IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 480 of 2003 Harsh Mani Uniyal S/O Sri Govind Lal Uniyal, R/o Dhalwala, Rishikesh, Thana Muni-ki-regi, Tehri Garhwal ….. Appellant. Versus New India Insurance Company through its Divisional Manager, Astely Hall, Dehradun and two others … Respondents. Mr. Mohd. Matloob, holding brief of Mr. B.P. Nautiyal, Advocate for the appellant. Mr. T.A.Khan, Advocate for respondent/New India Assurance Co. [Hon’ble B.S. Verma, J.(Oral)] This Appeal for enhancement of compensation, U/S 173 of the Motor Vehicle Act, has been preferred against the judgment and award dated 10-7-2003, passed by Motor Accident Claim Tribunal/District Judge, Dehradun, in MACT Case No. 46 of 2002, Harshmani Uniyal vs. Gopal Singh and two others, whereby a compensation of Rs. 2,71,500/- along with interest @ 9% per annum from the date of filing the claim petition, till the date of actual payment, has been awarded to the claimant/petitioner payable by the New India Insurance Company. Brief facts giving rise to this appeal, are that on 27-12- 2001, at about 11 a.m. when claimant/appellant Harshmani Uniyal was going to Haridwar Road Bypass from his house situated at Rishikesh on his motorcycle Hero Honda U.A. 07-C-1519, truck No. U.P. 05-0043 came there from left side at a high speed from T.H.D.C. Colony and dashed the motorcycle of the claimant due to which the claimant met with an accident and got injured seriously. He was brought to Government Hospital and looking his precarious condition, he was referred to C.M.I. Hospital Dehradun. Thereafter he was referred to Ganga Ram Hospital Delhi where he got treatment during the period 28.12.2001 to 2.1.2002, where he spent about 1,50,000/-. Again the claimant remained admitted in C.M.I. Dehradun 2 during the period 2.1.2002 to 17.1.2002. He again received treatment from CMI Hospital Dehradun and remained admitted there during the period 28.1.2002 to 31.1.2002. According to the petitioner he spent about one lac rupees in C.M.I. Hospital Dehradun and due to the injuries suffered by him in the accident he has become 50% permanently disabled. The claimant/ appellant was 47 years of age at the time of accident and he was in the profession of contractor from which he was earning Rs. 6000/- per month. The F.I.R. of the accident was lodged at P.S. Rishikesh on the day of accident itself. Therefore, the claimant preferred claim petition for a compensation of Rs. 10,50,000/-. The truck involved in the accident was being driven by opposite party No.1 Gopal Singh, its owner was opposite party No.2 Sri Bhagwati Prasad Kala and it was insured with New India Insurance Company/ opposite party No.3. Opposite party Nos.1 and 2 driver and owner of the truck filed their written statement and alleged that the driver was driving the truck cautiously and the accident had occurred due to own fault of the motorcyclist, as he was travelling in the motorcycle simultaneously having talks on mobile phone. Suddenly the claimant lost control over the motorcycle and his foot got dashed to the bumper of the truck. The New India Insurance Company also contested the claim petition by filing its written statement and alleged that the truck No. U.P. 05-0043 did not involve in the accident. It also asserted that the claimant has claimed a highly exaggerated amount of compensation. The M.A.C.T. Tribunal, on the pleadings of parties, framed the following issues in the claim petition- 1- Whether on 27-12-2001 at about 11 a.m. when injured Harshmani Uniyal, was coming towards Haridwar from Rishikesh riding in his motorcycle Hero Honda No. U.A. 07-C-1519, and when he reached at Haridwar Bypass, near T.H.D.C. Colony, the driver of Truck No. U.P. 05-0043 coming from opposite direction in a rash and negligent manner, dashed the motorcycle, due to which Harshmani Uniyal sustained grievous injuries?. 3 2- Whether the claimant is entitled to get compensation in lieu of injuries sustained by him in the accident? If so, how-much and from whom?. The claimant in support of his claim examined himself as P.W.1 and Dr. A.K. Pathak as P.W.2 and also filed medical bills and receipts and prescriptions pertaining to his medical expenses. The opposite parties did not adduce any oral evidence. However, they filed driver license of the driver, as well as copies of insurance cover, registration etc. pertaining to the truck involved in the accident. The learned Tribunal after hearing parties and considering the entire evidence available on record, held that the accident had occurred due to contributory negligence of the claimant as well as the driver of the truck and held responsible the driver of the truck upto the extent of 75% and the claimant/motorcyclist upto 25%. The Tribunal awarded a sum of Rs. 2,71,500/- as compensation payable by New India Insurance Company along with interest @ 9% per annum from the date of presentation of petition till the date of actual payment. Being dissatisfied with the amount of compensation the claimant/appellant has filed this appeal for enhancement. I have heard Mr. Mohd. Matloob holding brief of Mr. B.P. Nautiyal, Advocate for the petitioner and Mr. T.A. Khan, Advocate appearing on behalf of New India Insurance Company/respondent and perused the record. Learned counsel for the appellant has submitted that the claimant has filed his income tax returns pertaining to the year 2001- 2002 and 2002-2003 in support of his income before the learned Tribunal, but the Tribunal has failed to consider this piece of evidence and has given arbitrary finding that the claimant has not filed any documentary proof in support of his income. Therefore, the compensation should be calculated on the basis of these documents on record. I have perused the record and find that the claimant had brought on record the income tax returns for the financial year 2001- 2002 and 2002-2003 to prove his income, but the learned 4 Tribunal/District Judge, has given a perverse finding that the claimant did not file documentary evidence to support his income. Therefore, the compensation should be calculated on the basis of these documents as well as the other evidence adduced by the claimant. The claimant has examined himself as P.W.1 and has deposed that he was earning about Rs. 6,000/- per month from the profession of a contractor besides income from agricultural work. Perusal of Saral Form for the assessment year 2001- 2002, corresponding to the date of accident, paper no. 71-B available on lower court record, shows that the claimant has shown his gross annual income of Rs. 61,000/- out of which some deductions have been shown. Subsequent return pertaining to assessment year 2002- 2003 filed by claimant is annexed as next paper and in this year the gross income has been reduced to Rs. 54,500/- because of the accident. Therefore, after making permissible deductions under various heads, out of gross income shown in the assessment year 2001-2002, the net annual income of the claimant is taken as Rs. 48,000/- for purposes of calculating the compensation. Out of this net income 1/3rd is to be deducted towards personal expenses of the claimant and after deducting it the annual income comes to Rs. 32,000/-. The age of the claimant at the time of accident was 47 years and the learned tribunal has applied the multiplier of 13. There is no dispute on this point, therefore, after applying the multiplier of 13 the total amount of compensation comes to Rs. 32,000/- X 13 = Rs. 4,16,000/-. The claimant has alleged that due to the injuries in the accident he has become permanently disabled upto 50%. To prove his disability he has examined P.W.2, Dr. A.K. Pathak. The learned Tribunal has held that the claimant has been successful in establishing his disability upto 50%. Therefore, the petitioner is entitled to get 50% of the loss of future income as has been calculated above. In this way he is entitled to get a sum of Rs. 4,16,000/- X ½ = Rs. 2,08,000/-. 5 The claimant has filed medical bills and receipts for Rs. 1,86,000/- which the tribunal has awarded to him. The tribunal further awarded a sum of Rs. 20,000/- towards mental pain and agony and the claimant is entitled to get these sums. Therefore the total amount of compensation comes to Rs. 2,08,000/- + Rs. 1,86,000/- + Rs. 20,000/- = Rs. 4,14,000/-. The learned Tribunal has fixed the ratio of negligence on the part of claimant upto the extent of 25% and the learned counsel for the parties have not raised objection against this finding, therefore, 25% amount is to be deducted from the total amount of compensation. Hence, the net amount of compensation payable to the claimant/appellant by the New India Insurance Company, comes to Rs. 4,14,000/- (-) Rs. 1,03,500/- = Rs. 3,10,500/-. The tribunal has awarded interest @ 9% per annum from the date of filing the petition till the date of actual payment. In my opinion the claimant/appellant is entitled to get this rate of interest on the awarded amount of compensation. For the discussion made above, the appeal is liable to be partly allowed. The appeal is partly allowed. The impugned judgment and award is modified upto the extent that the claimant/appellant is entitled to get a sum of Rs. 3,10,500/- as compensation, instead of Rs. 2,71,500/- as has been awarded by the trial, from New India Insurance Company along with interest @ 9% per annum from the date of filing the petition till the date of actual payment. No order as to cost. Dated: 30-11-2010 (B.S. Verma, J. ) ISB