Smt. Vimla Devi and Others vs Jsri Jitender Singh Topwal and Another

B.C. Kandpal, J.—This appeal u/s 173 of the Motor Vehicle Act, 1988 has been filed by the appellants against the judgment and award dated 17.07.2008 passed by Motor Accident Claims Tribunal/District Judge, Tehri Garhwal in M.A.C. Case No. 19 of 2007, Smt. Vimla Devi and Ors. v. Jitender Singh Topwal and Anr.

Brief facts of the case are that on 06.07.2007 at about 09:00 a.m., Sri Damodar Prasad was travelling in a bus bearing registration No. UP08/3229 and going from Khari to New Tehri. The bus was being driven by its driver in a very rash and negligent manner, due to which the said bus met with an accident at Dikholi Village. In this accident, Damodar Prasad sustained serious injuries and he was admitted in the Masiha Hospital, Chamba. The doctors considering the serious injuries of the deceased referred him to higher centre for better treatment. Thereafter, he was taken to Rishikesh Government Hospital, where he was dead during the course of treatment. The postmortem of the deceased was conduced on 07.07.2007. According to the claim petition, at the time of accident, the deceased was 27 years of age and used to earn Rs. 10,000/- by cooking and agricultural work. The claimants are the dependents upon the deceased; therefore, they have filed a claim petition for a sum of Rs. 28,30,000/- as compensation.

Thereafter, notices were issued to the opposite parties. Opposite party No. 1 - Jitender Singh Topwal (owner of vehicle No. UP08/3229) contested the claim petition by filing written statement before the Tribunal concerned. It has pleaded in the written statement that on the date of accident, the driver of the vehicle in question was being plied the vehicle very cautiously and the accident took place due to technical failure. It has also pleaded that on the date of accident the driver was having the valid and effective driving licence. It has also alleged that on the date of accident the vehicle in question was insured with the New India Assurance Company Ltd., therefore, the liability to pay compensation lies upon the insurer of the vehicle.

Opposite party No. 2 - The New India Assurance Company Ltd./insurer of vehicle No. UP08/3229 also contested the claim petition on the ground that on the date of accident, the driver of the bus did not possess the valid and effective driving licence. It has further alleged that the claimants have not produced any documents/medical bills pertaining to the medical treatment of the deceased. It has also alleged that the vehicle was being plied in violation of policy, therefore, the claim petition against the applicant/insurer of the vehicle in question is liable to be dismissed.

On the basis of the pleadings of the parties, the Tribunal has framed following issues:

Whether the accident in question took place at 9 a.m. on 06.07.2007 at Dikholgaon (Chamba) on Chamba - Rishikesh motor road P.S. Chamba, District Tehri Garhwal due to rash and negligent driving of passenger Bus No. UP08/3229 by its driver cum owner O.P. 1 resulting death of Damodar Prasad as alleged?

Whether the driver cum owner of the vehicle in question was not duly licenced as well as did not possess valid permit and fitness of the vehicle as alleged by the insurance company O.P. No. 2 in paragraph No. 12 and 13 of its WS? If so, its effect?

To what compensation is the petitioners entitled and from which of the opposite party?

Thereafter, both the parties led evidence in support of their case. After hearing learned Counsel for the parties and perusing the entire material available on record, the Tribunal decreed the claim petition for a sum of Rs. 2,42,400/- along with interest conditional interest of 9% per annum vide judgment and award dated 17.07.2008.

Feeling aggrieved by the aforesaid judgment and award, the claimants/appellants preferred this appeal before this Court for enhancing the amount of compensation.

Heard Sri T.C. Pande, Advocate, holding brief of Sri Tribhuwan Chandra, learned Counsel for the appellants, Sri Vijay Khanduri, Advocate, holding brief of Sri Vipul Painuly, learned Counsel for the respondent No. 1, Sri P.C. Maulekhi, learned Counsel for the respondent No. 2 and perused the record.

As far as the factum of accident is concerned, the Tribunal on the basis of the inquest report of the police, which is paper No. 41C/2 as well as statement of Vimla Devi (P.W.1) who has stated that on 06.07.2007 her husband was going from Khari to New Tehri in the bus in question and the said bus met with an accident at Chamba. The medical receipt of the Masiha Hospital, Chamba is enclosed as paper No. 38C/2, which shows that the deceased was admitted in the hospital, but the doctors considering the serious injuries of the deceased referred him to higher center for better treatment. Thereafter, he was admitted in the Government Hospital, Rishikesh. Paper No. 39C/2 available on record reveals that the postmortem of the deceased was conducted on 07.07.2007 at Government Hospital, Dehradun. According to the driver/owner of the vehicle in question, the accident took place due to technical failure, but he could not produced himself before the court below in order to support his case. Therefore, the Tribunal considering the evidence of P.W.1 as well scrutinizing the documents available on record came to the conclusion that the accident took place due to rash and negligent driving of the bus No. UP08/3229, in which, Damodar Parsad sustained serious injuries and succumbed to injuries. I am in total agreement with the findings recorded by the Tribunal relating to the rash and negligence.

Learned Counsel for the appellants/claimants has submitted only on the point that the Tribunal has committed illegality while calculating the amount of compensation. He has submitted that the Tribunal has taken into account monthly income of the deceased as Rs. 1,600/- whereas he was getting Rs. 3,000/- per month. In order to support his version, he has invited my attention towards statement of P.W.1 - Vimla Devi and P.W. 2 - Janardan Prasad.

Sri P.C. Maulekhi, learned Counsel for the respondent No. 2 has submitted that the Tribunal on the basis of the evidence available on record rightly calculated the amount of compensation. He has further submitted that the Tribunal in the absence of any documentary evidence and considering the facts and circumstances of the case has rightly calculated the amount of compensation.

After hearing learned Counsel for the parties, I have gone through the record as well as impugned judgment and award. As far as the amount of compensation to be awarded in favour of the claimants is concerned, the Tribunal while deciding issue No. 3 has discussed this aspect of the matter but the approach adopted by the Tribunal appears to be absolutely erroneous. The evidence available on record reveals that the deceased had been working as a cook in a Dhaba. The owner of the Dhaba was produced as P.W. 2 - Janardan Prasad before the Tribunal, but he has disclosed in his statement that he used to pay Rs. 3,000/- per month as salary to the deceased. He has also stated that although there is a season of 2 - 3 months in the Dhaba but he has to pay the salary to his employee for the whole year. He has also stated that if he does not pay the salary to his employee for the whole year, the employee will not turn again to his hotel for working in the next year. Apart of the statement of the owner of the Dhaba, whether the deceased had been working as a cook, the evidence on record indicates that the deceased was also engaged in the work of agriculture. It is a common practice in the villages that the person who used to work in a hotel or in some other tourist place then on off season they again come back to their home and engaged themselves in the work of agriculture in order to earn the livelihood.

In this case, the accident took place in the year 2007 and in the year 2007 the notional income in the absence of any cogent and reliable evidence with regard to the actual income of the deceased would be assessed, as Rs. 3,000/- per month and it shall be Rs. 36,000/- per annum. After deducting 1/3rd towards personal expenses of the deceased, the financial dependency of the claimants comes to Rs. 24,000/- per annum. The calculation made by the Tribunal in this regard does not appear to be justified. The age of the deceased at the time of the accident was 28 years and there is no rebuttal from other side in this regard. Therefore, keeping in view the age of the deceased as well as in the light of the judgment of the Hon''ble Apex court in The New India Assurance Company Ltd. v. Smt. Kalpana and Ors. reported in (2007) 2 Scc (Cri) 94, T.N. State Transport Corporation v. S. Rajapriya and Ors. reported in (2005) 6 SCC 276 and The Managing Director, TNSTC v. Sripriya and Ors. reported in 2007 (5) Supreme 301, the multiplier cannot travel more than ''15'' in any manner in the instant case. After applying the multiplier of ''15'', the total amount of compensation to be awarded in favour of the claimants comes to Rs. 3,60,000/- (24000 X 15). The amount awarded by the Tribunal under other different heads shall remain intact (Rs. 2000 + 10000). Thus, the claimants are entitled to get the total amount of compensation as Rs. 3,72,000/- along with interest @ 6% per annum from the date of filing the claim petition till the actual payment.

As far as the interest indicated in the impugned judgment and award is concerned, the Tribunal has again fell in error in awarding the condition interest of 9% per annum to the claimants. The just and proper interest should be 6% per annum from the date of filing the claim petition till the actual date of payment instead of condition rate of interest.

With the aforesaid observations, the appeal is partly allowed. The impugned judgment and award is modified to the extent that the claimants are entitled for a sum of Rs. 3,72,000/- instead of Rs. 2,42,400/- along with interest @ 6% per annum instead of conditional interest as has been awarded by the Tribunal from the date of filing the claim petition, till the actual date of payment.