ORDER
S.C. Parija, J.
1. This is an application for condonation of delay of 7 days in filing the appeal.
Heard.
The delay in filing the appeal is condoned. Misc. Case is accordingly disposed of.
MACA No. 1055 of 2005
This appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed by the Insurance Company challenging the award dated 06.09.2005 passed by the 4th Motor Accident Claims Tribunal, Jharsuguda, in M.A.C.T. Case No. 18 of 2004, awarding an amount of Rs. 1,72,000/- as compensation along with interest @ 6% per annum.
2. Learned counsel for the appellant submits that in the instant case, as the truck was standing immobile, at the time of the alleged accident, no compensation could have been awarded, inasmuch as, the death of the deceased did not arise out of the use of the motor vehicle. In this regard, it is submitted that under Section 165 of the Motor Vehicles Act, the Tribunal can only entertain an application for compensation filed under Section 166 of the said Act provided the accident involving the death or bodily injury to the persons arise out of the use of the motor vehicle. It is further submitted that there being no rash and negligent driving of the driver of the offending vehicle, no charge sheet having been filed by the police, the impugned award cannot be sustained. It is further submitted that as the deceased was a bachelor, the age of the parents should have been taken into account for applying the appropriate multiplier in the instant case, the application of multiplier of 17 by the learned Tribunal in computing the compensation amount, is therefore erroneous.
3. The facts of the case is that on 12.10.2003 at about 11.30 A.M. the truck bearing No. OSS 6963 was stationed near the Saha Petrol Pump on N.H.200, due to break down and on the request of the owner and the driver of the truck, the deceased, who is a skilled motor mechanic, came from Gandhi Chowk to repair the truck. The driver and helper of the truck had made pre-arrangement for repair of the truck. The deceased mechanic, while standing near the offending truck loaded with coal, the jack fitted to the truck slipped due to the negligence and carelessness of the driver and helper of the truck, as a result of which, the truck capsized and the deceased mechanic came under the loaded coal. The body of the deceased mechanic was recovered from the coal and shifted to District Head Quarters Hospital, Jharsuguda, where the doctor declared him dead. The police initiated Jharsuguda P.S. Case No. 345/2003 under Section 279/337/304-A I.P.C. against the driver of the truck and subsequently after investigation, charge sheet was filed against the said driver.
4. Learned Tribunal while considering the facts of the case has taken note of the contention of the appellant, as the insurer of the truck, that as the truck was not plying and it was standing due to break down, their was no use of the vehicle as such and therefore, there was no question of any rash and negligence on the part of the driver of the offending truck so as to impose any liability on the insurer.
5. Learned Tribunal considering the submissions of the appellant-surer of the truck and in view of the decision of the apex Court reported in AIR 1991 SC 1769, came to hold that when the vehicle (truck) was standing on account of break down and when the driver of the truck was negligent in his conduct or did not take such precaution to prevent any probable danger to the human life, the death of the deceased falls within the purview of the Clause 'use of motor vehicle' and therefore the claim application is entertainable under the provisions of the M.V. Act.
6. Learned Counsel for the claimant has relied on a decision of this Court in the case of Kanhel Rana and Ors. v. Gangadhar Swain and Ors. reported in 1997 AIHC 207 Ori, wherein it has been held that the use of motor vehicle must not be confined during its ability and the expression 'use of vehicle' may also be applicable when a vehicle is stationary or remains static.
7. As regards the income of the deceased, the learned Tribunal has taken the same as Rs. 15,000/- per annum and after taking 1/3rd towards personal expenses, the contribution of the deceased to his family has been calculated, by applying the multiplier of 17, as the deceased was aged about 20 to 22 years and his father was aged about 45 years, at the time of the accident.
8. Considering the finding of the learned Tribunal as given in the impugned award and the reasons assigned therein in support of the same and in view of the decision of this Court reported in 1997 AIHC 207 as referred to above, no impropriety or illegality can be said to have been committed by the learned Tribunal so as to warrant any interference by this Court in the present appeal. However, keeping in view, the quantum of compensation awarded and the basis on which the same has been arrived at, I feel interest of justice would be best served if the compensation amount of Rs. 1,72,000/- is modified and reduced to Rs. 1,50,000/-, which is payable to the claimants alongwith interest @ 6% per annum. The impugned award is modified to the said extent.
9. The appellant-Insurance Company is directed to deposit the modified compensation amount of Rs. 1,50,000/- along with interest @ 6% per annum with the learned Tribunal within six weeks from today. From out of the deposited amount, an amount of Rs. 1,00,000/- shall be kept in fixed deposit in the name of the claimants for a period of 5 years in any Nationalized Bank, with quarterly interest payable to them regularly. The balance amount shall be disbursed to the claimants.
10. The statutory amount deposited before the Registry of this Court be refunded to the Insurance Company on production of receipt of deposit of compensation amount along with interest before the learned Tribunal.
The M.A.C.A. is accordingly disposed of.