HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is not approved for reporting) Description of the case A.O. No. of 187 of 2003 New India Assurance Co. Ltd. Vs. Madan Singh and another Approved for reporting. Date of Decision: 10-01-2008. Initial of Judge: ……………….. ,,,,,,,,,,,,,,,,,,,,,,,,,, ……………… HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. NO. 187/2003 The New India Assurance Company Limited, Through its Divisional Manager, Divisional Office, Nainital Road, Opposite Judges Court, Haldwani, District Nainital ….. Defendant-Appellant Vs. 1. Madan Singh S/o Sri Gyaru 2. Smt. Bhumi Devi W/o Madan Singh Both residents of village Duchan Patti Kotiyagarh (Bangar), Tehsil Purola, District Uttar Kashi ….Claimant-Respondents 10.1.2008 Hon’ble Rajesh Tandon, J. Herd Shri T.S. Khan, counsel for the appellant. 2. This is insurer’s appeal. 3. By the present appeal, filed under Section 173 of Motor Vehicles Act, 1988, the appellant has prayed for setting aside the judgment and award dated 24.4.2003 passed by the Motor Accident Claims Tribunal, Uttar Kashi in M.A.C.P. No. 25 of 2002. 4. Briefly stated, a motor accident claim petition no. 25/2002 was made under Section 166 for compensation on account of death of Jai Krishan (hereinafter referred to as ‘the deceased’) in the motor accident occurred on 1.1.2001. According to the claim petition, on 1.1.2001 the deceased was driving the vehicle Mahindra Utility bearing registration No. U.P. 07 J-9105 and he was going from Savra to Tyuri. As soon as he reached near Mogra, a vehicle no. H.P. 01-8127 came from the opposite direction without giving the side to the vehicle which was being driven by the deceased. In order to save the collision between the vehicles, the deceased lost control over the Mahindra Jeep and due to unbalancing the Mahindra Jeep fell down into Power River. As a result of the said accident, the deceased and some other persons died on the spot. It has been stated that the deceases was aged about 24 years at the time of accident and he was earning a sum of Rs. 9,000/- per month. The claimants have suffered mental agony due to sudden death of the deceased. A sum of Rs. 50,69,000/- has been claimed towards compensation. 5. The New India Assurance Company has filed the written statement stating therein that there were 12 passengers in the vehicles at the time of accident whereas only 6 passengers were permitted to travel in the said vehicle. The deceased was also the owner of the till fated vehicle and he was carrying more passengers in the vehicle than that of its capacity as a result of which he could not control the vehicle as a result of which the accident in question had taken place. The claimants are not entitled for any compensation. It has been submitted that the terms and conditions of the insurance policy has been violated The deceased does not come under the category of third party. The claim petition is liable to be dismissed. 6. On the pleadings of the parties, the claims tribunal has framed the following issues:- 1- D;k fnukad 1-1-2001 dks 12-45 cts ij tc e`rd t;d`’.k okgu la[;k ;w0ih0 07 ts 9195 dks ysdj tk jgk Fkk rks mDr okgu vfu;af=r gksdj lM+d ls uhps fxj x;k\ ftlls e`rd dh e`R;q gks x;h\ ;fn gkW rks izHkko\ 2- D;k ;kphx.k mDr nq?kZVuk es e`rd t;d`’.k dh e`R;q ds vk/kkj ij dksbZ {kfriwfrZ ikus ds vf/kdkjh gS\ ;fn gkW rks fdruh vkSj fdlls\ 3- D;k mDr nq?kZVuk chek “krksZ ds mYy?ku es ifj.kkeLo:Ik ?kfVr gqbZ\ ;fn gkW rks izHkko\ 4- D;k nq?kZVuk ds le; okgu ds lHkh dkxtkr oS/k o izHkkoh Fks rFkk pkyd ds ikl oS/k rFkk izHkkoh pkyd yk;lsal Fkk\ 5- ;kphx.k fdl vU; vuqrks’k dks ikus ds vf/kdkjh gS\ 7. The claimants have examined Madan Singh as P.W.1. Towards the documentary evidence, the claimants have produced insurance paper i.e. paper no. 15 ga, driving licence i.e. paper no. 14 ga, postmortem report i.e. paper no. 16 ga. The defendants have not adduced any evidence, either oral or documentary. 8. While deciding as to whether on 1.1.2001 at about 12.45 p.m. when the deceased Jai Krishna was driving the vehicle no. U.P. 07-J 9195, the said vehicle fell down due to unbalancing resulting into death of the deceased and further as to whether the accident had taken place due to violation of terms and conditions of insurance policy, the claims tribunal has come to the conclusion that the defendant has failed to prove that the vehicle in question was carrying more passengers than that of its capacity. So far as papers relating to the insurance company is concerned, the claims tribunal has recorded the finding that the papers of the vehicle were in order. Further, with regard to negligence of the deceased the trial court has come to the conclusion that the accident had taken place in order to save the accident by the deceased and the said accident cannot be said to be occurred due to negligence of the deceased. 9. While deciding as to whether the papers relating to the vehicle were in order at the time of accident, the claims tribunal has recorded the finding that the papers of the vehicle were in order at the time of accident. 10. While deciding with regard to quantum of compensation, the claims tribunal has taken into consideration the notional income of the deceased to the extent of Rs. 1,500/- per month which comes to Rs. 18,000/- per annum. After deducting 1/3rd of the same, the annual dependency was worked out to the extent of Rs. 12,000/- per annum. Further, the claims tribunal has taken into consideration the age of the deceased to be 25 years and selected the multiplier of 11. By multiplier the annual dependency of Rs. 12,000/- with the multiplier of 11, the amount of compensation was worked out to the extent of Rs. 1,32,000/-. Besides this, the claims tribunal has awarded a sum of Rs. 10,000/- each to the claimants and Rs. 5,000/- towards funeral expenses. Thus, a sum of Rs. 1,57,000/- has been awarded in total. The claims tribunal has also awarded the interest at the rate of 7 per cent on the amount of compensation. 11. Counsel for the appellant has submitted that the deceased was unmarried and, therefore, the multiplier should have been used in accordance with the age of the parents i.e. 69 years and 63 years respectively. 12. On perusal of the record, I find force in the submission made by the appellant. Since, the age of the parents of the deceased was 69 and 63, multiplier of 5 will meet the end of justice. 13. So far as the income of the deceased is concerned, the claims tribunal has taken into consideration the monthly income of the deceased to the extent of Rs. 1,500/- per month against the monthly income of Rs. 9,000/- per month as stated in the claim petition. therefore, the finding with regard to income of the deceased recorded by the claims tribunal is confirmed. 14. By multiplying the annual dependency of Rs. 12,000/- as worked out with the multiplier of 5, the amount of compensation is worked out to the extent of Rs. 60,000/-. Further, the compensation awarded by the claims tribunal with regard to mental agony to the extent of Rs. 10,000/- each to the claimants and Rs. 5,000/- towards funeral expenses are confirmed. In view of the above, the claimants shall be entitled to get the compensation of Rs. 85,000/- only instead of the compensation of Rs. 1,57,000/- as awarded by the claims tribunal. 15. However, the claims tribunal has awarded the interest to the extent of 7 per cent. The same is enhanced to the extent of 9 per cent. 15. Subject to modification in the quantum of compensation as well as in the rate of interest as recorded above, appeal partly succeeds and is allowed. No order as to costs. (Rajesh Tandon, J.) 10.1.2008 Avneet