IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 510/2006 National Insurance Company Limited… Appellant. Versus Smt. Bimla Rawat and 4 others ….. Respondents. Mr. Lalit Belwal, Advocate for the appellant. Mr. B.P. Nautiyal, Advocate for respondent Nos. 4 and 5. None has appeared on behalf of respondents 1 to 3. U Dated: 18-9-2008 UHon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicles Act 1988, has been preferred by the National Insurance Company, who is the insurer of Motorcycle H.P.-17-A/2540, against the judgment and award dated 14-6-2006, passed by Motor Accident Claims Tribunal/Additional District Judge/Vth F.T.C., Dehradun, in MACT Case No. 319/2005, Smt. Bimla Rawat and others Vs. National Insurance Co. and others. 2- Brief facts of the case, giving rise to this appeal, are that on 27-9-2005, in the evening, Swaraj Singh, was going from Herburtpur to Vikasnagar riding in his Motorcycle bearing registration No. U.A. 07- D/3759. When he reached near Bansipur, another Motorcycle bearing registration No. H.P. 17-A/2540, came from opposite direction in a rash and negligent manner and dashed the Motorcycle U.A. 07-D/3759 due to which Swaraj Singh sustained grievous injuries and succumbed to the injuries at the spot. According to the claimant petition, the deceased Swaraj Singh was 44 years of age and was posted in Garhwal Mandal Vikas Nigam and was getting salary of Rs. 11,246/- per month. The claimants, who are legal heirs of the deceased filed claim petition before the Tribunal. 2 3- The opposite party Nos. 2 and 3, who are the owner and driver respectively of Motorcycle No. H.P. 17- A/2540, filed written statement before the Tribunal and alleged that the deceased was trying to overtake a truck and dashed with the Motorcycle H.P. 17-A/2540. The driver of Motorcycle No. H.P. 17-A/2540 also sustained injuries. The Motorcycle No. H.P. 17-A/2540 was insured with National Insurance Company and the driver was having valid driving license, therefore the liability is upon the insurer. 4- The opposite party no.1, National Insurance Company also contested the petition by filing written statement and alleged that the accident had occurred due to own fault of the deceased. The driver of the motorcycle H.P. 17-A/2540 was not having valid driving license, therefore, the insurance company cannot be held liable to pay compensation. 5- The learned Tribunal on the pleading of parties framed the following issues in the claim petition:- 1- Whether on 25-9-2005 at about 7.30 P.M. near Bansipur, the accident has occurred due to the rash and negligent driving of the driver of Motorcycle No. H.P. 17-A/2540?. 2- Whether on the date of accident the driver was not having valid driving license?. 3- Whether the deceased himself was liable for committing the accident?. 4- Whether the claimants are entitled to get any compensation? If so, how much and from which of the parties?. 3 6- Parties led evidence in support of their case. Thereafter the learned Tribunal after hearing learned counsel for the parties and perusing the entire material available on record, awarded a sum of Rs. 11,02,000/- as compensation along with an interest @ 5% per annum from the date of filing the petition till the date of actual payment against the opposite party no.1, National Insurance Company. 7- Feeling aggrieved, the National Insurance Company has preferred this appeal before this Court. 8- Heard Sri Lalit Belwal, Advocate for the appellant and Mr. B.P. Nautiyal, learned counsel for the respondent Nos. 4 and 5, the owner and driver of offending Motorcycle H.P. 17-A/2540. 9- Since none has appeared on behalf of the claimants/respondents 1 to 3 in spite of sufficient service, this Court on the previous occasion directed the C.J.M. concerned to effect the service upon the claimant/respondents 1 to 3 and the report of the C.J.M. sent to this Court indicates that the notices were served upon the claimants/respondents, but in spite of sufficient service, none has put in appearance on behalf of the claimants/respondents. 10- So far as the factum of the accident is concerned, the evidence available on record indicates that the deceased Swaraj Singh was driving the Motorcycle bearing registration No. U.A. 07-D/ 3759 at the time of accident. The deceased was going from Herburtpur to Vikas Nagar and the Motorcycle No. H.P. 17-A/2540, which was insured with National Insurance Company, was coming from the opposite direction. It is 4 not disputed that Swaraj Singh died in the accident on 27-9-2005 at about 7.30 P.M. The Motorcycle which was being driven by Swaraj Singh was dashed with another Motorcycle which was being driven by respondent No.5, Manish Kumar Bhardwaj. It is thus established from the evidence on record that in the accident occurred on 27-9- 2005 at 7.30 P.M. Swaraj Singh has died. 11- Learned counsel for the appellant has submitted before this Court that the accident took place on account of rash and negligent driving of Motorcycle No. U.A. 07-D/ 3759, i.e. the vehicle which was being driven by the deceased himself at the time of accident. He has further submitted that although this plea was taken in the written statement of the Insurance Company, but the court below ignored this aspect and did not record any finding with regard to the contributory negligence by the drivers of the vehicles involved in the accident. 12- The evidence available on record indicates that the deceased was going on the Motorcycle U.A. 07-D/ 3759 from Herburtpur to Vikas Nagar. His Motorcycle collided with the Motorcycle bearing No. H.P. 17-A/2540, which was coming from opposite direction in a rash and negligent manner. It is thus quite clear that it is a case of head-on collision, in which two vehicles were involved. Had the deceased been vigilant in driving his motorcycle at the time of the accident, he could have very-well avoided the accident, as he had sufficient opportunity to see the motorcycle coming from the opposite direction. It has come in the evidence that the accident took place on the pucca road and the width of the road at the place of accident is 25 to 30 feet. It is nobody’s case that the site of the accident had any blind turn and there was any occasion with the driver of either vehicle to see the 5 another vehicle all of a sudden. The road at the place of the accident, as per material available on record, indicates that the same was straight road and the driver of both the vehicles had sufficient opportunity to see the vehicle coming from the opposite direction and avoid the accident accordingly. In view of the dictum of res ipsa liquitor it is quite clear that the driver of both the vehicles involved in the accident were rash and negligent at the time of the accident. The Tribunal fell in error in ignoring this aspect and thus could not record any finding with regard to the contributory negligence of the vehicles. The material available on record clearly indicates that it is a case of contributory negligence and the drivers of both the vehicles were equally responsible to cause the accident. 13- It is further clear that the Motorcycle H.P. 17- A/2540 was insured with National Insurance Company at the time of accident. Thus the liability up to 50% of the awarded amount of compensation lies with the appellant National Insurance Company. The National Insurance Company could not adduce any evidence that the driver of Motorcycle No. H.P. 17-A/2540 was not having any valid and effective driving license at the time of accident. Although a plea has been taken by the National Insurance Company that the driver of the Motorcycle H.P. 17-A/2540 was not having valid and effective driving license, but the Insurance Company could not establish this aspect by way of any cogent and reliable evidence. 14- As far as the rest 50% amount of awarded amount of compensation in favour of the claimants is concerned, the record reveals that the claimants have neither arrayed the Insurance Company of the Motorcycle 6 No. U.A. 07-D/ 3759, as opposite party in the claim petition, nor have arrayed the driver and owner of the said Motorcycle, as opposite party in the claim petition. The claimants have also not claimed any amount of compensation either from the insurer or the owner of the Motorcycle U.A. 07-D/ 3759. It is further clear that the Motorcycle U.A. 07-D/ 3759 was driven by the deceased himself at the time of the accident. Thus the claimants cannot be said to be entitled to get any compensation on account of the rash and negligence on the part of the deceased, which as per the evidence available on record, is up-to 50%. 15- So far as the income of the deceased is concerned, I do not find any infirmity in the judgment and award passed by the Tribunal and the same is liable to be confirmed. The multiplier adopted by the Tribunal also does not require any interference. 16- The Tribunal also awarded a sum of Rs. 5,000/- towards funeral expenses, which is admittedly on higher side as it could not have travelled more than Rs. 2,000/-. The Tribunal further awarded a sum of Rs. 25,000/- towards pain and suffering, but I do not find any sufficient ground to grant any amount under this head, as it is evident from the record that the deceased had died on the way while being taken to the hospital. The finding recorded by the Tribunal awarding a sum of Rs. 5,000/- for funeral expenses and a sum of Rs. 25,000/- for pain and suffering is liable to be set aside and in place of it, I award a sum of Rs. 2,000/- towards funeral expenses. 17- On the aforesaid calculation, the total compensation to be awarded in favour of the claimants 7 comes to Rs. 10,71,600/- (-50%) = Rs. 5,35,800/- + Rs. 2,000/- = Rs. 5,37,800/-, rounded to Rs. 5,38,000/- along with interest @ 6% per annum (instead of 5% awarded by the Tribunal) from the date of filing the petition till the date of actual payment. 18- Accordingly, the appeal is allowed. The impugned judgment and award dated 14-6-2006, is modified upto the extent that the claimants are entitled to get a sum of Rs. 5,38,000/- as compensation along with an interest @ 6% per annum from the date of filing the petition till the date of payment, against the National Insurance Company, instead of Rs. 11,02,000/- along with interest @5% per annum, as has been awarded by the Tribunal. 19- The amount, if any, deposited by the appellant with this Court, be remitted to the tribunal concerned. ( B.C. Kandpal,J. ) ISB 8