DIVISIONAL MANAGER NATIONAL Vs. JAYASHREE RATH

JUDGEMENT

(1.) IN this Letters Patent Appeal, National Insurance Company Ltd. (hereafter referred to as 'insurer') has called in question legality of judgment passed by a learned Judge of this Court in Misc. Appeal No. 344 of 1992.

(2.) AT the threshold it is necessary to take note of few relevant facts, which have contributed to the filing of this appeal.

(3.) IN the appeal under Section 110 -D of the Act read with Section 173 of the Motor Vehicles Act, 1988 (described as 'New Act'), it was contended that the crucial question was who was driving the vehicle. Great reliance was placed on evidence of Swamy who was examined as O.P.W. 2 to contend that deceased Sanjay was driving the vehicle. Claimants examined two witnesses to prove that Swamy was driving the vehicle. Learned Single Judge with reference to evidence of witnesses and materials on record concluded that Swamy was driving the vehicle and Sanjay was sitting to the left of Swamy. So far as plea relating to deceased being a gratuitous passenger, it was noticed that policy in question was not produced either before Tribunal or during hearing of Misc.Appeal. That being the position adverse inference was drawn. So far as quantum of compensation is concerned, taking into account decision of apex Court in General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas and Ors. : AIR 1994 SC 1631, it was observed that appropriate multiplier would be 16. Worked out on that basis, loss of dependency was fixed at Rs. 5,76,000/ -. Further a sum of Rs. 1,00,000/ -was awarded towards loss of consortium and mental agony etc. Accordingly, total compensation was fixed at Rs. 7,76,000/ -, which was directed to be paid with interest at the rate of 6% per annum from the ate of claim within two months, with a stipulation that rate of interest would be @ 9% if payment was not made within that time.