ORDER U.K. Dhaon and Rakesh Sharma, JJ.
1. Heard Sri Anil Srivastava, learned counsel for the appellant. None appears on behalf of the respondents.
2. This is a First Appeal from order against the award dated 2.1.1998 passed by the IVth Additional District Judge/Motor Accident Claims Tribunal, Unnao, by which a compensation of Rs. 3,27,000 was awarded to the claimants along with 12% interest.
3. The brief facts of the case are that on 5.5.1995, the deceased Mohd. Sabir while proceeding for a tea shop near Bangarmau Hospital, the Vehicle No. USD 3940 dashed the deceased who sustained serious injuries and thereafter died on 7.5.1995. The claim petition was filed by the legal heirs of the deceased. The Claims Tribunal on the basis of the pleadings of the parties framed three issues as under :
(1) Whether Mohd. Sabir sustained injuries in an accident which took place on 5.5.1995 on Hardoi Unnao Road near Bangarmau, Police Station Bangarmau, District Unnao due to rash and negligent driving of the Driver of Bus No. USD 3940?
(2) To what amount of compensation, the petitioner is entitled and from which of the parties?
(3) To what relief if any the petitioner is entitled?
4. The Claims Tribunal after considering the entire oral and documentary evidence on record awarded a compensation of Rs. 3,27,000 to the claimants. The learned counsel for the appellant submits that owner and Driver of the Bus No. USD 3940 colluded with the claimants as they neither filed any written statement nor contested the case on merits. He further submits that it was a case of contributory negligence as the deceased was the driver of another bus and as such the impugned award is arbitrary and illegal. He further submits that exorbitant amount along with interest @ 12% per annum has been awarded to the claimants of the deceased in the absence of any proof of earning of the deceased.
5. None appears on behalf of the respondents although the case was taken up in the revised list.
6. We have considered the arguments of the learned counsel for the parties and gone through the record.
7. The Claims Tribunal after considering the entire oral and documentary evidence on record has recorded the finding of fact that due to the rash and negligent driving of Vehicle No. USD 3940 the deceased sustained injuries on 5.5.1995, who later on died on 7.5.1995. The Claims Tribunal has also recorded a finding that at the time of death, the deceased was earning Rs. 2,500 per month and he was 30 years of age. The claimants of the deceased are the widow, children and mother of the deceased. The arguments of the learned counsel for the appellant that it was a case of contributory negligent cannot be accepted as the deceased Mohd. Sabir died on account of rash and negligent driving of the driver of Bus No. USD 3940, which was insured with the appellant. The Tribunal has awarded the compensation keeping in view the income of the deceased at Rs. 30,000 per annum and after deducting one-third and applying multiplier of 16, a sum of Rs. 3,27,000 has been awarded to the claimants of the deceased which is not exorbitant. The record also reveals that Assurance Company had not sought any permission under Section 170 of the Motor Vehicles Act. In view of the law laid down by the Hon'ble Supreme Court in the case of National Insurance Company Ltd., Chandigarh v. Nicolletta Rohotgi and Ors., 2003 (1) AWC 23 (SC) : 2003 (1) SCCD 10 : 2002 (10) SBR 227, such grievance cannot be raised by Insurance Company, in case no permission under Section 170 of the Motor Vehicles Act is taken. We are of the view that the interest which has been awarded @ 12% per annum in excessive.
8. The appeal is partly allowed. The award passed by the Motor Accident Claims Tribunal is modified to the extent that the claimants shall be entitled for interest @ 9% per annum instead of 12% per annum as awarded by the Claims Tribunal. The amount, which is in deposit before this Court as well as before the Tribunal shall be allowed to be withdrawn by the claimants-respondents.
9. The appellant shall deposit the remaining amount, if any, within six weeks from today which shall also be allowed to be withdrawn by the claimants of the deceased without furnishing any security.