IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 284 of 2007 Pooran Chandra Tiwari & others … Appellants Vs Ibne Hasan & others … Respondents Sri Davendra Pant, learned counsel for the appellants Sri D.S.Patni, learned counsel for the respondent No. 3 Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed by the appellants against the judgment and award dated 10.08.2006 passed by Motor Accident Claim Tribunal/District Judge, Nainital in Motor Accident Claim Case No. 71 of 2005, Pooran Chandra Tiwari & others Vs Ibne Hasan & others. 2. Brief facts of the case are that on 10.07.2004, Smt. Uma Tiwari was going to Lalkuan in Vikram No. UA04A/1364. When the said tempo reached near Depot No. 5, suddenly, a truck bearing registration No. DL1GA/2281, which was being driven by its driver in a rash and negligent manner. In the said accident, so many other persons received injuries, including Smt. Uma Tiwari. Smt. Uma Tiwari, succumbed to injuries received by her in this accident. According to the claim petition, she was housewife and used to earn Rs. 2,000/- per month by tuition. Therefore, the claimants filed the claim petition for a sum of Rs. 5,60,00/- as compensation. 3. Opposite party No. 1 – Sri Ibne Hassan, owner of truck No. DL1G/2281 contested the claim petition by filing written statement before the Tribunal alleging therein that the claim petition was liable to be dismissed for non joinder of the necessary parties. Opposite party No. 2 – Smt. Kanchan 2 Tiwari also contested the claim petition alleging therein that her husband was the driver of tempo in question. It has also pleaded that the accident took place due to rash and negligent driving of the truck in question. It has further alleged that on the date of accident, the tempo in question was insured with the United India Insurance Company Ltd. Opposite party No. 3 – United India Insurance Company also contested the claim petition by filing written statement before the Tribunal on the ground that the accident took place due to rash and negligent driving of the driver of truck in question. It has also pleaded that the driver of the tempo carrying more passenger then its capacity. 4. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues, which were discussed in great detail. Thereafter, both the parties led evidence in support of their case. After hearing learned counsel for the parties and perusing the entire material available on record, the Tribunal decreed the claim petition for a sum of Rs. 1,40,000/- along with condition interest of 6% per annum vide judgment and award dated 10.08.2006. 5. Feeling aggrieved by the aforesaid judgment and award, the claimants/appellants have preferred this appeal before this Court for enhancement of the amount of compensation. 6. Heard Sri Davendra Pant, learned counsel for the appellants, Sri D.S.Patni, learned counsel for the respondent No. 3 and perused the record. 7. As far as the factum of accident is concerned, the Tribunal on the basis of the material available on record held 3 that the accident took place due to rash and negligent driving of the truck in question. From the perusal of the record, it has come to my notice that the driver of the truck had not been produced as a witness and the driver of the tempo has died in the accident, therefore, the Tribunal on the basis of the evidence as well as facts and circumstances of the case has rightly held that the accident took place due to rash and negligent driving of the truck in question. I am in total agreement with the finding recorded by the Tribunal with regard to the rash and negligent driving. 8. Learned counsel for the appellant has submitted before the Court that the deceased was doing tuition in her house and used to earn Rs. 2,000/- per month whereas the Tribunal considered the notional income of the deceased as Rs. 15,000/- in order to calculate the amount of compensation. Therefore, the amount of compensation awarded by the Tribunal is liable to be enhanced. 9. After hearing learned counsel for the appellant as well as going through the record, I do not find any force in the submission advanced by learned counsel for the appellants. According to the submission as well as from the perusal of the claim petition, the claimants have mentioned that the deceased was earning Rs. 2,000/- per month by doing tuitions, but there is no evidence available on record, which may reveal that the deceased was actually getting that amount by way of tuition. Under the aforesaid facts and circumstances of the case, the Tribunal considered the notional income of the deceased as Rs. 15,000/- per annum in order to calculate the income of the deceased, which appears to he quite just and proper. Further the Tribunal deducted 1/3rd towards personal expenses and the same come to Rs. 4 10,000/- per annum. The Tribunal considering the age of the deceased as 45 years adopted the multiplier of ‘13’, which appears to be quite justified. On the basis of the aforesaid calculation, the amount of compensation comes to Rs. 1,30,000/- (10000 X 13). Further, the Tribunal awarded a sum of Rs. 10,000/- under different, which is also admittedly justified. Thus, the Tribunal in total awarded a sum of Rs. 1,40,000/- along with conditional interest. 10. I do not find any ground to interfere in the impugned judgment and award. The Tribunal on the basis of the material available on record has rightly awarded the amount of compensation. The amount awarded by the Tribunal is just and proper. The appeal lacks merit and is liable to be dismissed. 11. Accordingly, the appeal is dismissed. No order as to costs. (B.C. Kandpal, J.) 12.12.2008 ASWAL