IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal Against Order No. 494 of 2005 United India Insurance Co. Ltd. … Appellant Versus Smt. Indra Upadhyaya and others … Respondents Sri Pankaj Purohit, Advocate for appellant Sri I.S. Mehra, Advocate for respondents 1 to 6 Sri Rajesh Joshi, Advocate for respondent no. 7 Dated: August 28, 2008 Hon’ble B.C. Kandpal, J. By way of this appeal, under Section 173 of Motor Vehicles Act, 1988, the appellant/United India Insurance Company Limited, who is the insurer of Motorcycle bearing Registration No. U.A.06-B/2670, has challenged the judgment and award dated 03.08.2005 passed by Motor Accident Claims Tribunal/Additional District Judge/1st FTC, Haldwani, District Nainital, in MACT Case No. 115 of 2004, Smt. Indra Upadhyaya and others versus Mohit Upadhyaya and another. Brief facts of the case as narrated in the claim petition are that on 26.01.2004 at about 10.00 a.m. deceased-Kailash Chandra Upadhyaya was travelling as pillion rider in Motorcycle No. U.A.06- B/2670, which was being driven by one Rajendra Upadhyaya and when they reached near Naya Gaon, Police Station Kaladhungi, Nainital, the said motorcycle being driven by its driver-Rajendra Upadhyaya rashly and negligently dashed against the Pulia and deceased sustained serious injuries resulting into his death. It has also been alleged 2 that deceased-Kailash Chandra Upadhyaya was working in Ganna Vikas Samiti Bazpur and was getting a sum of Rs.7,000/- per month as salary. The claimants claimed a sum of Rs.10,60,000/- as compensation against the opposite parties. Opposite party no. 1-owner of vehicle in question filed written statement pleading therein that he had the knowledge of accident, as he is son of the deceased. He has also pleaded that at the time of accident his vehicle was insured with United India Insurance Co. Ltd. w.e.f.18.8.2003 to 17.08.2004 and at the time of accident all the papers of vehicle were valid and vehicle was being plied by driver having valid driving licence. Therefore, the liability to pay the amount of compensation, if any, is of insurance company. Opposite party no. 2-United India Insurance Co. Ltd. filed written statement and pleaded that vehicle in question was insured with United India Insurance Co. Ltd. and it was the duty of claimants to prove the income and age of deceased. It has also been pleaded that accident occurred due to own negligence of deceased himself; therefore, the claimants are not entitled to get any compensation. It has further been pleaded that insurance company can only be held liable in case owner of vehicle proves this fact that said vehicle was got insured according to rules and there was no breach of conditions of insurance policy. The Tribunal on the basis of pleadings of the parties framed relevant issues in the claim petition. Parties led evidence in support of their cases. The 3 learned Tribunal after having considered the entire evidence available on record and hearing learned counsel for the parties decreed the claim petition for a sum of Rs.7,24,600/- along with conditional interest of 9% per annum, vide judgment and award dated 03.08.2005. Feeling aggrieved by the aforesaid impugned judgment and award, the appellant-United India Insurance Co. Ltd. has preferred the present appeal which has been placed before me for final disposal. Heard Sri Pankaj Purohit, leaned counsel for appellant-insurance company, Sri I.S. Mehra, learned counsel for claimants-respondent no. 1 to 6, Sri Rajesh Joshi, learned counsel for respondent no. 7-owner of vehicle in question and perused the record. Learned counsel for the appellant has submitted that deceased was a pillion rider and no premium was paid by the insured with regard to pillion rider, therefore, his capacity was that of a gratuitous passenger and in case of death of gratuitous passenger the insurance company is not liable to pay the amount of compensation. He has also challenged the award on the question of quantum on the ground that multiplier adopted by the Tribunal is on higher side keeping in view the age of deceased. It has also been submitted that income of deceased has been calculated in wrong manner by the Tribunal as deceased was a seasonal employee. 4 Learned counsel for claimants-respondents no. 1 to 6 as well as owner of vehicle-respondent no. 7 has made the rival contentions by submitting that the impugned judgment and award is just and proper and does not require any interference. Learned counsel for owner of vehicle involved in the accident has submitted that insurance company in fact did not take the plea before the Tribunal with regard to this fact that deceased was travelling as a pillion rider and in the case of death of pillion rider whose capacity is that of a gratuitous passenger, the insurance company is not liable to pay the amount of compensation, therefore, the insurance company cannot take this plea for the first time at the stage of appeal as by taking this plea for the first time by the insurance company at the stage of appeal owner of offending vehicle has been deprived from adducing any evidence in support of his case. Perusal of record of court below shows that insurance company in fact did not take this plea before the Tribunal that deceased was travelling as a pillion rider on the motorcycle involved in the accident at the time of his death and thus his capacity was that of a gratuitous passenger, therefore, the insurance company is not liable to make the payment of amount of compensation, if any. The contention of learned counsel for the appellant is that after the enquiry conducted by the insurance company the fact reveals that deceased himself was driving the vehicle at the time of accident and on account of this fact the insurance company was also not liable to pay the amount of compensation as the deceased was himself rash and negligent due to which the said occurred. 5 I fail to appreciate the argument advanced by learned counsel for the appellant. It is the internal matter of the insurance company to have conducted the survey for ascertaining the truth about the case. The case of the claimants is that deceased was travelling as a pillion rider. In case, if the insurance company was of the view that the deceased himself was driving the motorcycle at the time of accident, then the insurance company by taking the plea that the deceased himself was rash and negligent being the driver of motorcycle at the time of accident, could not have taken the alternative plea also that the deceased was travelling as a pillion rider and his capacity was that of a gratuitous passenger, therefore, the insurance company was not liable to make the payment of compensation as no premium was paid by the insured for the pillion rider. But in absence of any specific plea to this effect, it is quite clear that the owner of motorcycle did not have any opportunity to adduce any evidence in support of his case. This plea has also not been taken at the stage of appeal by the appellant, but at the stage of argument this submission has been raised by learned counsel for appellant, therefore, it is quite clear that owner of motorcycle did not have any opportunity to adduce the evidence in support of his case. The amount awarded by the Tribunal is a huge amount and in case if the Tribunal or this Court comes to the conclusion that deceased was travelling as a gratuitous passenger and accordingly the liability to pay the amount of compensation would be that of owner of motorcycle and not of the insurance company, then under these circumstances, the owner of motorcycle should have 6 been afforded an opportunity to adduce the evidence in support of his case. Learned counsel for appellant has cited before me a judgment passed by the Hon’ble Apex Court in the case of United India Insurance Co. Ltd., Shimla vs. Tilak Singh & others, reported in AIR 2006 SC 1576, in support of his case. It is true that in the judgment cited before me the Hon’ble Apex Court has held that in case of gratuitous passenger the liability to pay the amount of compensation would be with the owner and not with the insurance company, but in that case the specific plea was taken by the insurance company that the deceased was travelling as a gratuitous passenger and no premium was paid by the insured for the pillion rider, hence, the insurance company did not owe any liability to pay the amount of compensation. But the facts in the instant case are slightly different on two counts; firstly the insurance company had taken the plea in the written statement that deceased himself was driving the motorcycle, and secondly the insurance company did not take the plea that capacity of the deceased was that of a gratuitous passenger being pillion rider and no premium was paid by the insured, hence the insurance company is not liable to pay the amount of compensation. Keeping in view the aforesaid circumstances, I am of the view that owner of motorcycle should be afforded an opportunity to adduce the evidence in support of his case. 7 The second limb of the argument of learned counsel for the appellant is that multiplier adopted by the Tribunal is on higher side and income of deceased has also been wrongly assessed by the Tribunal. It is true that in view of different pronouncements of the Hon’ble Apex Court given in the cases of Tamil Nadu State Transport Corporation Ltd. Versus S. Rajpriya & others, reported in 2005 (4) SC 87, The Managing Director, TNSTC versus Sripriya & others, reported in 2007(5) Supreme 301 and New India Assurance Co. Ltd. vs. Kalpana (Smt) and others, reported in (2007) 2 SCC (Cri) 94, the multiplier adopted by the Tribunal is certainly on higher side. The Tribunal has also ignored this aspect that deceased had been working as a seasonal employee and the Tribunal has assessed the income of deceased for throughout the year. I do not intend to make any comment on the observations recorded by the Tribunal in this regard and I leave this point to ascertain by the Tribunal for awarding the just and proper amount of compensation to the claimants after the proper assessment of evidence available on record as well as in the light of observations made by the Hon’ble Apex Court on the question of multiplier. For the reasons stated above, the impugned judgment and award dated 03.08.2005 is set aside. The appeal is allowed and the matter is remanded back to the Tribunal for deciding the claim petition afresh after affording an opportunity 8 to the owner of vehicle in question for adducing the evidence in support of his case. It shall be open for the insurance company also to adduce the evidence in rebuttal. The statutory amount deposited by the appellant with this Court be remitted to the Tribunal concerned. (B.C. Kandpal, J.) SP