NEW INDIA ASSURANCE CO LTD Vs. SURENDRA SINGH

JUDGEMENT

(1.) 1. This appeal, preferred under sec tion 173 of the Motor Vehicles Act, 1988, has been directed against the award dated 26-09-2006 passed by the Motor Accident Claims Tribunal/district Judge, Udham Singh Nagar (hereinafter referred as Tribunal') in M. A. C. R No. 13/ 2004, Sri Surendra Singh and others Vs. Anil Kumar Sharma and others, whereby the learned Tribunal had awarded a sum of Rs. 5,78,000/- as compensation against the appellant-the New India As surance Company Ltd. The appellant was further directed to deposit the amount of compensation within a pe riod of thirty days from the date of award alongwith interest at the rate of 5% per annum from the date of filing of the claim petition upto the payment. 2; Brief facts of the case are that the claimants had filed a claim petition before the learned Tribunal for compen sation of Rs. 10,00,000/- alleging therein that on 08-11-2003 when Dalraj Singh (deceased) was coming from Kashipur to Bajpur on his scooter and when he reached near Petrol Rump at Sultanpur Patti, a bus No. URN-9710 coming from the opposite side rashly and negligently dashed the scooter of the deceased re sulting in severe injuries on his person. The deceased was taken in injured con dition at Saini Clinic, Sultanpur Patti and thereafter he was taken to Agarwal Surgical Hospital, Kashipur from where he was referred to District Hospital, Moradabad where he succumbed to his injuries on 15-11- 2003. It was further al leged that the deceased was 39 years of age at the time of accident and he was doing the work of unloading the truck of Cheema Paper Mill, Kashipur. He was earning Rs. 5000/- per month. 3. The insurer of the offending bus contested the claim petition and denied its liability to pay compensation to the claimants. It was further pleaded that the driver of the offending bus was not rash and negligent at the time of acci dent and the accident occurred due to the rash and negligent driving of the scooterist. It was further pleaded that the scooterist was not holding a valid driv ing licence at the time of accident. The rest of the respondents had not filed the written statement and the Tribunal pro ceeded exparte against them. 4. On the basis of the pleadings, the learned Tribunal framed necessary issues in the case and ultimately, the learned Tribunal had come to the conclusion that the accident occurred due to rash and negligent driving of the driver of the offending bus by which the deceased sustained the injuries on his person and ultimately died. The learned Tribunal had assessed the age of the deceased as 39 years. It was further held by the Tri bunal that the deceased was earning a sum of Rs. 4. 500/- per month. The learned Tribunal, after deducting l/3rd of his income for personal expenses had fixed the dependency of the claimants at Rs. 3,000/- per month. Thus the an nual dependency assessed by the Tribu nal was Rs. 3,000/- x 12 = 36,000/ -. The learned Tribunal had applied the multiplier of '16' and by doing so, the amount of compensation was assessed at Rs. 5,76,000/ -. The Tribunal had also awarded Rs. 2,000/- for Funeral Ex penses to the claimants. Thus, the Tri bunal had awarded a sum of Rs. 5,78,000/- to the claimants as compen sation. The appellant-Insurance Co. was. directed to pay the aforesaid amount to the claimants within one month from the date of award alongwith interest thereon @ 5% p. a. from the date of filing of the claim petition upto the payment. 5. Feeling aggrieved by this, the ap pellant-Insurance Company has pre ferred the present appeal. 6. Heard learned counsel for the parties and perused the record. 7. Sri M. K. Goyal, learned counsel for the appellant contended that the learned Tribunal had erred in discarding the evidence of Dr. Satendra Kumar Saini-DW1 who had deposed before the Tribunal that the deceased-Dalraj Singh immediately after the incident was brought to him and he found him un der the influence of alcohol. It was fur ther submitted that the Tribunal had not considered the plea of the appellant that the scooterist, i. e. deceased Dalraj Singh had been driving the vehicle in a drunken state and he himself was rash and neg ligent. Sri B. S. Parihar, learned counsel for the respondents refuted the conten tion and supported the findings recorded by the learned Tribunal. The claimants had adduced the evidence of Dharmpal-PW2 who had deposed that on 8-11-2003 at the time of the accident, he was coming from Kashipur to Doraha, Bajpur on his motor cycle and the deceased Dalraj Singh was going ahead of his scooter at about 10:00 a. m. in the morning. It was further stated by Dharampal-PW2 that he saw that the of fending bus being driven rashly and neg ligently dashed the scooter of Dalraj Singh and the deceased sustained the multiple injuries at the spot. The appel lant-Insurance Company adduced the evidence of doctor Satendra Kumar Saini-DWl who had stated that on 08-11-2003 some unknown person brought Dalraj Singh in his clinic and he exam ined him and found him in a drunken state. He did not treat him there and he referred him at Kashipur. Chandra Pal Singh Tomar-DW2 is the investigator who had adduced the evidence in sup port of Insurance Company. Perusal of the record reveals that the Insurance Company had filed the written state ment before the Tribunal and had not taken the plea that the deceased Dalraj Singh was in a drunken state at the time of the accident. Learned counsel for the appellant could not demonstrate us that the Insurance Company had pleaded this fact in its written statement. It is well settled position of law that the whole object of pleading is to give fair notice to each party of what the opponent's case is, and to ascertain, with precision, the points on which the parties agree and those on which they differ, and thus to bring the parties to a definite issue. The purpose of pleading is also to eradicate irrelevancy. In order to have a fair trial it is imperative that the party should state the essential facts so that other party may not be taken by surprise. The parties thus themselves know what are matters left in dispute and what facts they have to prove at the proceeding and are thus given an opportunity to bring forward such evidence as may be appropriate. The main object of plead ings is to find out and narrow down the controversy between the parties. Conten tions which are not based on the plead ings cannot be permitted to be raised either at the time of arguments or at the appellate stage. Thus the evidence of Dr. Satendra Kumar Saini-DWl cannot be taken into account at this stage. Apart from this, the doctor had examined him on 08-11-2003 and according to his evi dence and it is also admitted to the learned counsel for the appellant that no prescription or report was prepared by Dr. Satendra Kumar Saini-DWl. There is in such report on record prepared by Dr. Saiendra Kumar Saini-DWl which shows that he had examined Dalraj Singh. There is no document on record by which he had referred the deceased Dalraj Singh to Kashipur. If he had not prepared any certificate/prescription how he can depose before the Court during his evidence which was taken on 02-03-2006 after 2-1/2 years of the accident. The appellant had cross examined the claimants' witnesses and he had not put any suggestion to any of the witnesses that the deceased Dalraj Singh was driv ing the scooter under the influence of liq uor. If the Insurance Company was aware of this fact that the deceased Dalraj Singh was under the influence of liquor at the time of the accident, it could have very well put the suggestion to the claimants' witnesses. The Insur ance Company, all of a sudden, after a lapse of about 2-112 years produced the doctor before the court who had de posed the above fact in his evidence. Apart from this, the claimants had also filed a certificate of Agarwal Surgical and Maternity Hospital by which he was referred to Moradabad Hospital for bet ter treatment. Doctor also examined him and he had not found that he had consumed liquor or there was any smell of liquor from the breath of the deceased Dalraj Singh. Immediately thereafter, the deceased Dalraj Singh was examined by the Medical Officer at Moradabad Civil Hospital on the very next day of the accident and the doctor had not re corded in his injuries report that there was any sign of consuming alcohol. Ul trasound was also conducted in which there was no iota of above fact. In view of the above, we are of the considered opinion that the evidence of Dr. Satendra Kumar Saini-DW 1 is not cred ible and cogent. As against this, the evi dence of Dharmpal-PW2 who was an eyewitness is credible and cogent. He had been cross examined at length but nothing could be elicited which goes against the claimants. We do not find any force in the contention advanced by the learned counsel for the appellant. We are completely in agreement with the findings recorded by the learned Tribu nal that the accident occurred due to rash and negligent driving of the driver of the offending bus. 8. Learned counsel for the appellant contended that the learned Tribunal had erred in assessing the income of the de ceased at Rs. 4,500/- p. m. It was also contended that the Tribunal had erred in holding that the age of the deceased was 39 years at the time of the acci dent. It was further contended that the Tribunal failed to consider that no docu mentary evidence regarding the age was produced before the Court. Learned counsel for the appellant also contended that the multiplier of '16' applied by the Tribunal is on the higher side and the amount of compensation awarded by the Tribunal is exorbitant. Learned counsel for the respondent refuted the contention. 9. In motor accident claim petitions, the just and proper compensation should be awarded by the Tribunal. The just and proper compensation depends upon the facts and circumstances of each case. 10. Perusal of the driving licence, produced by the claimants' reveal that the date of birth of the deceased as 01-01-1967. Therefore, according to the driving licence, the age of the deceased was about 36 years. Thus the plea which has been taken by the Insurance Com pany that the deceased was aged about 42 years is not sustainable because the documentary evidence reveals that he was below 40 years. The claimants had adduced the evidence that the deceased used to earn Rs. 5,000/- p. m. The claimants also led the evidence before the Tribunal in the form of the ledger ac count maintained by Cheema Papers Ltd. and the same has been proved by Sri A. K. Babbar-PW3 which shows that the deceased earned a sum of Rs. 52,0617- during the period 01-04-2003 to 31-03-2004. Perusal of the statement reveals that there is no transaction af ter the death of the deceased. It is not disputed that the deceased Dalraj Singh had six minor children and he was also maintaining a scooter. The statement of about six months reveals that the de ceased earned a sum of Rs. 52,0617-from the Cheema Papers Ltd. It was also contended that; tte was a Contrac tor and he earned said amount to dis burse it to workers. Learned counsel for the appellant had not cross examined the witness Sri A. K. Babbar-PW3 about the fact that the amount does not per tain to him for his earning. He came before the court alongwith the record. If that amount had to be disbursed, the learned counsel for the appellant could have very well cross examined the wit nesses on this fact. Thus the evidence led by the claimants had established the income of the deceased to the extent of Rs. 4,5007- p. m. and the learned Tribu nal had rightly assessed the monthly in come of the deceased at Rs. 4,500/- It is also pertinent to mention here that the children of the deceased Dalraj Singh are minor and the claim petition has been filed by the brother of the deceased on behalf of the children. The petition also reveals that the minor children, namely Master Anil aged 14 years, Km. Anita aged 12 years. Km. Pooja aged 10 years, Master Digvijay aged 8 years, Km. Bhawna aged 3 years and Km. Poonam aged 16 years are only alive in the fam ily of the deceased Dalraj Singh and they are being looked after by their un cle. One of the claimants Km. Poonam aged about 16 years is also handicap about 75%. A medical certificate issued by the Medical Board Udham Singh Nagar is also on record. The disability has been assessed about 75%. 11. Considering that the deceased was aged about 36 years and having six children including Km. Poonam as handicap, we are satisfied that the Tri bunal had rightly selected the multiplier of '16' in this case. In the case of Chellammal and others Vs. Kailasam and another reported in 2005 (11) SCC 387, the Tribunal awarded compensation of Rs. 8,08,704/- by applying the multiplier of 24. The High Court, on appeal, re duced the compensation awarded by the Tribunal to Rs. 4,91,600/- by applying multiplier to be 12. The age of the de ceased was 41 years at the time of his death and the High Court has applied the multiplier of 12. When the matter came up before the Hon'ble Apex Court, it has been held that as the age of the deceased at the time of his death was 41 years, ac cording to the Second Schedule appended to the Motor Vehicles Act, 1988, the mul tiplier that could have been applied was 15 and not 12. Accordingly, the compen sation was awarded by applying the mul tiplier of 15. 12. Thus the Tribunal had rightly assessed the monthly income of the de ceased at Rs. 4,5007- p. m. or to say Rs. 4. 5007- x 12 = 54,000/- per annum. Af ter deducting 1/3 towards personal ex penses of the deceased, the dependency was assessed at Rs. 36,000/- per annum. By multiplying the annual dependency of Rs. 36,000/- with the multiplier of '16', the compensation works out to Rs. 5,76,000/ -. The claimants are further entitled to Rs. 2,000/- towards Funeral Expenses. Thus the claimants are enti tled to receive a total sum of Rs. 5,78,000/- as compensation for the death of Dalraj Singh. 13. We do not find any infirmity ei ther in the assessment of the income or in the selection of the multiplier by the Tribunal in the facts and circumstances of this case. 14. Learned counsel for the appel lant further contended that the Tribunal had erred in awarding the interest on the higher side. Learned counsel for the re spondents contended that the interest awarded by the Tribunal @ 5% per annum is certainly on lower side. The claimants had not filed any appeal/cross objection for the enhancement of rate of interest. The interest awarded by the Tri bunal cannot be held to be on the higher side keeping in view of the present rate of interest in the Bank. In our opinion, we do not find any infirmity in award ing the interest at the rate of 5% per annum. 15. In view of the above facts and circumstances, we are in agreement with the findings recorded by the learned Tri bunal. The appeal filed by the Insurance Company is liable to be dismissed. 16. Accordingly, the appeal is hereby dismissed. 17. No order as to costs. .