AO/261/2008 of THE NEW INDIA ASSURANCE COMPANY LTD. Vs SMT. KAMALA DEVI AND OTHERS on 26 December 2008

IN THE HIGH COURT OF UTTARAKHAND AT

NAINITAL.

A.O. No. 261/ 2008

New India Assurance Company Ltd. .. Appellant.

Versus

Smt. Kamala Devi and others ……. Respondents.

Sri P.C. Maulekhi, learned counsel for the appellant.

Sri B.S. Negi, learned counsel for claimants/respondents.

Dated: 26-12-2008

Hon’ble B.C. Kandpal, J.

This appeal under Section 173 of the Motor Vehicles Act, 1988 has been preferred against the judgment and award dated 1-11-2007, passed by Motor Accident Claims Tribunal/District Judge, Uttarkashi, in MACT Case No.6/2007 Smt. Kamala Devi and others Vs. Gopal Bhandari and others.

2- Brief facts of the case are that Padam Bahadur was employed as Foreman in M/s Sreeng Construction Company Ltd. Nehru Colony Dehradun. On 29-11-2006 at about 8.15 A.M. he was going to perform his duty from Masjid Mohalla Bhatwari Road Uttarkashi to Gangori/Tekhala sitting in Truck/Dumper No. U.A. 07-G-8173. The aforesaid Truck/Dumper was owned by M/s Sreeng Construction company. When the said Dumper reached near Stone Crusher Tekhla, Padam Bahadur got down from the Dumper the driver suddenly drove the vehicle due to which Padam Bahadur was crushed beneath the tyre of the dumper. According to the claimants the driver was driving the dumper in a rash and negligence manner and due to his fault Padam Bahadur has died. The deceased at the time of accident was 48 years of age and he was getting a monthly salary of Rs. 6837/- working on the post of Foreman. He used to give Rs. 4,558/- per month to his family. Therefore, the claimant filed claim petition for compensation in lieu of death of Padam Bahadur before the Tribunal.

3- The opposite party Nos.1 and 2, driver and the owner of the offending vehicle (M/s Sreeng Construction Company Ltd.) respectively, filed joint written statement and denied the allegations made in the claim petition. However, they have alleged that the deceased was travelling in the offending vehicle. He was sitting towards the door side and at the time of accident he was using his mobile phone. Suddenly the mobile phone fell down and being intense the deceased jumped from the vehicle in order to catch the mobile phone due to which he met with accident and died. They also alleged that the vehicle was insured with New India Assurance company and the liability, if any, is there, to pay the compensation, that is upon the shoulder of insurance company.

4- The opposite party No.3, New India Assurance Company also contested the claim petition and denied the averments made in the claim petition. It also alleged that the accident has occurred due to own negligence of the deceased therefore the insurance company cannot be held liable to pay the compensation. The insurance company also alleged that the deceased was a Foreman of the Company and premium was paid by the company only to cover the risk of driver, conductor and labourer.

5- The learned Tribunal on the pleadings of parties framed relevant issues. Thereafter parties led evidence in support of their case. The Tribunal after hearing learned counsel for the parties and perusing the material on record decreed the petition for a sum of Rs. 3,12,000/- along with interest @ 7% per annum from the date of filing the petition till the date of actual payment payable by opposite party No.3, New India Assurance Company Ltd.

6- Feeling aggrieved, the New India Assurance Company has preferred this appeal before this Court.

7- I have heard learned counsel for the appellant as well as claimants/respondents and perused the record.

8- From perusal of impugned judgment and award it reveals that the learned Tribunal has framed issue No.1 on the point of rash and negligence of the driver of the offending vehicle. The tribunal has recorded a categorical finding that the accident was the result of rash and negligence of the driver. P.W.2, Om Prakash, is an eyewitness of the accident. He has deposed that at the time of accident he was standing near Tekhala Stone-Crusher and saw that Truck No. U.A. 07-G-8173 owned by M/S Sreeng Construction Company stopped there and Padam Bahadur got down from it but the driver Gopal Bhandari started the said truck in a rash and negligent manner and crushed Padam Bahadur under the rare wheel. He has specifically deposed that the accident has occurred due to the negligence of the driver. This witness used to do the work of Scooter Mechanic in the shop situated near the place of accident. The opposite parties could not bring out anything from the crosss-examination of this witness, which may turn his testimony unreliable. The plea taken by the driver and owner that the deceased jumped down from the vehicle in order to catch the mobile phone and met with accident due to his own negligence, has not been substantiated by the opposite parties by adducing reliable and independent evidence. Their interested testimony of driver/owner on this point cannot be believed when there is independent and reliable evidence of eyewitness P.W.2, Om Prakash. Therefore, in view of evidence available on record, the learned Tribunal has rightly come to the conclusion that the accident was the result of rash and negligence of driver of the dumper involved in the accident.

9- So far as the plea taken by the insurance company that the deceased was a Foreman and he was not insured in the insurance policy, hence no liability can be fastened upon it, is concerned, the learned Tribunal has recorded a categorical finding on this point that the accident had occurred after the deceased had got down and then the driver of the vehicle crushed him under the rare wheel of the dumper in a rash and negligent manner, therefore, the insurance company is liable to pay the compensation, as the dumper was insured with it at the time of accident. I do not find any infirmity in the conclusion drawn by the learned tribunal in this regard also.

10- As far as the quantum of compensation is concerned, paper No. 30-C has been filed on the file of court below, which shows that the deceased Padam Bahadur was working in the Company and his monthly wage of Rs. 4,150/- is certified. Although the claimants have claimed that the deceased was earning Rs. 6,837/- per month but no cogent and reliable evidence has been adduced in this regard. Therefore, the Tribunal has assessed the notional income of Rs. 36,000/- per annum, and after deducting 1/3[rd] towards personal expenses, the net annual dependency was taken as Rs. 24,000/-. The age of the deceased was 48 years at the time of accident, and the tribunal has adopted a multiplier of 13 thereby the total compensation being Rs. 24,000/- x 13= Rs. 3,12,000/-. I do not find any illegality in the aforesaid calculation of quantum of compensation.

11- For the reasons recorded above, the appeal lacks merit and is liable to be dismissed.

12- Accordingly, the appeal is dismissed. The impugned judgment and award dated 7-11-2007 is confirmed.

Conclusion

13- Let the statutory amount deposited with this court be remitted to the tribunal concerned.

ISB

( B.C. Kandpal, J.)