IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal Against Order No. 12 of 2008 The New India Assurance Co. Ltd. …Appellant Versus Vijendra Singh & others …Respondents Sri T.A. Khan, Advocate for appellant Sri G.C. Lakhchaura, Advocate for respondents no. 1 to 3 Dated: November 25, 2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the appellant-The New India Assurance Co. Ltd., who is insurer of offending vehicle in question, against the judgment and award dated 31.10.2007 passed by Motor Accident Claims Tribunal/Additional District Judge, Kashipur, District Udham Singh Nagar, in M.A.C.P. No. 57 of 2007, between Vijendra Singh & others versus Sandeep Sharma and others. The claimants filed a claim petition under Section 166/140 of Motor Vehicles Act before the Claims Tribunal for grant of compensation on account of death of deceased-Rajeev Singh in a motor vehicle accident alleging therein that on 29.12.2006 when deceased-Rajeev Singh was coming from Kashipur to Tada Ujjain, meanwhile a Truck bearing Registration No. U.P.15-C-4463 coming from rear side, which was driven by its driver rashly and negligently, dashed the deceased, as a result of which deceased sustained multiple 2 injuries on his person and was brought to the hospital but during the way he died. The deceased was aged about 23 years at the time of his death and he was an agriculturist and was teaching tuition to students and he used to earn Rs.5000/- per month from the said work. The claimants claimed compensation severally and jointly against the opposite parties. Opposite party no. 1-owner of offending vehicle in question filed his written statement denying the contents of the claim petition. In the additional pleas, it has been stated that alleged accident did not take place due to rash and negligent driving of driver of Tanker No.UP-15C-4463, on 29.12.2006 at Railway Station Kashipur. It has also been stated that on the date of alleged accident all the papers of vehicle of opposite party no. 1 were valid and they are also still valid. Tanker No. UP-15-C-4463 of opposite party no. 1 is insured with opposite party no. 2-The New India Assurance Co. Ltd. Therefore, answering opposite party is not entitled to pay any compensation to the claimants. It has further been stated that claimants have claimed an excessive and exorbitant amount of compensation, which is beyond the limit and therefore claim petition is liable to be dismissed. It has also been stated that claimants have filed the claim petition wrongly in order to get compensation and therefore on this ground also claim petition filed against answering opposite party is liable to be dismissed. Opposite party no. 2-insurance company/appellant before this Court, filed its written statement denying the contents of claim 3 petition as well as factum of accident. It has also pleaded that liability to pay the compensation to the claimants by answering opposite party is only under the terms and rules of insurance policy and insurance company is not liable to pay any compensation in case of violation of conditions of insurance policy as well as provisions of Motor Vehicles Act, by the owner of vehicle. It has further been pleaded that insurance company had not been given any information with regard to alleged accident and therefore no liability of insurance company can be proved with regard to the said accident and claim petition filed against opposite party no. 2 is liable to be dismissed. The learned Tribunal on the basis of pleadings adduced by the parties framed relevant issues in the claim petition, which were discussed in detail. Parties led evidence in support of their cases. The learned Tribunal after having considered the entire material available on record and hearing learned counsel for the parties, decreed the claim petition for a sum of Rs.2,90,000/-, against opposite party no. 2-The New India Assurance Co. Ltd., along with interest at the rate of 7% per annum from the date of filing the petition till the date of actual payment, vide judgment and award dated 31.10.2007. Feeling aggrieved by the aforesaid impugned judgment and award, appellant-The New India Assurance Co. Ltd. has preferred the present appeal before this Court. 4 Heard Sri T.A. Khan, learned counsel for appellant-insurance company, Sri G.C. Lakhchaura, learned counsel for claimants-respondents no. 1 to 3 and perused the record. Learned counsel for the appellant has submitted that learned Tribunal did not consider this fact that there was no proof of death of deceased, as such, there was no nexus in the alleged accident and the death. He has further submitted that multiplier adopted by the Tribunal is also on higher side. As far as factum of accident is concerned, the evidence on record clearly reveals that on 29.12.2006, at some time, near Railway Station, Kashipur, P.S. Kashipur, District Udham Singh Nagar, accident had occurred on account of dashing to deceased-Rajeev Singh with Tanker No. U.P.15C- 4463 being driven by its driver rashly and negligently and on account of his rash and negligence deceased-Rajeev Singh sustained injuries in the accident and subsequently died on the way to Sai Hospital, Moradabad. As far as possession of valid driving licence with driver of offending vehicle, is concerned, The Tribunal recorded a categorical finding that driving licence of driver of offending vehicle i.e. Tanker No.U.P.15-C-4463 was valid and effective on the date of accident. The findings recorded by the Tribunal on the aforesaid issues do no require any interference. As far as amount of compensation to be awarded in favour of claimants is concerned, it reveals from the record that wife of deceased died 5 during the pendency of proceedings of the claim petition before the Tribunal. The deceased had no child. He left only his parents, brother and sister. The sister had also been married during the pendency of the claim petition. Therefore, the Tribunal has rightly awarded the compensation on the basis of fact that the same would be payable to the surviving parents and brother of the deceased. The multiplier which has been adopted by the Tribunal is, of course, on higher side. The evidence available on record shows that age of parents is 46 years and 47 years respectively. Although no cogent evidence has been adduced by the claimants in order to show actual age of parents of deceased, but as per the pleadings adduced by the claimants age of parents appears to be 46 years and 47 years respectively. In case, if the age of parents is taken into account, then, in my view, the multiplier in this case cannot travel more than ‘10’ in any manner. The income of deceased has been assessed by the Tribunal at Rs.36,000/- per annum and after deducting one-third out of it financial dependency of claimants has been assessed at Rs.24,000/- per annum. If multiplier of ‘10’, as I have already indicated above, is adopted in this case, then the amount of compensation to be paid to the claimants comes to Rs.24,000 x 10=Rs.2,40,000/-. The Tribunal has awarded a sum of Rs.2000/- as expenses incurred towards funeral and I do not find anything to interfere in the same. 6 As the offending vehicle in question was insured with The New India Assurance Co. Ltd./appellant at the time of accident, therefore, the Tribunal has rightly directed that liability to pay the amount of compensation rests upon insurance company and I am of the view that finding recorded by the Tribunal in this regard is not to be disturbed. Having considered the aforesaid circumstances and evidence available on record as well as hearing learned counsel for the parties, I am of the view that claimants are entitled for a sum of Rs.2,40,000 + Rs.2,000=Rs.2,42,000/- as compensation, along with interest indicated in the impugned judgment and award, instead of Rs.2,90,000/- as has been awarded by the Tribunal. Accordingly, appeal is partly allowed. The impugned judgment and award is modified to the extent that claimants are entitled for a sum of Rs.2,42,000/- (Rupees Two Lacs Forty Two Thousand) as compensation, along with interest indicated in the impugned judgment and award, instead of Rs.2,90,000/- as has been awarded by the Tribunal in the impugned judgment and award. The statutory amount deposited by the appellant with this Court be remitted to the Tribunal concerned. (B.C. Kandpal, J.) SP