IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 829 of 2006 Uttar Pradesh State Road Transport Corporation Ltd. … Appellant Vs Smt. Munesh & others … Respondents With Appeal From Order No. 797 of 2006 The Oriental Insurance Company Ltd. … Appellant Vs Smt. Munesh & others … Respondents Sri Dependra Singh Patni, Advocate holding brief of Sri Ramji Srivastava, learned counsel for the appellant/UPSRTC Sri Manish Arora, learned counsel for the respondents/claimants Sri S.C. Tyagi, learned counsel for the respondents/owner and driver of the truck Sri V.K. Kohli, learned Senior Advocate, assisted by Sri I.P. Kohli, learned counsel for the Oriental Insurance Company Ltd. Hon’ble B.C. Kandpal, J.(Oral) Both these appeals under Section 173 of the Motor Vehicle have been preferred by the appellants/U.P.S.R.T.C. as well as The Oriental Insurance Company Ltd. against the judgment and award dated 14.09.2006 passed by Motor Accident Claims Tribunal/District Judge, Haridwar in Motor Accidents Claim Petition No. 103 of 2004, Smt. Munesh & others Vs Ayub & others. As these appeals arise out against the same accident and facts are similar, therefore, both these are being decided by this common judgment. 2. Brief facts in a nutshell are that the accident in the instant case took place on 22.06.2004. The deceased – Om Prakash was going from Haridwar to Delhi in a bus bearing registration No. UP15L/7731, suddenly, another truck bearing registration No. UP11G/1065, which was coming from the opposite direction in a rash and negligent manner, in which, 2 the deceased – Om Prakash sustained serious injuries, due to which he died thereafter. The claimants are the family members of the deceased. According to the claim petition, he was 44 years of age and used to earn Rs. 25,000/- per month by running a printing press. Hence, the claimants filed the claim petition before the Tribunal for a sum of Rs. 20,40,000/- as compensation. 3. The owner and driver of the truck contested the claim petition denying the allegations made in the claim petition. It has pleaded that the accident took place due to rash and negligent driving of the driver of bus No. UP15L/7731. It has further alleged that the truck was insured with the Oriental Insurance Company Ltd., therefore, the insurer of the truck is liable to pay compensation, if any. 4. The opposite party Nos. 3 and 4 also contested the claim petition on the ground that the accident took place on account of rash and negligent driving of the driver of the truck, in which, the bus collided with the tree and the passengers’ sustained injuries. 5. The Oriental Insurance Company Ltd. also contested the claim petition by filing written statement before the Tribunal on the ground that both the vehicles were not insured with the company and both the vehicles were being plied without valid documents, therefore, the Insurance Company is not liable to pay any compensation. 6. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues in the claim petition. Thereafter, both the parties led evidence in support of their cases. After hearing learned counsel for the parties and 3 perusing the entire material available on record, the Tribunal awarded compensation for a sum of Rs. 12,05,000/- along with interest @ 6% per annum. The Tribunal also directed that out of the total amount 50% shall be paid by the Oriental India Insurance Company Ltd. and 50% shall be paid by the UPSRTC. 7. Feeling aggrieved by the aforesaid judgment and award, the appellants have preferred the appeal before this Court. 8. Heard Sri Dependra Singh Patni, Advocate holding brief of Sri Ramji Srivastava, learned counsel for the appellant/UPSRTC, Sri Manish Arora, learned counsel for the respondents/claimants, Sri V.K. Kohli, learned Senior Advocate, assisted by Sri I.P. Kohli, learned counsel for the Oriental Insurance Company Ltd., Sri S.C. Tyagi, learned counsel for the respondents/owner and driver of the truck and perused the record. 9. As far as the factum of accident is concerned, the Tribunal decided this point on the basis of the First Information Report lodved by Sri Prakash Singh, which indicate that driver of both the vehicles are equally responsible for the accident. The Tribunal on the basis of evidence available on record held that the driver of both the vehicles were having the valid driving licences as well as valid papers pertaining to their vehicles. I am in total agreement with the findings recorded by the Tribunal in this regard. 10. Sri V.K. Kohli, learned Senior Advocate, appearing on behalf of the Oriental Insurance Company Ltd. has pressed this appeal only on the point of quantum. He has submitted 4 that the Tribunal has commited manifest error while calculating the monthly income of the deceased without any cogent and reliable evidence available on record. He has further submitted that where no cogent and reliable evidence pertaining to the income of the deceased was produced, the amount of compensation should be calculated on the basis of notional income of Rs. 36,000/- per annum. Therefore, the impugned judgment and award is liable to be modified. 11. As far as the amount of compensation to be awarded in favour of the claimants is concerned, the Tribunal while deciding this particular aspect assessed the amount of compensation on the basis of conjecture and surmises. The Tribunal fell in error in assessing the monthly income of the deceased as Rs. 20,000/- from the income of the press without having any material available on record. Perusal of the record shows that it is the statement of the wife of the deceased only who has stated that the deceased used to earn Rs. 25,000/- from the press. Although no cogent and reliable evidence has been filed by the claimants in order to show the actual income of the deceased from the press. No income tax return has been filed by the claimants in order to show the income of the deceased. it is the only PAN number which has been filed by the claimants but the PAN number is not the conclusive prove to show the actual income. However, assuming the income of the deceased by adopting the guesswork and the circumstance that the printing press was being run by the deceased, therefore, the deceased must have been earning at least a sum of Rs. 6,000/- per month from the press. If this income is assessed on the basis of the guesswork then after deducting 1/3rd out of his personal expenses, the financial dependency of the claimants, thus comes to Rs. 4,000/- per month and the annual dependency comes to Rs. 48,000/-. The age of the 5 deceased as is evident from the postmortem report appears to be 45 years, although no evidence has been adduced by the claimants in order to show the actual age of the deceased also. But the age of the deceased has rightly been assessed by the Tribunal as 45 years on the basis of the postmortem report and I also considered that age of the deceased was 45 years at the time of the accident. The Tribunal again fell in error in adopting the multiplier of ‘10’ in the instant case, which is admittedly on the higher side. Keeping in view the several judgments of Hon’ble Apex Court in The New India Assurance Company Ltd. Vs Smt. Kalpana & others reported in (2007) 2 Supreme Court Cases (Cri) 94, T.N. State Transport Corporation Vs S. Rajapriya & others reported in (2005) 6 SCC 276 and The Managing Director, TNSTC Vs Sripriya & others reported in 2007 (5) Supreme 301, I think, just and proper multiplier would be ‘8’ in stead of ‘10’. Therefore, after adopting the multiplier of ‘8’, the amount of compensation to be awarded in favour of the claimants comes to Rs. 3,84,000/- (48000 X 8). The rate of interest indicated in the impugned judgment and award need no interference. However, I am of the view that the claimants are entitled for a sum of Rs. 2,000/- as funeral expenses, a sum of Rs. 5,000/- for loss of love and affection to the children and a sum of Rs. 10,000/- for loss of company of the husband to the widow. Thus, the total amount of compensation comes to Rs. 4,01,000/-. 12. For the reasons recorded above, the appeals are partly allowed. The impugned judgment and award is modified upto the extent that the claimants are entitled for a sum of Rs. 4,01,000/- instead of Rs. 12,05,000/- as has been awarded by the Tribunal along with interest as indicated in the impugned judgment and award. The amount so awarded in favour of the 6 claimants shall be paid equally by the Oriental Insurance Company Ltd. as well as UPSRTC/owner of bus No. UP15L/7731. 13. So far as the apportionment of the award in favour of the claimants is concerned, the same shall be, as under:- 1. Km. Sandhya (minor) D/o deceased Rs. 1,00,000/- 2. Km. Puja (minor) S/o deceased Rs. 1,00,000/- 3. Master Gopal (minor) S/o deceased Rs. 1,00,000/- (The above amount shall be kept in the form of fixed deposit with some nationalized bank till they attain the age of majority) 4. Smt. Munesh – wife of the deceased shall get the rest of the amount. 14. The statutory amount deposited by the appellant before this Court at the time of filing the appeal be remitted to the Tribunal concerned. The excessive amount, if any, deposited by the appellants in both the appeals shall be withdrawn by them. 15. Let the copy of this order be placed in Appeal From Order No. 797 of 2006. (B.C. Kandpal, J) 14.07.2008 ASWAL