IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 276 /2007 Balveer Singh and another …….. Appellants. Versus Raveendra Singh and others … Respondents. Sri D.C.S. Rawat, learned counsel for the claimants/appellants. Sri M.K.Goyal, learned counsel for respondent/New India Ass. Co. Sri Vikas Pande, Advocate for respondent No.3. With A.O. No. 467/2007 The New India Assurance Co. Ltd. .. Appellant. Versus Smt. Sahana and others ……… Respondents. Sri M.K. Goyal, learned counsel for the appellant. Sri Sri D.C.S. Rawat, learned counsel for respondents/claimants. Sri Vikas Pande, Advocate for respondent No.9. Dated: 23-3-2009 Hon’ble B.C. Kandpal, J. Both these appeals, under Section 173 of the Motor Vehicle Act, arise out the same accident, hence they are being decided by this common judgment. 2- A.O. No. 276/2007, has been preferred against the judgment and award dated 19-6-2007, passed by Motor Accident Claim Tribunal/District Judge, Udham Singh, in MACP No. 157/2006, by which a compensation of Rs. 1,52,000/- has been awarded against the New India Assurance Company along with an interest of Rs. 7% per annum from the date of filing the petition till the date of actual payment in lieu of death of Rohtas. 3- A.O. No. 467/2007 has been preferred against the judgment and award dated 16-8-2007 passed by 2 Motor Accident Claim Tribunal/District Judge, Nainital, in MACP No. 108/2006, by which a sum of Rs. 3,70,000/- has been awarded along with interest @ 6% per annum from the date of filing the petition till the date of actual payment, in lieu of death of Mohd. Nabi. The Tribunal has directed that the liability of New India Assurance Company and Commandant, Post A.S.C. Raiwala will be upto 80% and 20% respectively. 4- Brief facts of the case are that on 10-4-2006 deceased Rohtash and Mohd. Nabi along with other persons were traveling in Bus No. P.B.-10-A.E.-9675 from Jaspur to Dehradun. The driver of the Bus was driving the vehicle in a high speed. When the Bus reached at Chandi bridge at 9.40 A.M., suddenly Army Vehicle No. 9-U.P. –10928-H also came there at a high speed and both the vehicles collided with each other due to which Rohtash and Mohd. Nabi died at the spot and other persons received injuries. The F.I.R. of the accident was lodged by the driver of Army vehicle at P.S. Shyampur. 5- The legal heirs of the deceased filed claim petitions before the tribunal. According to the claimants deceased Rohtash was aged 20 years and he used to earn Rs. 150/- per day from doing the work of mason whereas the other deceased Mohd. Nabi was 37 years of age and he used to earn Rs. 180/- per day from the work of mason. 6- In both claim petitions the owner of offending Bus filed written statement and alleged that the vehicle was being driven by a competent driver having valid and effective driving license and the Bus was insured with New India Assurance Company. He further alleged that 3 the driver of Army Vehicle dashed the Bus on wrong side. The Bus driver had no negligence in causing the accident. 7- The New India Assurance Company took the plea that the accident was not caused by the driver of Bus No. P.B. –10-A.E.-9675 but it was caused by Army Vehicle. The insurance company also pleaded that exorbitant amount of compensation has been demanded. It further alleged that the Bus was being plied against the terms of insurance policy. 8- The Commandant, owner of Army Vehicle also contested the petitions and alleged that the Army Vehicle was being plied by a valid licensed driver in accordance with the transport rules. The accident was caused by the driver of Bus No. P.B.10-AE/9675 and the petitions are liable to be dismissed against him. 9- The learned Tribunal framed relevant issues in both the petitions. Thereafter, parties led evidence in support of their cases. The learned tribunal after hearing learned counsel for parties and perusing the material on record allowed the claim petitions vide impugned judgment and awards. 10- Feeling aggrieved by the aforesaid judgment and awards the claimants filed appeal for enhancement of compensation, awarded in lieu of death of Rohtash, whereas the New India Assurance Company has preferred the appeal against the award in lieu of death of Mohd. Nabi. 11- I have heard learned counsel for the parties and perused the record. 4 12- So far as the factum of accident is concerned, collision of Bus No. P.B. 10-AE/9675 and Army Vehicle 9 U.P. 10928 is admitted to the parties and the death of Rohtash and Mohd. Nabi in the said accident is also admitted. D.W.1 S.K. Patel has been examined in claim petition filed in respect of deceased Rohtash. This witness has deposed that he was driving the Vehicle in a moderate speed and the Bus No. P.B. 10AE/ 9675 coming from opposite direction dashed his vehicle in a rash and negligent manner. He further deposed that at the place of accident there was sufficient space for passing of two vehicles. D.W.2, Surebar Major Narayan T.T. also supported the deposition of D.W.1. This witness has lodged the F.I.R. of the accident against the driver of the Bus at Police Station. The opposite party owner/ insurer of the offending Bus did not adduce any evidence on the point of rash and negligence. Charge sheet paper No. 15-C/4 has been submitted against the driver of the offending bus after investigation by the police relating to this accident. Therefore, in view of the evidence available on record the tribunal has decided the issue against the owner/insurer of the Bus holding that the accident has occurred due to rash and negligence of the driver of the Bus bearing registration No. P.B. 10-AE/ 9675. The aforesaid conclusion drawn by the tribunal is based on the evidence on record and the same needs no interference. The tribunal further held that the Bus was insured with New India Assurance Company and its driver possessed valid and effective driving license, therefore, the liability to pay the compensation is upon the insurer of the Bus. 13- As far as the amount of compensation awarded in favour of the claimants/appellants in A.O. 5 No. 276/2007, is concerned, the tribunal while deciding issue no.2 dealt with this point. The tribunal has fell in error in calculating the notional income of the deceased as Rs. 15,000/- per annum. The accident in this case took place in the year 2006 and in view of the decision of the Division Bench of this Court in A.O. No. 2 of 2005, Sobhan Singh and another vs. New India Insurance Company and another ( decided on 1.11.2006), the notional income should be taken Rs. 36,000/- per annum due to price hike and after deducting 1/3rd towards personal expenses the total annual dependency of the claimant should be taken as Rs. 24,000/-. The deceased Rohtash was unmarried, therefore, keeping in view the age of his father, which was 40 years, a just and proper multiplier of 10 has been adopted in this case and after adopting the multiplier of 10 the financial dependency of the claimants comes to Rs. 24000/ X 10= Rs. 2,40,000/-. Rs. 2000/-, which has been awarded to the claimants under the head of funeral expenses, is also to be paid to the claimants. 14- For the reasons recorded above I am of the view that the appeal No. 276/2007 is liable to be partly allowed. The claimants/appellants are entitled to get a sum of Rs. 2,40,000/- + Rs. 2000/-= Rs. 2,42,000/- along with interest @ 7% per annum from the date of filing the petition till the date of actual payment, instead of Rs. 1,52,000/- as has been awarded by the tribunal. 15- So far as the A.O. No. 467/2007, filed by the New India Assurance Company is concerned, the learned counsel for the insurance company has submitted that exorbitant amount of compensation has been awarded by the tribunal. Cross objection has also been filed by the claimants in this case alleging therein that the tribunal 6 has awarded a meager amount of compensation and the same should be enhanced. 16- From perusal of impugned judgment and award it reveals that the tribunal has taken the notional income of the deceased Mohd. Nabi as Rs. 36,000/- per annum and after deducting 1/3rd towards personal expenses of the deceased the total dependency of the claimants comes to Rs. 24,000/- per annum. Although the claimants in this case has alleged the age of the deceased as 37 years, but in the post mortem report his age is shown as 40 years, therefore, the tribunal adopted the multiplier of 15. The deceased Mohd. Nabi has left behind him his widow, 5 children and mother, who were dependent upon him, hence, the multiplier of 15 is just and adequate. Therefore the compensation comes to Rs. 24,000/- X 15= Rs. 3,60,000/-. The tribunal further awarded a total sum of Rs. 10,000/- under the heads of loss of love and affection, funeral expenses, and physical and mental agony, which the claimants/respondents are entitled to get. In this way the total compensation comes to Rs. 3,70,000/-. The tribunal further awarded interest @ 6% per annum from the date of filing the petition till the date of actual payment. The learned tribunal further recorded a finding that the place where the accident took place was having sufficient space and there was no occasion for the Army vehicle to move towards right side and the collision was the result of contributory negligence of both the vehicle. Therefore, held the liability of New India Assurance Company and the Commandant upto the limit of 80% and 20% respectively. In view of the evidence on record, the conclusion drawn by the tribunal cannot be said wrong and the same needs no interference by this Court. Therefore, the appeal filed by the New India Assurance Company as well as the 7 cross objection of the claimants/respondents are liable to be dismissed. 17- Accordingly, the A.O. No. 276/2007 is partly allowed. The impugned judgment and award dated 19-6- 2007 is modified upto the extent that the claimants/appellants are entitled to get a sum of Rs. 2,42,000/- against the New India Assurance Company along with an interest @ 7% per annum from the date of filing the petition till the date of actual payment, instead of Rs. 1,52,000/- as has been awarded by the Tribunal. 18- The A.O. No. 467/2007 as well as the Cross Objection filed in this appeal are dismissed. 19- The statutory amount of compensation deposited with this court be remitted to the tribunal concerned. 20- Let a copy of this judgment be placed in the file of A.O. No. 467/2007. (B.C. Kandpal, J.) ISB