IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 285 of 2007 Smt. Kalawati and 8 others … Appellants. Versus Smt. Husnara Begam and 3 others .. Respondents. Mr. I.S. Mehra, learned counsel for the appellants. Mr. Prabhat Pandey, learned counsel for Respondent No.2/Oriental Insurance Company Ltd. Mr. N.S. Kanyal, learned counsel for respondent No.3. None has appeared for other respondents. Dated: 26-6-2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of the Motor Vehicles Act, 1988, has been preferred against the judgment and award dated 30-7-1999, passed by MACT/II Addl. District Judge, Nainital, in MACT Case No. 210 of 1994. 2- The facts of the case, emerged out from the claim petition, are that on 18-4-1994, Shivraj Singh was carrying corn and other household luggage to his new village Aam Pokhara in Tractor Trolley No. UAK-5494, owned by Tahendra Singh. When the said Tractor at about 3.50 P.M. reached near Himmatpur Block, bus bearing registration No. UHC 858 came there and dashed the Tractor Trolley from backside in a rash and negligent manner, due to which the Tractor Trolley turned turtle. Shivraj Singh was crushed by the said bus, due to which he died instantaneously at the spot. According to the claimants, the deceased was 40 years of age and he used to do agricultural work and Dairy profession. His monthly income was Rs. 5,000/-. Therefore, the claimants have preferred the claim petition for a sum of Rs. 8,00,000/-. 2 3- The opposite party No.1, owner of the Bus No. UHC 858 has filed her written statement and alleged that the accident did not occur due to the negligence of her driver but it occurred due to rash and negligence of Tractor Trolley itself. The luggage was not arranged in the Trolley properly and the deceased was sitting on the wooden logs in a drunken state. The bus was insured with Oriental Insurance Company. 4- The Opposite Party No.2, Oriental Insurance Company, insurer of the offending bus filed its W.S. and denied the averments made in the petition. The Insurance Company admitted the insurance of the bus but alleged that the driver of the bus was not having valid driving license, and the bus was being driven in contravention of insurance policy. 5- Opposite Party No.3, owner of Tractor UAK- 5494 also contested the claim petition and admitted this fact that the deceased was travelling in his Tractor along with his household goods. The offending bus came there at a high speed and dashed the Tractor Trolley from back side, due to which the deceased fell on muddy portion of the road and there he was crushed by the bus. The Tractor was insured with National Insurance Company. 6- The Opposite Party No.4, National Insurance Company also contested the case by filing its written statement. According to the insurance company the accident has occurred due to the rash and negligence of the offending bus. Information of the accident was not given to it, therefore, the insurer cannot be held liable to pay any compensation. It was also alleged that the Tractor was not being used for agricultural purposes. 3 7- The Tribunal, on the basis of pleadings of parties, framed relevant issues. Thereafter, claimants adduced Smt. Kalawati as P.W.1 and owner of Tractor Sri Tahendra Singh as P.W.2 and also filed documentary evidence. The opposite parties also filed some documentary evidence. 8- The learned Tribunal after hearing learned counsel for the parties, and considering the evidence on record, allowed the claim petition for compensation of Rs.1,48,500/- against the Oriental Insurance Company, the insurer of Bus No. U.H.C. 858, along with interest @ 9% per annum from 18.5.95 till the date of actual payment. 9- Feeling dissatisfied with the compensation amount, the claimants have preferred this appeal before this Court. 10- Heard learned counsel for the parties and perused the record. 11- Learned counsel for the claimants/appellants has submitted that the Tribunal earlier has decided the claim petition vide judgment and award dated 28-4-98, in which a compensation of Rs. 2,40,000/- was awarded but in the subsequent judgment and award dated 30-7- 1999 the Tribunal has committed a patent error in deducting a sum of Rs. 1,39,000/- due to the contributory negligence of the deceased. Learned counsel also submitted that the income of the deceased has wrongly been taken on a lower side for purpose of computing the compensation. 4 12- The learned counsel for the Insurance Company/respondent opposed the submission of the counsel for the claimants and submitted that the Tribunal was justified in reviewing its judgment and deducting the amount towards the contributory negligence of the deceased. 13- Perusal of record reveals that prior to impugned judgment and award dated 30-7-99, the Tribunal has given the award dated 28-4-1998, in which the Tribunal has taken the monthly income of the deceased as Rs. 3,000/- from the agricultural work and selling of milk and Mawa and awarded a sum of Rs. 2,40,000/- after deducting 1/3rd towards personal expenses and adopting multiplier of ‘10’. In the said judgment the Tribunal held the sole liability of Bus No. DHC 858 in absence of any evidence in rebuttal from the side of opposite parties. 14- The Oriental Insurance Company filed an application under Order 9 Rule 13 of the C.P.C. for setting aside the judgment and award dated 28-4-1998 , which was numbered as Misc. Case No. 42 of 1998. The Tribunal afforded opportunity to the parties. The opposite parties also filed objection against the said application. The Tribunal vide order dated 10-3-1999, allowed the said application holding that the Oriental Insurance Company has not been given full opportunity and the award has been passed exparte against it. After setting aside the earlier judgment and award, the Tribunal heard learned counsel for the parties and after perusing the documents filed on behalf of both the parties passed fresh judgment and award dated 30-7-1999. 5 15- In the impugned judgment and award the Tribunal has recorded a categorical finding that the Tractor Trolley was insured for agricultural purposes and the at the time of accident it was being used for transporting the household luggage of the deceased. The Tribunal also recorded a finding that the driver of the Tractor Trolley was not having valid driving license. Paper No. 7-C/4 inspection report of the Tractor after accident has been filed on record and in the inspection it was found that the brakes of the Tractor were not in working condition. It was also the case of the opposite party that house hold luggage was not properly arranged in the Trolley. The luggage consists of long wooden logs and they were kept in the Trolley in indecent way, major portions of the logs were out side the trolley in a hap hazardous manner. The Tribunal also took note of the fact that only the front portion of bumper of the bus had broken and this fact indicated that the bus was dashed with the Tractor in a light way. The Tribunal has taken a right view that as the bus dashed the Trolley from back side and the Tractor was also being driven against the terms of policy and the deceased was transporting his household luggage in a hazardous manner, therefore, the bus driver and tractor driver were equally responsible for the negligence. The Tribunal also held that the deceased was sitting on the bonnet of the Tractor and having knowledge of the facts that the Tractor was being driven by an unlicensed person, its brakes were not in working order and it was being driven by his brother-in-law, therefore 1/3rd of the amount should be deducted. I do not find any illegality in the above finding arrived at by the Tribunal. 16- As regards the income of the deceased assessed by the Tribunal for purpose of computation of 6 compensation, the Tribunal has held that the deceased was doing the agriculture work and accordingly assessed the monthly income of Rs. 2,000/-. The claimants did not file any cogent and reliable evidence in support of income of the deceased from the work of selling milk as alleged by the claimants, therefore, the tribunal has not believed their assertion in this regard. The claimants filed copies of Khasra Khautani of the land, which the deceased was having. In the above circumstances, I do not find any infirmity in the finding recorded by the tribunal holding the monthly income of Rs. 2,000/- from the agricultural work. 17- For the discussion made above, I do not find any force in the submissions raised by the learned counsel for the claimants/appellants and the appeal is liable to be dismissed. 18- Accordingly, the appeal is dismissed. The impugned judgment and award dated 30-7-1999 is confirmed. (B.C. Kandpal, J.) ISB 7