IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal Against Order No. 518 of 2005 The New India Assurance Company Ltd. … Appellant Vs Smt. Kashmir Kaur & others … Respondents Sri T.A. Khan, learned counsel for the appellant Sri B.D. Pande, learned counsel for the respondent No. 3 Sri K.K. Shah, learned counsel for the respondent No. 5 With Appeal Against Order No. 515 of 2005 The New India Assurance Company Ltd. … Appellant Vs Nitin Kumar & others … Respondents Sri T.A. Khan, learned counsel for the appellant Sri Pradeep Hariya, learned counsel for the respondent No. 1 Sri K.K. Shah, learned counsel for the respondent No. 3 Hon’ble B.C. Kandpal, J. These appeals are being heard and decided together by this common judgment, as these appeals are arising out of common judgment and accident. 2. Both these appeals has been filed by the appellant/New India Assurance Company Ltd. against the judgment and award dated 06.09.2005 passed by Motor Accident Claims Tribunal/Additional District Judge IInd/Fast Track Court, Nainital in M.A.C. Petition No. 206 of 2002. 3. Brief facts of the case are that on 24.06.2002 at about 04:30 p.m. Sri Karam Singh (deceased) and his brother were coming from Haldwani to Lamachaur on their Hero 2 Honda motorcycle No. UP02C/4516. Another person, namely, Nitin Tiwari was standing near Lamachaur, S.K. Puram Main Road on his Bullet motorcycle No. UA04/7160 on the left side of the road and was talking to his friend Mohd. Isrial. At the same time, another motorcycle No. UP02C/4516 which was being driven by its driver in a very rash and negligent manner, due to which he lost control over his motorcycle and dashed against the standing motorcycle No. UA04/7160. In this accident, Karam Singh died at the spot whereas, Nitin Tiwari sustained serious injuries and he was immediately admitted in the Soban Singh Jeena, Base Hospital, Haldwani and thereafter he was referred to Krishna Hospital, Haldwani. Considering the serious injuries of Karam Singh, he was referred to K.G.M.C. Medical College, Lucknow for better treatment. His condition was serious and he was remained admitted in the hospital for one month. The Doctor advised him for plastic surgery in future as his face has been disfigured due to the injuries sustained in the accident. According to the claim petition, the injured 24 years of age and working a private firm and getting salary @ Rs. 7,000/- per month. Therefore, the claimant/injured filed claim petition for a sum of Rs. 20,00,000/- as compensation before the Tribunal concerned. The wife of the deceased – Karam Singh also filed claim petition before the Tribunal for a sum of Rs. 10,00,000/- as compensation in lieu of the death of the her husband. According to the claim petition, the deceased was 32 years of age and used to earn Rs. 5,000/- per month by selling milk and agricultural work. 4. The opposite party No. 1 – Harish Kumar – owner of the Bullet motorcycle No. UA04/7160 contested the claim petition by filing written statement before the Tribunal concerned. It has alleged that the accident took place due to 3 negligence of the vehicle No. UA02C/4516. It has further alleged that the vehicle No. UA04/7160 was insured with the National Insurance Company Ltd. and the driver – Nitin tiwari was having the valid driving licence on the date of accident. It has further alleged that the liability to pay any compensation lies upon the National Insurance Company Ltd. or New India Assurance Company Ltd. – insurer of motorcycle No. UA02C/4516. 5. The National Insurance Company Ltd. also contested the claim petition by filing its written statement alleging therein that the vehicle was being plied in violation of breach of Insurance Policy. Therefore, the applicant is not responsible to pay any compensation to the claimant. The amount of compensation was claimed on the higher side. It has further alleged that in the claim petition, it was pleaded that the accident took place due to negligence of Hero Honda Motorcycle No. UA02C/4516. 6. The opposite party No. 3 – Chandan Singh – owner of Hero Honda Motorcycle No. UA02C4516 also contested the claim petition alleging therein that the accident took place due to negligence of Bullet Motorcycle No. UA04/7160. It has further alleged that on the date of accident, his motorcycle was insured with the New India Assurance Company Ltd., therefore, the Insurance Company is liable to pay compensation, if any. 7. The opposite party No. 4 – New India Assurance Company Ltd. also contested the claim petition by filing its written statement alleging therein that the accident took place due to rash and negligence of the driver of Bullet Motorcycle. The owner of the vehicle has not informed the Insurance 4 Company with regard to the accident. Therefore, the applicant is not responsible for any compensation. 8. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues, which were discussed in a great length. Thereafter, both the parties led evidence in support of their case. After hearing learned counsel for the parties and perusing the entire material available on record, the Tribunal decreed the claim petition against both the Insurance Companies (50% each) for a sum of Rs. 3,70,000/- in favour of the claimant – Kashir Kaur and Rs. 2,40,000/- in favour of the claimant – Nitin Tiwari vide judgment and order dated 06.09.2005. 9. Feeling aggrieved by the aforesaid judgment and award, the appellant/the New India Assurance Company Ltd. preferred this appeal before this Court. 10. Heard Sri T.A. Khan, learned counsel for the appellant/Insurance Company, Sri B.D. Pandey, leaned counsel for the respondent, Sri Pradeep Hariya, learned counsel for the respondent, Sri K.K. Shah, learned counsel for the respondent/National Insurance Company Ltd. and perused the record. 11. The perusal of the record shows that the Tribunal decided issue relating to the rash and negligence on the part of both the vehicles and held responsibility upon both the Insurance Companies to pay compensation equally. The Tribunal decided three claim petitions by one common judgment and the pleadings of the claim petitions are found different from its perusal. Nitin Tiwari has stated in his deposition that on 24.06.2002, he was coming from Lakachor 5 to Haldwani on motorcycle No. UA04/7160, when he reached near S.K. Puram, Main Road, at about 04:30 p.m., he met with his friend Mohd. Isrial and started talking with him on the left side of the road. Suddenly, one motorcycle No. UP02C/4516 coming from the opposite direction, which was being driven by its driver in a rash and negligent manner, dashed with his motorcycle, due to which he sustained serious injuries. Smt. Kashmir Kaur has stated in his deposition that on 24.06.2004 his husband – Karam Singh was coming on his motorcycle from Haldwani to his home along with his brother Jeet Singh. When they reached near S.K. Puram, Kusumkhera, suddenly, another motorcycle No. UA04/7160 which was being driven by its driver in a rash and negligent manner, hit the motorcycle of her husband. Sri Chandan Singh who is the brother of the deceased has lodged the First Information Report on the same day. On the basis of the report, the police station, Haldwani prepared the sight plan, which is paper No. 34C/7. From the perusal of the sight plan, it reveals that the accident took place in the mid of the road. The Tribunal on the basis of the evidence available on record come to the conclusion that at the time of the accident, both the vehicles were on moving condition and considering the sight plan, the accident took place in the mid of the road. It is not disputed that both the vehicles were insured with the New India Assurance Company Ltd. and the National Insurance Company Ltd. Keeping in view of the dictum of ‘Res ipsa loquitor’, the Tribunal has rightly imposed compensation upon both the Insurance Companies. 12. In appeal No. 518 of 2005, the claimant – Kashmir Kaur has stated that his husband used to earn Rs. 5,000/- per month by selling milk and agricultural work. In order to prove the income of the deceased, the claimant has not 6 produced any relevant and cogent evidence which may prove the income of the deceased. 13. In the absence of any evidence pertaining to the income of the deceased as well as in order to calculate the income of the deceased, the Tribunal has taking his daily wage of Rs. 100/- per day and considered Rs. 36,000/- per annum and after deducting 1/3rd towards personal expenses, the financial dependency of the claimant comes to Rs. 24,000/- per annum. The deceased was 32 years of age at the time of the accident. Keeping in view the age of the deceased, the Tribunal adopted the multiplier of ‘15’. In view of the above, the amount of compensation comes to Rs. 3,60,000/- (15 X 24000). The Tribunal further awarded a sum of Rs. 5,000/- towards loss of consortium, Rs. 5,000/- towards funeral expenses. Thus, the total amount of compensation comes to Rs. 3,70,000/-. I do not find any ground to interfere in the impugned judgment and award passed by the Tribunal. 14. Accordingly, the appeal No. 518 of 2005 is dismissed. No order as to costs. 15. In appeal No. 515 of 2005, learned counsel for the appellant has submitted before the Court that the Tribunal has committed illegality while awarding the amount under the head of medical treatment. The Tribunal did not consider the statement of the doctors while awarding the amount under this head. 16. Sri Pradeep Hariya, learned counsel for the respondent/claimant has made the rival contention. He has submitted before the Court that the Tribunal on the basis of the material available on record as well as considering the 7 nature of injuries sustained by the claimant has rightly awarded the amount under the head of the medical expenses incurred by the claimant on his medical treatment. 17. After hearing learned counsel for the parties, I have gone through the entire record available before me. From the perusal of the record it has come to my notice that the Tribunal has awarded a sum of Rs. 1,50,000/- against the expenses incurred by the claimant on his medical treatment. The observations made by the Tribunal clearly indicates that the amount of Rs. 1,50,000/- has been awarded on the basis of conjectures and surmises basis and no cogent, positive and plausible evidence has been adduced by the claimant in order to establish the actual amount incurred by him on the medical treatment. However, the documents available on record indicate that the maximum, a sum of Rs. 50,000/- was spent by the claimant on his medical treatment. The bills produced by the claimants before the Tribunal have neither been supported by any cogent and reliable evidence nor they are appear to be nexus between the bills filed by the claimant and the medical treatment received by him. The evidence which has been adduced by the claimant before the Tribunal also indicate that the bills produced by the claimant before the Tribunal are either manipulated or fabricated because the doctors have categorically stated in their deposition that the bills have no nexus with the treatment received by the claimant. 18. I do not find myself in agreement with the observations recorded by the Tribunal in awarding the compensation pertaining to the medical treatment of the claimant/respondent – Nitin Tiwari. However, in view of the evidence adduced by the claimant before the Tribunal, I am of 8 the view that it would be just and proper to award a sum of Rs. 50,000/- to the claimant against the expenses incurred by him on his medical treatment. The award of Rs. 1,50,000/- against the head of medical treatment appears to be absolutely irrational and unjustified. The other amount awarded by the Tribunal under different heads need no interference. 19. On the basis of the aforesaid observations, I am of the view that the claimant – Nitin Tiwari is entitled for a sum of Rs. 1,40,000/- (25000 + 25000 + 50000 + 20000 + 20000) along with interest @ 7% per annum from the date of filing the claim petition till the actual date of payment. 20. Accordingly, the appeal No. 515 of 2005 is partly allowed. The impugned judgment and award is modified up to the extent that the claimant is entitled to get compensation of Rs. 1,40,000/- instead of Rs. 2,40,000/- as has been awarded by the Tribunal along with interest as indicated in the impugned judgment and award. 21. The statutory amount deposited by the appellant before this Court at the time of filing the appeals be remitted to the Tribunal concerned. 22. Let the copy of this judgment be placed in A.O. No. 515 of 2005. (B.C. Kandpal, J.) 13.08.2008 ASWAL