IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 870 of 2006 The New India Assurance Company Ltd. .. Appellant. Versus Smt. Soni Negi and others …….. Respondents. WITH A.O. No. 869/2006 The New India Assurance Company Ltd. .. Appellant. Versus Surender Singh Dongra and others .. Respondents. Mr. T.A. Khan, learned counsel for the appellant/New India Ass. Co. Mr. Qurban Ali, learned counsel for the respondents/claimants. Mr. Deepak Rawat, learned counsel for respondent/Oriental Ins. Co. None has appeared for other respondents. Dated: 19-11-2008 UHon’ble B.C. Kandpal, J. Both these appeals filed under Section 173 of the Motor Vehicles Act, arise out of the claim petitions pertaining to the same accident and similar controversy is involved in these appeals, hence they are being decided by this common judgment. 2- The facts of the case in nutshell are that on 22-1-2004, deceased Viswavijay Singh and injured Surendra Singh Dongara were going to Haripura Harisan Tehsil Bazpur riding in Car No. DNJ 4445 from Haldwani. The said car was being driven by deceased Viswavijay Singh. When they reached near Lamachaud chauraha, Canter bearing registration No. U.P. 22-A- 2 9081 came there at a high speed and dashed the car in a rash and negligent manner, due to which Viswavijay Singh sustained grievous injuries and died at the spot and the other occupant of the car Surendra Singh Dongara sustained grievous injuries. The report of the accident was lodged at P.S. Haldwani on 23.1.2004. The legal heirs of the deceased Viswavijay Singh and the injured Surendra Singh Dongara filed claim petitions before the Motor Accident Claims Tribunal, Udham Singh Nagar. 3- The opposite party No.1, owner of the Canter U.P. 022-A-9081 contested the claims by filing written statements and alleged that the accident has occurred due to the fault of driver of Maruti Car DNJ 4445. The driver of Maruti Car was not having valid driving license. On the other hand his driver was possessing valid driving license and the Canter was insured with New India Assurance Company and the liability of compensation, if any, is upon the shoulder of insurance company. 4- The New India Assurance Company, insurer of Canter U.P. 22-A-9081 filed written statement and reiterated that the accident was the result of negligence of Car driver. The insurance company also alleged that both the drivers were not having valid and effective driving license, therefore, the insurance company is not liable to pay any compensation. 5- The opposite party No.3, owner of Maruti Car DNJ 4445, denied the allegations made in the petition and alleged that the deceased Viswavijay Singh was holding a valid driving license and he used to drive the vehicle cautiously. He further alleged that the accident has occurred due to the negligence of driver of offending 3 canter, therefore, the petitions are liable to be dismissed against him. 6- The opposite party No.4, Oriental Insurance Company, insurer of the Maruti Car also filed its written statement and denied the allegations made in the petitions. The insurance company also alleged that both the drivers were not holding valid driving license therefore the petitions are liable to be dismissed against it. 7- The learned Tribunal, on the basis of pleadings of parties, framed issues in the claim petitions. Parties led evidence in support of their claims. The learned Tribunal after hearing learned counsel for the parties and considering the evidence on record awarded a sum of Rs.5,86,000/- as compensation in lieu of death of deceased Viswavijay Singh in claim petition No. 211 of 2004 along with an interest @ 9% per annum from the date of filing the petition till the date of actual payment payable by New India Assurance Company. In claim petition No. 212 of 2004 filed by injured Surendra Singh Dongara, the tribunal awarded a sum of Rs. 50,000/- along with interest @ 9% per annum from the date of filing the claim petition till the date of actual payment payable by New India Assurance Company. 8- Feeling aggrieved the New India Assurance Company has preferred the A.O. No. 870/2006 against the judgment and awarded passed in MACT No. 211 of 2004 and A.O. No. 869/2006 against the judgment and award passed in MACT Case No. 212 of 2004. 9- Heard Mr. T.A. Khan, learned counsel for the appellant, New India Assurance Company, Mr. Qurban 4 Ali, learned counsel for claimants/respondents and Mr. Deepak Rawat, learned counsel for Oriental Insurance Company/respondent and perused the record. 10- The learned counsel for the appellant has submitted that the driver of the Maruti Car, involved in the accident, was negligent in causing the accident, but the Tribunal wrongly did not consider the contributory negligence of the driver of Maruti Car, therefore, the finding of the tribunal is perverse while fixing the sole negligence of the driver of Canter in causing the accident. Learned counsel also submitted that the Tribunal has wrongly assessed the annual dependency of the claimants after deducting 1/3Prd P towards personal expenses from the annual income of Rs. 48,000/- in the matter of death of deceased Viswavijay Singh and also adopted higher multiplier. 11- So far as the finding of the tribunal holding sole responsibility of Canter driver is concerned, the tribunal has framed issue no.1 on this point in both the claim petitions. To prove the factum of accident, injured witness Surendra Singh Dongara has produced himself before the tribunal in his claim petition and in another claim petition an eyewitness P.W.2, Dalip Singh Mehra has been examined. The injured witness Surendra Singh Dongara was sitting in the Maruti Car at the time of accident. He also sustained injuries in the accident. According to this witness the accident was occurred by the Canter driver. He was driving the Canter in a high speed and dashed the Car. The eyewitness P.W.2, Dalip Singh Mehra in his deposition has stated that at the time of accident he was going to Haldwani from Kaladhungi. He saw that Canter No. U.P. 22-A/9081 crossed him at some distance behind Lamachaud Chauraha. The driver 5 was driving the Canter in a high speed. This witness has given a categorical statement that the Maruti Car at the time of accident was standing at the Chauraha and the Canter collided with the Car in a negligent manner. He further stated that the accident had occurred due to sole negligence of Canter driver. There is no reason to disbelieve the statement of this eyewitness who seems to be an independent and probable witness. Copy of Check F.I.R. has also been filed on record, which reveals that case crime No. 489/2004, U/Ss 279, 338,304-A I.P.C. has been registered against the Canter driver. Therefore, in view of the above facts of the case and the deposition of the eyewitness, the tribunal has rightly come to the conclusion that the accident had occurred due to the sole negligence of the driver of Canter. I do not find any substance in the submission of the learned counsel for the appellant/New India Assurance Company that the accident was the result of contributory negligence of the driver of Maruti Car. 12- As far as the compensation to be paid to the claimants pertaining to the death of deceased Viswavijay Singh is concerned, it appears that the claimants have pleaded that the monthly income of the deceased was Rs. 7,000/- but no cogent and reliable evidence has been adduced by the claimants in order to show that the monthly income of the deceased was Rs. 7,000/-. However, it is clear from the perusal of the evidence that the deceased was an agriculturist as some extracts of the revenue records have been filed by the claimants. The Tribunal thus has assessed the monthly income of the deceased as Rs. 4,000/- but the tribunal has committed error in taking the annual dependency of the claimants as Rs. 36,000/- after making 1/3Prd P deduction towards the personal expenses of the deceased. In case if 1/3Prd P 6 out of Rs. 48,000/- annual income is deducted as personal expenses of the deceased then the dependency of the claimants comes to Rs. 32,000/-. The annual financial dependency as has been assessed by the Tribunal as Rs. 36,000/- appears to be wrong. 13- The age of the deceased Viswavijay Singh was 38 years at the time of accident. The trial court has adopted the multiplier of ‘16’ which appears to be on higher side, in view of the observation made by Hon’ble Apex Court in the cases of Tamil Nadu State Transport Corporation Ltd. vs. S. Rajapriya & Ors, reported in 2005(4) Supreme 87, and The Managing Director, TNSTC vs. Sripriya & Ors. reported in 2007 (5) Supreme 301. I am of the view that at the age of 38 years a just and proper multiplier should ‘12’ and after adopting the multiplier of ‘12’ the total amount of compensation comes to Rs. 32,000/- X 12= Rs. 3,84,000/-. The tribunal has awarded a sum of Rs. 10,000/- under other heads, viz. funeral expenses etc, which appears to be justified and does not require any interference. Therefore, the claimants/respondents in A.O. No. 870/2006 are entitled to get a compensation of Rs. 3,84,000/- + Rs. 10,000/- = Rs. 3,94,000/-. The interest awarded by the tribunal appears to be on higher side and in my opinion the interest should be awarded @ 7% per annum from the date of filing the petition till the date of actual payment instead of 9% per annum as has been awarded by the Tribunal. 14- In A.O. No. 869/2006, learned counsel for the appellant/New India Assurance Company has submitted that the interest has been awarded on higher side and the same should also be reduced. In this case the 7 Tribunal has awarded a compensation of Rs. 50,000/- for injuries sustained by injured/claimant Surendra Singh Dongara along with an interest @ 9% per annum from the date of filing the petition till the date of actual payment. In my opinion in this case also the interest should be awarded @ 7% per annum on the awarded amount of compensation from the date of filing the petition till the date of actual payment. 15- Accordingly, the A.O. No. 870/2006, is partly allowed and the impugned judgment and award dated 28-9-2006, is modified upto the extent that the claimants are entitled to get a sum of Rs. 3,94,000/- along with an interest @ 7% per annum from the date of filing the petition till the date of actual payment payable by New India Assurance Company/appellant, instead of Rs.5,86,000/- along with interest @ 9% per annum as has been awarded by the Tribunal. 16- The A.O. No. 869/2006 also stands partly allowed, so far as the interest part is concerned. The impugned judgment and award dated 28-9-2006 passed in this case, is modified upto the extent that the amount of compensation of Rs. 50,000/- awarded by the tribunal shall be payable by the appellant/ New India Assurance Company along with an interest @ 7% per annum from the date of filing the petition till the date of final payment instead of the interest @9% per annum, as has been awarded by the tribunal. 17- Let the statutory amount of compensation deposited by the appellant before this court at the time of filing the aforesaid appeals, be remitted to the tribunal concerned and the excessive amount of compensation, if 8 any, deposited by the appellant shall be returned to the appellant. 18- Let a copy of this judgment be placed in the file of A.O. No. 869/2006. (B.C. Kandpal, J.) ISB