IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. NO. 584 of 2006 Smt. Swarn Kaur … Appellant. Versus M/s Ashirbad Filling Station and others .. Respondents. Mr. I.S. Mehra, Advocate for the appellant. Mr. Deepak Rawat, Advocate for Respondent No.2. Mr. Naresh Pant, Advocate for Respondent No.3. None has appeared on behalf of Respondent No.1. Dated: 10-06-2008 Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicles Act, 1973, has been preferred against the judgment and award dated 7-6-2006, passed by Motor Accident Claims Tribunal/II F.T.C., Nainital, in MACT Case No. 26/2004. 2- Brief facts giving rise to this appeal are that on 29-8-2003, deceased Jagir Singh was returning to his home from Rudrapur Courts in Tata Sumo No. DL-4- CE/1488. When the said vehicle reached near ‘Panchakki’ situated in village Deoria, Tanker No. H.R. 46/3055 came there at high speed and dashed the Tata Sumo on wrong side, due to which Jagir Singh sustained grievous injuries and died in the way to his home. According to the claimant the deceased was a healthy person and he was possessing 11 acres of land and a saw machine, a tractor, a tata sumo and motorcycle etc. The claimant filed claim petition for award of Rs. Six lacs. 3- The Opposite Party No.1, owner cum driver of Tanker HR 46/3055 filed written statement and alleged that he was driving the vehicle with great care and 2 caution and he was possessing valid driving license. The Tanker was insured with Oriental Insurance Company. He also alleged that the accident has occurred due to the negligence of Tata Sumo. 4- The Opposite Party No.2 Oriental Insurance Company also filed written statement and alleged that the accident has occurred due to the negligence of driver of Tata Sumo and the liability to pay compensation is upon the owner/insurer of Tata Sumo. 5- The Opposite Party No.3, United India Insurance Company, insurer of Tata Sumo also filed its written statement and alleged that the accident has occurred due to the negligence of Tanker HR 46/3055. 6- The Tribunal on the pleadings of parties framed issues in the claim petition. Thereafter, parties adduced evidence in support of their claims. The Tribunal after considering the material on record awarded assessed sum of Rs. 4,10,000/- as compensation and directed the Oriental Insurance Company to pay a sum of Rs. 2,05,000/- (50% of the total amount) and also directed that 50% of the said amount shall not be payable to the claimant due to the reason that the deceased, the owner of the tanker, was himself driving the vehicle and he cannot be placed in the category of third party. 7- Feeling aggrieved, the claimant has preferred this appeal before this Court. 8- Heard learned counsel for the parties and perused the record. 3 9- Learned counsel for the appellant has submitted that the tanker involved in the accident, being heavier vehicle than the tata sumo, should have been held liable to pay a greater portion of the compensation but the Tribunal has fixed the contributory negligence in equal portion amongst the vehicles and thereby has committed manifest error. Learned counsel also submitted that the Tribunal applied multiplier on lesser side. 10- The learned counsel for the opposite party/insurance company has submitted that both the vehicles were moving in the middle of the road and collided with each other, therefore, the Tribunal has rightly fixed equal liability of both the vehicles. The Tribunal has already awarded a sufficient amount towards compensation and the award does not suffer from any infirmity. 11- I have gone through the finding recorded by the Tribunal on the point of contributory negligence. The Tribunal has relied upon the site-plan of the place of occurrence paper No. 25-C/17 prepared by the police during investigation of the criminal case relating to the said accident. In the site-plan the accident has been shown in the middle of the road. The learned Tribunal has not believed the oral evidence of P.W.2, Paramjeet Singh, who has deposed that the negligence was on the part of Tanker Driver. This witness further alleged that the accident has occurred on wrong side. This part of his statement is against the documentary evidence adduced in the case. Therefore, the Tribunal was justified in not drawing inference on the basis of the oral evidence adduced in the case. It has also come in evidence that the driver portion of the tanker was hit in the middle 4 portion of the tata sumo. This situation also indicates that both the vehicles were negligent in the accident. The conclusion arrived at by the tribunal cannot be said to be perverse and wrong. It is also important to note here that the middle portion of Tata Sumo was hit and this fact in itself proves that the driver of Tata Sumo was equally negligent and the Tribunal has rightly fixed the liability upto to the extent of 50%. The deceased owner himself was driving the tata sumo and he cannot be said to be third party, therefore the claimant was not held entitled to get 50% of the compensation. The finding recorded by the Tribunal on this point does not require any interference by this Court. 12- So far as the quantum of compensation is concerned, the Tribunal assessed the monthly income of the deceased at Rs. 10,000/-. The deceased was owning a saw machine, 11 acres of land, vehicle tata sumo, motorcycle etc. therefore, his monthly income has rightly been taken by the Tribunal. The Tribunal also deducted 1/3rd towards personal expenses and the net annual dependency was assessed at Rs. 80,000/-. The age of the deceased was 58 years and the Tribunal has rightly adopted the multiplier of 5. The multiplier adopted by the tribunal cannot be said on lesser side. The Tribunal also awarded Rs. 5,000/- towards funeral expenses and Rs. 5,000/- towards loss of consortium that shall remain intact. 13- The learned counsel for the claimant/appellant also submitted that the tribunal did not award interest on the awarded money and he is entitled to get interest on the amount of compensation. 5 14- The submission of the learned counsel is reasonable. In my opinion the claimant is entitled to interest @ 7.5% per annum on the amount of Rs. 2,05,000/- awarded to the claimant against the Oriental Insurance Company. 15- For the reasons recorded above, the appeal is liable to be partly allowed. 16- Accordingly, the appeal is partly allowed. The impugned judgment and award dated 7-6-2006, is modified upto the extent that the claimant/appellant shall be entitled to get interest @7.5% per annum on the awarded amount of compensation of Rs. 2,05,000/- payable by respondent No.2, the Oriental Insurance Company, from the date of filing the petition, till the date of actual payment. (B.C. Kandpal, J.) ISB