IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 192 of 2008 The New India Assurance Co. Ltd. ...Appellant Versus Smt. Hansa Saxena and others …Respondents Mr. M.K. Goyal, Advocate for the appellant Mr. Syed Nadim, Advocate for respondent no. 1 Mr. B.D. Pande, Advocate for respondent no. 3 Dated: 10-07-2009 Hon’ble B.C. Kandpal, J. (Oral) This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the appellant i.e. The New India Assurance Co. Ltd., against the judgment and award dated 29.02.2008 passed by the Motor Accident Claims Tribunal/Additional District Judge/1st F.T.C., Haldwani, District Nainital, in M.A.C.C. No. 94 of 2005, Smt. Hansa Saxena versus Rafeeq Alam and others, whereby the Tribunal has awarded Rs.4,35,000/- as compensation along with interest @ 7% per annum, to the claimant. Brief facts of the case are that on 04.01.2005 when Manoj Kumar Saxena along with his friend Ashish was going to Bareilly from his home by his Maruti car, at about 6.15 a.m. driver of Truck bearing No. R.J.11G/0479 by driving the vehicle rashly and negligently stopped the truck by overtaking the Maruti Car and without giving any indicator, due to which Maruti Car dashed with the said truck and Manoj Kumar Saxena and Ashish died on the spot itself. It has been alleged that 2 deceased-Manoj Kumar Saxena, husband of claimant, was 27 years of age at the time of his death and used to earn Rs.5,000/- per month from his business. Opposite party no. 1 despite sufficient service of notice neither appeared before the court below nor filed any written statement on his behalf, hence an order was passed to proceed exparte against him. Opposite party no. 2 The New India Assurance Co. Ltd. contested the claim petition by filing its written statement and alleged that it had not been given any information by the owner of vehicle with regard to the accident. It has also been alleged that on the date of accident driver was not having valid driving licence. It has further been alleged that it was desirable to consider the contributory negligence on the part of driver of Maruti Car and claim petition is bad for non-joinder of necessary parties. The amount of compensation claimed is excessive. Opposite party no. 3 Dharmendra Kumar Saxena contested the claim petition by filing his written statement and alleged that he being the father of the deceased is also entitled to get the compensation. The learned Tribunal on the basis of pleadings of the parties framed necessary issues in the claim petition. Partied led evidence in support of their case. The learned Tribunal having considered the entire evidence available on record and hearing 3 learned counsel for the parties decreed the claim petition for a sum of Rs.4,35,000/-, against opposite party no. 2-The New India Assurance Co. Ltd., along with interest at the rate of 7% per annum from the date of filing the petition till the date of actual payment, vide impugned judgment and award dated 29.02.2008. Feeling aggrieved by the aforesaid impugned judgment and award, the appellant i.e. The New India Assurance Co. Ltd. has preferred the present appeal before this Court. Heard Sri M.K. Goyal, learned counsel for appellant, Sri Syed Nadim, learned counsel for respondent no. 1, Sri B.D. Pande, learned counsel for respondent no. 3 and perused the record. None appeared on behalf of respondent no. 2 despite sufficient service of notice. As far as factum of accident is concerned, the finding recorded by the Tribunal that the accident took place on account of the rash and negligent driving of the driver of offending Truck No. R.J.11G/0479 is concerned, that appears to be completely justified and I am also in agreement with the findings recorded by the Tribunal. As far as contributory negligence on the part of driver of Maruti Car is concerned, the Tribunal has taken into consideration the statement of Gopal (PW-2), who has deposed that he had seen the said accident. This witness further deposed that driver of offending truck without giving indicator overtook the Maruti Car and stopped the truck ahead of 4 Maruti Car, due to which Maruti car dashed with the offending truck and both the persons sitting Maruti car died. The insurance company, in rebuttal, has not been able to establish the fact that alleged accident was caused due to rash and nelgignet driving of driver of Maruti Car No. U.P.02A/1476. Therefore, I am of the view that the Tribunal has rightly decided the said issue in favour of the claimant and against the insurance company. The Tribunal further held that on the date of accident the offending Truck was insured with The New India Assurance Co. Ltd. and its insurance was valid w.e.f. 28.05.2004 to 27.05.2005 and driver of the said Truck was having valid driving licence. The findings recorded by the Tribunal in this regard appears to be justified and the same need no interference. As far as amount of compensation to be awarded in favour of the claimant is concerned, the Tribunal while deciding issue no. 6 has discussed this aspect. The Tribunal although has taken a correct approach in adopting the notional income of the deceased into account which is Rs.36,000/- per annum and after deducting 1/3rd out of the same, the Tribunal has assessed the financial dependency of the claimant at Rs.24,000/- per annum which appears to be justified, but the multiplier adopted by the Tribunal in this case appears to be on higher side in view of the various decisions of the Hon’ble Apex Court given in the cases of Tamil Nadu State Transport Corporation Ltd. Versus S. Rajpriya & others, reported in 2005 (4) SC 87, The Managing Director, TNSTC versus Sripriya & others, 5 reported in 2007(5) Supreme 301, New India Assurance Co. Ltd. vs. Kalpana (Smt) and others, reported in (2007) 2 SCC (Cri) 94. The age of the deceased at the time of accident was 27 years. It is true that he was a young person left behind young widow, but in any case keeping view the circumstance of the case; I think the multiplier in this case could not have travelled more than ‘15’ and adopting the multiplier of ‘15’ the amount of compensation to be awarded in favour of claimant comes to Rs.24,000 x 15=Rs.3,60,000/-. The amount awarded by the Tribunal under other different heads i.e. Rs.2,000/- for funeral expenses and Rs.25,000/- for loss of matrimonial company and love and affection, needs no interference. For the reasons stated above, I am of the view that claimant/respondent is entitled for a sum of Rs.3,60,000 + Rs.2,000 + Rs.25,000=Rs.3,87,000/- as compensation along with interest of 7% per annum as indicated in the impugned judgment and award (instead of Rs.4,35,000/- as has been awarded by the Tribunal). Accordingly, appeal is partly allowed. The impugned judgment and award is modified to the extent that claimant/respondent is entitled for a sum of Rs.3,87,000/- (Rupees three lacs eighty seven thousand only) as compensation along with interest of 7% per annum as indicated in the impugned judgment and award (instead of Rs.4,35,000/- as has been awarded by the Tribunal). 6 The statutory amount deposited by the appellant with this Court be remitted to the Tribunal concerned. (B.C. Kandpal, J.) SP