IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal Against Order No. 31 of 2007 United India Insurance Co. Ltd. …Appellant Versus Smt. Kamlesh & others …Respondents Mr. Pankaj Purohit, Advocate for appellant Mr. Bhupendra Singh Negi, Advocate for respondents 1 to 5 Mr. Mohd. Azim, Advocate for respondent no. 6 Mr. K.K. Shah, Advocate for respondent no. 8 Dated: November 25, 2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the appellant-United India Insurance Co. Ltd., against the judgment and award dated 02.11.2006 passed by Motor Accident Claims Tribunal/Additional District Judge/Fast Track Court, Kashipur, District Udham Singh Nagar, in M.A.C.C. No. 150 of 2005, Smt. Kamlesh and others versus Maqbool Hussain and others. Brief facts of the case, according to the claimants, are that on 25.6.2005 Rakesh Singh along with his cousin Roop Kishore was going to Thakurdwara from village Basai through Motorcycle bearing Registration No. U.A.06C-6035. Another motorcycle No.UA-06C-5163 was also following to the said motorcycle and on another vehicle Updesh Kumar and Daljeet Singh were sitting. The said motorcycle was knocked down by another Motorcycle bearing Registration No. U.A.-06C-5163 2 which was being driven by its driver rashly and negligently. Due to this collision, deceased-Rakesh Singh and Roop Kishore fell on the road from the motorcycle and sustained severe injuries. The deceased-Rakesh Singh succumbed to injuries on the spot. The claimants have alleged that deceased- Rakesh Singh was 30 years of age at the time of accident. The deceased had been working as Supervisor in a factor and getting Rs.6000/- per month. Thus, the claimants have claimed a sum of Rs.28,50,000/- as compensation along with interest of 12% per annum, against the opposite parties. Opposite party no. 1-owner of Vehicle No.U.A.06C/5163 filed his written statement denying the contents of claim petition. In the additional pleas, it has been stated that no cause of action did not accrue against him and claim petition filed against him was liable to be dismissed. He has also denied that said accident had taken place on account of rash and negligence of driver of his motorcycle. He has further pleaded that on 25.6.2005 Motorcycle No. U.A.06C/5163 remained in his possession throughout the day and he was having valid driving licence, which was issued on 16.6.2005 and was valid upto 15.6.2010 and same was also valid on the date of accident, photo copy of which has been annexed. He has also pleaded that he is the registered owner of Motorcycle No. U.A.06C-5163 and Registration Certificate of the said Motorcycle is valid w.e.f. September, 2004 to September, 2019 and copy of the same has been annexed. He has also pleaded that Motorcycle No. U.A.06C-5163 was registered for insurance in United India Insurance Co. Ltd. at the time of 3 accident, which cover note number is 9919129 and was valid w.e.f.6.9.2004 to 5.9.2005 and was also valid on the date of accident. Therefore, under these circumstances, liability to pay the compensation, if any, is of insurance company. Thus, claim petition filed against opposite party no. 1 is liable to be dismissed. Opposite party no. 2-United India Insurance Co. Ltd./appellant before this Court, filed its written statement denying therein the factum of accident. It has pleaded that liability to pay the compensation to the claimants by answering opposite party is only under the terms and rules of insurance policy and insurance company is not liable to pay any compensation in case of violation of conditions of insurance policy as well as provisions of Motor Vehicles Act, by the owner of vehicle. It has further been pleaded that insurance company had not been given any information with regard to alleged accident and therefore no liability of insurance company can be proved with regard to the said accident and claim petition filed against opposite party no. 2 is liable to be dismissed. It has also pleaded that at the time of accident Motorcycle No.U.A.06C-5163 was being plied by its driver unauthorizedly and on account of the same opposite party no. 2-insurance company is not liable to pay the compensation and therefore, claim petition filed against it is liable to be dismissed. Opposite party no. 4-Oriental Insurance Co. Ltd. filed its written statement denying the contents of claim petition and pleaded that it has doubt with regard to alleged accident and burden to prove the 4 same is upon the claimants. It has also pleaded that liability to pay the compensation rests upon opposite parties no. 1 and 2. It has further been pleaded that no document relating to claimants has been filed and therefore claim is not maintainable. It has also pleaded that insurance company is entitled to get the benefit under the provisions of Section 170 of M.V. Act. It has also pleaded that opposite party no. 4 has wrongly been made party in the claim petition and therefore claim petition filed by claimants is liable to be dismissed. The learned Tribunal on the basis of pleadings adduced by the parties framed relevant issues in the claim petition, which were discussed in detail. Parties led evidence in support of their cases. The learned Tribunal after having considered the entire material available on record and hearing learned counsel for the parties, decreed the claim petition for a sum of Rs.6,62,800/- along with interest at the rate of 9% per annum from the date of filing the petition till the date of actual payment, vide judgment and award dated 02.11.2006. Feeling aggrieved by the aforesaid impugned judgment and award, the appellant-United India Insurance Co. Ltd. has preferred the present appeal before this Court. Heard Sri Pankaj Purohit, learned counsel for the appellant, Sri Bhupendra Singh Negi, learned counsel for claimants-respondents no. 1 to 5, Mohd. Azim, Advocate for respondent no. 6, Sri K.K. Shah, 5 learned counsel for respondent no. 8 and perused the record. As far as factum of accident is concerned, the evidence available on record clearly reveals that Motorcycle No. U.A.06C-5163 was being driven by its driver rashly and negligently at the time of accident and on account of his rash and negligence the accident took place, in which deceased-Rakesh Singh sustained injuries and he subsequently died. As far as insurance of offending vehicle in question is concerned, it is also evident from the evidence available on record that offending vehicle No. U.A.06C-5163 was insured with United India Insurance Co. Ltd. at the time of accident. It is also clear that the driver of offending vehicle was having valid and effective driving licence at the time of accident. The findings recorded by the Tribunal on the aforesaid issues do not require any interference. As far as amount of compensation to be awarded in favour of claimants is concerned, it appears from the record that claimants have pleaded the age of deceased in the claim petition as 30 years and the age of deceased has also been assessed as 30 years approximately in view of opinion of doctor. The Tribunal has assessed age of the deceased as 35 years at the time of accident and, in my view, this finding recorded by the Tribunal appears to be justified. As far as income of deceased at the time of accident is concerned, the salary certificate has been filed by the claimants which indicates that deceased had been getting a salary of Rs.6000/- per 6 month in view of the work of Supervisor in a factory being done by him. No cogent and reliable evidence has been filed by the claimants in order to show that actual income of deceased was Rs.6000/- per month. However, the Tribunal on the basis of other evidence available on record came to the conclusion that income of deceased is to be assessed at Rs.5000/- per month. The Tribunal has further observed that after deducting one-third out of actual income of deceased, financial dependency of claimants comes to Rs.3400/- per month and it comes to Rs.40,800/- per annum. However, the Tribunal has committed an error in adopting the multiplier on higher side. In view of the latest pronouncement 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, New India Assurance Co. Ltd. vs. Kalpana (Smt) and others, reported in (2007) 2 SCC (Cri) 94 and Laxmi Devi & others vs. Mohammad Tabbar & another, reported in 2008 UAD 587, multiplier in this case, specially in view of the age of the deceased, cannot travel more than ‘13’. The multiplier of ‘16’ adopted by the Tribunal appears to be on higher side. On the basis of aforesaid calculation, total amount of compensation to be paid in favour of claimants, comes to Rs.40,800 x 13=Rs.5,30,400/-. Rest of the amount awarded in favour of claimants under other different heads, shall remain intact. 7 As far as interest indicated in the impugned judgment and award is concerned, that also appears to be on higher side. Keeping in view the prevalent rate of interest given by the Banks, interest also cannot travel more than 7% per annum. Having considered the aforesaid evidence available on record, I am of the view that claimants are entitled for a sum of Rs.5,30,400 + Rs.10,000=Rs.5,40,400/- as compensation along with interest @ 7% per annum, instead of Rs.6,62,800/- as compensation and interest of 9% per annum as has been awarded by the Tribunal. Accordingly, appeal is partly allowed. The impugned judgment and award is modified to the extent that claimants are entitled for a sum of Rs.5,40,400/- (Rupees Five Lacs Forty Thousand Four Hundred) as compensation along with interest at the rate of 7% per annum from the date of filing the petition till the date of actual payment, instead of compensation of Rs.6,62,800/- and interest of 9% per annum as has been awarded by the Tribunal. The statutory amount deposited by the appellant with this Court be remitted to the Tribunal concerned. The excess amount, if any, has been deposited by the appellant, the same be refunded to the appellant. (B.C. Kandpal, J.) SP 8