Partly allowed

New India Assurance Company Limited v. Narendra Mohan Nayal and Others

Uttarakhand HC2 May 2013AO/28/2012

Case brief

AI extract

What is this about?

The Single Judge in a Motor Accident Claims appeal partially allowed the claim by The New India Assurance Company Limited, holding that the dependency percentage for a deceased student was erroneously assessed at 2/3rd. Applying the principle from Sarla Verma’s case, the Judge reduced the compensation to Rs. 3,04,000.

What did the court decide?

Compensation reduced from Rs. 4,00,000 to Rs. 3,04,000 with 6% interest per annum.

New India Assurance Company Limited Vs Narendra… — Motor Accident Claims | Uttarakhand HC (2013)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Appeal From Order No. 28 of 2012

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The New India Assurance Company Limited, having its Head Office at 87, Mahatma Gandhi Road, Fort Mumbai through Senior Divisional Manager, The New India Assurance Company Limited, Divisional Office, Opposite Judge’s Court, Nainital Road, Haldwani (Nainital) Uttarakhand.

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….…..Appellant

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Versus

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Shri Narendra Mohan Nayal S/o Paan Singh R/o Village Bhanwari, Post Ranman, Thana Someshwar, Tehsil Someshwar, District Almora,

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Smt. Maya Nayal W/o Shri Narendra Mohan Nayal R/o Village Bhanwari, Post Ranman, Thana Someshwar, Tehsil Someshwar, District Almora

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…….Claimants/respondents

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Shri Manoj Kumar Pathak S/o Shri K.N. Pathak House No. 11 Badi Bagicha, Almora

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……Owner/respondent

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Visjal Nayal S/o Shri U.S. Nayal R/o Adarsh Colony, Maal Durgakhaal, Almora.

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….Driver/respondents

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Mr. V.K. Kohli, Senior Advocate, assisted by Mr. I.P. Kohli, Advocate, present for the appellant.

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Mr. S.K. Mandal, Advocate, present for the claimants/respondents No. 1 and 2. Mr. Amish Tiwari, Advocate, present for the respondents No.3 and 4.

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Hon’ble Prafulla C. Pant, J.

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This appeal, preferred under Section 173 of Motor Vehicle Act, 1988, is directed against the award dated 09.12.2011, passed by Motor Accident Claims

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Tribunal/Additional District Judge, Almora, in Motor Accident Claims Case No. 03 of 2011, whereby said Tribunal has awarded ` 4,00,000/- as compensation to the claimants/respondents No.1 and 2 with the direction that the same shall be paid by New India Assurance Company (appellant) with 6% interest per annum thereon.

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Heard learned counsel for the parties, and perused the record of the Tribunal.

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Brief facts of the case are that on 08.10.2009, at about 10.00 p.m. Himanshu Nayal (deceased) was going on motorcycle with Uttam Singh Nayal owner of motorcycle bearing Registration No. UA01-2688, from Dugaalkhola to Sai Baba Colony, Almora. It is pleaded in the claim petition that Uttam Singh Nayal got down from the bike to ease out himself by the side of the road and the motorcycle was parked on the side of the road. It is alleged that the motorcycle bearing Registration No. UK01-7828, which was being rashly and negligently driven by Vishal Nayal dashed at Himanshu Nayal, who was standing on the side of the road. He (Himanshu Nayal) suffered injuries and taken to Hospital, where he succumbed to injuries. The deceased was 18 years old B.A. Part-I student. The claimants are parents of the deceased. The motorcycle owned by respondent No.3 Manoj Kumar Pathak, which was being driven by Vishal Nayal was insured with The New India Assurance Company Ltd.(appellant). With the above

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pleadings the claim petition was filed by the parents of the deceased before the Motor Accident Claims Tribunal.

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The petition was contested before the Tribunal by the owner of the motorcycle No. UK01-7828 and respondent No.4 Vishal Nayal, who was driving the same. However, it was pleaded by them that the vehicle was insured with The New India Assurance Company Ltd. and the liability to pay compensation if any with regard to the accident lies with said company. The New India Assurance Company Ltd. (present appellant) pleaded that it is a case of contributory negligence and the claim petition is bad for non-joinder of insurance company with whom, motorcycle bearing Registration No. UA01-2688 was insured. It is also pleaded that at the time of the accident respondent No.4 Vishal Nayal was not having a valid driving license.

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1. On the basis of the pleading, the Tribunal

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framed following issues:-

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1. Whether on 08.10.2009, at about 10.00 p.m. Himanshu Nayal was standing on the side of the road after parking his motorcycle bearing Registration No. UA01-2688, and whether another motorcycle bearing Registration No. UK01-7828, was being rashly and negligently driven (by Vishal Nayal) dashed at Himanshu Nayal who suffered injuries and died on 09.10.2009, due to the accident?

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1. Whether the accident occurred due to the collision between the motorcycle No. UA012688 and UK 01-7828?

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1. Whether the claim petition is bad for non-joinder of driver and insurance company with whom the motorcycle No. UK01-7828 is ensured?

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1. Whether the owner of the motorcycle No. UK01-7828 is in collusion with the claimants?

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1. Whether at the time of the accident, the driver of the vehicle was in possession of valid registration and other papers?

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1. To what amount of compensation if any, the claimants are entitled and from whom?

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After recording the evidence and hearing the parties, the Tribunal found that due to rash and negligent driving on the part of Vishal Nayal, the motorcycle bearing Registration No. UK01-7828, dashed at Himanshu Nayal who suffered injuries in the accident and consequently died due to the same. The Tribunal further found that there is no evidence on record to show that there was a collision between the two motorcycles, or that there was any contributory negligence on the part of the son (deceased) of the claimants. The Tribunal further found that there is no evidence on record, suggesting that the vehicle was being driven without valid papers. The Tribunal also opined that since motorcycle No. UA01-2688 was standing by the side of the road, as such, the claim petition is not bad for nonjoinder to insurance company, with whom said vehicle was

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insured. Considering the fact that the deceased was a student aged 18 years, his notional income ` 36,000/- per annum was assessed and financial loss to the parents was assessed after deducting 1/3^rd of notional income, which the deceased would have spent on himself, and the multiplier of 16 was applied.

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Learned counsel for the appellant referred before this Court the principle of law laid down in Sarla Verma & others Vs. Delhi Transport Corporation. & others 2009 (2) T.A.C. page 677 (SC) and argued that as mentioned in Para No.15 of said judgment in the matters of death of a bachelor person normally it should be 50% of his income which should be deducted towards his living expenses.

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I have considered the submission made on behalf of the appellant and gone through the Sarla Verma’s case (Supra). Undoubtedly, the dependency of the claimants on their son (deceased) who was a student cannot be assessed beyond 50% of what he would have earned for the simple reason that once he started earning, he would have got married and also looked after his wife and children.

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In the above circumstances, calculating 2/3^rd dependency of parents on the income of the deceased for a period of 16 years appears to be erroneous in law. That being so, the dependency calculated by the Tribunal should have been at 50% as mentioned in Sarla Verma’s case (Supra).

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For the reasons as discussed above, 50% of the notional income of 36,000/- per annum which comes out to be 18,000/- per annum should have been multiplied by ½ X 16, and the financial loss suffered by the claimants can be said to be 2,88,000/-only. Adding to it funeral expenses and consortium as granted by the Tribunal, the actual compensation for which the claim petition should have been allowed is 3,04,000/- with 6% interest per annum thereon. There is no force on the other grounds raised in the appeal.

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For the reasons as discussed above, this appeal is partly allowed, and the amount of compensation awarded by the Tribunal is reduced from 4,00,000/- to 3,04,000/with 6% interest per annum thereon, which shall be paid by the appellant to the claimants as compensation. The amount already deposited by the appellant before the Tribunal may be withdrawn by the claimants not exceeding ` 3,04,000/with 6% interest per annum thereon. The statutory deposit before this Court may be remitted to the Tribunal concerned.

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(Prafulla C. Pant, J.)

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02.05.2013 JM

New India Assurance Company Limited v. Narendra Mohan Nayal and Others

Case brief

What is this about?

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New India Assurance Company Limited v. Narendra Mohan Nayal and Others

Case brief

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What did the court decide?

What the court decided

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