IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 408 of 2005 United India Insurance Company Ltd. Through its Divisional Manager Chitra Vatika, Ranipur Morh, District Haridwar … Appellant Versus 1- Smt. Suvidha Devi wife of late Virendra Singh 2- Shri Pramod Singh son of late Virendra Singh 3- Km. Shashi daughter of late Virendra Singh 4- Shri Suraj Singh son of late Virendra Singh 5- Km. Darshani daughter of late Virendra Singh, Through their natural guardian mother Smt. Suvidha Devi, All resident of Village Nail, Patwari Circle Chhinka, Tehsil and District Chamoli 6- Shri Punit Kumar son of Shri Vinod Kumar, Resident of 100, Dehradun Road, Rishikesh, Police Station Rishikesh, District Dehradun … Respondents Sri Pankaj Purohit, learned counsel for the appellant Sri R.P. Nautiyal, learned counsel for respondents no. 1 to 5 Dated: April 4, 2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred against the judgment and award dated 08.07.2005 passed by Motor Accident Claims Tribunal/District Judge, Chamoli, in M.A.C.T. Case No. 46/2003, Smt. Suvidha Devi and others versus Punit Kumar and another. The claimants-Smt. Suvidha Devi and others preferred a claim petition under Section 166 of Motor Vehicles Act, for grant of compensation on account of death of Virendra Singh in a motor vehicle accident. According to the claimants, on 25.11.2002 at about 6.30 p.m. the deceased- Virendra Singh was returning to his house from village market but on the way to his house near village Dewar he was knocked down by Truck No. U.A. 07-C-9680 which was being driven rashly and negligently by its driver and he succumbed to injuries sustained in the accident instantaneously. The claimants have pleaded that deceased was a farmer and used to earn Rs. 4500/- per month from farming and working as a labourer. The claimants thus claimed for a sum of Rs. 5,30,000/- as compensation. Opposite party no. 1-Sri Punit Kumar filed written statement refuting the contents of claim petition. He has pleaded that offending vehicle was insured with United Insurance Co. Ltd. at the time of accident and all the papers of vehicle were valid at the time of accident. He denied the accident caused due to his vehicle and on the date of accident his vehicle was coming from Ghingran to Gopeshwar after selling goods. He has further pleaded that driver of his vehicle was skilled and expert driver having a valid driving licence. The insurance company is liable to pay compensation, if any. Opposite party no. 2-insurance company filed written statement refuting the contents of claim petition. It has stated that at the time of accident, registration certification, permit, pollution certificate, driver certificate and insurance policy etc. of the offending vehicle were not valid. It also took plea that driver licence of driver of offending vehicle was not valid at the time of accident, hence, insurance company is not liable to pay compensation, if any. The learned Tribunal on the basis of pleadings of parties framed relevant issues in the claim petition. Parties led evidence in support of their cases. The learned Tribunal after having considered the material available before it and hearing learned counsel for the parties, decreed the claim petition for a sum of Rs. 3,91,000/- as compensation, in favour of claimants, against opposite party no. 2- United India Insurance Company Limited, along with an interest of 5% per annum from the date of filing the claim petition till the date of actual payment of compensation. The Tribunal also directed the National Insurance Company Ltd. to deposit the said amount of compensation within a period of one month from the date of the judgment. Feeling aggrieved by the aforesaid award, the appellant-United India Insurance Company Ltd. has preferred this appeal before this Court. Heard Sri Pankaj Purohit, learned counsel for the appellant, Sri R.P. Nautiyal, learned counsel for respondents no. 1 to 5 and perused the record. Learned counsel for the appellant has submitted that learned Tribunal has wrongly assessed the monthly income of the deceased at Rs. 3000/- without any basis and cogent evidence and learned Tribunal could have taken the notional income for calculating the compensation as given in Motor Vehicles Act. Perusal of impugned order shows that PW-1 has stated in his deposition that on 25.11.2002 when deceased-Virendra Singh was coming to his home after fetching the goods, a trick bearing Registration No. UA 07-C-9680, which was being driven by its driver rashly and negligently, dashed the deceased. This witness in his cross examination has stated that he himself did not see the accident. PW-2, Dheeraj Singh also stated in his deposition that he saw standing a truck near village Dewar on 25.11.2002. He stopped his motorcycle and asked the driver of offending truck and then truck driver told him that his vehicle dashed a person and he was being carried to the Hospital. This witness also stated in his cross examination that he himself did not see the accident. The witnesses produced by the opposite parties have deposed in their deposition that the offending truck went to Ghingran on the date of accident and DW-2 and truck driver came back at Gopeshwar at 6.30 p.m. On the basis of evidence adduced by the parties, the Tribunal has held that the accident had taken place due to rash and negligent driving of Truck No. U.A. 07-C-9680 on 25.11.2002, resulting into the death of deceased. The evidence on record further reveals that opposite party no. 1 filed paper no. 82 Ga copy of Registration Certificate, paper no. 83 Ga, copy of permit, paper no. 80 Ga copy of driving certificate, paper no. 82 Ga copy of Health Certificate, paper no. 84 Ga copy of Pollution Control Certificate and paper no. 81, copy of insurance cover note, which show that on the date of accident all the papers of offending Truck No. U.A.07-C-9680 were valid and vehicle was not being plied in contrary to conditions of insurance policy. Therefore, in my view, the Tribunal has rightly held that accident had taken place due to rash and negligent driving of driver of Truck No. U.A. 07-C-9680 on 25.11.2002, resulting into the death of deceased and since the accident occurred due to rash and negligence on the part of driver of offending truck, which was insured with opposite party no. 2-insurance company, hence, the insurance company is liable to pay compensation. As far as amount of compensation awarded in favour of claimants is concerned, the finding recorded by the Tribunal appears to be without any reasonable basis. The Tribunal has assessed the income of the deceased merely on the basis of conjectures and surmises. Once the Tribunal has recorded a categorical finding that the claimants could not adduce any plausible and satisfactory evidence to show the actual income of the deceased, then there was no justification with the Tribunal to hold that the monthly income of the deceased was Rs. 3000/- per month. The Tribunal has not given any reason in the impugned judgment and award that how it could reach to the conclusion that the monthly income of the deceased was Rs. 3000/-. Once the Tribunal has held that there was no satisfactory evidence in order to show the actual income of the deceased, then there was alternative way available with the Tribunal to adopt the formula of notional income of the deceased. The notional income of the deceased as per the schedule given in the Motor Vehicles Act under Section 163- A, is Rs. 15,000/- per annum and in case, out of this amount 1/3rd is deducted against the personal expenses of the deceased, then the annual financial dependency of the claimants comes to Rs. 10,000/- per annum. The age of the deceased at the time of his death was 38 years, therefore, keeping in view the age of the deceases as well as number of dependents of the deceased, the multiplier of ‘16’ adopted by the Tribunal appears to be correct and after adopting the multiplier of ‘16’, as has been taken into consideration by the Tribunal, the total amount of compensation to be awarded in favour of the claimants, comes to Rs. 10,000/- x 16= Rs.1,60,000/-. Therefore, on the basis of the aforesaid calculation, I come to the conclusion that the impugned judgment and award passed by the Tribunal is liable to be modified and as per the conclusion drawn by this Court, the amount of compensation to be awarded in favour of claimants, should be Rs. 1,60,000/-, instead of Rs. 3,91,000/- as has been awarded by the Tribunal. As far as interest part is concerned, the Tribunal has awarded an interest of 5% per annum from the date of filing the petition till the date of actual payment, I think that keeping in view the present rate of interest being given by the Banks, the interest should also be enhanced to 7% per annum, instead of 5% per annum and impugned judgment and award is also liable to be modified to that extent. With the result, the appeal is partly allowed. The impugned judgment and award is modified to the extent that claimants are entitled to get a compensation of Rs.1,60,000/- (Rupees Once Lac Sixty Thousand Only), instead of Rs.3,91,000/- as has been awarded by the Tribunal, along with interest @ 7% per annum from the date of filing the petition till the date of actual payment. The amount so awarded shall be payable by the appellant- insurance company to the claimants-respondents, within a period of 45 days. Out of the total awarded amount, Rs. 25,000/- each shall be paid to the claimants no. 2, 3, 4 and 5, who are the minor sons and daughters of the deceased and this amount shall be deposited in the Fixed Deposit with some Nationalized Bank till the minors attain their majority. Rest of the awarded amount shall be paid to Smt. Suvidha Devi-wife of the deceased. In case, if the appellant-insurance company had deposited the entire decretal amount awarded by the Tribunal, the remaining amount shall be returned to the appellant-insurance company. The statutory amount deposited by the appellant-insurance company before this Court at the time of filing the appeal, shall also be remitted to the Tribunal concerned. (B.C. Kandpal, J.) SP