IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 28-A of 2001 Smt. Deoki Devi and others .. Appellants. Versus Sri Rajendra Singh and another .. Respondents. Mr. Vijay Bhatt, learned counsel for the appellants. Mr. B.K. Gupta, learned counsel for the respondent/National Insurance Company Ltd. Dated: 20-10-2008 Hon’ble B.C. Kandpal, J. This appeal under section 173 of the Motor Vehicles Act, has been preferred against the judgment and award dated 17-5-2000, passed by Motor Accident Claims Tribunal/III Addl. District Judge, Nainital, in MACP No. 191 of 1996, Smt. Deoki Devi and others Vs. Rajendra Singh and another and the order dated 24-5- 2000 passed in Misc. Case No. 8 of 2000. 2- Brief facts of the case are that on 28-11-1995 at about 1.45 P.M. Bachi Singh deceased has died in an accident in front of Arya Samaj Building Station Road Haldwani. When he was coming on his bicycle from the side of K.M.O.U. towards M.B. Degree College, Haldwani, Canter truck No. DL-1-L-8367 driven by its driver very rashly dashed him who breathed his last on the spot. The F.I.R. was lodged at P.S. Haldwani the same day. The claimants have averred that the deceased at the time of his death was 35 years of age. He was a government servant employed in class IV in M.B. Degree College, Haldwani. The claimants filed claim petition for compensation in lieu of death of the deceased. 3- The opposite party No.1, the owner of the offending truck filed his written statement making the 2 averment that the truck was insured with National Insurance Company. He further stated that the truck was being driven very cautiously in a moderate speed. The driver of the truck was not negligent. He was holding valid driving license. 4- The opposite party No.2, National Insurance Company filed the written statement denying the allegations made in the claim petition. The Insurance Company also alleged that the person driving the truck at the time of accident was not possessing valid driving license, so the insurance company deserves to be absolved with the liability of compensation, if any. The insurer also alleged that the compensation has been claimed on the emotional ground which cannot be accepted. 5- The learned tribunal on the pleadings of parties framed the relevant issues in the claim petition. Thereafter, parties adduced evidence before the Tribunal. The learned Tribunal after hearing learned counsel for the parties and perusing the material available on record, awarded a sum of Rs. 1,00,000/- against the National Insurance Company, along with interest @ 8% per annum since the date of filing the petition. The Tribunal directed the insurance company to pay 35% of the awarded amount to Sri Bhawan Singh, the father of the deceased, and rest of the amount will be paid to Smt. Deoki Devi and her children jointly. Thereafter, Smt. Deoki Devi and others filed review petition (Misc. Case No. 8 of 2000) and the Tribunal vide order dated 24-5- 2000 deleted the name of Bhawan Singh from the array of party and modified the award to the effect that the claim petition is decreed for a sum of Rs. 65,000/- only 3 along with interest @ 8% since the date of filing the petition. 6- Feeling aggrieved the claimants have preferred this appeal before this Court. 7- Heard learned counsel for the parties and perused the record. 8- Learned counsel for the claimants has submitted that the tribunal has awarded a meager amount in lieu of death of deceased Bachi Singh and it should be enhanced. He also submitted that the tribunal in the impugned awarded has directed to pay 35% of the awarded amount to Sri Bhawan Singh, father of the deceased, but Sri Bhawan Singh, had already died before passing the award, therefore, the total amount of compensation should be given to Smt. Deoki Devi and her children and the order passed on review petition is against law. 9- From perusal of evidence adduced on record, it is established that the driver of the truck No. LD-1L- 8367 dashed the deceased on wrong side in a rash and negligent manner. P.W.2, Bir Singh Bisht is the eyewitness of the accident. He has stated on oath that he had seen the accident from a distance of 15 feet away from the place of accident. This witness has specifically deposed that the accident was caused by the driver of the offending truck in a rash and negligent manner. Nothing has been adduced from the side of the opposite parties to controvert the evidence of this witness. Even the driver of the truck has not been produced in defence. The record further reveals that the cover note and photo copy of driving license have been admitted by the learned 4 counsel for the insurance company. Therefore, the Tribunal has rightly held the insurance company liable to pay the compensation. I do not find any infirmity in the finding recorded by the tribunal are liable to be confirmed. 10- So far as the quantum of compensation is concerned, according to the claimants the deceased was a class IV employee getting a salary of Rs. 2,404/- per month. Salary certificate has been filed. The learned Tribunal took notice of the fact that the claimant has succeeded in the service of her husband in the Dying in Harness Rules and is getting monthly salary of Rs. 3,000/-, besides the pension of Rs. 1,1375/- per month due to the death of her husband and she has been compensated materially. However, the Tribunal awarded a lump sum amount of Rs. 1,00,000/- as compensation in lieu of death of Bachi Singh. The accident pertains to the year 1995. In my opinion, in the facts and circumstances of the case, the Tribunal has awarded a reasonable amount of compensation for the death of the deceased. It is further to be noted that the Tribunal vide the aforesaid impugned award has directed to pay a sum of Rs. 65,000/- to the claimants/appellants and rest 35,000/- to Bhawan Singh, father of the deceased. The statement of Smt. Deoki Devi as P.W.1 was recorded in February, 2000, and in her statement she has categorically stated that during the pendency of the case her father-in-law Bhawan Singh has already expired. Therefore, there was no justified to the tribunal to direct that 35% of the awarded amount shall be paid to Bhawan Singh, who was not in existence at that time, i.e. the date of the award. The best course for the tribunal was to direct that the claimant should be entitled to get the 5 entire awarded amount of Rs. 1,00,000/- along with interest indicated by the tribunal in the award. 11- In view of above discussion the impugned judgment and award dated 17-5-2000, is liable to be confirmed. However, the order dated 24-5-2000 passed in the review petition ( misc. case no. 8/2000) is liable to be set aside. 12- Accordingly, the appeal is partly allowed and the impugned order dated 24-5-2000 passed in misc. case no. 8/2000 is set aside. The impugned judgment and award dated 17-5-2000, is modified to the extent that the claimants/appellants are entitled for the entire sum of Rs. 1,00,000/-(instead of Rs. 65,000/- as directed by the Tribunal) along with interest @ 8% per annum from the date of filing the petition, as has been indicated by the tribunal in the impugned award. 13- The claimants may move the application for withdrawal of the amount before the tribunal concerned, who will direct the insurance company to deposit the balance amount to be paid in favour of the claimants. (B.C. Kandpal, J.) ISB 6