Naresh Kumar vs Hari Ram and Others

Mansoor Ahmad Mir, C.J—The order dated 12.5.2008 setting respondents No. 1 to 3 ex parte is recalled.

Challenge in this appeal is to the judgment and award dated 27.11.2007, made by the Motor Accident Claims Tribunal, Fast Track Court Solan, H.P. in Case No. 14 FTC/2 of 2005/2006, hereinafter referred to as "the Tribunal" for short, whereby compensation to the tune of Rs. 5,04,000/- alongwith 7 1/2% interest came to be awarded in favour of the claimants and the appellant/owner was saddled with the liability, for short the "impugned award", on the grounds taken in the memo of appeal.

Claimants and driver have not questioned the impugned award on any ground, thus it has attained finality, so far it relates to them.

The owner has questioned the impugned award on the grounds taken in the memo of appeal.

The rash and negligent driving of the driver is not in dispute in this appeal. The only dispute raised in this appeal is that the driver, namely, Hamender Kumar had driven the offending vehicle without authority and permission of the owner at the relevant point of time. On the date of accident, the owner was not at home but was stated to be away from home at Delhi, attending to his some ailing relations.

The Tribunal, from the pleadings of the parties, has framed the following issues.

(i) Whether the death of the deceased Nirmala Devi had been caused on account of rash/negligent driving of the scooter by the respondent No. 2?

OPP.

(ii) If issue No. 1 is proved in affirmative, to what amount of compensation the petitioner is entitled and from whom?

OPP

(iii) Whether the respondent had taken the scooter un-authorizedly, if so, its effect?

OPR-1.

(iv) Relief.

The parties were asked to lead evidence. The claimants examined as many as four witnesses, namely, Jeet Ram (PW 1), Hari Ram (PW 2), Rameshwari (PW 3) and Paramjeet Sharma, (PW 4).

On the other hand, respondents have examined seven witnesses, namely Naresh Kumar (RW 1), Neeraj Parkash (RW 2), Hamender Kumar (RW 3), Rakesh Kumar (RW 4), Shyam Kala (RW 4-A), Ram Rattan (RW 5), and Goverdhan Singh (RW 6) and also placed on record the documents details of which are given in the judgment and also in the list of exhibits attached to the impugned award.

I have gone through the entire record. I am of the considered view that the Tribunal has rightly discussed the evidence and came to the conclusion that the accident was outcome of the rash and negligent driving of the driver, namely, Hamender Kumar. Even otherwise, findings on Issue No. 1 are not in dispute, so are upheld accordingly.

Issues No. 2 and 3 are interlinked so I deem it proper to club these issues. It was for the appellant-owner to prove that the offending vehicle was taken un-authorizedly by Hamender Kumar, has not lodged any FIR. The appellant/owner has not explained as to how the vehicle had gone in his possession and where from he has obtained the key of the vehicle in order to drive the same. The Tribunal has rightly made the discussions right from paras 10 to 13 of the impugned award and has correctly made the decision against the appellant/insured.

Mrs. Devyani Sharma, learned counsel for the appellant was asked whether any FIR was lodged, her reply was in negative. Further, she was not in a position to explain how the driver had obtained the key of the vehicle when the vehicle belongs to the owner and he had not engaged him as driver. Viewed thus, the Tribunal has rightly made the discussion.

The learned counsel for the appellant stated that the amount awarded is excessive.

I have gone through the findings recorded by the Tribunal. Admittedly, the age of the deceased was 37 years at the time of the accident. The Tribunal has fallen in an error in applying the multiplier of "16" which was to be applied as "14" in view of ratio laid down in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 : AIR 2009 SC 3104 : (2009) CLT 1055 : (2009) 6 JT 495 : (2009) 6 SCALE 129 : (2009) 6 SCC 121 : (2009) 5 SCR 1098 : (2009) 5 UJ 2280 : (2009) AIRSCW 4992 : (2009) 3 Supreme 487 and upheld in Reshma Kumari and others versus Madan Mohan and another, reported in 2013 AIR SCW 3120. Accordingly, multiplier of "14" is applied in this case in view of Sarla Verma, supra read with Munna Lal Jain and another versus Vipin Kumar Sharma and others reported in JT 2015 (5) SC 1. It is apt to reproduce paras 12 and 14 of the said judgment herein:

"12. The remaining question is only on multiplier. The High Court following Santosh Devi (supra), has taken 13 as the multiplier. Whether the multiplier should depend on the age of the dependants or that of the deceased, has been hanging fire for sometime; but that has been given a quietus by another three-Judge Bench decision in Reshma Kumari (supra). It was held that the multiplier is to be used with reference to the age of the deceased. One reason appears to be that there is certainty with regard to the age of the deceased but as far as that of dependants is concerned, there will always be room for dispute as to whether the age of the eldest or youngest or even the average, etc., is to be taken. To quote:

"36. In Sarla Verma, this Court has endeavoured to simplify the otherwise complex exercise of assessment of loss of dependency and determination of compensation in a claim made under Section 166. It has been rightly stated in Sarla Verma that the claimants in case of death claim for the purposes of compensation must establish (a) age of the deceased; (b) income of the deceased; and (c) the number of dependants. To arrive at the loss of dependency, the Tribunal must consider (i) additions/deductions to be made for arriving at the income; (ii) the deductions to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. We do not think it is necessary for us to revisit the law on the point as we are in full agreement with the view in Sarla Verma."

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The multiplier, in the case of the age of the deceased between 26 to 30 years is 17. There is no dispute or grievance on fixation of monthly income as Rs. 12,000.00 by the High Court."

The Tribunal has rightly taken the loss of dependency to the tune of Rs. 2000/-.

The Tribunal has wrongly awarded Rs. 20,000/- as funeral expenses and Rs. 1 lacs on account of loss of love and affections. The claimants are held entitled to Rs. 10,000/- each under four heads as under:

The rate of interest as awarded by the Tribunal is maintained.

Viewed thus, the claimants are held entitled to Rs. 2000 x 12 = 24000/- x 14 = Rs. 3,36000/- + Rs. 40,000/- = Rs. 3,76,000/-. Accordingly, the amount awarded is reduced to Rs. 3,76,000/-, with interest, as awarded by the Tribunal, in terms of the impugned award.

Accordingly, the impugned award is modified as indicated hereinabove and the appeal is disposed of.

The appellant is directed to deposit the compensation amount within four weeks from today before the Tribunal. In default, claimants are at liberty to file execution petition before the Tribunal.

Send down the record forthwith, after placing a copy of this judgment.