IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A. O. No. 583/2007 Irshad Ahmad .. Appellant Versus Smt. Kamlesh and others ….. Respondents. Sri Lok Pal Singh, learned counsel for the appellant. Sri Vijay Khanduri, Advocate for respondents 1 to 4. Sri M.K. Goyal, Advocate for respondent No.5. Dated: 16-4-2009 Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicle Act, arise out against the judgment and award dated 4-12-2007, passed by Motor Accident Claim Tribunal/ District Judge, Chamoli, in MACT Case No. 03 of 2007, Smt. Kamlesh and others Vs. Irshad Ahmad and another. 2- The facts of the case, in short, giving rise to this appeal, are that on 19-10-2007, Mukesh Kumar, on his transfer, was going to Chamoli from Gopeshwar along with his household luggage in Truck No. U.P. 20-J-4486. At about 7.15P.M., when the aforesaid Truck reached near village Gwelon, it met with accident due to rash and negligence of its driver, in which Mukesh Kumar sustained grievous injuries and he was brought to District Hospital, Gopeshwar and the doctors at Gopeshwar advised to admit him in Base Hospital, Srinagar. From Srinagar, seeing the precarious condition of Mukesh Kumar, he was referred to Dehradun. Hence he was carried to Mahant Indresh Hospital, Dehradun, where he succumbed to injuries on 21.10.2006. According to the claimants the deceased was 29 years of age and he was in service in Nagar Palika Parishad Chamoli and his monthly salary was Rs. 3,000/-. He also used to earn Rs. 2000/- per from doing the sanitary 2 work at the houses of the locality. Therefore claimants filed petition for compensation. 3- The opposite party No.1, owner of the Truck filed his written statement and admitted the accident. He alleged that the truck in question was insured with New India Assurance Company and its driver was possessing valid and effective driving license at the time of accident, therefore, the liability of compensation, if any, is upon the shoulder of the insurer. 4- The opposite party No.2, New India Assurance Company, also contested the claim petition by filing its written statement denying the allegations made in the petition. The insurer also alleged that the driver of the offending truck was not having valid driving license and the truck was also not valid having registration, insurance etc. and it was being plied against the terms of insurance policy. 5- The learned tribunal on the pleadings of parties framed the following issues in the claim petition:- 1- Whether on 19-10-2006, at about 7.15 P.M., the vehicle U.P. 20-J-4486 met with accident due to the rash and negligence of its driver near village Gwelon, P.S. Chamoli, in which Mukesh Kumar sustained grievous injuries and he succumbed to the injuries? If so, its effect?. 2- Whether the vehicle involved in the accident was not being plied in accordance with the terms of insurance policy, as alleged by opposite party No.2 in its W.S.? If so, its effect?. 3- To what relief, the claimants are entitled to get and how much and from whom?. 3 6- Thereafter, parties adduced evidence in support of their case. The learned tribunal after hearing learned counsel for the parties and perusing the entire material available on record, decreed the claim petition for a sum of Rs. 2,95,750/- along with interest @ 5% per annum from the date of filing the petition till the date of actual payment against the owner of the offending truck. The claim against the New India Assurance Company was rejected. 7- Feeling aggrieved, the owner of the offending vehicle has preferred this appeal before this Court. 8- I have heard learned counsel for the parties and perused the entire material available on record. 9- So far as the factum of accident is concerned, it is admitted to the parties that Truck No. U.P. 20-J- 4486, met with accident on the date, time and place as alleged by the claimants. It is also proved that deceased Mukesh Kumar, who was travelling in the said truck, sustained grievous injuries and died later-on due to the injuries sustained by him in the accident. P.W.1, Smt. Kamlesh has deposed on oath that the accident has occurred due to rash and negligence of the driver of the truck. This witness has not been cross-examined from the side of opposite parties on the point of rash and negligence of the driver. Although owner of the truck has taken plea in his written statement that the accident has occurred due to some mechanical defect in the truck but no evidence was adduced to prove this factum. The learned tribunal has taken note of this fact that the road where the accident took place was wide enough, the driver of the truck also died in the accident and technical inspection was carried out of the offending 4 truck, as such the accident was caused by rash and negligence of the driver. I am in full agreement with the finding recorded by the tribunal that the accident was occurred due to rash and negligence of the driver. 10- So far as the offending truck having valid registration, fitness, insurance and permit and the driver having valid and effective driving license is concerned, the tribunal has decided the same on issue no.2. The owner of the offending vehicle has produced registration certificate, fitness certificate, permit etc. He also filed copies of driving license and insurance cover note and the tribunal found these documents valid at the time of accident. However, the tribunal held that the truck was being driven against the terms of insurance policy. At the time of accident, the deceased was not transporting his household luggage, but he was travelling in it as a gratuitous passenger. The owner of the truck was also travelling in the truck. Irshad Ahmad, owner of the truck himself has admitted that at the time of accident in all 8 person were occupying the truck and the deceased Mukesh Kumar was not transporting his household luggage, but he was simply travelling in it from Gopeshwar to Chamoli. Therefore, the learned tribunal has rightly concluded that the deceased Mukesh Kumar was a gratuitous passenger and the truck was being plied against the terms of insurance policy. Hence, the owner of the truck has rightly be fastened with the liability to pay the compensation. The conclusion arrived at by the tribunal does not require any interference. 11- As far as the compensation awarded by the tribunal is concerned, the tribunal has assessed the monthly income of the deceased as Rs. 2,500/-. The deceased was a daily wager in Nagar Palika, therefore, 5 the tribunal has rightly given the reasoning that the deceased would be getting the wages of working days only and not for holidays, hence the monthly income assessed by the tribunal is quite reasonable. The tribunal after deducting 1/3rd towards personal expenses of the deceased, assessed the total annual dependency of Rs. 20,000/-. The deceased at the time of accident was 29 years of age and the tribunal has adopted the multiplier of 14, which is a just and proper multiplier. Therefore, the total compensation was assessed as Rs. 20,000/- X 14= Rs. 2,80,000/-. The tribunal further awarded Rs. 2,000/- towards funeral expenses, Rs. 2,500/- towards loss of estate and Rs. 5,000/- towards loss of consortium. The tribunal also awarded a sum of Rs. 6,250/- towards medical expenses. In my opinion, the claimants are entitled to get the above amounts as has been awarded by the tribunal. Therefore, the total compensation comes to Rs. 2,80,000/- + Rs.2,000/-+ Rs. 2,500/-+ Rs. 5,000/- + Rs. 6,250/-= Rs. 2,95,750/-. I am of the considered view that the tribunal has awarded a justified amount towards the compensation and the same does not require interference by this court. 12- For the reasons noted above, the appeal lacks merit and is liable to be dismissed. 13- Accordingly, the appeal is dismissed. The impugned judgment and award is hereby confirmed. 14- The statutory amount of compensation, deposited by the appellant, at the time of filing this appeal, be remitted to the tribunal concerned. (B.C. Kandpal, J.) ISB 6 7