IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 107 of 2006 The Oriental Insurance Company Ltd. … Appellant Versus Smt. Rajrani and others … Respondents And Appeal From Order No. 101 of 2006 Smt. Raj Rani & others … Appellants Versus Oriental Insurance Company Ltd. & others … Respondents Sri V.K. Kohli, senior Advocate, assisted by Sri I.P. Kohli, Advocate for appellant. Sri Lokpal Singh, Sri Hari Mohan Bhatia, Advocates, for respondents. Dated: June 10, 2008 Hon’ble B.C. Kandpal, J. Since both the appeals arise out of same judgment and award and similar controversy is involved, therefore, they are being decided by this common judgment and order. Brief facts of the case as narrated in the claim petition are that on 30.6.2001/1.7.2001 deceased- Deewan Singh Pal was going in his Maruti Car bearing Registration NO. U.H.P.4787 from Bareilly to Haldwani. When the said vehicle reached at Bareilly-Nainital National Highway within the limits of Police Station Bhojipura, it collided with Truck bearing Registration No. U.P.-25-6235 standing in the middle of the road without having any 2 indicator/signal, as a result of which deceased- Deewan Singh Pal sustained serious injuries on his person and died on the spot itself. The deceased at the time of accident was working as Assistant Engineer in Uttar Pradesh Avas Evam Vikas Parishad and was drawing the salary of Rs.17,431/- per month. The deceased was 42 years of age at the time of accident. The claimants thus claimed a sum of Rs.50,50,000/- as compensation. The opposite party no. 1-Oriental Insurance Co. Ltd., who is insurer of Truck No. U.P.25-6235 filed its written statement denying the contents of claim petition. It took additional plea that claim petition has been filed on wrong and baseless facts. It has further denied the factum of accident and death of deceased in the alleged accident. It also took plea that Truck No. UP-25-6235 was not having valid driving licence and offending Truck was being plied in breach of conditions of insurance policy. It has further alleged that Maruti Car No. U.H.P.4787 was being plied by deceased himself in a rash and negligent manner, due to which deceased died on account of his own rash and negligence. The opposite party no. 3-Oreintal Insurance Company Limited-insurer of Maruti Car No. U.H.P. 4787 filed its written statement denying the contents of the claim petition. It took additional plea that alleged Maruti Car No. U.H.P.4787 was not got insured by Hemant Kumar with opposite party no. 3-Oriental Insurance Co. Ltd. Truck No. U.P. 25- 6235 was standing in its direction towards the road according to traffic rules and driver of Maruti Car 3 dashed the Truck from the rear side rashly in a negligent manner. The driver of the Truck was not at fault rather accident took place on account of his own negligence of driver of Maruti Car and therefore insurance company is not liable to pay any compensation. It has further alleged that death of deceased was not caused due to the alleged accident. It has also denied the age and income of the deceased. The owner of Maruti Car was not having any Registration Certificate and driver was not having any valid and effective driving licence at the time of accident. It has further submitted that answering opposite party no. 3 was not made party unnecessarily. The claim petition filed against opposite party no. 3 is liable to be dismissed. The opposite party no. 2-Pyare Lal and opposite party no. 4-Gopal Sharan Paliwal, inspite of sufficient service of notice upon them, did not contest their case. The learned Tribunal on the basis of pleadings of parties framed relevant issues in the claim petition. Parties led evidence in support of their cases. The Tribunal after having considered the material available on record and hearing learned counsel for the parties partly allowed the claim petition in favour of claimants for a sum of Rs.1318587/- payable by Oriental Insurance Company Ltd. The Tribunal also held that since both the vehicles i.e. Truck and Maruti Car was equally responsible for the accident, therefore, insurance company may recover half of the awarded amount of compensation from owner of Truck. The Tribunal also directed that the amount of 4 compensation is to be paid by insurance company within a period of two months, failing which an interest @ 9% per annum shall be payable to the claimants from the date of filing the petition till the date of actual payment of compensation. Feeling aggrieved by the aforesaid impugned judgment and award, the appellant-insurance company has preferred the appeal before this Court. The claimants have also filed A.O. No. 101 of 2006 for enhancement of compensation. Heard Sri V.K. Kohli, senior Advocate, assisted by Sri I.P. Kohli, Advocate for appellant-insurance company, Sri Lokpal Singh, Sri Hari Mohan Bhatia, Advocates, for respondents and perused the record. I have gone through the impugned judgment and award. The evidence on record reveals that deceased had been working as Assistant Engineer in U.P. Avas Evam Vikas Parishad and was drawing the salary of Rs.17400/- per month. The claimants filed pay certificate issued by U.P. Avas Evam Vikas Parishad, Rampur, which shows that gross salary of deceased at the time of accident was Rs.17431/- and deceased used to pay income tax on that amount. For calculation of compensation the net payable salary after usual deductions will be taken into consideration which comes to Rs.16391/-. In this way, the Tribunal has assessed the income of the deceased at Rs.16391/- per month i.e. Rs.1,96,692/- per annum which appears to be justified. The record further reveals that the age of deceased was 42 years at the time of accident as per 5 High School Certificate. Keeping in view the age of the deceased as well as financial dependency of the claimants, multiplier of ‘15’ as has been adopted by the Tribunal appears to be just and adequate and after adopting the multiplier of ‘15’, the financial dependency of the claimants comes to Rs. 196692 x 15= Rs.29,50,380/-. After deducting 1/3rd out of that amount towards personal expenses of the deceased, the financial dependency of claimants comes to Rs. 19,67,380/-. The Tribunal also made further 1/3rd deduction from the amount of compensation for lump sum payment in view of the decision of the Division Bench of this Court passed in the case of A.O. No.353 of 2004, Oriental Insurance Company Limited vs. Smt. Hemanti Devi & others, decided on 30.06.2005, in which it has been observed that “in view of the heavy amount, which was directed to be paid in one go, one-third of the amount of dependency to the tune of Rs.8,05,400/- has rightly been deducted in the facts and circumstances of this case, which cannot be said to be unjust” . In the instant case also, the amount of compensation is a huge amount and the deduction made for lump sum payment cannot be said to be unjustified. Therefore, the amount of compensation comes to Rs.19,67,380 x 1/3=Rs.13,11,587/-. The Tribunal also awarded a sum of Rs.2000/- towards funeral expenses and Rs.5000/- towards loss of love and affection. Thus, the Tribunal awarded total amount of compensation of Rs. 13,18,587/-, which appears to be just and reasonable and does not require any interference. Now it is to be seen whether the accident has occurred due to sole negligence of the driver of the 6 offending Car or the Truck involved in the accident was also negligent. Admittedly, the Car dashed with the rear portion of the Truck standing on the road. It has come in evidence that the Truck was standing in the middle of the road without having indicator or signal. The accident has occurred in the night and in such circumstances the truck as well as the car are equally liable for causing the accident. The Tribunal has also come to the conclusion that the drivers of both the vehicles have contributed negligence in equal share in causing the accident. Therefore, in my opinion also, the drivers of the Car as well as the Truck have contributed negligence upto 50% each. It has come on record that both the vehicles were insured with Oriental Insurance Company Limited. The Tribunal has given a finding that Oriental Insurance Company Ltd. is liable to pay the total amount of compensation shared by both the vehicles involved in the accident. This finding of the Tribunal is perverse as the deceased was the owner of the offending Car and he himself was driving the Car at the time of accident, therefore, he cannot be termed as third party and hence the claimants cannot be compensated for the death of the deceased by the insurer. Further, the claimants cannot get the compensation upto the extent of 50% each out of total amount of compensation on account of rash and negligence on the part of deceased/driver of Maruti Car. Thus, the claimants are entitled to get 50% of the entire amount of compensation i.e. Rs.6,55,640/- plus Rs. 2000/- towards funeral expenses and Rs.5000/- towards loss of love and affection=Rs.6,62,640/- (rounded 7 Rs.6,63,000/-). The conditional interest imposed by the Tribunal is also liable to be set aside and I am of the view that the amount of compensation awarded by this Court in the Appeal i.e. Rs.6,63,000/- shall be paid by the insurer of the offending Truck along with interest @ 7.5% per annum with effect from the date of filing the petition till the date of actual payment instead of conditional interest imposed by the Tribunal in the impugned judgment and award. As far as A.O. No. 101 of 2006 filed by claimants is concerned, learned counsel for the claimants-appellants has raised the argument that the Tribunal has awarded a meager amount and the same should be enhanced. He has further submitted that the amount of compensation has been awarded by the Tribunal on take home salary, while it should have been awarded on gross salary. He has also submitted that the Tribunal has awarded conditional interest whereas the interest should be awarded from the date of filing the petition. I find no substance in the submission of learned counsel for the claimants. In view of the judgment of the Hon’ble Apex Court passed in the case Asha and others vs. United India Insurance Co. Ltd. and another, 2004 ACJ 448, the amount of compensation is to be awarded on take home salary. The Tribunal has thus rightly calculated the amount of compensation on the take home salary and a correct multiplier has been adopted. The appeal for enhancement of quantum of compensation has no force. 8 So far as interest part is concerned, the claimants should be awarded interest at the rate of 7.5% from the date of filing the petition, instead of conditional interest as has been awarded by the Tribunal. Accordingly, A.O. No. 107 of 2006 filed by insurance company is partly allowed. The impugned judgment and award is modified to the extent that the claimants are entitled to get a sum of Rs.6,63,000/-- (Rupees Six Lacs Sixty Three Thousand only), as compensation, instead of Rs.13,18,587/- as has been awarded by the Tribunal, payable by Oriental Insurance Company Limited, along with interest @ 7.5% per annum with effect from the date of filing the petition till the date of actual payment instead of conditional interest imposed by the Tribunal in the impugned judgment and award. A.O. No. 101 of 2006 filed by claimants is accordingly partly allowed so far as only the interest part is concerned. Let a copy of this judgment be placed in the file of A.O. No. 101 of 2006. (B.C. Kandpal, J.) SP 9