IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 503 of 2006 National Insurance Company Ltd. … Appellant Vs Bhagwati Prasad Dhyani & others … Respondents Sri B.K. Gupta, learned counsel for the appellant Sri B.P. Nautiyal, learned counsel for the respondent Nos. 1 to 3 Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed by the appellant against the judgment and award dated 08.06.2006 passed by the Motor Accident Claims Tribunal/Additional District Judge/VI Fast Track Court, Dehradun in Motor Accident Claim Case No. 241 of 2005. 2. Brief facts of the case are that on 30.04.2005 at about 08:45 a.m., Nishant Dhyani was traveling on the motorcycle of Sanjay Kumar as a pillion rider. Sanjay Kumar was driving the said motorcycle. When they reached near Hero Honda showroom, Subhash Nagar, Clement Town, Dehradun, a truck bearing registration No. HR51GA/1318 coming from Saharanpur to Dehradun collided with each other. Both the vehicles were being driven by their drivers in a very rash and negligent manner. In this accident, Nishant Dhyani died at the spot. According to the claim petition, at the time of the death, he was 14 years of age and studying in class IXth. Therefore, the claimants filed the claim petition for a sum of Rs. 10,00,000/- as compensation. 3. The opposite parties contested the claim petition by filing their separate written statement before the Tribunal denying most of the allegations made in the claim petition. On 2 the basis of the pleadings of the parties, the Tribunal has framed relevant issues, which were discussed at a great detail. 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 for a sum of Rs. 2,40,000/- in favour of the claimant vide judgment and award dated 08.06.2006. 4. Feeling aggrieved by the aforesaid judgment and award, the appellant/National Insurance Company Ltd. preferred this appeal. 5. Heard Sri B.K. Gupta, learned counsel for the appellant, Sri B.P. Nautiyal, learned counsel for the respondent Nos. 1 to 3 and perused the record. 6. As far as the factum of accident is concerned, the finding recorded by the Tribunal that the accident took place on account of the rash and negligent driving of the driver of both the vehicles in question, appears to be completely justified and I am also in total agreement with the findings recorded by the Tribunal in this regard. The Tribunal has rightly held responsible upto 60% to the driver of the truck. It is also not disputed that the truck in question was insured with the National Insurance Company Ltd., therefore, the Tribunal has rightly fastened the liability of compensation upon the National Insurance Company Ltd. The driver of the truck was not having the driving licence on the date of accident, therefore, the Tribunal has rightly given the recoverable rights against the owner. I do not find any ground to interfere in the findings recorded by the Tribunal in this regard. The driver of the truck in question could not produce 3 any document pertaining to his driving licence before the Tribunal, therefore, the Tribunal has given recoverable right to the Insurer of the vehicle in question. 7. As far as the amount of compensation to be paid by the appellant in favour of the claimant is concerned, it appears from the perusal of the record that the deceased was a student of class IXth and a non earning member at the time of his death. In case of the child death, the age of the parents would be relevant for calculating the amount of compensation. In this case, the age of the parents of the deceased was 47 and 40 years respectively, therefore, the multiplier in this case cannot travel more than ‘10’. 8. The deceased was admittedly a non-earning member. The accident in this case took place on 30th April, 2005, therefore, in case, if the notional income is taken into consideration as Rs. 30,000/- per annum, then after deducting 1/3rd amount towards personal expenses of the deceased, the financial dependency of the claimants comes to Rs. 20,000/- per annum. After adopting the multiplier of ‘10’, the amount of compensation comes to Rs. 2,00,000/-. The Tribunal has fixed the responsibility of rash and negligence on the part of the driver of both the vehicles i.e. 60% on the part of truck and 40% on the part of motorcycle. Hence, the National Insurance Company Ltd. liable to pay the amount of compensation upto an extent of 60% out of the total amount of compensation awarded as Rs. 2,00,000/- as the truck in question was insured with it. 9. The Tribunal has further observed that the motorcycle was not insured at all at the time of the accident, therefore, the amount of 60% out of the total amount of Rs. 4 2,00,000/- would be payable by the National Insurance Company Ltd. and this amount comes to Rs. 1,20,000/-. The right of recovery has been given by the Tribunal appears to be justified. As stated earlier the driver of the truck was not possessing the valid driving licence and breach of policy was committed, therefore, the recoverable right should be given with the Insurer against the owner of the vehicle in question. In order to support his contention he has relied upon the decision of Hon’ble Apex Court in Oriental Insurance Company Vs Nanjappan reported in AIR 2004 Supreme Court 1630. 10. I have gone through the aforesaid ruling and after a careful scrutiny of the decision of the Hon’ble Apex Court, I find substance in the submission of learned counsel for the appellant. The Hon’ble Apex Court in the aforesaid decision has made observation that in the matters of breach of policy, the quantum of compensation shall be paid by the insurer and the same shall be recovered from the owner of the vehicle. The Hon’ble Apex Court also made provision that for the purpose of recovering the amount of compensation from insured, the insurer shall not be require to file a suit. Therefore, the Insurance Company shall pay the amount of compensation awarded and thereafter recovered the same from the owner of the vehicle i.e. truck owner. 11. As far as the interest indicated in the impugned judgment and award as 5% per annum is concerned, that appears to be on lower side. The amount so awarded should be paid by the National Insurance Company Ltd. along with interest @ 6% per annum from the date of filing the claim petition till the actual date of payment. 5 12. With the above observations, the appeal is partly allowed. The impugned judgment and award is modified up to the extent that the claimants are entitled to get a sum of Rs. 1,20,000/- instead of Rs. 2,40,000/- along with interest @ 6% instead of 5% per annum as compensation from the date of filing the claim petition till the actual date of payment. It is further directed that the Tribunal shall adopt the procedure, which has been laid down in the decision of Hon’ble Apex Court (Supra). 13. Consequently, the cross appeal filed by the claimant/respondents is dismissed. 14. The statutory amount deposited by the appellant / National Insurance Company Ltd. before this Court at the time of filing the appeal be remitted to the Tribunal concerned. (B.C. Kandpal, J.) 03.11.2008 ASWAL