Uttarakhand High Court
New India Assurance Company Limited vs Smt Shakun Chitra And Others on 22 July, 2016
Author: Servesh Kumar Gupta
Bench: Servesh Kumar Gupta
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal from Order No. 383/2011
The New India Assurance Company Ltd.
........ Appellant
Versus
Smt. Shakun Chitra & Others ....Respondents
22nd July, 2016
Hon'ble Servesh Kumar Gupta, J.
Mr. V.K. Kohli, Senior Advocate, assisted by Mr. I.P. Kohli, Advocate for the appellant/insurance company.
Mr. P.C. Petshali, Advocate, for the claimants/respondents 1 to 3.
Mr. Pankaj Purohit, Advocate, for the respondent no. 6.
The judgment and order dated 11.7.2011 is under challenge in this appeal. By the said judgment, the learned Tribunal has granted the award to the tune of Rs. 42,49,478/- to the dependants of the deceased Vinayak Bharti.
The facts, in short, are that on the fateful day on 3.6.2009 at 11.30 AM when Mr. Bharti was returning to his home riding on the motorcycle no. UA-06-A-6735, he was dashed by truck no. UP22T-0831 coming from behind. His son Master Siddhant Saxena, a boy of almost 16 years, was the pillion rider.
The accident, death of Mr. Bharti and the insurance cover of the offending vehicle have not been disputed. The only controversy which is being agitated before the Court is with regard to the quantum of compensation.
2Learned Senior Counsel of the appellant insurance company has referred to the four income-tax returns of the deceased which he had filed beginning from the financial year 2005-06 to 2008-09. Admittedly, Mr. Bharti was a Teacher in a Government Aided Inter College in Kashipur, District Udham Singh Nagar.
It has also been urged by the learned Senior Counsel on behalf of the appellant that looking to the map of the spot prepared by the Investigation Officer, it can easily be discerned that the deceased Mr. Bharti was as much to be blamed for the accident on account of his contributory negligence for the same. It has been in the evidence that such accident occurred when both the vehicles had just crossed the railway crossing in the fairly busy public place. So, it is difficult to anticipate that just after crossing the railway line, the speed of truck could have suddenly become high unlike of bike.
I do agree with the above contentions of learned Senior Counsel of the appellant insurance company.
It has also been admitted by Master Siddhant Saxena in his deposition that just a few steps ahead, there was a right turn leading to the side road to make way for the Awas Vikas Colony and the spot map, as aforementioned, indicates that this motorcycle borne deceased along with his son was on the right side of the truck. He could have avoided the accident by a little patience and care, overcoming the hurry for taking the right turn to reach their home, but it seems that he could not have such patience and rather preferred to overtake the truck in order to turn right side at the earliest.
In case of Renuka Devi v. Bangalore Metropolitan Transport Corporation, reported in III (2008) SLT 450, a scooty borne injured claimed the compensation when a bus 3 coming from the same side struck her scooty. Then, the High Court of Karnataka held that the Tribunal lost sight of the fact that spot Mahazar clearly indicates that claimant was also negligent to a great extent and reduced the compensation to 50 per cent. When the judgment of the High Court was challenged by the injured Renuka Devi, her appeal was dismissed by the Hon. Apex Court and it was held that from the facts, as have been revealed, the finding of fact arrived at by the High Court reversing the finding of the Tribunal, could not be said to be arbitrary and perverse in nature.
Besides, the driver of the truck has also been examined as DW1. He has proved the factum of overtaking by the motorcycle borne deceased. So, the story of dashing over by the truck from behind is falsified. Rather an attempt of overtaking by the motorcycle borne deceased was the cause of the fatal accident; otherwise there was no reason that pillion rider Siddhant could not get any fatal injury.
So, in view of what has been stated above, I attribute at least 40 per cent contributory negligence towards the deceased and for his own negligence, he or his dependents cannot be benefited from either of the insurance companies.
As regards the amount, which should have been the annual dependency, I think that the last salary drawn should have been taken into consideration and such salary, as per the school records, was to the tune of Rs. 30,462/-.
This Court is not supposed to make the scrupulous calculations like a Chartered Accountant for evaluating the total net income after deduction of the taxes and other such things. I straightway reduce one-tenth i.e. Rs. 3046/-.
4Thus the amount comes to Rs. 27,416/- per month. Hence the annual income comes to Rs. 3,28,992/-. On reducing one-third (Rs. 1,09,664/-) towards the personal expenses, the annual dependency comes to Rs. 2,19,328/-. After deducing 40 per cent (i.e. Rs. 87,731/-) towards the contributory negligence, the amount comes to Rs. 1,31,597/-.
On applying the multiplier of "14" to the above final figure of Rs. 1,31,597/-, the amount of compensation is worked out to be Rs. 18,42,358/-.
Learned Counsel for the claimants has drawn the attention of this Court towards the Sarla Varma case, wherein referring to the Sushma Thomas case, it was held that in case the deceased was more than 40 years of age and was permanently employed, then looking to his future prospects, 30 per cent should be increased in the total compensation, and that has been done by the Tribunal.
On the other hand, learned Senior Counsel on behalf of the appellant/insurance company has taken up this Court to the two judgments of the Hon'ble Apex Court itself. In Bhakra Beas Management Board v. Kanta Aggarwal & Others, 2008 (3) T.A.C. 661, it was held that the High Court lost sight of the fact that benefits which the claimant receives on account of death or injury have to be duly considered while fixing compensation. In that case, rupees five lakhs was deposited towards the compensation and looking to the 14 years old matter, the Hon. Apex Court did not find it proper to send it back for re-trial and disposed of the matter finally directing to make the payment of rupees five lakhs only against the award of Rs. 8,48,160/-.
Another cited case is of Ramprasad Balmiki v. Anil Kumar Jain & Others, reported in 2008 (4) T.A.C. 385, 5 wherein the Hon. Apex Court has held that even the amount of pension would have mitigated the quantum of damages and same was required to be taken into consideration.
In the present case as well, since the deceased was a Teacher in a Government School, hence in all probabilities, one of his dependents must have got appointment on compassionate grounds and the same has not been denied on the record. It can be assumed that his widow must have been getting pension besides the job. Other benefits like gratuity, insurance, etc. would also be on the score while evaluating such compensation because it has been said time and again in the many judgments of the Hon. Apex Courts and the various High Courts that death of the earning member of a family can never be taken as a windfall for other members of the family and the amount so evaluated should not be taken as largesse in such matters. The whole object behind this social legislation is to save the dependants from indigence or from being on the road in the absence of bread earner.
Therefore, in sum total, it would not be in the fitness of things to enhance the amount, as modified by this Court, any further.
Consequently, the appeal is allowed. The amount of compensation is modified to Rs. 18,54,358/-. I would not like to interfere with the amounts given by the Tribunal on other different scores.
The above modified amount shall be paid to the claimants along with six per cent per annum simple interest w.e.f. the date of presentation of the claim petition till the payment of money. Remaining amount, if any, shall be returned to the appellant insurance company. Amount 6 of compulsory statutory deposit shall be remitted by the Registry to the Court concerned.
Impugned award stands modified to the extent indicated above. Let the LCR be sent back.
(Servesh Kumar Gupta, J.) Prabodh