Uttarakhand High Court
Hukum Singh Barthwal & Another ..... ... vs Vijay Gusain & Another on 17 December, 2019
Equivalent citations: AIRONLINE 2019 UTR 617, (2020) 1 UC 26
Author: Lok Pal Singh
Bench: Lok Pal Singh
Reserved Judgment
THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal From Order No.318 of 2013
Hukum Singh Barthwal & another ..... Appellants
Versus
Vijay Gusain & another
..... Respondents
Mr. S.K. Mandal, Advocate for the claimants / appellants.
None present for the respondents despite sufficient service.
List of cases referred:
1. (2017) 16 SCC 680, National Insurance Company Vs
Pranay Sethi
2. 2014 (4) T.A.C. 679 (S.C.), Ashvinbhai Jayantilal Modi
Vs. Ramkaran Ramchandra Sharma and another
3. (2009) 6 SCC 121, Sarla Verma and others Vs Delhi
Transport Corporation and another.
4. (2009) 13 SCC 530, Bimla Devi & others Vs Himachal
Road Transport Corporation and others
Hon'ble Lok Pal Singh, J. (Oral)
This appeal, under Section 173 of the Motor Vehicles Act, 1988, has been preferred against the judgment/award dated 14.06.2013 passed by MACT/ Additional District Judge, Tehri Garhwal, in Motor Accident Claim Petition No. 30 of 2012, Hukum Singh and Another Vs Vijay Gusain and another, whereby the claim petition of the appellants/claimants has been dismissed.
2. Brief facts of the case are that both the claimants are parents of deceased Narendra Barthwal. As per averments made in the claim petition, Narendra Barthwal was travelling in Tata 2 Sumo no., UA07 0623 on 29.05.2011 and near Deoprayag Tehsil on main highway the said vehicle fell into a ditch due to which the deceased suffered seriously injured and succumbed to his injuries. As per claimants, driver of Tata Sumo no. UA07 0623 was driving the vehicle rashly and negligently due to which the accident took place. According to the claimants, deceased was their elder son and he was earning Rs. 30,000/- per month. The Claimants have claimed a sum of Rs. 50 lacs as compensation.
3. Opposite Party no. 1 Vijay Gusain, who is the owner of Tata Sumo bearing registration no. UA07 0623, filed his written statement stating that vehicle in question was being driven by its driver cautiously and the accident took place due to act of God. He also stated that said vehicle is insured with United India Insurance Company Pvt. Ltd. and was being driven by its driver with valid driving license and all valid and effective documents at the time of accident.
4. Opposite party no. 2, United India Insurance Company Pvt. Ltd., also filed its written statement and denied most of the averments made in the claim petition as well as genuineness of the document of Opposite Party no. 1.
5. On the basis of pleading of the parties, the learned Tribunal framed following issues:
i) Whether vehicle number UA07 0623 was being driven by its driver rashly and negligently on date 29-05-2011 and the accident took place near Deoprayag Tehsil on Srinagar Highway Police 3 station Deoprayag, Tehri Garhwal at about 12:30 pm and deceased Narendra Barthwal was sitting in the vehicle and died due to that accident?
ii) Whether license, insurance, permit and the valid papers of vehicle were available on the date of accident?
iii) Whether claimants are entitled to get any compensation? If yes, from which of the opposite party.
6. Thereafter, the parties led oral and documentary evidence. PW1 Hukum Singh Barthwal, PW2 Parwati Devi (both parents of the deceased) and PW3 Ram Singh were examined as witnesses on behalf of the claimants. The claimants in support of claim petition filed copy of G.D Police Station Deoprayag (Paper no. 9C), copy of postmortem report (Paper no. 10C), experience letter of deceased (Paper no. 11C), photocopy of high school certificate (Paper no. 12C), copy of PAN Card (Paper no. 13C), copy of educational certificates (Paper no. 14C to 17C), residential proof (Paper no.18C), deduction of TDS certificate (Paper no. 47C) and Income tax return acknowledgment (Paper no. 48C). On behalf of opposite party no.1 six documents were filed which includes copy of insurance (Paper no. 27C), copy of registration (Paper no. 28C), copy of license (Paper no. 23C), copy of permit (Paper no. 30C), copy of fitness of vehicle (Paper no. 31C) and copy of pollution control certificate (Paper no. 32C).
7. After hearing the parties and upon perusal of evidence, learned Tribunal passed the 4 impugned judgment and award and dismissed the claim petition filed by the claimants.
8. I have heard learned counsel for the parties and perused the entire record.
9. On issue no. (i), the Tribunal has held that there is nothing on record which shows rash and negligent driving on the part of the driver of offending vehicle, as such, no compensation can be awarded u/s 166 of the Motor Vehicles Act. On issue no. (ii), the Tribunal has held that Tata sumo no. UA07 0623 was being driven by its driver with valid driving license, valid permit, fitness, pollution certificate and the same was insured with insurance company O.P. no. 2. Therefore, issue no. (ii) was decided against O.P. no. 2. While deciding issue no.
(iii), the Tribunal held that the claimants are not entitled to get any compensation as they have failed to prove rash and negligent driving by the driver of the offending vehicle on the date of accident which resulted into the death of their son.
10. From the statements of PW1 and PW2, father and mother respectively of the deceased, it is evidently clear that they have proved that their son died in an accident due to rash and negligent driving on the part of the driver of the offending vehicle. The learned Tribunal has not considered the evidence on the yardstick of preponderance of probability. Hon'ble Apex Court, in paragraph number 15, of the judgment of Bimla Devi4, has held that -"....it was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be 5 possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied....."
11. The preponderance of evidence by the eye witness is to be seen in an accident matter, and this is dealt with in the Motor vehicles Act, so the strict provisions of Evidence Act are not applicable.
12. When a person dies in a motor accident, rash and negligent driving of the vehicle in question is not of much relevance. A man can tell a lie, but circumstances cannot. The claimants have proved by leading satisfactory evidence that their son died in an accident, but the learned tribunal has denied the claim of the Claimants on the ground that they have failed to prove rash and negligent driving on the part of the driver of the offending vehicle. As such, impugned judgment and award cannot sustain in the eyes of law and is liable to be set aside.
13. In view of the above discussion, it is held that the death of the deceased occurred due to rash and negligent driving of the driver of the offending vehicle i.e. Tata Sumo bearing registration no. UA07 0623. Therefore, issue no. (i) is decided in favour of the appellants. Findings on Issue no. (ii) have not been challenged by the respondents by filing the cross-objection or appeal, so the finding recorded by the learned tribunal on said issue is hereby affirmed.
614. Since Issue no. (i) has been decided in favour of the claimants / appellants, as such, they are entitled to receive compensation on account of death of their son. The deceased was an unmarried person, aged 26 years, at the time of accident. The income of the deceased has not been proved. Having considered the educational qualification of the deceased, his notional income has to be presumed by this Court in the instant case for grant of appropriate compensation to the claimants.
15. A perusal of the affidavits filed by PW1, PW2 and PW3 before the learned Tribunal would reveal that the deceased used to take tuitions and also used to do work of E.D.P. in police station Srinagar and was earning Rs.20,000/- and Rs.10,000/- per month respectively (Rs.30,000/- in all). The deceased was having B. Tech degree in Electronics and Communication and had a bright future, had be been alive.
16. Hon'ble Apex Court in Ashvinbhai Jayantilal Modi2, where the deceased was a medical student, had fixed the notional income at Rs. 25,000/- per month and accordingly assessed the loss of dependency. Paragraph 8 of the judgment is relevant, which is reproduced hereunder:
"8. The Tribunal and the High Court have not taken into proper consideration that the deceased was a student of medicine at the time of the accident while determining his future income. The courts below have wrongly ascertained the future income of the deceased at 7 only Rs.18,000/- per month, which in our view is too less for a medical graduate these days. Therefore, the courts below have failed in following the principles laid down by this Court in this aspect in the above case. The deceased was a diligent and outstanding student of medicine who could have pursued his M.D. after his graduation and reached greater heights. Today, medical practice is one of the most sought after and rewarding professions. With the tremendous increase in demand for medical professionals, their salaries are also on the rise. Therefore, we have no doubt in ascertaining the future income of the deceased at Rs.25,000/- p.m. i.e. Rs.3,00,000/- p.a. ....."
17. The facts of Ashvinbhai Jayantilal Modi2 and the present case are similar. In the instant case, the deceased was having B. Tech Degree in Electronics and Communication and was going to give joining in a company at Mumbai on the fateful day. Besides this, he used to earn Rs.20,000/- by taking tuitions and Rs.10,000/- from the E.D.P. work with the police department. A medical graduate and an engineering graduate cannot be taken on two different footings. No doubt, future in the field of medical is bright, but future of an engineering graduate, who had a good academic career, is also bright and this aspect should be taken for computation for assessment of loss of dependency. Thus, the principle laid down in Ashvinbhai Jayantilal Modi2 would be applicable in the present case. Accordingly, I take notional income of the deceased at Rs. 3,00,000/- per annum as per the principle applied by the Hon'ble Apex Court in Ashvinbhai Jayantilal Modi2 8 wherein notional income of a student who was pursuing medical has been fixed as Rs.3,00,000/- per annum.
18. In Sarla Verma3 it has been held by Hon'ble Apex Court that where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Therefore, in the facts and circumstances of the case in hand, it would be appropriate to treat 50% as the personal and living expenses of the deceased.
19. As far as the multiplier is concerned, from a perusal of Second Schedule to the Motor Vehicles Act it would reveal that there is no reference in it to apply the multiplier on the basis of the age of the claimants. It is settled proposition of law that multiplier method is an appropriate method, a departure from which can only be justified in rare and extraordinary circumstances and very exceptionally. Hon'ble Apex Court in Sarla Verma3 has specifically held that the choice of multiplier should be determined by the age of the deceased. On the date of accident, the deceased was aged 26 years, thus, multiplier of 17 would be applicable in the present case, in view of Sarla Verma3.
20. Learned counsel for the appellants would submit that the Motor Vehicle Act is a beneficial 9 legislation aimed at providing relief to the victims or their families, in cases of genuine claims. He would further submit that in case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium, as has been held by the Hon'ble Apex Court in Pranay Sethi1.
21. Having gone through the aforesaid decisions of Hon'ble Apex Court and after considering the arguments of learned counsel for the parties, this Court is of the opinion that there is substance in the arguments advanced by learned counsel for the claimants/appellants. Therefore, this Court is of the opinion that the claimants are entitled for compensation in view of the judgments (supra). As discussed earlier, the notional income of the deceased is taken as Rs. 3,00,000/- per annum and after deducting 50% towards personal expenses as the deceased was bachelor, the annual dependency comes to Rs. 1,50,000/-. After applying the multiplier of 17, the amount of compensation comes Rs. 25,50,000/-. In addition to the compensation, the claimants are entitled for damages of Rs. 15,000/- on account of loss of estate, Rs.15,000/- for funeral expenses and Rs. 80,000 (Rs.40,000 payable to each of appellant nos. 1 and 2) for loss of Filial Consortium. In this way, the compensation and damages to which the claimants are entitled is assessed as under:
Sl. No. Head (Amount in Rs.)
1. Loss of dependency 25,50,000/-
10
2. Loss of estate 15,000/-
3. Funeral expenses 15,000/-
4. Loss of filial consortium 80,000/-
Total 26,60,000/-
22. In view of the above, the appeal filed by the claimants/appellants is allowed. The impugned judgment and award dated 14.06.2013 is set aside and the claim petition of the claimants (appellants herein) stands allowed. The claimants / appellants shall be entitled to a sum of Rs. 26,60,000/- as compensation and damages to be paid by the insurance company (respondent no. 2 herein) along with interest @ 6% per annum from the date of filing the claim petition till actual payment is made.
(Lok Pal Singh, J.) Dt. December 17, 2019.
Negi