NATIONAL INSURANCE COMPANY LIMITED Vs. PUSHPA DEVI

JUDGEMENT

(1.) THIS is an appeal under section 173 of the Motor Vehicles Act, 1988, against the order of Tribunal dated 23.4.2014, by which Tribunal has awarded a sum of Rs. 26,55,088/ - towards compensation. The appellant is the insurer of Tata Sumo, bearing registration No. UP -81 -J -5163.

(2.) BRIEF facts stated in the impugned order are that on 19.11.2009 at 6.15 p.m. when the deceased was going to Telephone Exchange, Makhaina, near village Amarpur at Kibai -Anoopshahar Road, near village Amarpur, said Tata Sumo being driven rashly and negligently hit the bhaisa -buggi. As a result of hitting the bhaisa -buggi, Tata Sumo became disbalance and hit the motor -cycle, bearing registration No. UP -13 -D -8026, which was being driven by the deceased, Pooran Singh and thereafter, again hit one, Hariom, who was going on cycle, causing grievous injuries to Pooran Singh, who died on the spot. The claim petition has been filed by the legal representative of the deceased, Pooran Singh. At the time of accident, deceased, Pooran Singh was 43 years old and was working as Telecom Mechanic in Bharat Sanchar Nigam Limited. He was a permanent employee and his age of superannuation was 60 years. As per the income certificate, filed by the claimants, deceased Pooran Singh was getting the basic pay Rs. 13,800/ -, DA Rs. 3,491/ -, HRA Rs. 1,380/ -. In this way, the deceased was getting a sum of Rs. 18,671/ - per month. Tribunal on the basis of evidence on record and the statement of witness arrived to the conclusion that the accident has been caused solely on account of the negligence of the driver of the Tata Sumo. Tribunal on the basis of the salary certificate has taken the monthly income at Rs. 18,670/ - and after adding 25% towards future prospect, in view of the Uttar Pradesh Motor Vehicles (Eleventh Amendment) Rules, 2011. Having regard to the age of the deceased being 43 years and after deducting 1/3rd towards personal expenses and applying the multiplier of 14, estimated the compensation at Rs. 26,55,088/ -. Tribunal under the aforesaid Rules, 2011 awarded the loss of estate at Rs. 10,000/ -, consortium at Rs. 10,000/ - and towards loss of love and affection at Rs. 15,000/ - and funeral expenses at Rs. 5,000/ -.

(3.) WE do not find substance in the argument of learned Counsel for the appellant. We have perused the impugned order and site plan. It is not a case of head -on collision. It is the case where Tata Sumo firstly hit the bhaisa -buggi as a result of which became disbalance and, thereafter, has gone to its right side and hit the motor -cycle being driven by the deceased, Pooran Sigh, who was coming towards his left side. The accident has been caused because Tata Sumo became disbalance and the driver lost his control over the vehicle. The velocity and the speed of Tata Sumo appears to be very high for the reasons that first of all it hit the bhaisa -buggi, thereafter, the motor -cycle and then to cyclist and further hit the tree. This situation can only arise when the Tata Sumo must have been running in very high speed and after hitting the bhaisa -buggi the driver of Tata Sumo was not able to control the vehicle. In such a situation, it could not be expected from the deceased, Pooran Singh driver of the motor -cycle to pre -assess the movement of the Tata Sumo, coming towards right side and the deceased could not get the opportunity to avoid the accident. It appears that everything happened spontaneously and deceased could not get opportunity to escape himself from the accident. In the circumstances, on the facts and circumstances, we are of the view that Tribunal has rightly concluded that the accident has been caused due to sole negligence of the driver of the Tata Sumo and there was no negligence on the part of the deceased. The decision of the Apex Court in the case of Bijoy Kumar Dugar v. Bidyadhar Dutta and others (supra) was based on its own facts where there was a head -on collision and it was found that Maruti Car should also made effort to avoid the accident. Such situation is not available in the present case. Therefore, the decision of the Apex Court in the case of Bijoy Kumar Dugar v. Bidyadhar Dutta and others (supra) is not applicable and is clearly distinguishable.