IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 405 of 2006 National Insurance Company Limited .. Appellant. Versus Smt. Radha Devi and another .. Respondents. Mr. Lalit Belwal, learned Counsel for the appellant. Mr. Pramod Belwal, learned counsel for the respondent/claimants. UDated: 4-11-2008U UHon’ble B.C. Kandpal, J. This appeal, under Section 173 of the Motor Vehicle Act, 1988, has been preferred against the judgment and award dated 28-1-2006, passed by Motor Accident Claims Tribunal/ District Judge, Pauri Garhwal, in MACT Case No. 162 of 2004. 2- Brief facts of the case, giving rise to this appeal, are that on 9-1-2004, the claimant Smt. Radha Devi was travelling in Jeep No. U.P. 06/5424. The said jeep met with accident due to the negligence of its driver near Salandhar on Satpuli –Dudharkhal Motor Road, in which she sustained grievous injuries. The injured was brought to Missionary Community Center, Satpuli where seeing her precarious condition, she was referred to Military Hospital Delhi. The claimant filed claim petition for a sum of Rs. 6,10,000/- and alleged that she spent about Rs. 50,000/- on her treatment and about one lac is likely to be spent on her future treatment. 3- The owner/opposite party No.1, filed his written statement and denied the contents made in the claim petition. He alleged that the driver of the jeep was 2 driving it at a moderate speed. The vehicle was insured with National Insurance Company and its driver was having valid driving license, hence the liability to pay the compensation is upon the insurer. He also alleged that exorbitant amount of compensation has been claimed. 4- The opposite party No.2, National Insurance Company contested the claim petition and denied the allegations made in the petition. The insurance company took the plea that the offending vehicle was being run against the terms of insurance policy, as it was carrying 11 passengers, more than the authorized capacity, and its driver was not possessing valid driving license. 5- The Tribunal, on the pleadings of parties, framed relevant issues in the claim petition. Thereafter, parties adduced evidence in support of their contentions. The Tribunal, after hearing learned counsel for the parties, and having gone through the evidence on record, awarded a sum of Rs. 3,33,000/- as compensation and directed the Insurance Company to pay the compensation within two months, failing which interest @ 9% per annum shall be payable from the date of petition, till the date of final payment. 6- Feeling aggrieved, the National Insurance Company has preferred this appeal before this Court. 7- Heard learned counsel for the parties and perused the record. 8- The first argument raised by learned counsel for the appellants is that the vehicle in question was being driven against the condition of the insurance policy. He has submitted that the offending vehicle was 3 overloaded with passengers, which is evident from the perusal of first information report. He has invited my attention towards the pleading taken by the insurance company pertaining to overloading. He has thus submitted that the court below has not considered this aspect at all. 9- The learned counsel for the claimant/respondent has made a rival contention by submitting that the statement of the claimant is quite clear, which indicates that the offending vehicle was not carrying the passengers beyond its sanctioned capacity. 10- Perusal of the record shows that although the insurance company has taken the plea of overloading in the written statement, but no evidence has been adduced by it in this regard before the tribunal. The tribunal, although has framed issue No.3 in this regard, but since the insurance company has failed to adduce any evidence in support of its contention that the offending vehicle was being driven against the terms of the insurance policy, on account of the reason that the same was overloaded, therefore, the issue was decided in the negative. Once this pleading has been taken by the insurance company before the tribunal, therefore, the burden lies upon the shoulder of insurance company to establish this fact that the offending vehicle was overloaded at the time of accident. As the burden has not been discharged by the insurance company, hence I do not find any substance in the argument advanced by the learned counsel for the insurance company. 11- Learned counsel for the appellant has further submitted that the tribunal has not recorded any justified reasoning while calculating the amount of 4 compensation. He has submitted that the amount under the head of pain and suffering has been awarded arbitrarily and without assigning any cogent reason. I find force in the argument advanced by the learned counsel for the appellant. The way in which the amount of compensation has been calculated by the tribunal does not appear to be convincing. On the other hand the evidence available on record shows that the injured/claimant was aged about 55 years at the time of the accident. The claimant is an household lady. The accident in this case has taken place in the year 2004, therefore, in case if the notional income of the claimant is taken as Rs. 30,000/- per annum then after deducting 1/3Prd P towards the personal expenses, the financial dependency comes to Rs. 20,000/- per annum. Keeping in view the age of the claimant/respondent a just and proper multiplier in order to assess the amount of compensation would be ‘8’ and after adopting the multiplier of ‘8’ the amount of compensation comes to Rs. 20,000/- X 8= Rs. 1,60,000/-. The disability certificate of the claimant/respondent shows the disability upto 40% on account of injuries sustained by her in this accident. Therefore, keeping in view the percentage of the disability suffered by the claimant, the compensation to be awarded in favour of the claimant comes to Rs. U1,60,000/- X 40U =Rs. 64,000/-. 100 12- The evidence on record further shows that the claimant has incurred a sum of Rs. 83,500/- on her medical treatment. The tribunal has also awarded a sum of Rs. 83,500/- to the claimant as the amount incurred by her on the medical treatment. I, therefore, find no reason to disturb the finding of the tribunal in this regard. The evidence further reveals that the claimant has suffered serious and grievous injuries on her leg. 5 She, therefore, needs some further amount for future medical expenses. Although the claimant has not adduced any evidence to show as to what should be the expected amount of the expenses on her future medical treatment, but keeping in view the nature of the injuries sustained by her, I think Rs. 40,000/- would be just and proper amount to be awarded in favour of the claimant for her future medical expenses. 13- On the basis of the aforesaid calculation, the total amount of compensation to be awarded to the claimant comes to Rs. 64,000/- + Rs. 83,500/- + Rs. 40,000/- = Rs. 1,87,500/-. 14- The tribunal has awarded conditional interest on the amount of compensation. I am of the view that instead of awarding conditional interest, an interest @ 7% per annum should be awarded in favour of the claimant from the date of filing the petition till the date of actual payment. 15- For the reasons stated above, I am of the view that the appeal is liable to be partly allowed. 16- Accordingly, the appeal is partly allowed. The impugned judgment and award dated 28-1-2006 is modified up to the extent that the claimant is entitled to get a sum of Rs. 1,87,500/- as compensation along with interest @ 7% per annum from the date of filing the petition till the date of actual payment, payable by National Insurance Company, instead of Rs. 3,33,000/- (along with conditional interest), as has been awarded by the Tribunal. 6 17- The statutory amount of compensation deposited with this court, be remitted to the tribunal concerned. (B.C. Kandpal, J.) ISB