IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Chapter VIII, Rule 32(2) (b) Description of case Appeal from Order No. 471 of 2006 Date of decision: 9th January, 2008 A.F.R. (Approved for Reporting) Not Approved for Reporting Date Initials of Judge Note: Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Appeal from Order No. 471 of 2006 Smt. Chukani Gharti W/o Late Sri Dil Bahadur Gharti, R/o Village Khewase (Khumel), Ward No. 9, Rolpa, District Rapti (Nepal). ........... Appellant Versus 1. The Oriental Insurance Co. Ltd., through its Divisional Manager, Divisional Office at Railway Road, Jwalapur, Haridwar. 2. Pradhuman Singh Jhinkwan S/o Late Sri Pooran Singh, R/o Village Chimnau (Gwilon), Patwari Circle Papariyana, Tehsil & District Chamoli. (Owner of Vehicle No. UA-11/0263). 3. Pradeep Kumar S/o Sri Bachan Lal, R/o Near Jal Nigam Colony, Gopeshwar, District Chamoli. (Driver of Vehicle No. UA-11/0263). ............ Respondents Mr. Rajendra Dobhal and Mr. D.C.S. Rawat, Advocates for the appellant. Mr. Pankaj Purohit, Advocate for respondent No. 1. None for respondents Nos. 2 & 3 though served. JUDGMENT Coram: Hon’ble Rajeev Gupta, C.J. Hon’ble J.C.S. Rawat, J. RAJEEV GUPTA, C. J. (Oral) This is claimant’s appeal, filed under Section 173 of the Motor Vehicles Act, 1988, for enhancement of the compensation awarded by Motor Accident Claims Tribunal, Chamoli vide Award dated 30.05.2006 passed in Motor Accident Claim Petition No. 74 of 2005. 2. The appellant / claimant claimed compensation of Rs. 6,83,000/-, by filing a claim petition under Section 166 of the Motor Vehicle Act, 1988, for the death of her husband Dil Bahadur Gharti in the motor accident on 20.03.2005 when the Mini Bus bearing registration No. UA-11-0263, in which he was travelling from Sonla to Karnprayag, met with an accident due to the rash and negligent driving of its driver resulting in the death of as many as 9 occupants of the Mini Bus, including the claimant’s husband Dil Bahadur Gharti. The claimant pleaded the her husband Dil Bahadur Gharti, who was aged about 40 years, used to earn Rs. 5,500/- per month. 3. The insurer and owner of the Mini Bus contested the claim and denied their liability to pay compensation to the claimant, whereas the driver of the Mini Bus remained ex-parte before the Tribunal. 4. The insurer of the Mini Bus pleaded that the Bus was being plied in breach of the policy conditions and the driver of the Bus was not holing a valid driving license. 5. The owner of the Mini Bus, while admitting the accident, took the plea that the driver of the Mini Bus was holing a valid driving license and, as the Mini Bus was insured with the Insurance Company, the liability to pay compensation to the claimant, it any, was that of the Insurance Company. 6. The claimant examined PW1 Smt. Chukani Gharti and PW2 Rai Singh Sajwan in support of the claim, whereas the insurer and the owner of the Mini Bus did not examine any witness in rebuttal. 7. The Tribunal, on the evidence led by the parties, held that claimant’s husband Dil Bahadur Gharti died on account of the injuries sustained by him in the motor accident on 20.03.2005; the accident occurred due to the rash and negligent driving of the driver of the Mini Bus; and, as the Mini Bus was insured with the Oriental Insurance Company Ltd. on the date of the accident, the Insurance Company was liable to pay compensation to the claimant. 8. As the evidence led by the claimant about the income of the deceased was not found reliable, the Tribunal assessed the income of the deceased at Rs. 15,000/- per annum of the basis of the notional income prescribed in the Second Schedule under Section 163-A of the Motor Vehicles Act. By deducting 1/3rd of Rs. 15,000/- as the personal expenses of the deceased, the claimant’s dependency was assessed at Rs. 10,000/- per annum. By multiplying the annual dependency of Rs. 10,000/- with the multiplier of ‘15’, the compensation was worked out to Rs. 1,50,000/-. The Tribunal further awarded Rs. 2,000/- towards Funeral Expenses and Rs. 2,500/- for Loss of Estate to the claimant and, thus, a total sum of Rs. 1,54,500/- was awarded as compensation to the claimant for the death of her husband Dil Bahadur Gharti in the motor accident on 20.03.2005. The Tribunal further directed the Insurance Company to pay interest at the rate of 5% per annum on the above amount of compensation of Rs. 1,54,500/- from the date of the filing of the claim petition till the date of payment. 9. Mr. Rajendra Dobhal and Mr. D.C.S. Rawat, the learned counsel for the appellant submitted that the Tribunal has erred in not accepting the evidence led by the claimant about the income of the deceased; in assessing the income of the deceased at Rs. 15,000/- per annum only; in awarding low compensation of Rs. 1,54,500/- only; and in awarding interest at the lower rate of 5% per annum. 10. Mr. Pankaj Purohit, the learned counsel for respondent No. 1 The Oriental Insurance Company Ltd., on the other hand, supported the Award and submitted that the compensation of Rs. 1,54,500/-, awarded by the Tribunal, is just and proper compensation in the facts and circumstances of the present case. 11. The findings recorded by the Tribunal that claimant’s husband Dil Bahadur Gharti died on account of the injuries sustained by him in the motor accident on 20.03.2005; the accident occurred due to the rash and negligent driving of the driver of the Mini Bus; and the Insurance Company is liable to pay compensation to the claimant, have now attained finality, as the respondents have not filed any appeal against the Award. That apart, there is overwhelming evidence on record to establish the above facts. We, therefore, affirm the findings recorded by the Tribunal in that behalf. 12. True, the claimant, in the claim petition, pleaded that deceased Dil Bahadur Gharti used to earn Rs. 5,500/- per month, but the evidence led by the claimant about the income of the deceased was not of clinching nature. In this state of evidence, the Tribunal was left with no other option but to assess the income of the deceased on its own estimate. The Tribunal has assessed the income of the deceased at Rs. 15,000/- per annum on the basis of the notional income prescribed in the Second Schedule under Section 163-A of the Motor Vehicles Act. 13. The notional income of rs. 15,000/- per annum was prescribed in the Second Schedule under Section 163-A of the Motor Vehicles Act in the year 1994. The accident in the present case, wherein deceased Dil Bahadur Gharti lost his life, took place in the year 2005. If the increase in the price index of the essential commodities and the cost of living from 1994 to 2005 is taken into account, the notional income of Rs. 15,000/- per annum, prescribed in the year 1994, would come to Rs. 36,000/- per annum in the year 2005. We, therefore, propose to re-compute the compensation taking the income of the deceased at Rs. 36,000/- per annum. 14. By deducting 1/3rd of Rs. 36,000/- as the personal expenses of the deceased, the claimant’s dependency is assessed at Rs. 24,000/- per annum. 15. The multiplier of ‘15’ selected by the Tribunal considering that deceased Dil Bahadur Gharti was aged about 40 years on the date of the accident, appears to be on the higher side in view of the recent dictum of the Apex Court in the case of New India Assurance Co. Ltd. Vs. Kalpana (Smt.) and others reported in (2007) 3 SCC 538. Considering the age of the deceased and the claimant and the fact that as many as five persons, i.e. Smt. Chukani Gharti, widow of the deceased, and her four minor children aged about 15 years, 10 years, 7 years and 3 years, were dependent on the deceased, we are of the opinion that multiplier of ‘11’ would be appropriate in the case. 16. By multiplying the annual dependency of Rs. 24,000/- with the multiplier of ‘11’, the compensation works out to Rs. 2,64,000/-. The claimant is further entitled to Rs. 5,000/- towards Funeral Expenses; Rs. 5,000/- for Loss of Estate; and Rs. 5,000/- for Loss of Consortium. Thus, the claimant becomes entitled to receive a total sum of Rs. 2,79,000/- as compensation for the death of her husband Dil Bahadur Gharti in the motor accident on 20.03.2005. 17. The rate of interest, awarded by the Tribunal at 5% per annum, considering the prevalent rate of interest on the Fixed Deposits in the nationalised banks, is on the lower side. We, therefore, award interest on the above amount of compensation of Rs. 2,79,000/- at the rate of 7% per annum. 18. For the foregoing reasons, the appeal, filed by the claimant under Section 173 of the Motor Vehicles Act for enhancement of the compensation of Rs. 1,54,500/-, awarded by the Tribunal, is enhanced to Rs. 2,79,000/-. The rate of interest, awarded by the Tribunal, at 5% per annum is also enhanced to 7% per annum. 19. Respondent No. 1 The Oriental Insurance Company Ltd. is directed to deposit the enhanced amount of compensation and the amount of interest within a period of three months from today before the concerning Claims Tribunal. 20. No order as to costs. (J.C.S. Rawat, J.) (Rajeev Gupta, C. J.) 09.01.2008 09.01.2008 G