Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) A.O. No. 374 of 2010 The New India Assurance Company Ltd. - Appellant. Versus Smt. Saroj Negi and others - Respondents. Mr. M.K. Goyal, Advocate for the appellant. Mr. B.P. Nautiyal, Advocate for respondent No.1. Mr. D.C.S. Rawat, Advocate for respondents 5 to 8. None has appeared on behalf of respondents 2 to 4 despite service. (2) A.O. No. 373 of 2010 The New India Assurance Company Ltd. - Appellant. Versus Smt. Gayali Devi Gusai and others - Respondents. Mr. M.K. Goyal, Advocate for the appellant. Mr.G.S. Negi, Advocate for respondent No.1. Mr. D.C.S. Rawat, Advocate for respondents 3 to 6. None has appeared on behalf of respondent 2 despite service. (3) A.O. No. 375 of 2010 The New India Assurance Company Ltd. - Appellant. Versus Sri Bir Singh Gusai and others - Respondents. Mr. M.K. Goyal, Advocate for the appellant. Mr.G.S. Negi, Advocate for respondent No.1. Mr. D.C.S. Rawat, Advocate for respondents 3 to 6. None has appeared on behalf of respondent 2 despite service. (4) A.O. No. 376 of 2010 The New India Assurance Company Ltd. - Appellant. Versus Sri Jaswant Singh Gusai and others - Respondents. Mr. M.K. Goyal, Advocate for the appellant. Mr.G.S. Negi, Advocate for respondent No.1. Mr. D.C.S. Rawat, Advocate for respondents 2 to 5. (5) A.O. No. 377 of 2010 The New India Assurance Company Ltd. - Appellant. Versus Smt. Gayali Devi Gusai and others - Respondents. Mr. M.K. Goyal, Advocate for the appellant. Mr.G.S. Negi, Advocate for respondent No.1. Mr. D.C.S. Rawat, Advocate for respondents 3 to 6. None has appeared on behalf of respondent 2 despite service. 2 (6) A.O. No. 378 of 2010 The New India Assurance Company Ltd. - Appellant. Versus Sri Raghunath Singh and others - Respondents. Mr. M.K. Goyal, Advocate for the appellant. Mr.G.S. Negi, Advocate for respondent No.1. Mr. D.C.S. Rawat, Advocate for respondents 3 to 6. None has appeared on behalf of respondent 2 despite service. (7) A.O. No. 379 of 2010 The New India Assurance Company Ltd. - Appellant. Versus Sri Jaswant Singh and others - Respondents. Mr. M.K. Goyal, Advocate for the appellant. Mr.G.S. Negi, Advocate for respondent No.1. Mr. D.C.S. Rawat, Advocate for respondents 2 to 5. (8) A.O. No. 380 of 2010 The New India Assurance Company Ltd. - Appellant. Versus Sri Jaswant Singh Gusai and others - Respondents. Mr. M.K. Goyal, Advocate for the appellant. Mr.G.S. Negi, Advocate for respondent No.1. Mr. D.C.S. Rawat, Advocate for respondents 2 to 5. (9) A.O. No. 381 of 2010 The New India Assurance Company Ltd. - Appellant. Versus Smt. Gayali Devi and others - Respondents. Mr. M.K. Goyal, Advocate for the appellant. Mr.G.S. Negi, Advocate for respondent No.1. Mr. D.C.S. Rawat, Advocate for respondents 3 to 6. None has appeared on behalf of respondent 2 despite service. (10) A.O. No. 382 of 2010 The New India Assurance Company Ltd. - Appellant. Versus Smt. Gayali Devi and others - Respondents. Mr. M.K. Goyal, Advocate for the appellant. Mr.G.S. Negi, Advocate for respondent No.1. Mr. D.C.S. Rawat, Advocate for respondents 3 to 6. None has appeared on behalf of respondent 2 despite service. 3 (11) A.O. No. 324 of 2010 Smt. Saroj Negi and others - Appellants. Versus New India Assurance Co. and others - Respondents. Mr. B.P. Nautiyal, Advocate for the appellants. Mr. M.K. Goyal, Advocate for respondent No.1. Mr. D.C.S. Rawat, Advocate for respondents 2 to 5. None has appeared on behalf of respondent No.6. (Hon’ble B.S. Verma, J.) Since all these appeals arise out against the same accident and similar controversy is involved in these appeals, therefore, they are being decided by this common judgment. A.O. No. 374/2010 has been preferred against the judgment and award dated 23-6-2010, passed by MACT/District Judge, Pauri in MACT Case No. 10/2005, whereby a sum of Rs. 3,00,000/- has been awarded as compensation in lieu of death of Narendra Singh payable by New India Assurance Company. Interest @ 7% per annum was also awarded from the date of presentation of claim petition till the date of actual payment if the awarded amount is not paid within two months. A.O. No. 373/2010 has been preferred against the judgment and award dated 23-6-2010, passed by MACT/District Judge, Pauri in MACT Case No. 130/2005, whereby a sum of Rs. 50,000/- has been awarded as compensation in lieu of death of minor Sher Singh payable by New India Assurance Company. Interest @ 7% per annum was also awarded from the date of presentation of claim petition till the date of actual payment if the awarded amount is not paid within two months. A.O. No. 375/2010 has been preferred against the judgment and award dated 23-6-2010, passed by MACT/District Judge, Pauri in MACT Case No. 127/2005, whereby a sum of Rs. 1,17,500/- has been awarded as compensation in lieu of death of Km. Anita, payable by New India Assurance Company. Interest @ 7% per annum was also awarded from the date of presentation of claim 4 petition till the date of actual payment if the awarded amount is not paid within two months. A.O. No. 376/2010 has been preferred against the judgment and award dated 23-6-2010, passed by MACT/District Judge, Pauri in MACT Case No. 129/2005, whereby a sum of Rs. 50,000/- has been awarded as compensation in lieu of death of Km. Megha, payable by New India Assurance Company. Interest @ 7% per annum was also awarded from the date of presentation of claim petition till the date of actual payment if the awarded amount is not paid within two months. A.O. No. 377/2010 has been preferred against the judgment and award dated 23-6-2010, passed by MACT/District Judge, Pauri in MACT Case No. 128/2005, whereby a sum of Rs. 50,000/- has been awarded as compensation in lieu of death of Smt. Leela Devi payable by New India Assurance Company. Interest @ 7% per annum was also awarded from the date of presentation of claim petition till the date of actual payment if the awarded amount is not paid within two months. A.O. No. 378/2010 has been preferred against the judgment and award dated 23-6-2010, passed by MACT/District Judge, Pauri in MACT Case No. 132/2005, whereby a sum of Rs. 1,80,000/- has been awarded as compensation in lieu of death of Smt. Sangeeta Devi, payable by New India Assurance Company. Interest @ 7% per annum was also awarded from the date of presentation of claim petition till the date of actual payment if the awarded amount is not paid within two months. A.O. No. 379/2010 has been preferred against the judgment and award dated 23-6-2010, passed by MACT/District Judge, Pauri in MACT Case No. 125/2005, whereby a sum of Rs. 1,80,000/- has been awarded as compensation in lieu of death of Smt. Sampati Devi, payable by New India Assurance Company. Interest @ 7% per annum was also awarded from the date of presentation of claim petition till the date of actual payment if the awarded amount is not paid within two months. A.O. No. 380/2010 has been preferred against the judgment and award dated 23-6-2010, passed by MACT/District 5 Judge, Pauri in MACT Case No. 126/2005, whereby a sum of Rs. 50,000/- has been awarded as compensation in lieu of death of Vivek Singh, payable by New India Assurance Company. Interest @ 7% per annum was also awarded from the date of presentation of claim petition till the date of actual payment if the awarded amount is not paid within two months. A.O. No. 381/2010 has been preferred against the judgment and award dated 23-6-2010, passed by MACT/District Judge, Pauri in MACT Case No. 133/2005, whereby a sum of Rs. 1,55,000/- has been awarded as compensation in lieu of death of Dheeraj Singh, payable by New India Assurance Company. Interest @ 7% per annum was also awarded from the date of presentation of claim petition till the date of actual payment if the awarded amount is not paid within two months. A.O. No. 382/2010 has been preferred against the judgment and award dated 23-6-2010, passed by MACT/District Judge, Pauri in MACT Case No. 131/2005, whereby a sum of Rs. 50,000/- has been awarded as compensation in lieu of death of Sishpal Singh, payable by New India Assurance Company. Interest @ 7% per annum was also awarded from the date of presentation of claim petition till the date of actual payment if the awarded amount is not paid within two months. A.O. No. 324/2010 has been preferred for enhancement of compensation against the judgment and award dated 23-6-2010, passed by MACT/District Judge, Pauri in MACT Case No. 10/2005, whereby a sum of Rs. 3,00,000/- has been awarded as compensation in lieu of death of Narendra Singh payable by New India Assurance Company. Interest @ 7% per annum was also awarded from the date of presentation of claim petition till the date of actual payment if the awarded amount is not paid within two months. Brief facts giving rise to these appeals are that on 14.11.2004, when deceased ladies were returning from jungle with grass and deceased men were returning from Damdewal market to their homes and the deceased children were returning to their houses in village Tapaddhaar from their school, and they reached at place Chodakhndal, at about 4 p.m. Truck bearing registration No. U.P. 06- 6 3256 came there at a high speed and dashed these persons on the road side and dragged them upto some distance. The truck also fell in the khudd. The deceased persons died at the spot. The driver of the truck also died in the accident. The claimants filed claim petitions. The opposite party, owner of the truck contested the claim petitions and admitted the accident. However he alleged that the driver was driving the truck at a moderate speed and the deaths occurred due to act of God as the persons were outside the truck and suddenly involved in the accident with the truck. The truck was insured with New India Assurance Company for the period 27.3.2004 to 26.3.2005. The truck was having valid permit, fitness and registration. The driver was also having valid driving license. The opposite party, New India Assurance Company also contested the claim petitions and denied the allegations made in the claim petitions. According to insurance company the deceased persons were travelling in the truck. There were more than 15 persons travelling in the truck whereas only three persons are permitted to travel in it. The deceased persons were gratuitous passengers and there has been breach of terms of insurance policy, therefore, the insurance company cannot be held liable to pay compensation. The learned tribunal framed issues in the claim petitions. Thereafter parties led evidence in support of their claims. The learned tribunal after hearing counsel for parties and considering the entire material on record, came to the conclusion that the deaths of deceased persons had occurred due of impact of truck U.P. 06-3256, as these persons were standing by the side of the road and the truck came there and dashed these persons in a rash and negligent manner, who fell down and died and the truck also fell down in the khudd. The learned tribunal also held that the truck was having valid insurance cover and its documents were also valid. The driver was also possessing valid driving license and the liability to pay the compensation is upon the New India Assurance Company. Feeling aggrieved New India Assurance Company has filed these appeals. The claimants in MACT 10/2005 also preferred A.O. No. 324/2010 for enhancement of compensation. 7 I have heard learned counsel for parties and perused the record. The learned counsel for the New India Assurance Company has vehemently urged that the deceased persons were travelling in the offending truck. The deceased persons were gratuitous passengers and the truck was being driven in violation of terms of insurance policy, therefore, the learned tribunal has committed a manifest error in fastening the liability upon the insurance company. From perusal of impugned award it reveals that the insurance company has raised this plea in its written statement that the deceased persons were travelling in the offending truck. It is specifically alleged in the written statement that more than 15 persons were travelling in the truck whereas only three persons were allowed to travel in the said truck. The learned tribunal has not framed issue on this point. However, parties adduced evidence on this point. Now it is to be seen whether the deceased persons were travelling in the offending truck or they were crushed by the truck while they were standing by the side of the motor road at the spot. The burden to prove this fact that the deceased persons were travelling inside the truck is upon the insurance company and the insurance company to discharge its burden, has filed the affidavit of Rajneesh Kumar Mittal, Advocate. He is panel lawyer as well as investigator of the insurance company. He has deposed that during investigations he found that the deceased were gratuitous passengers. They were travelling inside the truck. The truck is a goods vehicle and as per law no person other than driver or owner/ care taker of the goods can travel in the goods vehicle. It is pertinent to mention here that Rajneesh Kumar Mittal, is an Advocate by profession and he is investigator of the insurance company. He is not an eye witness of the occurrence and his evidence is hearsay. He has submitted his report simply making base the F.I.R. lodged by Sabar Singh Negi, Up- Pradhan. Sri Sabar Singh had lodged the report that truck No. U.P. 06/3256 met with an accident and all the persons who were travelling in the truck including its driver had died. It seems that Sabar Singh Negi was not eye witness of the occurrence. He has nowhere 8 mentioned in the F.I.R. that he himself had seen the deceased persons travelling in the truck. The F.I.R. lodged by Sabar Singh is belied by the report dated 18.6.2006, Annexure-III given by Sabar Singh Negi to Manager, New India Assurance Company, in which he has mentioned that after receiving the information of accident he along with other persons had reached at the spot. It means this witness had come to know about the accident after it had already taken place and there was no occasion for this witness to witness this fact as to whether the deceased persons were travelling in the truck or they were standing by the side of the road. Further the F.I.R Annexure No.I, written by Sabar Singh, does not bear any date. Again the report submitted by Sabar Singh to Manager, New India Assurance Company is highly belated. The accident had taken place on 14.11.2004, whereas he submitted this report on 18.6.2006. All these facts clearly indicate that Sabar Singh was won over by insurance company in order to cook up a case in their favour to establish that the deceased persons were travelling inside the truck so that the insurance company may be absolved from the liability of payment of compensation. It is also pertinent to mention here that Up-Pradhan Sabar Singh has not been come in witness box to depose this fact that the deceased persons were travelling in the truck. Sabar Singh was a material witness and his non-examination in the claim petition from the side of the insurance company, casts a doubt on the veracity of this person. By non-examining this material witness, an adverse inference would be drawn on the authenticity of the defence taken by insurance company. Further, the police has not taken any action on such an F.I.R. The F.I.R. lodged by Sabar Singh has not been proved therefore, the contents of FIR lodged by him has no significance. Besides the above F.I.R. the investigator has not noted the other factors by which he came to know that the deceased persons were actually travelling in the truck at the time of accident. Therefore, the interested statement of Sri Rajneesh Kumar Mittal is not trustworthy and is not helpful to the insurance company. On the other hand the police investigated the matter on the written report lodged by Birendra Singh Negi and the S.D.M. has 9 directed the Naib Tehsildar to take necessary action in the matter, by making endorsement dated 16.11.2004 on it. In this written report it has clearly been noted that truck lost control at the place of accident and all the persons standing on the Pusta (breast-wall) fell down along with the truck and died. Claimants also produced eyewitness of the occurrence A.P.W. 2, Sohan Singh. He has deposed that he had seen the accident with his own eyes. According to him the driver of the truck was driving the truck at a high speed and at Tapaddhaar he crushed the deceased persons beneath the truck in a rash and negligent manner and fell down in the deep ditch. The deceased had died at the spot. The villagers brought out the dead bodies of the deceased persons from beneath of the truck. This witness had given a categorical statement as to how the deceased persons had reached at the place of accident. The opposite party/insurance company has not suggested as to why this witness would give a false statement. I do not find any reason to disbelieve the testimony of this witness. In my opinion he is a natural and trustworthy witness. One Dharmendra Singh Rawat also filed his affidavit supporting the statement of Sohan Singh. Sumit Negi, owner of the Truck No. U.P. 06-3256 also filed his affidavit narrating therein that the truck was insured with New India Assurance Company w.e.f. 27.3.2004 to 26.3.2005 and the vehicle was having valid permit and registration as well as fitness certificate. The insurance policy has been brought on record and the same was valid at the time of accident. Driving license of the driver plying the vehicle at the time of accident has also been filed and the same was valid at the time of accident. Sri Sumit Negi, owner of the vehicle also deposed that the deceased persons were not travelling in the truck, rather they were outside the truck on the road and they were dashed by the accident of the truck. I find that the insurance company could not substantiate its defence by adducing any reliable and trustworthy evidence that the deceased persons were travelling inside the truck and there has been breach of condition of insurance policy. The learned tribunal was justified in holding that the deceased had died due to rash and negligence of the driver of the truck, as they were crushed by it. 10 So far as the quantum of compensation awarded by the tribunal is concerned, the learned tribunal has awarded a fixed amount of Rs. 50,000/- in the case of death of minors and in the other cases the tribunal has calculated the compensation on the basis of notional income. Multipliers have also rightly been adopted. In my opinion the learned tribunal has awarded a just and proper amounts in the claim petitions and the finding of the tribunal on this count does not require any interference by this court. In view of above, all the appeals filed by New India Assurance Company are liable to be dismissed. So far as the A.O. No. 324/2010, preferred by claimants for enhancement is concerned, in this case the deceased was Narendra Singh, driver of the offending truck No. U.P. 06-3256. According to the claimants deceased was getting Rs. 7500/- per month salary and he was 30 years of age at the time of accident. The owner of the truck has admitted that the deceased Narendra Singh was employed as driver on his truck and he was paying him a salary of Rs. 3,300/- per month. The claimants did not file any documentary evidence to prove the income of the deceased. The learned tribunal has committed a manifest error by taking the salary of the deceased at Rs. 2,000/- per month. There is admission of owner of the truck that he was giving Rs. 3,300/- per month salary to the deceased. However, no salary slip has been filed by the claimants. In the facts and circumstances of the case the learned tribunal should have fixed the notional income of the deceased for the purpose of calculating the compensation. I, therefore, take notional income of the deceased at Rs.36000/- per annum and after deducting 1/3rd towards personal expenses of the deceased, had he been alive, then the net annual dependency of the claimants comes to Rs. 24,000/-. The tribunal applied the multiplier of 16 at the age of 35 years, as indicated in post mortem examination report, and after adopting the multiplier of 16 the compensation comes to Rs.24000/- X 16= Rs. 3,84,000/-. The tribunal also awarded a lump sum amount of Rs. 12,000/- towards loss of consortium and loss of estate and after including this amount in the compensation to be awarded in favour of the claimants comes to Rs. 3,84,000/- + Rs. 12,000/-= Rs. 3,96,000/-. 11 All the appeals filed by New India Assurance Company (A.O.No. 374/2010, A.O. No. 373/2010, A.O. No. 375/2010, A.O. No. 376/2010, A.O.No. 377/2010, A.O. No. 378/2010, A.O. No.379/2010, A.O. No. 380/2010, A.O. No. 381/2010, and A.O. No. 382/2010), are dismissed. A.O. No. 324/2010 is partly allowed. The impugned award is modified upto the extent that the claimants are entitled to get a sum of Rs. 3,96,000/- as compensation instead of Rs. 3,00,000/- as has been awarded by the tribunal. The rate of interest awarded by the tribunal shall remain intact. Let a copy of this order be placed in the files of each appeal. Dated: 26-03-2011 (B.S. Verma, J. ) ISB