IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 520 of 2007 National Insurance Company Ltd. … Appellant Vs Amar Nath & others … Respondents Sri V.K. Kohli, learned Senior Advocate, assisted by Sri I.P. Kohli, learned counsel for the appellant Sri Pawan Mishra, learned counsel for the respondent No. 1 Hon’ble B.C. Kandpal, J. (Oral) This appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed by the appellant/Insurance Company against the judgment and award dated 01.09.2007 passed by Motor Accident Claims Tribunal/Additional District Judge/F.T.C. 1st, Dehradun in Motor Accident Claims Case No. 121 of 2006, Amarnath Vs Ved Prakash. 2. Brief facts of the case are that on 03.04.2006, the claimant/injured was pedestrian on the left side of the road near Deputy Mayer Awas, Ajabpur Kalan. At about 07:00 p.m., a Mahindra Max bearing registration No. UA07C/8218 was coming from behind the injured, which was being driven by its driver in a very rash and negligent manner, hit the injured/claimant from behind, due to which he fell down the road. The injured received serious and multiple injuries on his body. According to the claimant/injured, his right leg was fractured below knee and received injuries on his whole body. Immediately after the accident, he was taken to Military Hospital, Dehradun and on the same day he was referred to Doon Hospital for better treatment. It has pleaded in the claim petition, that he was 52 years of age and used to earn Rs. 6,000/- per moth. Hence, an amount of Rs. 18.00 was claimed as compensation. 2 3. Thereafter notices were issued to the opposite parties. The opposite parties No. 1 and 2 contested the claim petition by filing their joint written statement before the Tribunal concerned. The opposite party No. 3 also contested the claim petition by filing their separate written statement before the Tribunal. 4. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues in the claim petition. Therefore, both the parties led evidence in support of their cases. 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. 3,40,000/- along with interest @ 6% per annum from the date of filing the claim petition till the date of actual payment vide judgment and award dated 01.09.2007. 5. Feeling aggrieved by the aforesaid judgment and award, the appellant/Insurance Company has preferred this appeal before this Court. 6. Heard Sri V.K. Kohli, learned Senior Advocate, assisted by Sri I.P. Kohli, learned counsel for the appellant, Sri Pawan Mishra, learned counsel for the respondent No. 1 and perused the record. 7. As far as the factum of accident is concerned, the finding recorded by the Tribunal that the accident took place on account of rash and negligent driving of the driver of Mahindra Max No. UP07C/8218 appears to be perfectly justified and I am in total agreement with the finding recorded by the Tribunal in this regard. 3 8. Learned counsel for the appellant has submitted before the Court that the Tribunal without considering the evidence properly awarded the amount of compensation on the higher side. He has further submitted that the deceased was 52 years of age and the Tribunal adopted the multiplier of ‘11’ which appears to be on the higher side. Therefore, the impugned judgment and award is liable to be set aside. 9. Sri Pawan Mishra, learned counsel for the claimant has made a rival contention and has submitted that the impugned judgment and award does not require any interference at this stage. He has further submitted that the Tribunal has adopted the multiplier as mentioned in the schedule of Motor Vehicles Act. Therefore, the amount awarded by the Tribunal is just and proper. 10. After hearing learned counsel for the parties, I have gone though the impugned judgment and award as well as record available before me. As far as the amount of compensation to be awarded in favour of the claimant is concerned, the Tribunal has discussed this point while deciding issue No. 2 but the approach adopted by the Tribunal in calculating the amount of compensation as well as multiplier cannot be said to be justified. The Tribunal has assessed the monthly income of the injured/claimant as Rs. 6,000/- per month on the basis the register which has been filed by the claimant. The register with the claimant in which the income has been mentioned cannot be said to be conclusive with regard to the actual income unless some corroborated evidence is produced by the claimant in this case. No bill or receipt has been filed by the injured, which may indicate, in fact, what was the actual income of the selling of the milk to the different consumers. For want of any 4 adequate and reliable evidence, the income as has been assessed by the Tribunal of Rs. 6,000/- per month appears to be on the higher side. The Division Bench of this Court in Appeal No. 02 of 2005, Shobhan Singh & another Vs New India Insurance Company Ltd. & another decided on 01.11.2006 has observed where the actual income of the victim could not be established then the amount of compensation shall be calculated on the basis of the notional income and the notional income of the person during the year when the accident took place was considered to be Rs. 36,000/- per annum. I am, therefore, of the view that the income of the injured/victim could have been assessed by the Tribunal as Rs. 3,000/- per month (Rs. 36,000/- per annum). As the injured/victim was aged about 51 years as has been assessed by the Tribunal, the Tribunal again fell in error by adopting the multiplier of ‘11’. Considering the age of the claimant/victim, which is admittedly on the higher side, in view of the decisions of 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 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. I am of the view that in this case, the age of the victim is considered to be 51 years at the time of the accident, then the multiplier in this case cannot travel more than ‘8’ in any manner. After adopting the multiplier of ‘8’ the amount of compensation comes to Rs. 2,88,000/-. The injured suffered the permanent disablement upto an extent of 42%. Therefore, keeping in view the disability suffered by the injured/claimant, the amount of compensation to be awarded in favour of the claimant comes to Rs. 1,20,960/- (rounded Rs. 1,21,000/-). The amount awarded by the Tribunal to the claimant under 5 the head of pain and suffering for a sum of Rs. 2,376/- also does not appear to be adequate and proper. This amount should in fact be Rs. 5,000/-. The Tribunal awarded a sum of Rs. 5,000/- to the claimant/victim for body disfigured which appears to be justified. Thus, the total amount of compensation comes to Rs. 1,31,000/-. 11. For the reasons recorded above, the appeal is partly allowed. The impugned judgment and award is modified up to the extent that the claimants are entitled to get a sum of Rs. 1,31,000/- instead of Rs. 3,40,000/- along with interest as has been awarded by the Tribunal in the impugned judgment and award. 12. The statutory amount deposited by the appellant before this Court be remitted to the Tribunal concerned. (B.C. Kandpal, J.) 09.07.2009 ASWAL