IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) A.O. No. 359/2009 The United India Insurance Co. Ltd. - Appellant. Versus Jaleel Ahmad and others - Respondents. Mr. Ramji Srivastava, Advocate for appellant. Mr. Lalit Sharma, Advocate for respondents 1 and 2. Mr. Dinesh Chauhan, Advocate for respondent No.3. Mr. Z.U. Siddiqui, Advocate for respondent No.4. None has appeared on behalf of respondent No.5 inspite service. (2) A.O. No. 123/2009 The United India Insurance Co. Ltd. - Appellant. Versus Champa Devi and others - Respondents. Mr. Ramji Srivastava, Advocate for appellant. Ms. Geeta Parihar, Advocate for respondents 1 to 4. Mr. Dinesh Chauhan, Advocate for respondent No.5. None has appeared on behalf of respondent No.6 inspite service. (3) A.O. No. 124/2009 The United India Insurance Co. Ltd. - Appellant. Versus Smt. Chandra Devi and others - Respondents. Mr. Ramji Srivastava, Advocate for appellant. Mr. M.C. Kandpal, Senior Advocate assisted by Mr. S.S. Chaudhary, Advocate for respondent No.1. Mr. Dinesh Chauhan, Advocate for respondent No.2. None has appeared on behalf of respondent No.3 inspite service. (4) A.O. No. 125/2009 The United India Insurance Co. Ltd. - Appellant. Versus Jai Shankar Prasad and others - Respondents. Mr. Ramji Srivastava, Advocate for appellant. Mr. M.C. Kandpal, Senior Advocate assisted by Mr. S.S. Chaudhary, Advocate for respondents No.1 and 2. Mr. Dinesh Chauhan, Advocate for respondent No.3. None has appeared on behalf of respondent No.4 inspite service. 2 (5) A.O. No. 194/2009 United India Insurance Co. Ltd. and others - Appellant. Vs. Mohd. Hussain and others - Respondents. Mr. Ramji Srivastava, Advocate for appellant. Mr. Z.U. Siddiqui, Advocate for appellant. Mr. Dinesh Chauhan, Advocate for respondent No. 3. None has appeared on behalf of respondent No. 4 inspite service. (6) A.O. No. 333/2009 Smt. Rashida - Appellant. Versus United India Insurance Co. Ltd. and others - Respondents. Mr. Z.U. Siddiqui, Advocate for appellant. Mr. Ramji Srivastava, Advocate for respondent No.1 Mr. Dinesh Chauhan, Advocate for respondent No.2 and 3. None has appeared on behalf of respondent No. 4 inspite service. (Hon’ble B.S. Verma, J.) All these claim appeals arise out against the same accident, and the controversy involved in these appeal is the same, therefore, they are being decided by this common judgment. The A.O. No. 359/2009 has been filed against the judgment and award dated 31-7-2009, passed by M.A.C.T./A.D.J./I FTC, Haldwani, in MACT Case No. 294 of 2006, Jalil Ahmad and another vs. Mohd. Hassim Mikrani and others whereby the tribunal awarded a sum of Rs. 4,09,000/- as compensation along with interest @ 6% per annum from the date of filing the petition till the date of actual payment. The tribunal has decided two claim petitions 359/2009, filed by parents of deceased Raish Ahmad and claim petition 286/2006, filed widow of deceased Raish Ahmad and directed 60% of the amount i.e. 2,33,400/- shall be paid to parents and remaining 40% i.e. Rs.1,55,600/- shall be paid to the widow. Against the award widow Smt. Rashida has filed A.O. No. 333/2009. A.O. No. 123/2009, has been filed against the judgment and award dated 13-01-2009, passed by MACT/ADJ/I FTC, Haldwani, in MACT Case No. 295 of 2006, Smt. Champa Devi and others Vs. Mohd. Hassim and others, whereby a sum of Rs. 2,79,000/- 3 is awarded compensation along with interest @7% per annum from the date of filing the claim petition till the date of actual payment, payable by United India Insurance Company. A.O. No. 124/2009, has been filed against the judgment and award dated 13-01-2009, passed by MACT/ADJ/I FTC, Haldwani, in MACT Case No. 121 of 2007, Smt. Chandra Devi Vs. Mohd. Hassim and others, whereby a sum of Rs. 10,35,005/- is awarded compensation along with interest @7% per annum from the date of filing the claim petition till the date of actual payment, payable by United India Insurance Company. A.O. No. 125/2009, has been filed against the judgment and award dated 13-01-2009, passed by MACT/ADJ/I FTC, Haldwani, in MACT Case No. 114 of 2007, Jai Shankar Prasad and another Vs. Mohd. Hassim and others, whereby a sum of Rs. 6,21,000/- is awarded compensation along with interest @7% per annum from the date of filing the claim petition till the date of actual payment, payable by United India Insurance Company. A.O. No. 194/2009, has been filed against the judgment and award dated 26-03-2009, passed by MACT/ADJ/I FTC, Haldwani, in MACT Case No. 77 of 2007, Mohd. Hussain and another vs. M/S United India Insurance Company and others, whereby a sum of Rs. 3,65,000/- is awarded compensation along with interest @7% per annum from the date of filing the claim petition till the date of actual payment, payable by United India Insurance Company. Brief facts of the case giving rise to these appeals are that on 30-10-2006, at about 6-00 A.M. Tata Sumo No. U.A.04-6623 fell down in a ditch near village Niglat, P.S. Bhowali when the driver of the jeep was trying to overtake another vehicle. The passengers sitting inside the jeep died at the spot. The driver of the jeep Iqrar jumped from the jeep. The claimants filed claim petitions for compensation against the insurer, owner and driver of the jeep. The New India Insurance Company contested the claim petitions by filing its written statement and alleged that the vehicle met with accident due to rash and negligence of its driver Aslam S/o Mohd. Hassan and all the seven passengers including the driver died at the spot. The insurance company also took the plea that the driver 4 was not having valid driving license and the vehicle was being run against the terms of insurance policy. The owner of the jeep Mohd. Hassim admitted the accident by his jeep and alleged that the driver of the jeep was Iqrar who was driving the vehicle cautiously and the accident occurred due to failure of steering of the vehicle. The driver suddenly jumped out from the jeep and which fell in the ditch. He also alleged that the driver was having valid driving license and the vehicle was insured with United India Insurance Company and all the documents of the vehicle were valid. The opposite party Iqrar also contested the claim petitions and alleged that he was having valid driving license. He was driving the vehicle in a moderate speed and it fell in the deep ditch due to steering failure. He jumped from the jeep and survived. On the pleading of parties, the learned Tribunal framed issues in all the claim petitions. Parties led evidence. Thereafter the tribunal passed the impugned awards. Aggrieved by the impugned awards United India Insurance Company has preferred A.O. No. 359/2009, A.O. No. 123/2009, A.O. No. 124/2009, A.O. No. 125/2009 and A.O. No. 194/2009 and A.O. No. 333/2009, has been filed by Smt. Rashida claimant. I have heard learned counsel for parties and perused the record. Learned counsel for the appellant/Oriental Insurance Company has submitted that the jeep in question was being driven by Mohd. Aslam, and not by Mohd. Iqrar. He also contended that Mohd. Aslam had also died in the said accident and he was not possessing valid driving license. Learned Tribunal has wrongly discarded the evidence of S.D.M. Sri Srish Kumar, who had conducted the Magisterial enquiry pertaining to the accident as well as the evidence of Surveyor of the Company Sri Chandra Pal Singh Tomar, who had also conducted investigation in respect of the accident. Learned counsel further contended that the driver Mohd. Aslam was not 5 possessing valid driving license, therefore, the insurance company could not have been held liable to pay compensation. On the other hand learned counsel appearing on behalf of the owner/respondent has contended that at the time of accident the vehicle was being driven by Mohd. Iqrar, who had jumped out from the vehicle and survived, and Mohd. Iqrar was having valid driving license, therefore, the learned Tribunal was justified in fixing the liability of the insurance company and the appeals filed by the insurance company are liable to be dismissed. In order to appreciate the rival contention of learned counsel for parties, I have gone through the impugned awards as well as the evidence produced by parties in the claim petitions. The learned tribunal has recorded finding on issue Nos.1 and 2 pertaining to rashness of the driver as well as validity of driving license of the driver, and on the question that who was driving the vehicle at the time of accident. The tribunal has arrived at the finding that the accident had occurred due to rash and negligence of the driver and the vehicle was being driven by Mohd. Iqrar and not by Mohd. Aslam and all the documents of the vehicle including the driving license, insurance policy were valid. The appellant/insurance company in order to prove this fact that the vehicle was being driving by Mohd. Aslam and not by Mohd. Iqrar, has relied on the statements of Sri Srish Kumar, S.D.M., Sri Nand Ram, Sub-Inspector and Investigator Sri Chandra Pal Singh Tomar, who have been produced in defence by the insurance company. On the other hand the owner of the vehicle Sri Mohd. Hassim has produced himself, and Mohd. Iqrar, driver of the vehicle. Chandra Pal Singh Tomar, who had investigated the matter on behalf of the insurance company, has made statement that copy of investigation report is on file. S.D.M. Kosya-Kutoli, has also conducted inquiry in which it was found that seven persons including driver of the jeep had died at the spot and at the time of accident Mohd. Aslam was driving the vehicle who had also died in the accident. In G.D. No.14 dated 30-10-2006 lodged by S.I. Nand Ram also has mention that in the accident seven persons including driver had died. In the cross-examination this witness has admitted that he 6 had gone at the spot but he has not prepared the site-plan of the place of accident and he had not taken the statement of any persons at the spot, rather he had asked them orally. He was unable to name those persons to whom he had made oral inquiry. This witness further stated that he had gone to the owner of the vehicle but he has not given any statement. He also admitted this fact that during investigation he had gone to S.I. Nand Ram and S.D.M. but he has not taken their statements. He further stated that he did not met with Iqrar. Copy of the investigation report has been filed on record, which reveals that the Investigator has simply made basis the inquiry report of S.D.M. and the copy of G.D. No.14 lodged by S.I. Nand Ram at P.S. Bhowali. The Investigator on the basis of above two documents concluded that as the S.D.M. found that all the seven persons including the driver had died at the spot and the vehicle was being driven by Mohd. Aslam and in order to get undue advantage the owner of vehicle has tried to name Iqrar as the driver of the jeep. Therefore, in view of above statement of Chandra Pal Singh Tomar and the investigation report submitted by him, it is quite clear that he himself had not collected the evidence on this point that the jeep in question was being driven by Mohd. Aslam and not by Mohd. Iqrar. He has given his opinion on the basis of the inquiry report submitted by S.D.M. and the G.D. report lodged by S.I. Nand Ram. Therefore, the statement as well as investigation report, given by Chandra Pal Singh, is of no avail. The another witness produced by insurance company is S.I. Nand Ram, who has lodged G.D. report No. 14 dated 30-10- 2006. This witness has deposed that on the date of accident he had received telephonic message that near Niglat a Tata Sumo has fallen in the ditch, and on the basis of this information, Constable Clerk 166 C.P. Harish Kandpal prepared G.D. No. 14. Thereafter they went at the spot where they found that the jeep was fallen in the deep ditch and all the seven persons of the jeep were dead. He further stated that according to the situation of spot, there was no possibility of jumping of a person from the jeep. He further deposed that he inquired from the family members of the deceased persons who narrated that seven passengers were in the jeep and all of them had died, driver also died 7 in the accident, therefore, no case was registered for rashness of the driver. In the cross-examination this witness has deposed that he did not try to know about the owner of the vehicle. He further deposed that he inquired about the accident from the persons standing at the spot but he did not note their names and the S.D.M. also did not call any of them for taking their statements during Magisterial inquiry. He has admitted that application dated 7.11.2006 moved by Mohd. Hassim to S.S.P. Nainital, had come to him for inquiry but he did not remember whether he had made any inquiry on it or not. In the aforesaid application dated 7-11-2006, which is on record, the owner of the vehicle had specifically mentioned that the vehicle was being driven by Iqrar. But this witness has not tried to contact either the owner or the driver Iqrar to know about the accident. No site-plan has been prepared by the police. Therefore, in view of the statement of S.I. Nand Ram it cannot be concluded that Mohd. Iqrar was not driving the vehicle and Mohd. Aslam was the driver. From his statement this much is proved that accident took place, in which seven persons were found dead when he visited the place of accident. The another witness produced by insurance company is Sri Srish Kumar, S.D.M. who had conducted Magisterial Inquiry of the accident. According to this witness he published notice of inquiry in the Newspaper and summoned the documents pertaining to accident from P.S. Bhowali and found that in the accident seven persons including driver had died and the vehicle was being driven by Mohd. Aslam and the owner of the vehicle in order to get undue advantage has mentioned the name of driver as Iqrar. In the cross- examination this witness has stated that he recorded the statements of eye-witnesses Gurubachan Singh Nagpal, Rushi Khan and Majid Khan. Out of these persons some had named the driver of the jeep as Anil and some had told Iqrar. This witness has admitted that he had gone at the place of accident but no site-plan has been prepared. The S.D.M. further admitted that he knew the owner of the jeep but he did not summon him. He also did not take the statement of Iqrar. I have also gone through the inquiry report submitted by the S.D.M. Sri Srish Kumar. In the second paragraph of this report it has been mentioned that after publication of notice of inquiry, on 17- 8 11-2006, Rushi Khan and Majid Khan came before him and handed over application, in which it was mentioned that they are LL.B. IIIrd year’s students in Almora Law Faculty. On the day of accident they were coming from Almora in a motorcycle. When they were to arrive at Bhowali, Jeep U.A. 04-6623 was in front of them. They had also travelled from this Jeep many times from Almora to Haldwani. It was a Press vehicle. They were acquitted with the driver whose name was Iqrar, about 2 or 3 kilometres away from Bhowali the jeep suddenly fell down the ditch and its driver had already jumped from it. In the third paragraph of the inquiry report it is mentioned that on 20-11- 2006 Gurubachan Singh Nagpal gave statement that on 30-10-2006 at about 4.00 A.M. he was going to Ranikhet from Haldwani in Wagorn-R. At about 5.45 A.M. near Kainchi Dhaam, he saw Tata Sumo 6623. He knew that vehicle. The driver of the jeep was Anil but he saw that Anil was not driving the vehicle at that time, but it was being driven by Iqrar. When he inquired, Iqrar said that Anil had left the vehicle 6-7 days ago. He further stated that in the vehicle three persons including driver were sitting in front seat and four persons were sitting in the middle seat. In the back seat a boy was sitting. In the vehicle eight persons including driver were sitting. The learned S.D.M. has mentioned in the inquiry report that besides the above persons, no one has given statements in respect of the accident. When no one has given statement before the S.D.M. that Iqrar was not driving the vehicle, and three witnesses viz. Gurubachan Singh, Rushi Khan and Majid Khan, made statement before the S.D.M. that Iqrar was the driver on the jeep and there were eight persons including driver in the jeep, therefore, the inquiry report is not helpful to the insurer of the vehicle. Further, this fact that Iqrar was the driver on the jeep in question at the time of accident, is also proved by the statements of owner of the jeep in question Mohd. Hassim, and Mohd. Iqrar, driver who have deposed on oath that at the time of accident Mohd. Aslam was not driving the vehicle, but Mohd. Iqrar was driving the vehicle, and Mohd. Iqrar had jumped out from the jeep and he was survived. I do not find any reason to discard the testimony of Mohd. Hassim and Mohd. Iqrar, particularly in absence of any cogent and reliable 9 evidence, adduced from the side of insurance company . The learned Tribunal has also recorded a categorical finding that Mohd. Iqrar who was driving the jeep at the time of accident was having valid driving license and the vehicle was insured with United India Insurance Company and it has valid documents. Therefore, the insurance company has rightly been held liable to pay the compensation. Learned counsel appearing on behalf of United Insurance Company also challenged the impugned awards by submitting that the tribunal has awarded the exaggerated amount of compensation in the claim petitions. He has submitted that in claim petition 114/2007 (A.O.No.125/2009) and claim petition 77/2007 (A.O. No. 194/2009) the deceased were bachelor and the deductions towards personal expenses should be deducted 50%. In support of his submission learned counsel has cited before me the case of Sarla Verma and others Vs. Delhi Transport Corporation and another, reported in 2009 ACJ 1298. On the other hand learned counsel for claimants appearing in above mentioned claim petitions has submitted that deduction of 1/3rd towards personal expenses is a normal rule and there is no statutory mandate in Motor Vehicles Act that 50% should be deducted in case of death of a bachelor. In support of his contention he has cited before me the case of Divisional Manager, New India Assurance Co. Ltd. Vs. T. Chelladurai and other reported in 2010 ACJ 382. I have gone through the above cited rulings. In the case of Sarla Verma, the Hon’ble Apex Court has framed guidelines in respect of deduction of personal expenses. Where the deceased was married, the deduction towards personal and living expenses of deceased should be 1/3rd, where the number of dependent family members is 2 to 3; 1/4th where the number of dependent family members is 4 to 6; and 1/5th where the number of dependent family members exceed six. Where the deceased was a bachelor, and claimants are parents, the deduction should be 50% towards personal expenses of the deceased. In the case cited by counsel for claimants, the Madras High Court has held that there is no statutory mandate in Motor 10 Vehicle Act that 50% should be deducted in case of death of a bachelor, deduction of 1/3rd towards personal expenses is the normal rule. Therefore, the guidelines framed by Hon’ble Apex Court in the case of Sarla Verma, shall prevail over the judgment of Madras High Court in the case Divisional Manager, New India Assurance Co. Ltd. Vs. T. Chelladurai and others (supra). It is pertinent to mention here that the claimants in A.O. Nos. 359/2009, 123/2009, 124/2009, 125/2009 and 194/2009, have neither filed any cross-objection nor filed any separate appeal for enhancement of compensation, therefore, the contentions of counsel for claimants shall not be taken into account for the enhancement of compensation. However, as the learned counsel appearing on behalf of the insurance company has also challenged the impugned awards on the quantum of compensation, therefore, the submissions of counsel for claimants shall also be considered wherever there is infirmity committed by the learned tribunal on the points of applying multiplier and making deductions towards personal expenses of the deceased persons. A.O. No. 359/2009 and A.O. No. 333/2009, arise out same awards. In this case the deceased Raees Ahmad was 26 years of age. According to claimants he used to earn about 6,000-7000/- per month by the work of painting. However, they did not file any convincing evidence to prove the income of the deceased, therefore, the tribunal has assessed the dependency on the basis of notional income of Rs. 36000/- per annum and after deducting 1/3rd towards personal expenses, a sum of Rs. 24,000/- per annum was calculated as net income. The deceased had three dependents, therefore the tribunal has rightly deducted 1/3rd towards personal expenses of deceased. The tribunal has adopted the multiplier of 16 at the age of 26 years, which is a just and proper multiplier. The tribunal also awarded Rs. 5000/- towards funeral expenses and Rs. 20,000/- under the head of loss of consortium. Therefore, the compensation in this case is just and proper. The learned counsel appearing on behalf of claimant/appellant in A.O. No. 333/2009 has submitted that the 11 tribunal has committed error in awarding 60% of award to the parents and 40% to the widow of the deceased, while the father is a fruit vender and he has his own income and other sons of the father are earning members. I find force in above submission. In the case of Sarla Verma and others Vs. Delhi Transport Corporation and another, reported in 2009 ACJ 1298, the Hon’ble Apex Court has propounded that father may have his own income, hence he will not be considered as a dependent. Although Smt. Rashida has raised objection before the tribunal that the parents of deceased had given their age 52 and 44 years but they are more than 60 years of age, but she did not file any reliable or documentary evidence to prove this fact. Smt. Rashida is a young lady and she has no earning. The mother of the deceased is having other sons also and her husband is alive, who has also his own income, therefore, keeping in view the above factors, in my opinion Smt. Rashida widow of the deceased is entitled to get 60% and mother Smt. Khatoon Begum is entitled to get 40% of the awarded amount and father is not entitled to get any sum. In A.O. No. 123/2009, the claimants could not prove the income of the deceased Dev Singh, therefore, the tribunal has rightly assessed the dependency on the basis of notional income of Rs. 36000/- per annum. In this case the dependants of the deceased were four, therefore, the deduction towards personal expenses of deceased Dev Singh would be 1/4th and after making 1/4th deduction the total annual dependency comes to Rs. 27,000/-. The tribunal has adopted the multiplier of 11 at the age of 55 years of the deceased. Therefore the compensation comes to Rs. 27000/- X 11= Rs. 2,97,000/-. The tribunal also awarded Rs. 5,000/- towards funeral expenses and Rs. 10,000/- for loss of consortium. In this way the total compensation comes to Rs. 2,97,000/-+ Rs. 5,000/-+ Rs. 10,000/-= Rs. 3,12,000/-. In A.O. No. 194/2009,deceased Mohd. Aslam was bachelor and he was 21 years of age. The tribunal has assessed the dependency on the basis of notional income and taking multiplier at the age of parents. However,