IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 15 of 2006 The New India Assurance Co. Ltd. …Appellant Versus Smt. Shashi Devi & others …Respondents With Appeal From Order No. 14 of 2006 The New India Assurance Co. Ltd. …Appellant Versus Smt. Nari Devi & others …Respondents Sri V.K. Kohli, senior Advocate assisted by Sri I.P. Kohli, Advocate for appellant-New India Assurance Co. Ltd. Sri Ramji Srivastava, Advocate for respondents-claimants Dated: November 17, 2008 Hon’ble B.C. Kandpal, J. Since both these appeals are arising out of the same judgment and award and common question of fact of law is involved in both the appeals, as such, they are being decided by this common judgment. A.O. No. 15 of 2006, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the appellant-The New India Assurance Co. Ltd., against the judgment and award dated 13.12.2005 passed by Motor Accident Claims Tribunal/ADJ-VII, FTC, Dehradun, in M.A.C.T. Case No. 226 of 2003, Smt. Shashi Devi & others vs. Ram Chand & others. 2 A.O. No. 14 of 2006, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the appellant-The New India Assurance Co. Ltd., against the judgment and award dated 13.12.2005 passed by Motor Accident Claims Tribunal/ADJ-VII, FTC, Dehradun, in M.A.C.T. Case No. 225 of 2003, Smt. Nari Devi & others vs. Ram Chand & others. Brief facts of the case as narrated in claim petition are that on 15.9.2003 at 7.30 p.m. when Govind Ram along with his brother Ram Prasad was standing at the side of road near Yamuna Bridge at Vikas Nagar-Yamunotri road, Mini Truck bearing Registration No. UP 07E-7267 coming from the side of Uttarkashi, which was being driven by its driver-Ram Chandra rashly and negligently, hit Govind Ram and Ram Prasad and said truck fell into Khad. In the said accident, Govind Ram and Ram Prasad died. According to the claimants, at the time of accident deceased-Govind Ram was 32 years of age, while deceased-Ram Prasad was 34 years of age. Both the deceased had been earning a sum of Rs.6000/- each per month from the agriculture and labour work. The claimants of both the deceased claimed a sum of Rs.14,15,000/- each as compensation, along with interest at the rate of 18% per annum, against the opposite parties. Opposite party no. 1-Ram Chandra and opposite party no. 2-Chandra Mohan (driver and owner of vehicle in question) filed their joint written statement denying the contents of claim petition for want of knowledge. They have also pleaded that the said accident occurred due to sudden failure of brake of the vehicle and thereafter the said vehicle 3 fell into Khad and in the meantime Govind Ram and Ram Prasad who were standing at the side of road, were embroiled in said vehicle. They have denied this fact that accident took place on account of rash and negligence of the driver, rather it has been pleaded that the said accident occurred due to sudden failure of brake of vehicle. They have also pleaded that on the date of accident Mini Truck Tata 407 of opposite party no. 2 was insured with opposite party no. 3-The New India Assurance Co. Ltd. and that is why insurer of vehicle is liable to pay amount of compensation. The answering opposite parties are not liable to pay any compensation to the claimants. They have further pleaded that at the time of accident driver of vehicle in question was holding valid driving licence to ply the said vehicle. Opposite party no. 3-The New India Assurance Co. Ltd. filed its written statement denying the contents of claim petition for want of knowledge. It has also denied the age and income of the deceased. It has further denied the relationship of claimants with the deceased, but has admitted the insurance of vehicle in question with it. It has further denied that Govind Ram and Ram Prasad were standing at the side of road near Yamuna Bridge at the time of accident. It has also been pleaded that claim petition was not maintainable. It has also been pleaded that after necessary investigation it was found that deceased were not standing at the side of road, rather they were travelling in the vehicle. It has further been pleaded that since vehicle was commercial, therefore no one can travel in commercial vehicle and thus the owner of vehicle 4 has breached the conditions of insurance policy and insurance company was not liable to pay any compensation. It has further been pleaded that the case was not being contested properly by owner of vehicle and therefore answering opposite party reserves the right to contest the claim under Section 170 of Motor Vehicles Act. The learned Tribunal on the basis of pleadings adduced by the parties framed relevant issues in the claim petition, which were discussed in great detail. Parties led evidence in support of their case. The learned Tribunal after having considered the entire material available on record and hearing learned counsel for the parties, decreed both the claim petitions for a sum of Rs.1,37,000/- each, against insurer of vehicle in question i.e. The New India Assurance Co. Ltd., along with interest @ 6% per annum from the date of filing the petition till the date of actual payment, vide impugned judgment and award dated 13.12.2005. Feeling aggrieved by the aforesaid impugned judgment and award dated 13.12.2005, the appellant i.e The New India Assurance Co. Ltd. has preferred the present appeals before this Court. Heard Sri V.K. Kohli, senior Advocate assisted by Sri I.P. Kohli, learned counsel for appellant-The New India Assurance Co. Ltd., Sri Ramji Srivastava, learned counsel for claimants-respondents and perused the record. 5 As far as factum of accident is concerned, the claim petition has been filed by the claimants alleging therein that the said accident took place on account of rash and negligence of driver of Truck No. UP 07E-7267 and F.I.R. in this regard has also been lodged by one Dhani Ram, son of Ram Singh at P.S. Kalsi on the next day of accident i.e. on 16.9.2003. Opposite parties no. 1 and 2 i.e. driver and owner of vehicle in question, filed their joint written statement in rebuttal of claim petition alleging therein opposite party no. 1 was driving the said Mini Truck UP 07E-7267 to Vikasnagar from Damita and when the said truck reached near Yamuna Bridge at Vikas Nagar-Yamunotri road, all of a sudden the brake of said truck has failed and driver tried to stop the said truck, but due to slope the driver could not control over the truck and truck fell into deep ditch and in the meantime Govind Ram and Ram Prasad were embroiled in truck in question. The opposite parties did not prove this fact by adducing any cogent and reliable evidence in this regard. The claimants have filed photocopy of G.D. of the F.I.R. lodged by Dhani Ram at P.S. Kalsi on 16.9.2003 and has produced Dhani Ram as PW-3 to prove the said document. From the evidence of PW-3, the Tribunal has come to the conclusion that when this witness came to the spot, the said truck was falling in Khad and two corpses were lying on the road and many people were gathering there. The claimants also produced one Bharat Ram as PW-4, who admitted this fact that he seen Ram Prasad and Govind Ram standing at first bend over Yamuna Bridge and he also seen Truck No. UP 07E-7267 falling into Khad by crushing Govind Ram and Ram Prasad. This witness has also 6 stated that he has given the information of accident to the family of deceased. The post mortem reports of deceased-Govind Ram and Ram Prasad were also available on record, which establish this fact that after the accident post mortem of deceased ware conducted by Constable Dinesh Kumar and Ram Niwas, P.S. Kalsi. The Tribunal has discussed all the evidence adduced by the parties and thereafter has come to the conclusion that on 15.9.2003 at 7.30 p.m. the accident occurred due to rash and negligent driving of driver of Mini Truck No. UP 07E-7267, in which Govind Ram and Ram Prasad died. Accordingly, the Tribunal decided the said issue in favour of claimants. I do not find any illegality in the above finding recorded by the Tribunal and the same deserves to be confirmed. The Tribunal further held that on the date of accident all the papers relating to offending vehicle were valid and effective and opposite party no. 1 i.e. driver of offending vehicle was holding valid and effective driving licence. I do not find any infirmity in this finding also recorded by the Tribunal and the same deserves to be confirmed. As far as amount of compensation to be awarded in favour of claimants is concerned, the claimants have stated in the claim petition that deceased-Govind Ram and Ram Prasad, both had been earning Rs. 6000/- each per month from agriculture and labour work, but no cogent and reliable evidence has been adduced by the claimants in this regard. In case, if no cogent and reliable evidence could be adduced by the claimants in order to show the actual income of the deceased, 7 then the formula of notional income would certainly be applicable in the facts and circumstances of the present case. Therefore, the Tribunal has rightly adopted the formula of notional income in this case and assessed the notional income of deceased at Rs. 15,000/- per annum and after deducting 1/3rd towards personal expenses of the deceased, has assessed financial dependency of claimants at Rs. 10,000/- per annum. It is the case of the claimants that age of Govind Ram and Ram Prasad were 32 years and 34 respectively at the time of their death, but as per post mortem report, the age of Govind Ram and Ram Prasad were opined by the doctor as 46 years and 49 years respectively. Therefore, the learned Tribunal has taken into consideration the age of deceased as 46 years and 49 years respectively and selected the multiplier of ‘13’ for the age group of 45-50 years in view of IInd Schedule given in Section 163-A of Motor Vehicles Act. The Tribunal after adopting the multiplier of ‘13’ has assessed the total amount of compensation at Rs.10,000 x 13=Rs.1,30,000/-, which appears to be justified and needs no interference. The Tribunal also awarded a sum of Rs.2000/- towards funeral expenses and a sum of Rs.5000/- for loss of consortium, which also appears to be justified and needs no interference. The interest as has been indicated in the award also does not require any interference. As regards liability of payment of compensation to be awarded in favour of claimants, the Tribunal has given a finding that offending vehicle Truck No. UP 07E-7267 was insured with The New India Assurance Company Limited on the date of accident, therefore, insurance company is liable to pay the compensation. I do not find any 8 reason to disturb the said finding recorded by the Tribunal in this regard and the same deserves to be confirmed. For the reasons stated above, the appeals lack merit and are liable to be dismissed. Accordingly, appeals are dismissed. The impugned judgment and awards dated 13.12.2005 passed by the Tribunal in M.A.C.T. Case No.226/2003 as well as in M.A.C.T. Case No.225/2003, are hereby confirmed. The statutory amount deposited by the appellant before this Court, be remitted to the Tribunal concerned. Let a copy of this judgment be placed in the file of A.O. 14 of 2006. (B. C. Kandpal, J.) SP