IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 80/2007 The New India Assurance Company Ltd. ..Appellant. Versus Smt. Rekha and others …. Respondents. Sri P.C. Maulekhi, learned counsel for the appellant. Sri Lok Pal Singh, learned counsel for respondents 1 to 5/claimants. Sri Manish Dalakoti, holding brief of Mr. D.S. Patni, learned counsel for respondent/United India Insurance Company. None has appeared for other respondents. Dated: 2-12-2008 UHon’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 22-12-2006, passed by Motor Accident Claims Tribunal/Addl. Sessions Judge, Roorkee, District Haridwar, in MACT Case No. 132/2001. 2- Brief facts of the case are that on 5-10-2000 at about 2.15 P.M. Jagdish S/o Chaman Giri boarded Truck No. U.P. 10-C-7567 along with cloth pertaining to his cloth-business. Suddenly Truck No. HR 26-4652 dashed the Truck U.P. 10-C-7567 in a rash and negligent manner, due to which Jagdish fell on the road and was crushed under the wheel of the Truck. He succumbed to the injuries at the spot. Case crime No. 239/2001 U/S 304-A I.P.C. was lodged about the said accident. The deceased at the time of accident was 26 years of age. The claimants filed claim petition for compensation of Rs. 16,30,000/-. 3- The opposite party No.1, Khurseed owner of truck No. HR-26-4652 filed his written statement and alleged that his truck has not involved in the accident. The truck was insured with New India Assurance Company and if liability of compensation is there, then the same is upon the insurer of the truck. 2 4- The opposite party no.2, New India Assurance Company also filed its written statement and alleged that the driver of truck No. HR-26-4652 was not having valid driving license. The deceased was not travelling in the truck in the capacity of a passenger and exorbitant amount has been demanded. 5- The opposite party No.3, owner of another truck No. UP 10-C- 7567 also contested the claim and denied the allegations of the petition. It also alleged that the truck was insured with United India Insurance Company and the liability if any, is there, the same is of the insurer. 6- The United India Insurance Company also contested the claim and denied the allegations made in the petition. It also alleged that the accident has occurred due to the rash and negligence of another truck No. HR- 26-4652, therefore, the insurance company is not liable to pay any compensation. 7- The learned Tribunal framed issues in the petition. Thereafter, parties adduced evidence in support of their case. The learned Tribunal after hearing learned counsel for the parties and considering the material on record, awarded a sum of Rs. 6,87,000/- along with interest @ 6% per annum from the date of filing the claim petition till the date of final payment. The Tribunal has directed the New India Assurance Company Ltd. to pay the amount of compensation and the insurance company will have a right to recover the same from the owner of the offending truck. 3 8- Feeling aggrieved the New India Assurance Company has preferred this appeal before this Court. 9- Heard learned counsel for the parties and perused the record. 10- Learned counsel for the appellant has submitted that the deceased was travelling as gratuitous passenger in the truck No. U.P. 10-C/7567. The accident has occurred due to contributory negligence of the driver of both the vehicles of the trucks involved in the accident, but the tribunal has failed to consider this aspect. He also argued that the tribunal has awarded a huge amount of compensation. Therefore, the impugned award is liable to be set aside. 11- Perusal of impugned award reveals that the tribunal has framed issue Nos.1 and 4 pertaining to the rash and negligence of the trucks in question. Both these issues have been decided by a common finding. According to the claimant the deceased at the time of accident was loading his clothing in the Truck No. U.P. 10-C-7567, suddenly Truck No. HR 26-4652 came there and dashed the another truck from the front on wrong side and the deceased who was sitting in Truck No. U.P. 10-C-7567 fell down and crushed under the wheel of the truck. In the site plan, the Truck No. HR 26-4652 has been shown on wrong side and the another truck is shown at its proper side. The contention of the claimants also finds support from the contents of the F.I.R. P.W.2, Rajpal Giri is the eye witness of the occurrence. This witness has fully supported the version of the claimants. He has deposed that the deceased was climbing the Truck No. U.P. 10-C- 7567 and his whole luggage has not been boarded fully, suddenly the Truck HR 26-4652 4 came there in a rash and negligent manner and dashed the another truck due to which the deceased fell down and was crushed under the wheel of truck No. 10-C- 7567. Against the above evidence, the opposite parties did not adduce any cogent and reliable evidence. Therefore, the learned Tribunal has rightly held the sole liability of the driver of Truck No.HR-26-4652 in causing the accident. I do not find any force in the submission of learned counsel for the appellant raised on the point of contributory negligence. 12- The learned Tribunal has further held that the driving license of the driver of the Truck No. HR 26-4652 was not valid and effective. D.W.1, A.K. Sharma has prepared investigation report 27-C. He had enquired about the driving license No. 61924/D/97 dated 9-8-82 of the driver of the Truck HR 26-4652 and found that the said DL was not issued in the name of Mohd. Farman whereas it was issued in the name of Anil Kumar S/o Gopi Prasad. Therefore the learned Tribunal has recorded a finding that the driver of Truck No. HR 26- 4652 was not possessing valid and effective driving licence at the time of accident, and there was breach of policy, hence the New India Assurance Company is entitled to recover the amount of compensation from the owner of the Truck in question. I do not find any infirmity in the above finding of the learned Tribunal. P.W.2, Rajpal Giri has also deposed that the deceased has loaded his luggage in the Truck and he had paid Rs. 15/- each towards his fare and the charges of the luggage. This statement has not been controverted from the side of the opposite parties by adducing evidence otherwise. In this way the deceased cannot be said to be a gratuitous passenger. Therefore, the New India Assurance Company has rightly been held liable to pay 5 the compensation and as the driver did not possess valid and effective driving license, the insurer was given the recoverable right against the owner of the truck in question. 13- So far as the quantum of compensation is concerned, the claimants have stated that the deceased used to sell the cloths and other items by placing theli on road and his monthly income was about Rs. Five thousand to Six thousand. The claimants have not filed any document or other reliable evidence in support of the income of the deceased but the tribunal has taken his monthly income as Rs. 5,000/- by selling the items on placing Theli on road or by hawker. The opposite parties did not controvert the averment of the claimants that the deceased did not use to sell the items. Therefore the income assessed by the tribunal cannot be said to be unreasonable. The learned tribunal after deducting 1/3Prd P towards the personal expenses, calculated the annual dependency as Rs. 40,000/-. The deceased at the time of his accident was 26 years of age and the learned tribunal has adopted the multiplier of 17. The deceased has left behind him 3 minor sons and one minor daughter, besides his widow and old mother. Therefore, the multiplier adopted by the tribunal cannot be said to be on higher side. In this way the total compensation comes to Rs. 40,000/- x 17= Rs. 6,80,000/-. The tribunal further awarded a sum of Rs. 2,000/- towards funeral expenses and Rs. 5,000/- towards loss of love and affection, the total being Rs. 6,80,000/- + Rs. 2,000/- + Rs. 5,000/-= Rs. 6,87,000/-. The tribunal also awarded interest on the amount of compensation @ 6% per annum from the date of filing the petition till the date of actual payment. I do not find any infirmity in the quantum of compensation awarded by the tribunal. 6 14- For the discussion made above, the appeal lacks merit and is liable to be dismissed. 15- Accordingly, the appeal is dismissed. The impugned judgment and award dated 22-12-2006 is hereby confirmed. 16- The statutory amount deposited by the appellant at the time of filing the appeal, be remitted to the tribunal concerned. ISB ( B.C. Kandpal, J.) 7