IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 845 of 2006 The New India Assurance Company Ltd. … Appellant Vs Smt. Anita Rani & others … Respondents Sri P.C. Maulekhi, learned counsel for the appellant/Insurance Company Sri Vipul Sharma, learned counsel for the claimants/respondents Sri M.K. Ray, learned counsel for the respondent No. 8 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 16.09.2006 passed by Motor Accident Claim Tribunal/District Judge, Udham Singh Nagar in Motor Accident Claim Case No. 1 of 2004, Smt. Anita Rani & others Vs Smt. Paro Bai & others. 2. Brief facts of the case are that on 03.10.2003, the deceased Ashok Kumar along with Sushant Sikandar and Srivas was going on motorcycle to Jafarpur Bazar. At about 06:30 p.m., when they reached near Shivpur Village, suddenly, a tractor bearing registration No. UA06A/4183, which was being driven by its driver in a very rash and negligent manner, hit the said motorcycle, due to which Ashok Kumar sustained serious injuries and succumbed to injuries. The other two persons also sustained serious injuries. According to the claim petition, the deceased was 40 years of age at the time of the accident and used to earn Rs. 3,000/- per month by driving tempo. The claimants are the legal representatives of the deceased. Hence, they filed a claim petition before the Tribunal for a sum of Rs. 7,00,000/- as compensation. 2 3. Smt. Paro Bai W/o Late Sri Polaram contested the claim petition by filing written statement before the Tribunal alleging therein that her husband was the owner of the tractor in question. She has alleged that the accident took place due to negligence of the driver of the motorcycle. It has further pleaded that the tractor in question was insured with the New India Assurance Company Ltd., therefore, liability, if any of compensation, lies upon the insurer of the vehicle in question. 4. Sri Raja Ram was the owner of tractor No. UA06A/4183. He had filed the written statement before the Tribunal on the ground that on the date of accident, the accident took place due to rash and negligent driving of motorcyclist. It has further alleged that the truck in question was insured with New India Assurance Company Ltd., therefore, the insurer of the vehicle is liable to pay compensation, if any. 5. Sri Ranjeet Dhali did not contest the claim petition, therefore, the court below proceed ex-parte against him. 6. The New India Assurance Company Ltd. also contested the claim petition by filing written statement before the Tribunal denying most of the allegations made in the claim petition. It has pleaded that on the date of accident the driver of the tractor driving the tractor in a rash manner and he was not having the valid and effective driving licence. It has further pleaded that the claim petition was liable to be dismissed for non joinder of the parties i.e. motorcyclist as well as insurer of the motorcycle. Therefore, the claim petition was liable to be dismissed against the applicant/insurer of the tractor. 3 7. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues in the claim petition. Thereafter both the parties led evidence in support of their case. After hearing learned counsel for the parties and perusing the entire record, the Tribunal decreed the claim petition for a sum of Rs. 3,67,000/- as compensation along with interest @ 5% per annum vide judgment and order dated 16.09.2006. 8. Feeling aggrieved by the aforesaid judgment and award, the claimant/insurer of tractor preferred this appeal before this Court. 9. Heard Sri P.C. Maulekhi, learned counsel for the appellant/Insurance Company, Sri Vipul Sharma, learned counsel for the claimants/respondents, Sri M.K. Ray, learned counsel for the respondent No. 8 and perused the record. 10. Learned counsel for the appellant has firstly argued that the Tribunal without assessing the evidence available on record has decided the claim in a cursory manner. He has submitted that the Tribunal did not consider this aspect of the matter that on the date of accident, the motorcycle was being plied along with two persons, namely, Sushant Sikandar and Srivas but the Tribunal fell in error by not considering this aspect of matter. He has further submitted there must be some contributory negligence on the part of the motorcyclist but the Tribunal fastened the liability of compensation upon the appellant/insurer of the tractor. 11. Learned counsel for the claimants has made the rival contention and has submitted that the Tribunal on the basis of the evidence available on record rightly held that the 4 accident took place due to rash and negligent driving of the driver of tractor. The Tribunal has not committed any error which deciding the issue No. 1 relating to the rash and negligent driving. 12. After hearing learned counsel for the parties and going through the record, I do not find any force in the submission advanced by learned counsel for the appellant. From the perusal of the impugned judgment, it reveals that P.W.3- Nirmal Manjhi has filed his affidavit showing therein that at the time of the accident he was plying tempo behind the tractor in question and the driver of the tractor was driving the tractor in a high speed and it collided with the motorcycle. He has further stated that the driver of the tractor ran away from the spot leaving his tractor at the spot. In this accident Ashok Kumar has died at the spot itself. The opposite party/appellant did not controvert the above statement of this witness – Nirmal Manjhi, therefore, the Tribunal was justified in fixing the sole liability of negligence on the part of the driver of the tractor. I have also gone through the paper No. 40C/11, which is site plan of the accident and from the perusal of this document, it apparently shows that the tractor was collided with the motorcycle on the extreme right of its side at the corner of the road, therefore, the Tribunal has rightly decided this issue against the owner of the tractor trolley. As the tractor was insured with the appellant/New India Assurance Company Ltd., therefore, the Tribunal has rightly held that the insurer of the tractor was liable to pay the amount of compensation. 13. Learned counsel for the appellant/New India Assurance Company Ltd. has submitted before the Court that the Tribunal without considering the evidence available on 5 record has assessed the monthly income of the deceased on the higher side. He has further submitted that the Tribunal without any proof of income took the monthly income of the deceased, which is unjustified. He has also submitted that the Tribunal taken the multiplier of ’15’, which also appears on the higher side. 14. Sri Vipul Sharma, learned counsel for the respondents/claimants has made the rival contention and has submitted that the Tribunal after considering the entire material available on record as well as considering the facts and circumstances of the case has rightly calculated the amount of compensation. He has further submitted that the impugned judgment and award is perfectly justified. 15. As far as the amount of compensation to be awarded to the claimants is concerned, according to the claim petition, the claimants have taken the plea therein that the deceased had been earning Rs. 3,000/- per month from his job. The deceased was plying a tempo in order to feed the requirement of his family. In the absence of any documentary evidence as well as considering the facts and circumstances of the case, the Tribunal has considered the monthly notional income of the deceased as Rs. 3,000/- and after deducting 1/3rd towards personal expenses, the annual dependency of the claimants comes to Rs. 24,000/-. It is not disputed that the deceased was 40 years of age on the date of accident, therefore, the Tribunal adopted the multiplier of ‘15’ in order to calculate the amount of compensation. Keeping in view the age of the deceased as well as in the light of the judgment of the Hon’ble Apex court in The New India Assurance Company Ltd. Vs Smt. Kalpana & others reported in (2007) 2 Supreme Court Cases (Cri) 94, T.N. State Transport 6 Corporation Vs S. Rajapriya & others reported in (2005) 6 SCC 276 and The Managing Director, TNSTC Vs Sripriya & others reported in 2007 (5) Supreme 301, the multiplier cannot travel more than ‘10’ in any manner in the instant case. After applying the multiplier of ‘10’, the total amount of compensation to be awarded in favour of the claimants comes to Rs. 2,40,000/- (24000 X 10). The amount awarded by the Tribunal under different heads shall remain intact (Rs. 2000 + 5000). Thus, the claimants are entitled to get the total amount of compensation as Rs. 2,47,000/-. 16. So far as the rate of interest is concerned, I think it would be justified if interest is awarded @ 6% per annum instead of 5% per annum from the date of filing the claim petition. No other point has been pressed by the learned counsel for the appellant. 17. Accordingly, the appeal is partly allowed. The impugned judgment and award is modified upto the extent that the claimants are entitled for a sum of Rs. 2,47,000/- instead of Rs. 3,67,000/- along with interest @ 6% per annum instead of 5% per annum (as has been awarded by the Tribunal) from the date of filing the claim petition, till the actual date of payment. 18. The statutory amount deposited by the appellant before this Court be remitted to the Tribunal concerned. (B.C. Kandpal, J.) 02.06.2009 ASWAL