IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 93 of 2008 Smt. Yashoda Devi … Appellant Versus Shri Ganesh Prasad & others … Respondents And Appeal From Order No. 549 of 2007 Oriental Insurance Co. Ltd. … Appellant Versus Smt. Yashoda Devi & others … Respondents Sri Niranjan Bhatt, Advocate, for appellant-claimant Sri D.S. Patni, Advocate, for insurance Company Sri B.S. Negi, Advocate, for respondents no. 4 & 5 Dated: April 23, 2008 Hon’ble B.C. Kandpal, J. A.O. No. 93 of 2008, under Section 173 of Motor Vehicle Act, 1988, has been preferred against the judgment and award dated 03.07.2006 passed by Motor Accident Claims Tribunal, Uttarkashi, in M.A.C. Case No. 41 of 2005, Smt. Yashoda Devi & others vs. Ganesh Prasad & others. Briefly stated the facts, according to the claimants, are that on 12.10.2005 deceased-Vijay Prakash Misra was going through Vehicle No.U.A. 10-4656 from Uttarkashi to Chinyalisaud. When the said vehicle reached near Dharasu Bend, it met with an accident due to rash and negligence of bus driver-Ganesh Prasad and fell into Ganges river resulting into death of deceased-Vijay Prakash Misra instantaneously. The claimants have pleaded that at the time of accident the deceased was 32 years of age and used to earn Rs.10,000/- per month by working as vehicle driver/mechanic. The Claimants claimed for a sum of Rs.19,25,000/- as compensation, along with interest @ 12% per annum, against the opposite parties. The opposite parties no. 1 and 2- driver and owner of offending vehicle, filed their joint written statement refuting the contents of claim petition. They have pleaded that accident did not take place due to rash and negligence of bus driver, rather it occurred on account of sudden steering lock of vehicle. They have also pleaded that driver of offending vehicle had been an expert driver for last 4-5 years and prior to that accident no accident had been caused due to his rash and negligence. They have further pleaded that offending vehicle was being plied validly and it was insured with Oriental Insurance Company Limited, Branch Ludhiyana, at the time of accident, therefore, the insurance company is liable to pay compensation, if any. The opposite party no. 3-Oriental Insurance Company Limited filed written statement refuting the contents of claim petition. It has pleaded that claim petition was filed by claimants in collusion with opposite party no. 1-driver of offending vehicle. It has further pleaded that offending vehicle in question was carrying about 14 passengers at the time of accident while it was authorized to carry the passengers upto the limit of 10 in number, which is breach of insurance policy as well as traffic rules, therefore, the owner of vehicle is liable to pay compensation, if any and not insurance company. The learned Tribunal on the basis of pleadings of parties framed relevant issues in the claim petition. Parties led evidence in support of their cases. The learned Tribunal after having considered the material available before it and hearing learned counsel for the parties decreed the claim petition for a sum of Rs.2,02,000/- as compensation, in favour of claimants, payable by opposite party no. 3- Oriental Insurance Company Ltd., within a period of 30 days from the date of judgment, along with interest @ 6% per annum from the date of presentation of petition till the date of payment. Feeling aggrieved by the aforesaid impugned judgment and award, the appellant-claimant (Smt. Yashoda Devi) has filed the appeal before this Court for enhancement of compensation. The insurance company has also field cross appeal before this Court. Heard Sri Niranjan Bhatt, learned counsel for the appellants-claimants, Sri D.S. Patni, learned counsel for Oriental Insurance Co. Ltd., Sri B.S. Negi, for respondents no. 4 & 5(Ganesh Prasad & Ram Shankar) and perused the record. Sri Niranjan Bhatt, learned counsel for the appellant-claimant has submitted that learned Tribunal has committed error in awarding the compensation by taking the notional income of deceased as Rs.15,000/- per annum, instead of Rs.36,000/- per annum, and by awarding interest less than 12% per annum, therefore, awarded amount of compensation should be enhanced by this Court. I have gone through the impugned judgment and award thoroughly. The claim petition filed by claimants shows that accident occurred due to rash and negligence of driver of offending vehicle. The driver and owner of offending vehicle denied this fact in their written statement and pleaded that accident occurred on account of sudden steering lock of vehicle, but they have not adduced any evidence in this regard. Smt. Yashoda Devi has been produced by claimants as PW-1 and she deposed in her statement that accident occurred due to rash and negligence of driver of offending vehicle No. 4656 which resulted into death of deceased-Vijay Prakash Misra instaneously near Dharasu Bend on the way of Uttarkashi to Chinyalisaud. This witness has also been cross examined but she deposed in her cross examination that she did not know how the accident occurred. The another witness produced by the claimants in this case as PW-2 Harsh Mani, deposed in his statement that he on Vehicle No. 4554 was trailing just behind offending vehicle at the time of accident and when the offending vehicle reached near Dharasu Bend it met with accident due to rash and negligence of driver of offending vehicle and vehicle fell into deep Khad. This witness further deposed that said accident occurred in his presence and he also went at the place of accident. The deceased-Vijay Prakash Misra dies on the spot itself. The dead body of deceased was sent to hospital where after Panchnama dead body was handed over to family members of deceased for cremation. This witness has also been cross examined and he in his cross examination denied the suggestion that accident did not occurred in his presence and driver was not rash and negligence at the time of accident. The opposite parties failed to produce any evidence which may suggest that accident did not take place due to rash and negligence of driver, rather it occurred due to technical fault in offending vehicle. The Tribunal after having considered the entire evidence adduced by the parties came to the conclusion that accident occurred due to rash and negligence of driver of offending vehicle. Therefore, I do not find any reason to disturb the finding recorded by the Tribunal in this regard. As far as amount of compensation to be paid to the claimants is concerned, the impugned judgment and award indicates that the Tribunal has adopted the multiplier of ‘17’ in this case. In view of the latest pronouncement of the Hon’ble Apex Court cited in the case of Tamil Nadu State Transport Corporation Ltd. Versus S. Rajpriya & others, reported in 2005 (4) SC 87, the multiplier of ‘17’ keeping in view the age of deceased as 32 years at the time of accident appears to be on excessive side. The Hon’ble Apex Court in the cases where the age of deceased was 32 years has ruled that multiplier of ‘12’ would be just and reasonable. Therefore, in this case, a multiplier of ‘12’ would be just and proper. The Tribunal has further assessed the financial dependency of the claimants as Rs.10,000/- per annum by considering this aspect that notional income of a person where the income is not proved, would be Rs.15,000/- per annum and after deducting 1/3rd out of it as personal expenses of deceased the financial dependency of claimants would be Rs.10,000/- per annum. This finding recorded by the Tribunal also appears to be wrong in view of the decision of the Division Bench of this Court passed in A.O. No. 2 of 2005, Shobhan Singh and another vs. New India Insurance Company and another, decided on 1.11.2006, in which the notional income has been assessed at Rs.36,000/- per annum. Therefore, in this case also the notional income of deceased should be Rs.36,000/- per annum, instead of Rs.15,000/- per annum and after deducting 1/3rd out of it as personal expenses of the deceased the financial dependency of claimants would come to Rs. 24,000/- per annum. In view of the aforesaid discussion the total amount of compensation to be awarded in favour of claimants in this case would be Rs.24,000 x 12=Rs.2,88,000/-. The amount as has been awarded by the Tribunal under different heads of pain, suffering, loss of consortium and cremation is liable to be set aside. The claimants would thus be entitled to get an amount of compensation for a sum of Rs.2,88,000/- (Rupees Two Lacs Eighty Eight Thousand only), instead of Rs.2,02,000/- as has been awarded by the Tribunal. The rate of interest indicated by the Tribunal in the impugned judgment and award is not to be interfered with. The apportionment of the amount among the claimants as has been indicated in the impugned judgment and award shall also remain intact. Accordingly, A.O. No. 93 of 2008 is partly allowed. The impugned judgment and award dated 03.07.2008 is modified to the above extent. In A.O. No. 549 of 2007 filed by insurance company, learned counsel for the appellant- insurance company has confined his argument to the aspect that offending vehicle in question was carrying about 14 passengers at the time of accident while it was authorized to carry the passengers upto the limit of 10 in number. The record reveals that offending vehicle was insured with Oriental Insurance Company Limited at the time of accident and the insurance company has taken the plea that the vehicle was carrying the passengers more than its capacity envisaged under the policy. It has been submitted that the offending vehicle was not authorized to carry more than 10 passengers but at the time of accident this vehicle was carrying 14 passengers. The eye witness produced by the claimants in this case as PW-2 Harsh Mani, who on Vehicle No. 4554 was trailing behind offending vehicle at the time of accident, deposed in his statement that offending vehicle was carrying only 8-9 passengers at the time of accident. The offending vehicle had the capacity of 10 passengers at a time, therefore, on the basis of statement of eye witness it is quite clear that the offending vehicle was not overloaded in any case. The insurance company has not adduced any evidence before the court below to establish this aspect that the offending vehicle was actually carrying 14 passengers at the time of accident. The Tribunal has dealt this aspect while deciding issue no. 2 in the impugned judgment and award and the finding of the Tribunal is also specific to this effect that the offending vehicle was not carrying 14 passengers at the time of accident. The Tribunal rather recorded a finding that there is no evidence available on record which may indicate that the offending vehicle was carrying more than 10 passengers at the time of accident. Therefore, I do not find any force in this argument advanced by learned counsel for the appellant-insurance company. In view of above discussion, A.O. No. 549 of 2007 fails and is dismissed. Accordingly, A.O. No. 93 of 2008 is partly allowed, whereas A.O. No. 549 of 2007 is dismissed. The impugned judgment and award dated 03.07.2008 is modified to the above extent. Let a copy of this judgment be placed in the file of A.O. No. 549 of 2007. (B.C. Kandpal, J.) SP