IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 198/2008 Smt. Kadambari Devi …. Appellant. Versus Sachin and others …Respondents. Mr. Rakesh Thapliyal, learned counsel for the appellant. Ms. Menka Tripathi, learned counsel for the respondents. UDated: 4.11.2008 UHon’ble B.C. Kandpal, J. This is an appeal, under Section 173 of the Motor Vehicle Act, 1988, preferred against the judgment and award dated 21-11-2007, passed by Motor Accident Claims Tribunal/District Judge, Tehri Garhwal, in MACP No. 3/2007, Smt. Kadambari Devi Vs. Sachin and others. 2- The facts of the case, in a nutshell, are that Govind Ram, husband of claimant/appellant Smt. Kadambari Devi was an astronomer by profession and his monthly income was about Rs.4,500/-. On 31.1.2000, he boarded bus No. U.P. 08-3088 from Kothar to Ghansali. The said bus met with accident at Payalgarh Toke due to rash and negligence of its driver. Govind Ram also sustained grievous injuries in the accident and he succumbed to the injuries. The claimant preferred the claim petition for compensation of Rs. 9,28,000/-. 3- The opposite party No.1, Sachin, minor son of late Rakesh owner cum driver of the offending Bus, has contested the claim petition through his mother and alleged that the real owner of the offending bus was Sundarmani Bhatt and the vehicle was shown sold to the late Rakesh by playing fraud. He also alleged that the vehicle at the time of accident was insured with opposite party No.2, United Insurance Company and the 2 liability is upon the insurer. It was also alleged that the accident has occurred due to some mechanical defect in the vehicle. 4- The opposite party No.2, United India Insurance Company also contested the claim petition and denied the averments of the petition for want of knowledge. The insurance company also took the plea of overloading and also alleged that the driver was not possessing valid driving license, therefore, the insurance company denied its liability due to the breach of terms of insurance policy. 5- The learned tribunal, on the pleadings of parties framed issues in the claim petition. Thereafter, parties in support of their case adduced evidence before the tribunal. The tribunal after hearing learned counsel for the parties and considering the material available on record, awarded a sum of Rs. 21,000/- as compensation payable by United Insurance Company. The tribunal directed to pay the compensation within a period of two months and in default, interest @ 7% per annum from the date of filing the petition till the date of actual payment shall be payable. 6- Feeling aggrieved the claimant has preferred this appeal for enhancement of the compensation. 7- I have heard learned counsel for the parties and perused the record. 8- Learned counsel for the claimant has submitted that the tribunal has awarded a meager amount towards compensation in lieu of death of deceased Govind Ram and the same should be 3 enhanced. He also contended that the tribunal also committed mistake by deducting the ex-gratia amount received by the claimant due to the death of her husband in the accident. 9- Perusal of record reveals that on 31.1.2000 at about 2 P.M. the deceased Govind Ram was travelling in Bus No. U.P. 08-3088 and the said bus met with accident in which Govind Ram also died. According to the claimant the accident has occurred due to the rash and negligence of its driver, whereas the contention of the opposite parties is that it was the result of mechanical defect in the vehicle. To prove the negligence of the driver the claimant has filed the copy of F.I.R., according to which case crime No. 1/2000 U/Ss 279, 427, 304-A and 338 I.P.C. was registered against the driver of the bus. The claimant also filed certified copy of the statement of eyewitness Rajendra Singh who was examined as P.W.2, in MACT Case No. 59/2000. The statement of Rajendra Singh shows that the driver of the bus was driving the bus at a high speed. He was told by the passengers to drive the vehicle at a slow speed, but he did not pay any heed to it. Rajendra Singh was also travelling in the offending bus. The opposite parties in support of their contention, that the accident has occurred due to technical fault in the vehicle, has not adduced any cogent and reliable evidence. The plea of overloading was also not substantiated by adducing evidence in this regard. In my view the learned Tribunal has rightly decided the issue of rash and negligence against the opposite parties and held that the accident was the result of rashness on the part of the driver of the offending bus. 10- As far as the amount of compensation is concerned, the trial court has observed that the age of 4 the deceased was 65 years at the time of accident. The accident in this case has taken place in the year 2000. The notional income which has been assessed is Rs. 15,000/- and the tribunal after deducting 1/3Prd P towards personal expenses, has taken Rs. 10,000/- per annum as the dependency. This finding appears to be just and proper and does not require any interference. Further the tribunal has adopted the multiplier of ‘5’. Keeping in view the age of the deceased, the multiplier adopted by the tribunal appears to be justified and the same also does not require interference. However, the tribunal fell in error in deducting the amount, which was received by the wife of the deceased as ex-gratia payment amounting to Rs. 30,000/-. It is settled law that the ex-gratia amount received by the legal representatives of the deceased after the accident, would not be considered to be an amount for deduction from the amount of compensation to be awarded in favour of the claimant. The tribunal has assessed the amount of compensation as Rs. 50,000/- and has also awarded a sum of Rs. 2,000/- as the funeral expenses. Thus the total amount to be awarded in favour of the claimant comes to Rs. 52,000/-. I do not find any infirmity in the quantum of compensation awarded by the tribunal. However, the deduction of ex-gratia amount received by the claimant appears to be unjustified, therefore, I set aside the finding of the tribunal in this regard. The claimant is, of course, entitled for a sum of Rs. 52,000/- as the amount of compensation along with interest @ 6% per annum instead of conditional interest, as has been awarded by the Tribunal. 11- The appeal is partly allowed. The impugned judgment and award dated 21-11-2007, is modified upto the extent that the claimant is entitled to get a sum of Rs. 5 52,000/- as compensation along with interest @ 6% per annum from the date of filing the petition till the date of actual payment payable by United India Insurance Company, instead of Rs. 21,000/- (along with conditional interest) as has been awarded by the tribunal. 12- The United India Insurance Company is directed to deposit the amount of compensation awarded by this court with the tribunal concerned within a period of one month positively. In case if any amount, out of the amount of compensation awarded by the tribunal, has been withdrawn by the second wife Smt. Chandra Bhaga Devi, the same would be deducted from the amount of compensation awarded by the tribunal. (B.C. Kandpal, J.) ISB 6