IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) A.O. NO.572 OF 2005 Smt. Beena Devi and others …. Appellants. Vs. National Insurance Company Ltd. and another .. Respondents. Mr. Lokpal Singh, Advocate for the appellants. Mr. D.S. Patni, Advocate for respondent No.1. Mr. R.S. Bisht, Advocate for respondent No.2. (2) A.O. NO. 36 OF 2006 National Insurance Company Ltd… Appellant. Vs. Smt. Beena Devi and others . Respondents. Mr. D.S. Patni, Advocate for appellant. Mr. Lok Pal Singh, Advocate for respondent Nos. 1 to 5. Mr. R.S. Bisht, Advocate for respondent No.6. (3) A.O. NO. 01 of 2007 National Insurance Company Ltd … Appellant. Vs. Smt. Rajeshwari Devi and another … Respondents. Mr. D.S. Patni, Advocate for appellant. Mr. D.C.S. Rawat, Advocate for respondent No.1 Mr. R.S. Bisht, Advocate for respondent No.2. Dated: 09-04-2008 Hon’ble B.C. Kandpal, J. All the three appeals have been preferred under Section 173 of the Motor Vehicles Act, 1988, arising out of the same accident, therefore, they are being disposed of by this common judgment. 2- A.O. No. 572 of 2005 and A.O. No. 36 of 2006 have been preferred against the judgment and award dated 9-11-2005, passed by Motor Accident Claim Tribunal/District Judge, Pauri Garhwal, in MACP No. 14/2004, in which the Tribunal awarded a compensation of Rs. 10,86,000/- payable by National Insurance Company, for the death of Kuldeep Singh. The Tribunal also directed the Insurance Company to pay the compensation within a period of two months, failing which interest @9% per annum from the date of filing the petition, till the date of final payment, shall be payable. 3- A.O. No. 01 of 2007 has been preferred against the judgment and award dated 9-10-2006, passed by Motor Accident Claim Tribunal/District Judge, Pauri Garhwal, in MACP No. 70/2004, whereby the compensation of Rs. 4,10,000/- has been awarded payable by National Insurance Company in lieu of death of Vijay Prakash Barthwal. The Tribunal also directed that the amount of compensation should be deposited upto 9-12-2006, failing which compound interest @ 9% per annum, payable at the close of each six months. 4- Brief facts of the case are that on 26-6-2002 at about 4 P.M. the jeep U.P. 06/1632 due to rash and negligent driving of its driver met with an accident within the boundary of village Peedu, in which Kuldeep Singh and Vijay Prakash Barthwal have also died due to the injuries sustained by them in the said accident. Both the deceased were travelling in the said jeep from village Chai-sek to their village Kundoli. The claimants preferred claim petition for compensation in lieu of death of the deceased persons. 5- The owner of the vehicle filed written statements in both the claims and alleged that the vehicle was insured with national insurance company and it had valid registration, permit and fitness and its driver was possessing valid driving license. Therefore, the liability of compensation rests on the shoulder of the insurer. 6- The National Insurance Company also filed its written statements in both the claims and alleged that the vehicle was being driving against the terms of insurance policy. At the time of accident it was being driving by Vijay Prakash Barthwal, who was not having valid driving license. 7- The learned Tribunal framed relevant issues in both the claim petitions. Thereafter, parties adduced evidence. The Tribunal for the death of Kuldeep Singh awarded Rs. 10,86,000/- payable by National Insurance Company. The Tribunal also directed the Insurance Company to pay the compensation within a period of two months, failing which interest @9% per annum from the date of filing the petition, till the date of final payment, shall be payable. For the death of Vijay Prakash Barthwal a compensation of Rs. 4,10,000/- was awarded. The Tribunal also directed that the amount of compensation should be deposited upto 9-12-2006, failing which compound interest @ 9% per annum, payable at the close of each six months. 8- Feeling aggrieved the claimants filed A.O. No. 572 of 2005 for enhancement against the award dated 9- 11-2005 passed in MACP 14/2004 whereas the National Insurance Company has preferred appeal No. 36/2006 against this award for setting aside of the same. 9- Against the award and judgment dated 9-10- 2006 passed in MACP 70/2004, appeal No. 1/2007 has been preferred by Insurance Company for setting aside the said award. 10- Heard learned counsel for the parties and perused the impugned judgment and awards. 11- Learned counsel for the insurance company has submitted that the driver of the offending jeep was not having valid driving license and that is the reason that the driving license has not been brought on record by the owner of the jeep. Therefore, the liability to pay compensation cannot be fastened upon the insurer of the vehicle. 12- It is true that the driving license of the driver has not been filed by the owner of the jeep before the Tribunal, but the reason assigned by him was that the driver of the vehicle, had also died in the accident, and after the said accident the owner had stopped the work and surrendered all the documents to the R.T.O. concerned. The owner of the vehicle has specifically mentioned in his written statement that the vehicle was being driven by a person having valid driving license and due to the reason of surrender of all documents he could not file the copy of driving license. In the above situation it was the duty of the Insurance Company to have approached the R.T.O. and in case if the driver was not having valid driving license it could very-well adduce evidence by producing concerning official from the R.T.O. Office but no effort has been made by the insurer in this respect. Therefore, in above situation the learned Tribunal has rightly concluded that the vehicle was being driving by a person having valid driving license. 13- So far as the quantum of compensation is concerned, first of all I take A.O. No. 572 of 2005 and A.O. No. 36 of 2006 together. 14- Learned counsel for the appellants/claimants has submitted that the Tribunal has made wrong calculation while assessing the income of the deceased and awarded a lesser amount of compensation, therefore, the same be enhanced. He also submitted that the Tribunal has wrongly deducted 1/3rd amount twice. 15- On the other hand learned counsel appearing on behalf of the Insurance Company has opposed the submission and alleged that the Tribunal has already awarded a huge amount of compensation. He also submitted that the Tribunal has adopted the multiplier on higher side, hence the amount should be reduced. 16- To appreciate the arguments advanced by the learned counsel for the parties, it is pertinent to go through the finding recorded by the learned Tribunal pertaining to the quantum of compensation. According to the claimants the deceased Kuldeep Singh himself was a mason and he used to construct the houses on contract basis. The learned Tribunal has taken the daily income of the deceased as Rs. 250/- and the annual income at Rs. 90,000/-. The deceased at the time of accident was 31 years of age and the Tribunal after adopting the multiplier of ‘17’ calculated the dependency at Rs. 15,30,000/-. Out of this sum 1/3rd has been deducted towards personal expenses of the deceased and thereby the dependency comes to Rs. 10,20,000/-. The Tribunal also deducted a sum of Rs. 3,40,000/- for lump sum payment and assessed Rs. 6,80,000/- as dependency of the claimants upon the deceased. Besides above the claimants also filed large numbers of bills and receipts of medical expenses incurred upon the deceased amounting to Rs. 2,06,000/-. The deceased prior to his death, was also treated in A.I.I.M.S. New Delhi for his injuries and he was declared disabled upto 90%. The Tribunal awarded a sum of Rs. 2,06,000/- towards medical expenses and further awarded Rs. 2,00,000/- towards physical and mental agony. In this way a total sum of Rs. 10,86,000/- has been awarded as compensation. Therefore, it is quite clear that the deceased at the time of accident himself was a mason and he also used to take contract for constructing the houses. The Tribunal also deducted a handsome amount towards lump sum payment, and looking to all these aspects of the matter, in my opinion, the impugned award does not require interference. Therefore, both the appeals preferred by the claimants for enhancement and the insurance company against the impugned award are liable to be dismissed. 17- So far as the A.O. No.01 of 2007, is concerned, the learned counsel for the appellant has submitted that the deceased at the time of accident was unmarried and he had no earning and the learned Tribunal has ignored these facts of the case and awarded a huge amount of compensation. He also submitted that multiplier adopted by the Tribunal is also on higher side. 18- Perusal of record reveals that in the instant case the income of the deceased has been shown Rs. 6,000/- per month in claim petition. But the Tribunal has observed that the claimants could not produce any plausible documentary evidence in order to establish the actual income of the deceased, therefore, the Tribunal has taken notional income of Rs. 3000/- per month and after deducting 1/3rd towards personal expenses, the annual dependency comes to Rs. 24,000/-. The finding on this aspect recorded by the Tribunal appears to be justified and I do not find any ground to disturb the same. Further, it reveals from the record that the deceased was unmarried and in such cases age of the parents of the deceased shall be taken into consideration. The multiplier of ‘17’ adopted by the Tribunal in this case, appears to be on higher side. In view of the pronouncement of the Hon’ble Apex Court in the case of The Municipal Corporation of Greater Bombay Vs. Shri Laxman Iyer & Anr. reported in 2003(7) Supreme 492, the multiplier in the instant case should have been ‘10’ and after adopting the said multiplier of ‘10’ the amount of compensation comes to Rs. 24000/- X 10= Rs.2,40,000/-. 19- On the basis of above calculation the amount of compensation to be awarded to the claimants comes to Rs. 2,40,000/- instead of Rs. 4,10,000/-, as has been awarded by the Tribunal. The amount of compensation awarded by this Court shall be paid to the claimants by the appellant/National Insurance Company along with interest @ 9% per annum from the date of filing the petition till the date of actual payment. 20- Accordingly the A.O. Nos. 572/2005 and 36 of 2006, are hereby dismissed. The impugned award dated 9-11-2005 passed in MACP No. 14/2004 is confirmed. 21- However, A.O. No. 01 of 2007 filed against the judgment and award dated 9-10-2006 passed in MACP No. 70 of 2004, is partly allowed. The impugned judgment and award is modified to the extent that the claimants are awarded a compensation Rs. 2,40,000/- instead of Rs. 4,10,000/-, as has been awarded by the Tribunal. The amount of compensation awarded by this Court shall be paid to the claimants by the National Insurance Company along with interest @ 9% per annum from the date of filing the petition till the date of actual payment. The apportionment of the amount of compensation now awarded to the claimants shall be as follows:- 1) Rs. 40,000/- each shall be paid to Manish Barthwal, Sudama Prasad, Sunil Barthwal, and Suraj Prakash. The share of minor Manish Barthwal shall be deposited in some nationalized bank in fixed deposit till he attains the age of majority. The amounts payable to Sudama Prasad, Sunil Barthwal, and Suraj Prakash shall also be deposited in some nationalized bank in fixed deposit for a period of five years. 2) Rest of the amount shall be distributed in equal portion amongst the parents of the deceased. 22- The amount of compensation, if any, deposited in this court, at the time of admission of the above appeals, shall be remitted to the Tribunal concerned. 23- Let a copy of this judgment be placed in the files of A.O. No. 36 of 2006, and A.O. No. 01 of 2007. (B.C. Kandpal, J.) ISB