IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal Against Order No. 340 of 2005 United India Insurance Company Ltd. Through its Divisional Manager Divisional Office, Haldwani District Nainital ... Appellant Vs 1. Smt. Banarasi W/o Pramu 2- Pramu S/o Nandanu Both R/o Village Mandar Patti Dugmandar, Tehsil Ganshali District Tehri Garhwal 3. Mukundi Lal S/o Bhadu R/o Village Lodhas Patti Gongarh, Tehsil Ganshali District Tehri Garhwal 4. Ram Nath S/o Pannu Das R/o Ladasu, Patti Ganegarh P.O. Bhatgaon District Tehri Garhwal At present Yatayat Paryatan Vikas Sahkari Sangh Muni ki Rati, Dehradun Road Rishikesh, District Dehradun Registered Owner of Vehicle No. UP08/4629 ... Respondents Sri Naresh Pant, learned counsel for the appellant Sri Tanuj Semwal, learned counsel for the respondent Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed by the appellant against the judgment and award dated 27.04.2005 passed by M.A.C.T./District Judge, Tehri Garhwal in M.A.C. No. 25 of 2002, Smt. Banarsi Vs Mukandi Lal & others whereby the Tribunal awarded a sum of Rs. 1,35,000/- and directed to pay the same within thirty days along with interest @ 4% per annum from the date of application till the actual payment. 2 2. Brief facts of the case are that on 05.11.2001, the deceased- Raju at about 04:00 p.m. was going from Nailchami to his relatives and when he reached at Ghansali, the driver of bus No. UP08/4629 which was being driven by its driver in a very rash and negligent manner, dashed the deceased due to which he sustained serious injuries. The driver of the bus immediately took him to the Hospital where by the injuries sustained by Raju at the time of the accident, was died in the Doon Hospital. According to the claimants, at the time of the accident he was 20 years of age. He was working as a carpenter and used to earn Rs. 150/- per day (Rs. 4500/- monthly), therefore, the claimants filed claim petition before the Tribunal for Rs. 16,90,000/- as compensation. 3. Mukandi Lal (driver of the bus) contested the claim petition and field written statement before the Tribunal concerned alleging therein that the registered owner of the bus was Ram Nath. He has further admitted this fact that he was the driver of the vehicle in question but he denied the alleged accident. He has further stated that the accident occurred due to negligence of the deceased and the bus was insured with United India Insurance Company Ltd. at the time of the accident. 4. Sri Ram Nath (owner of the bus) also contested the claim petition by filing written statement stating therein that at the time of the accident the bus was insured with United India Insurance Company Ltd. 5. The United India Insurance Company Ltd. also contested the claim petition by filing its written statement alleging therein that the F.I.R. was lodged in collusion between the claimants, owner of the bus as well as driver of the bus. 3 The bus in question was not involved in the accident. It has further pleaded that the deceased was a married man and his wife was not impleaded as party in the claim petition. Therefore, the claim petition was liable to be dismissed for non-joinder of the parties. 6. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues, which are as under:- 1. Whether the accident in question took place at about 3-4 p.m. on 5.12.2001 at Bus stand Ghanshali due to rash and negligent driving of Bus No. UP08/4629 by its driver resulting death of Raju as alleged? 2. Whether O.P. No. 1 Mukandi Lal was only driver of the ill fated bus and not the owner? If so, its effect? 3. Whether the O.P. No. 1 was not having a valid driving licence on the date of accident? If so, its effect? 4. To what amount of compensation and from which of the opposite parties are the petitioners entitled? 5. Whether the accident dated 5.12.01 vehicle No. UP08/4629 was not involved and actually bus NO. UP08/2029 was involved in the accident by which deceased Raju sustained fatal injury as alleged by O.P. No. 3 in Para – 9 of the W.S.? 6. Whether the deceased was married person and the petition is bad for non-joinder of his wife as necessary party as alleged by O.P. No. 3 in para – 10 of its W.S.? 7. After hearing learned counsel for the parties and perusing the entire material available on record, the Tribunal 4 has awarded a sum of Rs. 1,35,000/- and directed to pay the same within thirty days along with interest @ 4% per annum from the date of application till the actual payment in favour of the claimants vide judgment and award dated 27.04.2005. 8. Feeling aggrieved by the aforesaid order of the Tribunal, the appellant/Insurance Company filed this appeal before this Court. 9. Heard Sri Naresh Pant, learned counsel for the appellant, Sri Tanuj Semwal, learned counsel for the respondent and perused the record. 10. In support of their case, the claimants has recorded the statement of Premu as P.W.1 and produced copy of F.I.R. as paper No. 9ga, Letter sent to S.S.P. as paper No. 16ga/2, report of the police station concerned as paper No. 16ga/3, post mortem report as paper No. 16ga/6 and the opposite parties did not adduce any documentary evidence. 11. Learned counsel for the appellant/Insurance Company has submitted that the Tribunal did not consider this point that the owner of the bus No. UP08/4629 admitted the factum of accident in his written statement and ignored the fact that the accident was caused by Bus No. UP08/2029. It has further alleged that to resolve this controversy the testimony of the concerned patwari was necessary. Further, learned counsel for the appellant has relied upon the chargesheet wherein the involvement of Bus No. UP08/2029 has come up. 12. The Tribunal has made the issue No. 5 in this regard which was discussed in great detail. Perusal of the 5 paper No. 9ga which is First Information Report at police station Ghansali, District Tehri Garhwal as well as paper No. 16ga/6 is the postmortem report which reveals that the accident took place and in this accident Raju died at Doon hospital. Thereafter, the Insurance Company filed the chargesheet which is paper No. 39ga/3 wherein it has come that the said accident took place by bus No. UP08/2029 and the chargesheet was submitted against the vehicle. It has further come that Smt. Raija Devi was the wife of Raju whose statement was recorded as witness. The Insurance Company pleaded before the court below that Ram Nath was the owner of both the vehicles (Bus No. UP08/2029 and UP08/4629). At the time of the accident Bus No. UP08/2029 was not insured with the Insurance Company, therefore, the First Information Report was lodged by collusion of owner as well as driver of the vehicle against the Bus No. UP08/4629. As far as, on the basis of the claim petition, the said accident was took place due to negligence on the part of the Bus No. UP08/4629. Therefore, the Tribunal allowed the claim petition against the owner and the driver of the vehicle in question in order to protect the right of the claimants. At the time of the accident the bus No. UP08/4629 was insured with United India Insurance Company and the bus No. UP08/2029 was not insured with the Insurance Company. In order to resolve the aforesaid controversy, the Tribunal has rightly allowed the claim petition against the opposite parties jointly and severely. I am in total agreement with the finding recorded by the Tribunal in this regard. 13. So far as the amount of compensation is concerned, the Tribunal after considered the statement of Premu (P.W.1) who is the father of the deceased has stated that at the time of the accident, the deceased was getting Rs. 150/- per day but 6 he could not produce any documentary evidence which prove is actual monthly salary. Therefore, notional income of Rs. 15,000/- of the deceased was taken for assessment of the compensation. After deducting 1/3rd towards personal expenses, annual dependency of the claimants comes to Rs. 10,000/-. As the deceased was unmarried person, therefore, the Tribunal considered the age of the parents of the deceased and adopted the multiplier of 11 and the amount of compensation comes to Rs. 1,11,000/-. Further the Tribunal awarded a sum of Rs. 10,000/- each (mother and father of the deceased) towards physical and mental agony and Rs. 5,000/- towards funeral expenses. In this way, total amount of compensation comes to Rs. 1,35,000/- which is perfectly justified. I do not find any ground to interfere in the impugned award. In my opinion, the Tribunal has awarded just and appropriate award and the same needs not interference by this Court. 14. In view of the above discussion, the appeal lacks merit and is liable to be dismissed. 15. Accordingly, the appeal is dismissed. No order as to costs. 16. The statutory amount deposited by the appellant before this Court at the time of filing the appeal be remitted to the Tribunal concerned. (B.C. Kandpal, J.) 02.04.2008 ASWAL