IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 50 of 2008 Mehandi Hasan & others … Appellants Vs Manoj Kumar & others … Respondents Sri Lok Pal Singh, learned counsel for the appellants Sri I.P. Kohli, learned counsel for respondent no. 3 Sri Niranjan Bhatt, learned counsel for respondent no. 4 Dated: September 26, 2008 Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed by the appellants/claimants against the judgment and award dated 05.11.2007 passed by Motor Accident Claims Tribunal/II F.T.C. Dehradun in M.A.C. Case No. 214 of 2005 whereby the Tribunal awarded a sum of Rs. 4,13,556/- in favour of claimants. Brief facts of the case as narrated in the claim petition are that on 28.5.2005 at about 7.45 p.m. deceased-Mahmood Hasan along with his brother- in-law Furqan Ali was going on Motorcycle from I.D.P.L. to Haridwar and said motorcycle was being driven by Furqan Ali. When the deceased reached near Midway Hotel, a Truck bearing Registration No. U.P.-14-1104 being driven by its driver rashly and negligently, hit the motorcycle of deceased from the rear side, due to which deceased died at the spot itself. The deceased-Mahmood Hasan was 40 years of age at the time of his death and was earning Rs.6,380/- by working in Laksar Sugar Mill. 2 Opposite party no. 1 did not file written statement. Opposite party no. 2 also did not file written statement, hence case was proceeded exparte against him on 29.6.2007. Opposite party no. 3-The New India Assurance Co. Ltd. filed its written statement and pleaded that amount of compensation as claimed is excessive and baseless and claim petition is not maintainable. In the additional pleas, it has been pleaded that motorcycle was being driven by its driver rashly and negligent at the time of accident. it has also been pleaded that opposite party no. 1 was not holding valid driving licence and opposite party no. 2 was not having valid permit at the time of accident and motorcyclist-Furqan Ali was not having valid driving licence at the time of accident. Opposite party no. 5-Sri Indra Mohan Sachdeva filed written statement refuting the contents of claim petition. He has admitted that accident was caused due to own negligence of deceased himself and on 15.4.2005 vehicle involved in the accident has been transferred to opposite party no. 5 by sale. It has also been pleaded that vehicle in question was insured with opposite party no. 3 on the date of accident. He has also admitted the factum of accident, but denied that accident was caused due to rash and negligent driving of truck driver. He has also denied that deceased was 40 years of age and his monthly income was Rs.6,380/-. It has also been pleaded that driver was having valid driving licence and at the time of accident a person came all of a sudden from the left side who wanted to go to the left side and tried to 3 cross the road without seeking the vehicle in question. Opposite parties no. 4 and 6 did not file their written statements. 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 learned Tribunal after having considered the entire material available on record and hearing learned counsel for the parties decreed the claim petition for a sum of Rs.4,13,556/- in favour of claimants, against opposite party no. 3-The New India Assurance Co. Ltd., vide judgment and award dated 05.11.2007. Feeling aggrieved by the aforesaid impugned judgment and award dated 05.11.2007, the appellants-claimants have preferred the present appeal before this Court for enhancement of amount of compensation. Heard Sri Lok Pal Singh, learned counsel for appellants, Sri I.P. Kohli, learned counsel for respondent no. 3, Sri Niranjan Bhatt, learned counsel for respondent no. 4 and perused the record. Learned counsel for appellants-claimants has confined his argument to this aspect that amount of compensation awarded by learned Tribunal is meager and it is liable to be enhanced by this Court. He has further submitted that multiplier as well as 4 interest awarded by the Tribunal is also on lower side. As far as factum of accident is concerned, the Tribunal has discussed all the evidence adduced by the parties and thereafter has come to the conclusion that the accident occurred due to rash and negligent driving of the offending vehicle i.e. Truck No. UP-14-1104. The Tribunal further held that as far as contributory negligence on the part of PW-2 Furqan Ali in the accident, is concerned, it appears that PW-2 could not see the truck on account of the fact that the said truck was behind the motorcycle. The Tribunal held that PW-2 Furqan Ali was not liable for contributory negligence in the accident. Perusal of record reveals that the said finding does not require any interference. The reasons recorded by the learned Tribunal are cogent and clear. I am completely in agreement with the finding recorded by the Tribunal with regard to rash and negligent driving of vehicle i.e. Truck No. UP- 14-1104 at the time of accident. As far as amount of compensation to be awarded in favour of claimants is concerned, the claimants stated in the claim petition that salary of deceased was Rs.6,380/- per month at the time of accident, whereas salary certificate of deceased (paper no. 30/C to 36/B) issued by Factory Manager of R.B. Narayan Singh Sugar Mill Ltd. shows that gross salary of deceased was Rs.5,655/- per month and net salary of deceased was Rs.4,976/- per month. Further, paper no. 49/C which was verified by signatures of PW-3 Som Prakash Sharma Record Keeper of said Mill, shows 5 that apart from deduction of Rs.679/- a deduction of Rs.1000/- was also made from the salary of deceased. Thus, it is quite clear that deceased used to get a sum of Rs.3,976/- per month after deductions. For calculation of compensation the net payable salary after usual deductions will be taken into consideration. Thus, the Tribunal has assessed the income of the deceased at Rs.3,976/- per month. The finding recorded by Tribunal in this regard appears to be justified and needs no interference. By deducting 1/3rd of the said amount as personal expenses of deceased, the claimants’ dependency was assessed at Rs.2,651/- per month i.e. Rs.31,812/- per annum. The record further reveals that age of the deceased was 47 years at the time of accident and learned Tribunal in view of schedule prescribed in Section 163-A of Motor Vehicles Act, selected the multiplier of ‘13’. By multiplying the above amount of Rs.31,812/- with multiplier of ‘13’, the Tribunal awarded compensation of Rs.4,13,556/- to the claimants. Interest @ 6% per annum on the above amount of compensation was also awarded from the date of filing the petition till the date of actual payment, which also appears to be justified and needs no interference. The Tribunal, in my opinion, has not committed any illegality in calculating the amount of compensation. I do not find any illegality in the method adopted by the Tribunal in calculating the amount of compensation. For the reasons stated above, the appeal lacks merit and is liable to be dismissed. 6 The appeal is accordingly dismissed. The impugned judgment and award dated 05.11.2007 is hereby confirmed. (B.C. Kandpal, J.) SP