IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 488 of 2006 Uttaranchal Transport Corporation … Appellant Vs Smt. Balvinder Kaur & others … Respondents Sri N.S. Pundir, learned counsel for the appellant Sri I.S. Mehra, learned counsel for respondent No. 1 Sri Deepak Rawat, learned counsel for respondent No. 3 Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed by the appellant against the judgment and award dated 24.07.2006 passed by the Motor Accident Claim Tribunal/District Judge, Nainital in Motor Accident Claim Case No. 25 of 2004 whereby the Tribunal awarded a sum of Rs. 2,00,000/- in favour of the claimant, as compensation. 2. Brief facts of the case are that on 07.01.2004, Dalbeer Singh and Ranjeet Singh was going towards Rudrapur on motorcycle No. UA06C/6740. At about 11:00 a.m., when they crossed the Kunwarpur Sisaya, suddenly, a bus under the control of Uttaranchal Roadways bearing registration No. UP02B/8094, which was being driven by its driver in a very rash and negligent manner, hit the said motorcycle, due to which they sustained grievous injuries. They were immediately taken to the Hospital. The public, considering the grievous injuries of Ranjeet Singh admitted him in Sriram Murti Samarak Hospital, Bhojipura and he died in the hospital on 26.01.2004. The claimant is the wife of the deceased. According to the claim petition, at the time of the accident, the deceased was 32 years of age and was doing business of agriculture, milk and as a tractor mechanic. It has further 2 stated that the deceased was earning a sum of Rs. 12,000/- per month. Hence, the claimant filed the claim petition before the Tribunal concerned for a sum of Rs. 20,00,000/- as compensation. 3. The opposite party No. 1 – Uttaranchal Road Transport Corporation contested the claim petition by filing its written statement. It has pleaded that on 07.01.2004, the bus No. UP02B/8094 of Uttaranchal Road Transport Corporation was going from Rudrapur to Tanakpur. When the said bus reached near Sisiya, the said motorcycle which was being driven in a rash and negligent manner, coming from the opposite direction collided with the diesel tank of the bus, due to which, the said accident took place and the driver of the bus was not negligent. 4. The opposite party No. 2, in spite of sufficient service did not contest the claim petition, therefore, the case against him proceeded ex-parte. 5. The opposite party No. 3 – Oriental Insurance Company contested the claim petition by filing its written statement before the Tribunal concerned. It has alleged that the accident took place due to rash and negligent driving of the driver of the bus, against which a report was lodged at police station Sitarganj. It has further pleaded that the amount of compensation on the higher side. It is to be proved that the vehicle was being plied with terms and condition of the policy. 6. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues, which were discussed in great detail. Thereafter, both the parties led evidence in 3 support of their case. After hearing learned counsel for the parties and perusing the entire material available on record, the Tribunal has awarded a sum of Rs. 2,00,000/- to the claimant and against the appellant/Uttaranchal Transport Corporation vide judgment and award dated 24.07.2006. 7. Feeling aggrieved by the aforesaid judgment and award, the appellant/Uttaranchal Road Transport Corporation preferred this appeal before this Court. The claimant also filed cross objection against the said appeal before this Court for enhancement of amount of compensation. 8. Heard Sri N.S. Pundir, learned counsel for the appellant, Sri I.S. Mehra, learned counsel for the respondent/claimant No. 1, Sri Deepak Rawat, learned counsel for the respondent No. 3 and perused the record. 9. Perusal of the record shows that the Tribunal has decided the issue Nos. 1 and 2 jointly as both the issues are related to each other. It is not disputed that the accident took place in which the offending bus and the motorcycle collided with each other. The Tribunal recorded the statement of Arun Singh (P.W.2) who was the actual eyewitness of the accident. He has stated that the on the date of accident, the roadways bus was being driven by its driver in a rash and negligent manner due to which accident took place. The driver of the bus fled from the place of accident along with the bus and the motorcyclist. Thereafter, the Tribunal recorded the statement of Dalveer Singh who has stated in his cross-examination that the roadways bus in order to overtake the private bus dashed his motorcycle. On the date of accident, his cousin brother Ranjeet Singh was sitting as a pillion rider on the motorcycle. From the perusal of the record, it has come to my notice, that 4 the claimant has not mentioned this point in the claim petition. He has further stated that the roadways bus was standing on the road for getting down the passengers and when the driver started the bus, suddenly, the motorcyclist came there and collided with the bus. In order to support his case, the Uttaranchal Transport Corporation has produced Ramesh Chandra Pandey (D.W.1) conductor of the bus who has stated in his statement that the driver of the bus has expired a year’s back of the accident. He has stated that he intend to lodge the report of the accident at Sitarganj Police Station, but the police refused the lodged the same. He has further stated that the accident took place due to rash and negligence of the driver of the motorcycle. The bus was standing on the side of the road, when the driver started the bus, suddenly, the motorcycle collided with the diesel tank of the bus. He has further stated that the bus was standing on the side of the road at the time of accident. The conductor of the bus has not sent any written report to the S.S.P. or police station concerned in this regard. He has informed the station in-charge of the roadways. On the basis of the statement as well as evidence produced by the parties, the Tribunal held responsible for the rash and negligent driving of the bus. The Tribunal has held that the Uttaranchal Road Transport Corporation has to produce the sight plan, which shows that the motorcyclist collided with the bus and the diesel tank got damaged. On the basis of the oral evidence of the witnesses, the Tribunal has held that the accident took place due to rash and negligent driver of the bus, as on the standing bus, the accident could not be caused. 10. Learned counsel for the appellant has submitted before the Court that the Tribunal has held that the accident took place due to rash and negligent driving of the bus 5 whereas the bus of was being driven by its driver in a very slow speed. The motorcycle coming from the opposite direction and was being driven by its driver in a very rash and negligent manner due to which it dashed with the diesel tank of the appellant bus. The Tribunal also not considered the statement of the conductor who has clearly stated that the bus was standing on its side when the accident took place. 11. In order to support her case, the claimant has produced copy of First Information Report, Postmortem Report, Death Certificate, Ration Card and medical bills. From the perusal from the impugned judgment and award as well as entire record, the Tribunal has held that the accident took place due to rash and negligent driving of the bus. After perusing the statement of the conductor, it has nowhere indicated that he has lodged any written report before the S.S.P. or any police station with regard to the accident. It has also come from the evidence that the appellant has not filed any cite plan before the Tribunal which may indicate the accident. The conductor without any evidence available on record gives evidence in favour of the appellant/department. I am in total agreement with the finding recorded by the Tribunal with regard to the rash and negligent driving. 12. Learned counsel for the appellant has further submitted before the Court that the bus in question was insured with the Oriental Insurance Company Ltd., therefore, the liability of compensation, if any, lies upon the Insurance Company. 13. I do not find any force in the submission raised by learned counsel for the appellant, as the bus was being plied under the control of Uttaranchal Road Transport Corporation 6 Ltd., therefore, the liability of compensation has rightly been imposed upon the appellant. 14. Further from the perusal of the impugned judgment and award it has come to my notice that the Tribunal in the absence of any evidence which may show the actual income of the deceased considered the annual income of the deceased as Rs. 18,000/- and after deducting 1/3rd amount towards person expenses, the Tribunal considered the financial dependency of the claimant as Rs. 12,000/- annually. Considering the facts and circumstances of the case as well as age of the deceased, the Tribunal adopted the multiplier of ‘16’ as per the schedule of the Motor Vehicle Act. The Tribunal further awarded Rs. 8,000/- towards other losses. 15. Sri I.S. Mehra, learned counsel for the claimant has submitted before the Court that the Tribunal has committed error by taking monthly income of the deceased as Rs. 1,500/- per month, by giving relevancy to the entry of income shown in Ration Card, which cannot be taken as proof of income. This approach adopted by the Tribunal in calculating the income of the deceased appears to be unreasonable. He has further submitted that the Tribunal has not awarded any amount in lieu of the medical expenses incurred by the claimant on the medical treatment of the deceased. 16. Smt. Balvinder Singh – wife of the deceased has stated that her husband used to earn Rs. 3,000/- by mechanical work and Rs. 5000-6000 per month by milk work and agricultural work but she could not produce any cogent and reliable evidence which may prove the actual income of the deceased. In the absence of any evidence pertaining to the income of the deceased as well as in view of the judgment 7 given by this Court, the notional income, keeping in view the price hike should be considered to be Rs. 36,000/- per annum where the cogent and reliable evidence establishing the income of the deceased has not been adduced. After deducting 1/3rd towards personal expenses, the financial dependency of the claimants comes to Rs. 24,000/- per annum. The deceased was 32 years of age at the time of the accident. Keeping in view the dictum 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 in the instant case, the multiplier cannot travel more than ‘12’. 17. The multiplier adopted by the Tribunal as ‘16’ is on the higher side. Therefore, on the basis of the aforesaid calculation, the amount of compensation comes to Rs. 2,88,000/- (24000 X 12). I am further of the view that the interest indicated in the impugned judgment and award as @ 6% per annum which is admittedly on the lower side. The amount awarded in favour of the claimant should be paid by the Insurance Company along with interest @ 7.5% per annum instead of 6%. The Tribunal further awarded a sum of Rs. 8,000/- towards love and affection, funeral expenses etc. 18. From the perusal of the impugned judgment and award, it has come to my notice, that the Tribunal has not discussed the medical bills. From the perusal of paper Nos. 1C/3 to 10C/19 which are medical bills pertaining to the deceased, which indicates that the claimant incurred approximately Rs. 90,000/- on his medical treatment. 8 Therefore, a sum of Rs. 90,000/- would be adequate to award the claimant under the head of medical bills submitted by the claimant before the Tribunal. Thus, the total amount of compensation comes to Rs. 3,86,000/-. 19. Accordingly, the appeal is dismissed and the cross objection filed by the claimant is partly allowed. The impugned judgment and award is modified upto the extent that the claimant is entitled to get Rs. 3,86,000/- instead of Rs. 2,00,000/- along with interest @ 7.5% instead of 6% per annum as has been awarded by the Tribunal. 20. The statutory amount deposited before this Court be remitted to the Tribunal concerned. (B.C. Kandpal, J.) 05.08.2008 ASWAL