AO/349/2006 of SMT ROOPKALA and ANR Vs THE NEW INDIA ASSURANCE and ORS on 29 December 2008

IN THE HIGH COURT OF UTTARAKHANDAT NAINITAL

Appeal Against Order No. 349 of 2006

Smt. Roopkala and another

…Appellants

Versus

The New India Assurance Co. Ltd. & others

... Respondents

With

Appeal Against Order No. 805 of 2006

Mohd. Sakil & another

…Appellants

Versus

The New India Assurance Co. Ltd. & others

... Respondents

With

Appeal Against Order No. 493 of 2007

Mohd. Sakil & another …Appellants

Versus

The New India Assurance Co. Ltd. & others ... Respondents Sri Jitendra Chaudhary, Advocate for claimants Sri Pankaj Purohit, Advocate for owner of vehicle in question Sri P.C. Maulekhi, Advocate for The New India Assurance Co. Ltd.

Dated: December 29, 2008

Hon’ble B.C. Kandpal, J.

Since these appeals arise out of same accident and similar question of fact of law is involved in these appeals, hence, they are being deiced by this common judgment and order.

A.O. No. 349 of 2006, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the claimants-appellants, against the judgment and award dated 05.04.2006, passed by Motor Accident Claims Tribunal, Chamoli (Gopeshwar), in M.A.C.C. No. 38 of 2005, Smt. Roopkala and another versus The New India Assurance Co. Ltd. and others.

A.O. No. 805 of 2006, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the appellant i.e. owner of offending vehicle in question, against the judgment and award dated 05.04.2006, passed by Motor Accident Claims Tribunal, Chamoli (Gopeshwar), in M.A.C.C. No.39 of 2005, Kushal Singh versus The New India Assurance Co. Ltd. and others.

A.O. No. 493 of 2007, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the appellant i.e. owner of offending vehicle in question, against the judgment and award dated 05.04.2006, passed by Motor Accident Claims Tribunal, Chamoli (Gopeshwar), in M.A.C.C. No.38 of 2005, Smt. Roopkala and another versus The New India Assurance Co. Ltd. and others.

Brief facts of the case, according to the claimants, are that on 11.5.2005 deceased-Bhim Bahadur had gone to Badrinath through Vehicle No. U.A.07F/3820 in order to load and unload the goods and when after unloading the goods he was returning to Gopeshwar, at 11.00 p.m. near village Langsi, P.S. Joshimath, the said vehicle met with an accident on account of rash and negligent driving of its driver and it fell into a ditch, as a result of which deceased sustained injuries and succumbed to those injuries at the spot itself. Deceased-Bhim Bahadur used to earn Rs.4500/- per month by working as labourer, at the time of accident. Opposite party no. 2-Mohd. Shakil is the owner of vehicle No.U.A.07F-3820 and opposite party no. 3-Shakil Ali is the driver of said vehicle. At the time of accident the said vehicle was insured with opposite party no. 1-The New India Assurance Co. Ltd. Therefore, the claimants prayed that they might be awarded desirable amount of compensation from opposite parties.

Opposite parties no. 2 and 3 i.e. owner and driver of vehicle in question, filed their joint written statement. They have admitted the factum of occurrence of accident on the date, place and time as stated by the claimants in the claim petition. Opposite party no. 2 has stated that he is the owner of vehicle No. U.A.07F-3820 and at the time of accident vehicle in question was being driven by its driver-Shakil Ali (opposite party no. 3), who was possessing valid driving licence and the said vehicle was insured with opposite party no. 1-insurance company. It has also been alleged that at the time of accident all the papers relating to vehicle in question were valid and owner as well as driver of vehicle in question is not liable to pay any compensation to the claimants. Therefore, claim petition filed by claimants against opposite parties no. 2 & 3 is liable to be dismissed.

Opposite party no. 1-insurance company filed its written statement denying all the contents made in the claim petition and pleaded that at the time of alleged accident, registration certificate, insurance policy, driving licence and permit etc. relating to vehicle involved in the accident, were not valid and therefore claim petition of the claimants does not deserve to be admitted.

The learned Tribunal on the basis of pleadings adduced by the parties framed relevant issues in the claim petitions, which were discussed in detail. Parties led oral as well as documentary evidence in support of their case.

The Tribunal after having considered the entire evidence available on record and hearing learned counsel for the parties decreed the claim petition for a sum of Rs.82,000/- in M.A.C.C. No. 38/2005 (Smt. Roopkala & another vs. The New India Assurance Co. Ltd. & others) as well as for a sum of Rs.38,335/- in M.A.C.C. No. 39/2005 (Kushal Singh vs. The New India Assurance Co. Ltd. & others), vide judgment and award dated 05.04.2006. The Tribunal at the same time directed that amount awarded shall be paid by the owner of offending vehicle in question, along with interest of 6% per annum from the date of filing the petition till the date of actual payment.

The claimants have preferred A.O. No. 349/2006, against the aforesaid judgment and award dated 05.04.2006, passed in M.A.C.C. No. 38/2005, Smt. Roopkala and another vs. The New India Assurance Co. Ltd. & others, for enhancement of amount of compensation.

The owner of offending vehicle in question has preferred A.O. Nos. 805/2006 and 493/2007 against the aforesaid impugned judgment and award dated 05.04.2006 passed in M.A.C.C. Nos. 39/2005 and 38/2005 respectively.

Heard Sri Jitendra Chaudhary, learned counsel for claimants-appellants (Smt. Roopkala and another), Sri Pankaj Purohit, learned counsel for owner of offending vehicle in question, Sri P.C. Maulekhi, learned counsel for insurance company and perused the record.

Sri Pankaj Purohit, learned counsel for owner and driver of vehicle in question has submitted before the Court that evidence adduced before the Tribunal has not been correctly assessed in shifting the burden of making the payment on the shoulder of owner of vehicle in question. He has further submitted that evidence adduced before the Tribunal clearly indicates that driver of offending vehicle namely Shakil Ali son of Bhurekhan was driving the vehicle at the time of accident. He has also submitted that there is no iota of evidence that conductor-Riyasat was in fact driving the vehicle at the time of accident and finding of the Tribunal is perverse in this regard.

Sri P.C. Maulekhi, learned counsel for insurance company has made rival contention by submitting that during police investigation it came in the light that conductor-Riyasat was in fact driving the vehicle in question. He has invited my attention towards final report submitted by the police after the investigation in the criminal case indicating therein that driver-Shakil Ali was in fact not driving vehicle in question at the time of accident and it was the conductor of vehicle-Riyasat who was driving the same.

I have perused the statement of witness produced before the Tribunal. An eye witness of the accident is PW-2, Kushal, who has stated that vehicle in question was being driven by driver-Shakil Ali. The suggestion was made to him that conductor-Riyasat was in fact driving the vehicle at the time of accident, but he denied the same. The insurance company in fact has not adduced any cogent and reliable evidence in order to show that offending vehicle in question was being driven by conductor of vehicle at the time of accident. It is worthy to mention here that police previously submitted the final report in this case and after the protest petition was filed, police reinvestigated the matter and submitted the charge sheet against driver of offending vehicle namely Shakil Ali.

It is thus quite clear that insurance company has failed to discharge its burden to prove that the offending vehicle was in fact being driven by the conductor of vehicle namely Riyasat and not by its driver-Shakil Ali. Learned counsel for the insurance company has further submitted that deceased was travelling on the vehicle in question as a gratuitous passenger at the time of accident. My attention has been invited towards paragraph nos. 16 and 17 of written statement filed by insurance company in this regard.

Again, I do not find any force in this argument advanced by learned counsel for insurance company. Firstly, the insurance company has although taken this plea in its written statement, but it did not press this point before the Tribunal. Further, the insurance company also did not press any issue to be framed before the Tribunal. Further, it is a case of claimants that deceased had been travelling on the vehicle in question as a labourer in order to load and unload the goods. Therefore, in case, if the deceased had been travelling on the truck in question for the purpose of loading and unloading the goods for the same, then his capacity cannot be said to be a gratuitous passenger at the time of accident.

For the reasons stated above, I am of the view that Tribunal has fell in error in shifting the liability for making the payment of awarded amount of compensation on the shoulder of owner of vehicle in question. In fact, it is the insurance company who is liable to pay the amount of compensation to the claimants.

As far as A.O. No. 349 of 2006 filed by claimants for enhancement of amount of compensation, is concerned, I am of the view that again the Tribunal has fell in error in assessing the notional income of deceased at Rs.15,000/- per annum. In this case, the accident had taken place on 11.5.2005. In the year 2005, on account of price hike and in view of the decision of Division Bench of this Court passedin A.O. No. 2 of 2005, Shobhan Singh and another vs. New India Insurance Company and another, decided on 1.11.2006, in this case alsothe notional income of deceased is to be assessed at Rs.36,000/- per annum and after deducting one-third out of it as personal expenses of the deceased, the financial dependency of claimants is to be assessed at Rs.24,000/- per annum. It is an admitted case that deceased was unmarried at the time of accident, hence, the multiplier is to be adopted on the basis of age of parents of deceased. The mother of the deceased was 54 years of age at the time of accident, therefore, multiplier of ‘7’ as has been adopted by the Tribunal in this case, would be just and proper. After applying the multiplier of ‘7’ in this case, the amount of compensation to be awarded in favour of claimants, comes to Rs.24,000 x 7=Rs.1,68,000/-. Rest of the amount awarded in favour of claimants under other different heads, shall remain intact. The interest indicated in the impugned judgment and award shall also remain intact.

On the basis of aforesaid calculation, I am of the view that claimants are entitled for a sum of Rs.1,68,000 + Rs.2,000 + Rs.10,000=Rs.1,80,000/- as compensation, along with interest indicated in the impugned judgment and award.

For the reasons stated above, appeals are allowed. The impugned judgment and award is modified to the extent that amount of compensation to be awarded in favour of claimants (Smt. Roopkala and another) shall be Rs.1,80,000/- (Rupees One Lac Eighty Thousand only), instead of Rs.82,000/- as has been awarded by the Tribunal, along with interest indicated in the impugned judgment and award. The impugned judgment and award is further modified to the extent that amount awarded shall be paid by the insurer of vehicle in question i.e. The New India Assurance Co. Ltd.

The statutory amount deposited with this Court be remitted to the Tribunal concerned.

Let a copy of this judgment be placed in the files of A.O. No.805/2006 and 493/2007.

SP

(B.C. Kandpal, J.)