IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 486 of 2007 National Insurance Co. Ltd. … Appellant Versus Smt. Durga Devi & others … Respondents Sri Prabhat Pande, Advocate for appellant Sri G.C. Lakhchaura, Advocate for respondent no. 1 Dated: August 21, 2008 Hon’ble B.C. Kandpal, J. Both the parties have agreed that the matter be disposed of finally. This is insurer’s appeal against the award dated 23.08.2007 passed by Motor Accident Claims Tribunal/Addl. District Judge, Kashipur, Udham Singh Nagar, in Motor Accident Claim Case No. 173 of 2006. Claimant Smt. Durga Devi filed a claim petition for grant of compensation of Rs.10,00,000/- for her injuries sustained in the accident alleging therein that on 24.2.2006 at 3.00 p.m. she was going to Masi from Bhikiyasen in Jeep No. UP 04A/2114 with her children and when the said jeep reached near Patwari Chauki, Sanana, it fell down into a ditch, due to which claimant sustained injuries on her person. The claimant has alleged that she has suffered 100% disability on account of injuries sustained by her in the accident. She also alleged that about Rupees One Lac has been spent on her treatment and more is expected to be 2 incurred in future also. She claimed compensation jointly and severally against the opposite parties. Opposite party no. 1-Kastubanand Tiwari filed written statement denying the contents of claim petition. In the additional pleas, he has pleaded that he was employed as driver over Jeep No. UP- 04A/2114, owned by opposite party no. 2, having valid driving licence, which was valid on the date of accident i.e. 24.2.2006. He has also pleaded that he was not plying the vehicle in question rashly and negligently on the date of accident. He has further pleaded that he himself sustained injuries in the accident and he was not liable to pay compensation to the dependants of deceased. He has also pleaded that on the date of accident he was the driver over Jeep No. U.P.-04A/2144 and the liability to pay the amount of compensation, if any, is of owner and insurer of vehicle in question. Therefore, the claim petition is liable to be dismissed against opposite party no. 1. Opposite party no. 2-Jeewan Singh filed written statement denying the contents of claim petition. In the additional pleas, he has pleaded that he is the registered owner of Jeep No. UP- 04A/2114, which is insured with National Insurance Co. Ltd. on the date of accident and insurance cover note of vehicle in question was 01/450000/04/02/0334619, which was valid w.e.f. 11.5.2005 to 11.5.2006. He has also pleaded that on the date of accident Jeep No. UP-04A/2114 was being plied by driver Kastubanand Tiwari, who was having valid driving licence and insurance, registration and all papers relating to vehicle were 3 valid. Therefore, the liability to pay the amount of compensation, if any, is of insurance company and claim petition filed against opposite party no. 2 is liable to be dismissed. Opposite party no. 3-National Insurance Co. Ltd. filed its written statement denying the factum of accident. It has been pleaded that it was not given any information with regard to alleged accident by the claimants. It has also been pleaded that it was the duty of owner of vehicle in question to make available registration, insurance paper, fitness certificate, permit and other papers relating to vehicle as well as driving licence of driver and also to prove this fact that vehicle in question was being plied carefully and according to traffic rules, by the driver having valid driving licence. It has further been pleaded that since accident occurred due to rash and negligent driving of Jeep No. U.P.- 04A/2114, therefore, owner of said jeep was liable to pay the amount of compensation to the claimant. The Tribunal on the basis of pleadings of the parties framed following issues in the claim petition: 1. Whether on 24.2.2006 at 3’o clock at Chauki Patwari Circle Sanana Tehsil Bhikiyasain, Jeep No. U.P.04A/2114 being driven its driver rashly and negligently, fell into a ditch due to which claimant-Durga Devi sustained grievous injuries? 2. Whether driver of offending Jeep No. U.P.04A/2114 was not having valid and 4 effective driving licence at the time of accident? 3. To what amount of compensation is the claimant entitled and from whom of the parties? 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.3,40,000/-in favour of claimant, against opposite party no. 3-National Insurance Co. Ltd., along with interest @ 6% per annum from the date of filing the petition till the date of actual payment, vide judgment and award dated 23.08.2007. Feeling aggrieved by the aforesaid impugned judgment and award, the appellant-National Insurance Co. Ltd. has preferred the present appeal before this Court. Heard Sri Prabhat Pande, leaned counsel for appellant-insurance company, Sri G.C. Lakhchaura, learned counsel for claimant-respondent no. 1 and perused the record. Learned counsel for appellant has vehemently argued that amount of compensation of Rs.3,40,000/- awarded by learned Tribunal is excessive. He has further submitted that multiplier adopted by learned Tribunal is on higher side. As far as issue no. 1 with regard to factum of accident is concerned, the Tribunal, on a close 5 scrutiny of the evidence led by the parties, held that claimant-Smt. Durga Devi sustained injuries in the accident; the accident occurred due to rash and negligence of driver of offending Jeep No. U.P.04A- 2114; and, as the offending vehicle was insured with National Insurance Company Limited, the insurance company was liable to pay compensation to the claimant. Perusal of record reveals that the said findings do no require any interference. The reasons recorded by the Tribunal are cogent and clear. I am completely in agreement with the findings recorded by the Tribunal with regard to rash and negligent driving of offending vehicle at the time of accident. As far as issue no. 2 regarding possession of valid driving licence at the time of accident, is concerned, the insurance company has taken a specific plea in its written statement that driver of Jeep No. UP-04A/2114 was not having valid driving licence at the time of accident, whereas opposite parties no. 1 and 2 have admitted themselves to the be driver and registered owner of jeep in question and pleaded in their written statements that Jeep in question was fully insured with National Insurance Company Limited on the date of accident. The driver of jeep in question-Kastubanand Tiwari filed copy of driving licence on record as documentary evidence, which shows that driving licence of driver was valid and effective w.e.f. 18.8.2004 to 17.8.2024, that is to say, the said driving license was valid and effective on the date of accident i.e. 24.2.2006. The Tribunal held that statement of opposite party no. 3-insurance company to the effect that on the date of accident driver of Jeep No. UP-04A/2114 was not 6 having valid and effective driving licence, is not correct. The Tribunal decided this issue against the opposite party no. 3-insurance company. I do not find any illegality in the finding recorded by the Tribunal and it deserves to be confirmed. As far as issue no. 3 regarding quantum of compensation is concerned, the burden to prove this issue lies on claimant. The claimant stated that she was got admitted in Government Hospital Bhikiyasain and Safdarjang, Delhi for her treatment and treatment of her injuries is still going on and she became 100% disabled due to injuries sustained by her in the accident and she has not been able to do any work. The claimant examined herself as PW-1 and stated in her oral evidence that more than Rupees One Lac has been spent on her treatment, doctors’ fee, diet, medicines and transportation and more is expected to be incurred in future also. She further stated that she became 100% disabled and bed-ridden due to her injuries sustained in accident and she will not be able to do any work in future. The claimant filed disability certificate (paper no. 6C/5) on record, in which her disability has been mentioned upto an extent of 100%. The claimant produced Dr. Sanjay Kumar as PW-3 who stated in his deposition that disability certificate has been issued to patient-Smt. Durga Devi on 15.06.2006, having his signature in place of Orthopedic Surgeon and verified the same and disability certificate which has been issued by him mentioning therein 100% disability to the claimant- Smt. Durga Devi, is correct. The Tribunal considering the evidence adduced before it with regard to disability of claimant, has taken into 7 consideration the disability of claimant upto an extent of 100%. The claimant stated that she was working as labourer with Raj Mistri, but no cogent and reliable evidence has been adduced by her in this regard. The Tribunal in absence of any cogent evidence with regard to income of claimant-injured, did not have any other option except to assess the average daily wages of claimant at Rs.100/- per day and Tribunal after adjusting the weekly recess etc. has assessed the monthly income of claimant at Rs.2,500/- i.e. Rs.30,000/- per annum. By deducting 1/3rd of the said amount as personal expenses of claimant, the claimant’s dependency was assessed at Rs.20,000/- per annum. The claimant stated in the claim petition that she was 30 ½ years of age at the time of accident, but she has not adduced any evidence in this regard. The opposite parties also did not adduce any evidence before the Tribunal on the question of age of claimant. Therefore, the Tribunal has taken into consideration the age of claimant as 30 years at the time of accident and in view of schedule prescribed in Section 163-A of Motor Vehicles Act, selected the multiplier of ‘17’ on the age of 30 years. By multiplying the above amount of Rs.20,000/- with multiplier of ‘17’, the Tribunal awarded, in all, compensation of Rs.3,40,000/- to the claimant. Interest @ 6% per annum on the above amount of compensation was also awarded from the date of filing the petition till the date of actual payment. The Tribunal, in my opinion, has not committed any illegality in calculating the amount of compensation. I do not find any illegality 8 in the method adopted by the Tribunal in calculating the amount of compensation. For the reasons stated above, the appeal lacks merit and is liable to be dismissed. The appeal is accordingly dismissed. The impugned judgment and award dated 23.08.2007 is hereby confirmed. The statutory amount deposited by the appellant before this Court, be remitted to the Tribunal concerned. (B.C. Kandpal, J.) SP 9