IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 536 of 2006 The New India Assurance Company Ltd. ..Appellant Versus Smt. Beena Kothiyal (since deceased) & others …Respondents Sri V.K. Kohli, Senior Advocate assisted by Sri T.C. Pandey, Advocate for appellant Sri Anant Kumar Agrawal, Advocate for respondents 1/1 to 1/3 Sri Ramji Srivastava, Advocate for respondents no. 2 & 3 Dated: 12-02-2009 Hon’ble B.C. Kandpal, ACJ. This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the appellant i.e. The New India Assurance Company Limited, who is the insurer of offending vehicle Ambassador Car No. U.A.07B/1200, against the judgment and award dated 31.7.2006 passed by Motor Accident Claims Tribunal/District Judge, Dehradun, in M.A.C. No. 36/2005, Smt. Beena Kothiyal versus Sri Bhim Bahadur and others. Brief facts of the case, as narrated in the claim petition, are that on 3.11.2004 the injured-Smt. Beena Kothiyal (since deceased) was passing through E.C. Road on her Moped Scooty No. UP- 07/2919 and at about 1.40 p.m. when she reached opposite to Hill Grange School, situating on the said E.C. Road, an Ambassador Car No. U.A.07B/1200 driven rashly and negligently hit her Scooty from behind resulting into head injuries to the injured. 2 She was rushed to Doon Hospital and then referred to C.M.I. Dehradun, remained hospitalized till 20.12.2004 but could not come out from coma, then she was discharged from the hospital and since then treatment is going on at her residence. The injured was about 30 years of age at the time of accident and was employed in Aryan Academy School as Hindi Teacher and Computer Operator at monthly salary of Rs.5,000/-. The claimant-injured (since deceased) claimed a sum of Rs.74,00,000/- as compensation against opposite parties on many counts. Opposite parties no. 1 and 2 jointly filed their written statement and contested the claim petition on the ground inter-alia that this accident took place solely on account of negligence of the injured as she was driving the scooty in a zig-zag manner and inspite of best efforts to avoid accident, it happened solely due to negligence of the injured and there was no negligence of the driver of the car i.e. opposite party no. 1. The pleas that driver was holding valid driving licence and the vehicle was insured were also raised. The opposite party no. 3-The New India Assurance Co. Ltd. also contested the claim petition on the ground amongst others that the driver of the Ambassador Car was not holding a valid and effective driving licence and the vehicle was not validly insured with the insurance company. The learned Tribunal on the basis of pleadings adduced by the parties, framed following issues. 3 1. Whether on 3.11.2004 at about 1.40 P.M. at E.C. Road near Hill Grange School when the injured was going on her Scooty No. UP-07/2919 to pick up her child from school, Ambassador Car No. UA 07B/1200 which was being driven rashly and negligently came from behind and hit the injured resulting into serious injuries to Smt. Beena Kothiyal and she is in coma? 2. Whether on the aforesaid date, time and place Ambassador Car No. UA- 07B/1200 involved in the accident was insured and its driver was holding a valid driving licence? 3. Whether due to the aforesaid accident the husband of the injured is entitled to get compensation, if yes, how much and from whom? 4. Relief? The learned Tribunal after having considered the entire material available on record and hearing learned counsel for the parties decreed the claim petition for a sum of Rs.7,55,000/- with 6% simple interest on the amount of Rs.5,55,000/- from the date of petition i.e. 13.1.2005 till the date of payment and cost of Rs.2000/-, vide judgment and award dated 31.7.2006. 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. 4 Heard Sri V.K. Kohli, Senior Advocate assisted by Sri T.C. Pandey, learned counsel for the appellant, Sri Anant Kumar Agrawal, learned counsel for respondents no. 1/1 to 1/3, Sri Ramji Srivastava, learned counsel for respondents no. 2 & 3 and perused the record. Learned counsel for the appellant has submitted that amount in the impugned judgment and award under different heads has been awarded by the Tribunal on the basis of conjectures and surmises. He has further submitted that no plausible evidence is available on record which may suggest that the amount awarded by the Tribunal in favour of claimant cannot be said to be justified. He has also submitted that multiplier adopted by the Tribunal is admittedly on higher side in view of the age of the claimant-Beena Kothiyal (since deceased). Learned counsel for claimants-respondents, on the other hand, has submitted that claimant- injured Beena Kothiyal (since deceased) remained in coma during the trial before the Tribunal and legal heirs of Beena Kothiyal (since deceased) had to spend huge amount on treatment of Beena Kothiyal (since deceased) during that period, therefore, the amount awarded by the Tribunal is perfectly legal and justified. He has also submitted that notional income taken into account by the Tribunal is on lesser side and it should have been Rs.36,000/- per annum instead of Rs.15,000/- per annum. The record reveals that Beena Kothiyal (since deceased), who sustained injuries in the accident, was in the age group of 30-35 years. No plausible 5 and cogent evidence could be adduced by the claimant in support of her income before the Tribunal, hence the Tribunal calculated the amount of compensation on the basis of notional income i.e. at the rate of Rs.15,000/- per annum. I do not agree with the approach adopted by the Tribunal as the accident in this case occurred on 3.11.2004 and in view of the decision of Division Bench of this Court passed in A.O. No. 2 of 2005, Shobhan Singh and another vs. New India Insurance Company and another (decided on 1.11.2006), notional income at that time should have been calculated by the Tribunal as Rs.36,000/- per annum and after deducting one-third out of annual notional income, financial dependency of the claimant and her legal heirs could be assessed at Rs.24,000/- per annum. As far as multiplier adopted by the Tribunal is concerned, it appears from the record that the Tribunal has adopted the multiplier of ‘17’ which is admittedly is on higher side. Keeping in view the age of the injured (since deceased) the multiplier could not have been travelled more than ‘12’ in any manner. If the multiplier of ‘12’ is adopted in this case, then amount of compensation to be awarded comes to Rs.24,000 x 12=Rs.2,88,000/- and legal heirs of injured-Beena Kothiyal (since deceased) are entitled for the aforesaid amount of compensation. The injured-Beena Kothiyal was treated in C.M.I. Dehradun as an indoor patient from 3.11.2004 to 20.12.2004. This factual aspect could not be controverted by the insurance company before the Tribunal. According to the claimants- legal heirs, a sum of Rupees ten lacs was spent on the medical treatment of injured-Beena Kothiyal 6 (since deceased), but the bills available on record are to the tune of Rs.1,20,600/- only, hence, the Tribunal did not have any other alternative except to grant a sum of Rs.1,20,600/- as medical expenses. The Tribunal in this case has awarded a further sum of Rs. Two lacs on the treatment of injured-Beena Kothiyal (since deceased), but for awarding this much amount of Rs. Two Lacs there is no plausible and cogent evidence is available on the record. The amount awarded by the Tribunal to the tune of Rs. Two Lacs appears to be on the basis of conjectures and surmises. However, I am of the view that injured-Beena Kothiyal (since deceased) remained in coma from the date of the accident till her death which took place in the year 2007. Therefore, under the aforesaid circumstance, I think it would be just and proper to award a sum of Rs. One Lac for pain and suffering. The Tribunal has further awarded a sum of Rs. Two Lacs for the future treatment of the injured. Since the situation has now changed and the injured is no more, therefore, there is no question of awarding any sum for her future treatment. The Tribunal has further awarded a sum of Rs. One Lac for the nursing assistance throughout the remaining life of the injured (since deceased). No positive and cogent evidence has been adduced by the claimants as to whether the legal heirs of the claimant-injured had actually incurred a sum of Rs. One Lac for the nursing assistance of the injured (since deceased), but at the same time this fact cannot be ignored that the injured remained in coma for about three years, therefore, a sum of 7 Rs.30,000/- would be just and proper to grant in favour of claimants under the head of nursing assistance. I do not find any ground to interfere on the award of cost to the tune of Rs.2,000/- granted by the Tribunal. For the reasons stated above, I am of the view that claimants/respondents are entitled for a sum of Rs.2,88,000 + Rs. 1,21,000 (rounded) + Rs.1,00,000 + Rs.30,000 + Rs.2,000=Rs.5,41,000/-, along with interest of 6% per annum from the date of filing the petition till the date of actual payment. With the result, the appeal is allowed. The impugned judgment and award is modified to the extent that claimants-respondents are entitled for a sum of Rs.5,41,000/- (Rupees Five Lacs Forty One Thousand only) as compensation (instead of Rs.7,55,000/- awarded by the Tribunal), along with interest of 6% per annum from the date of filing the petition till the date of actual payment. The statutory amount deposited by the appellant/insurance company with this Court be remitted to the Tribunal concerned. In case, if the appellant/insurance company has deposited any excess amount with the Tribunal concerned, the same shall be refunded to the appellant/insurance company. (B.C. Kandpal, ACJ.) SP