Smt. Kamla Kandari & Ors. vs The New India Assurance Company & Ors.

Hon’ble Pankaj Purohit, J.

This appeal for enhancement of compensation is directed against the judgment and award dated 02.01.2013, passed by learned Motor Accidents Claim Tribunal/District Judge, Pauri-Garhwal in Motor Accidents Claim Petition No.27 of 2008, Smt. Sureshi Devi (deceased) and others Vs. The New India Assurance Company Ltd and others , whereby an amount of ₹17,27,000/- was awarded by learned Claims Tribunal along with interest @ 8% per annum from the date of filing of the claim petition till actual payment.

The brief facts of the case are that on 17.09.2007, at about 09:00 A.M., Yogamber Singh Kandari was travelling in bus bearing registration No. UP-05-0282 from Lansdowne towards Pauri-Garhwal. Near Satpuli, the bus allegedly met with an accident due to rash and negligent driving, resulting in his death. The deceased, aged about 49 years, was working as a Reader in the District Judge's establishment at Pauri. His wife and two sons filed a claim petition seeking compensation of ₹17,27,000/-. The learned Tribunal, vide judgment and award dated 02.01.2013, awarded ₹17,27,000/- as compensation. Aggrieved by the quantum of compensation, the claimants have preferred the present appeal seeking enhancement.

Respondent insurance company filed written statements mainly contending that the driver did not possess a valid and effective driving licence and that the vehicle was not being operated with valid and effective documents, including the requisite permit and fitness. It was contended that the vehicle was being driven in breach of the terms and conditions of the insurance policy and, therefore, the insurer was not liable.

It was further averred that the allegation of rash and negligent driving was incorrect and the claim petition was liable to be dismissed.

The respondent-owner in his written statement admitted the accident and submitted that the vehicle was being driven by respondent no.3, but denied rash and negligent driving. It was stated that the driver was driving cautiously, but due to sudden mechanical failure, the vehicle could not be stopped and fell into the ditch despite his efforts.

It was further pointed out that the vehicle was duly insured with the New India Assurance Company and its documents were valid. Respondent no.3, the driver, did not appear before the Tribunal and was proceeded ex parte.

Based upon the pleadings of the parties the learned Tribunal framed the following issues:

Whether on 17.09.2007 at about 09:00 A.M., near Satpuli, bus No.UP-05-0282 was being driven rashly and negligently by its driver, as a result whereof passenger Yogamber Singh Kandari sustained serious injuries and died?

Whether at the time of the accident, the documents of the vehicle were not valid and effective and the driver did not possess a valid and effective driving licence?

Whether at the relevant time, date and place, the vehicle was being driven in violation of the terms and conditions of the insurance policy?

Whether the claimants are entitled to compensation? If so, to what amount and from which of the parties?

Whether the alleged accident occurred due to rash and negligent driving of respondent no.3, the driver, and if so, its effect?

While deciding issues nos.1 and 5 the Tribunal, on the basis of the testimony of PW-1, the FIR, post-mortem report and other police papers, held that the accident occurred due to rash and negligent driving of the bus by respondent no.3, resulting in the death of Yogamber Singh Kandari. The plea of mechanical failure was not supported by any documentary or independent evidence. Accordingly, both the issues were decided in favour of the claimants.

While deciding issues nos.2 and 3 the Tribunal found that the owner had produced the relevant documents showing that the permit, fitness certificate, taxes and driving licence were valid on the date of the accident. The vehicle was also insured with the appellant-insurance company. Accordingly, these issues were decided against the insurance company.

While deciding issue no.4 the Tribunal assessed the deceased's monthly income at ₹18,421/-, deducted one-third towards personal expenses and, after adding 30% towards future prospects, applied multiplier of 13. The loss of dependency was assessed at ₹24,90,384/- and, after adding the conventional heads, total compensation was calculated at ₹25,10,384/-. However, since the claimants had claimed only ₹17,27,000/-, the Tribunal restricted the award to ₹17,27,000/-.

Learned counsel for the claimants/appellants submitted that the deceased died in the accident dated 17.09.2007 due to rash and negligent driving of bus No.UP-05-0282. It was submitted that the deceased was aged about 49 years and was working as a Reader in the establishment of the District Judge, Pauri-Garhwal earning about ₹19,000/- per month.

Learned counsel contended that the Tribunal itself assessed the compensation at ₹25,10,384/-, but restricted the award to ₹17,27,000/- merely because that amount had been claimed. It was further submitted that the multiplier of 13 was wrongly applied and that the directions regarding fixed deposit and interest also required interference.

The learned counsel for the respondent-Insurance Company supported the award by contending that the learned Tribunal committed no illegality in awarding the compensation as claimed by the appellants-claimants. The multiplier of 13 is rightly applied as per the judgment of the Hon’ble Supreme Court in the case of Sarala Verma’s case and therefore no interference is warranted. Appeal deserves to be dismissed.

Learned counsel for the respondent-owner did not oppose the appeal.

Having heard learned counsel for the parties and having perused the record, this Court has considered the rival submissions. The learned Tribunal itself, on the basis of the evidence available on record, assessed the just compensation payable to the claimants at ₹25,10,384/-. However, the Tribunal restricted the award to ₹17,27,000/- solely on the ground that the claimants had claimed only the said amount.

The aforesaid approach of the Tribunal cannot be sustained. In the case of Nagappa Vs. Gurudayal Singh & Others, reported in (2003) 2 SCC 274, the Hon'ble Supreme Court has held that there is no restriction under the Motor Vehicles Act upon the Tribunal or the Court to award compensation exceeding the amount claimed. The duty of the Tribunal is to award just compensation on the basis of the evidence available on record.

Relevant paragraph of Nagappa (supra) is reproduced hereinbelow:-

In the present case, once the learned Tribunal itself had determined the just compensation at ₹25,10,384/-, it ought not to have restricted the award to ₹17,27,000/-merely because that was the amount mentioned in the claim petition. The claimants are, therefore, entitled to the compensation assessed by the Tribunal itself, i.e. ₹25,10,384/-.

As regards the multiplier, the deceased was aged 49 years at the time of the accident. The multiplier of 13 applied by the learned Tribunal is appropriate and calls for no interference.

The appeal is allowed in the aforesaid terms.

Accordingly, the compensation awarded by the learned Tribunal is enhanced from ₹17,27,000/- to ₹25,10,384/-.

The enhanced amount of compensation shall carry the interest @ of 8% per annum from the date of filing of the claim petition till actual payment is made as awarded by the learned Tribunal. The respondent-Insurance Company shall deposit the enhanced compensation within one month from the date of receipt of certified copy of this judgment along with the entire interest accrued thereon before learned Tribunal concerned. The amount so deposited shall be released to the appellants-claimants forthwith.