
disturbed.
21. This is a matter which arises out of the claim petition
seeking compensation on account of death of a person, arising out of
the motor accident. Standard of proof in such matters is not as is
required in the criminal cases, which is proof beyond reasonable doubt.
Cases of the instant nature are decided on the basis of preponderance of
probability. Even if criminal case relating to the accident results, in
acquittal, it may not have the implication to reject the claim petition.
The yardsticks in the criminal trial are entirely different.
22. In the instant case PW1, is the appellant Sonal Verma,
who is the wife of the deceased. She did not witness the incident, but
PW2, Sandeep Verma is the pillion rider. He states on oath, in the
claim petition as to how did the accident occur. According to him on
that day, he along with the deceased was riding on the motorcycle
when the offending vehicle, having being driven in a rash and negligent
manner came to the wrong side and hit the motorcycle. The witness has
been cross-examined at great length. He has been consistent on his
stand.
23. The Tribunal has noted that initially the respondent No.2
admitted the collusion between the motorcycle and offending vehicle,
but subsequently, they amended their objections. It so happened that
the respondent No.1 filed his objections in the claim petition, after a
long delay and he took the plea that there was no collusion between the
offending vehicle and the motorcycle. It is only thereafter that the
respondent No.2 amended their objections in the claim petition.
24. The respondent No.1 has also been examined as DW1. He
states that on the date of incident they had parked the offending vehicle
on a side of the road and were having cold water. When they saw two
persons riding on a motorcycle, who slipped and fell on the road. They
reached out to the injured and took them to hospital, as requested by the
injured. It is the respondent No.1, who took the deceased and injured to
hospital in the offending vehicle.
25. The Tribunal noted that had it been a case of false
implication, the injured or deceased would not have named the person,
who helped them at the hours of crises. They would have named any
person, any vehicle because it was a very busy road. It is true that with
regard to the conduct of any person or reflection of an individual at a
particular time may not be basis of any opinion by the Court. But then,
whatever is observed by the Tribunal in the instant case, with regard to
the implication of the offending vehicle, is not solely based on conduct
or reflection of any individual. It is based on the testimony of PW2
Sandeep Verma, who was riding the motorcycle at the time of accident.
The Tribunal found the evidence of PW2, Sandeep Verma trustworthy,
credible and reliable. This Court does not see any reason to make any
interference on this finding of the Tribunal. Therefore, this Court
concludes that in fact, accident occurred due to rash and negligent
driving of the offending vehicle. This is the second point raised in these
appeals.
26. The third issue, which has been raised in his appeal by the
respondent No.1, is that he should not have been fastened the liability
to pay interest for the period of one year because the observation made
by the Tribunal that it is the respondent No.1, who delayed the
proceeding of the claim petition is not based on any evidence.
27. During the course of arguments, the learned counsel for
respondent No.1 would submit that the respondent No.1 did not have
any information of the claim petition and as soon as he came to know
about it, he filed an application for setting aside the ex-parte judgment
and order, which was allowed on 20.03.2007 in Misc. Case No.01 of
2007. It is submitted that in that order the Tribunal concluded that the
version of the respondent No.1, that he had no notice of the claim
petition during its pendency, was reliable as it was un-rebutted.
28. The order dated 20.03.2007, passed in Misc. Case No. 01
of 2007, Surendra Chopra Vs. Sonal Verma, passed by the court of
Additional District Judge/1st Fast Track Court, Nainital has also been
filed. It reveals that in fact, once the claim petition was decided on
20.11.2006 but till then respondent No.1 had not participated in the
claim petition. Thereafter, respondent No.1 filed an application for
setting aside the judgment and order dated 22.11.2006, passed in the
claim petition, on the ground that he had never been served and he did
not have any notice or knowledge of the pendency of the claim petition.
This version of the respondent No.1, was accepted in Misc. Case No.01
of 2007 by the Tribunal and it is thereafter, the proceedings of the
claim petition were re-opened. It is then the respondent No.1 filed his
objections and thereafter, as stated, respondent No.2, insurance
company also amended their objections.
29. Be it as it may, the fact remains that once decided on
22.11.2006, the claim petition was re-heard. The judgment and order
dated 22.11.2006, was set aside on the application of respondent No.1
by the Tribunal accepting that the respondent No.1 did not have any
notice of the claim petition. In the impugned judgment and order, the
Tribunal noted that the respondent No.1 did delay the trial of the claim
petition, but this finding is against the findings recorded on 20.03.2007
in Misc. Case No.01 of 2007, by which the order dated 22.11.2006 was
set aside by the Tribunal itself. Therefore, this Court is of the view that
subsequent to setting aside of the judgment and order, earlier passed on
22.11.2016, it may not be lawful to hold that the respondent No.1, had
any information or notice or knowledge of the claim petition during its
pendency and he delayed the proceedings. Therefore, it may not be just
to make respondent No.1, liable for payment of interest of one year on
the awarded amount.
30. Accordingly, this Court is of the view that whatever
interest is to be paid, that has to be paid by the respondent No.2,
insurance company of the offending vehicle. So the Court sums up the
finding as hereunder:-
(i) The accident occurred due to rash and negligent driving of
the offending vehicle.
(ii) The appellants are entitled to `11,58,000.00, as
compensation.
(iii) The compensation shall be paid by the respondent No.2,
the New India Assurance Company Limited.
(iv) The respondent No.1, owner of the offending vehicle is
not liable to pay interest for one year on the awarded amount.
(v) The respondent No.2 is directed to make complete
payment to the appellants within one month from today.
31. The impugned judgment and order is modified to the
extent as indicated above.
32. All the three appeals are disposed of accordingly.
(Ravindra Maithani, J.)
16.03.2021
Sanjay
