IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 823 of 2006 Oriental Insurance Co. Ltd. …Appellant Versus Smt. Sheela Devi & others ... Respondents And Appeal From Order No. 828 of 2006 Smt. Sheela Devi & others …Appellants Versus Shri Vishnu Sahaya & another ... Respondents Sri D.S. Patni, Advocate for appellant/insurance company Sri G.C. Lakhchaura, Advocate for claimants/respondents Dated: July 30, 2008 Hon’ble B.C. Kandpal, J. Since both the appeals arise out of same judgment and award, therefore, they are being decided by this common judgment and order. A.O. No. 823 of 2006, under Section 173 of Motor Vehicles Act, 1988, has been filed by the appellant-Oriental Insurance Co. Ltd., against the judgment and award dated 23.09.2006 passed by M.A.C.T./Additional District Judge/F.T.C., Kashipur, District Udham Singh Nagar, in M.A.C.C. No. 137/2005, Smt. Sheela Devi and others vs. Vishnu Sahaya and another. Briefly stated the facts as narrated in the claim petition are that on 17/18.8.2004 at night 2 deceased-Jai Prakash was returning to his home from Industrial Estate Bajpur Road, Kahsipur after finishing his electrical work. When the deceased reached at the bend of Jindar Factory Bajpur Road, Maruti Van No. U.P.02C/7157, being driven by its driver rashly and negligently, crushed the deceased, as a result of which deceased died at the spot itself. The deceased at the time of his death was 40 years of age and had been earning a sum of Rs.4500/- per month from the job of Electrician. The claimants claimed a sum of Rs.20,00,000/- as compensation, along with interest, against the opposite parties. Opposite party no. 1, inspite of sufficient service of notice upon him, neither filed written statement nor contested the case, hence, an order was passed to proceed exparte against him. Opposite party no. 2-Oriental Insurance Co. Ltd. filed written statement denying the contents of claim petition. It has pleaded that it was not given any information with regard to accident and under these circumstances the insurance company is not liable to pay any compensation. It has also pleaded that opposite party no. 1 (owner of vehicle) has to prove that his vehicle on the date of accident was registered for insurance with opposite party no. 2 and only then insurance company can be held liable to pay compensation. It took additional plea that on the date of accident the person who was not having valid and effective driving licence was plying offending vehicle. It has further pleaded that claimants have to prove this fact that accident occurred due to rash and negligent driving of driver of Maruti Van No. U.P.02C/7157. 3 The Tribunal on the basis of pleadings adduced by the parties framed following issues in the claim petition: 1. Whether on 17/18.8.2004 at night near Jindal Factory Bend, Bajpur Road, P.S. Kashipur, District Udham Singh Nagar, Maruti Van No. U.P.02C/7157 being driven by its driver rashly and negligently hit Jai Prakash, due to which he died? 2. Whether at the time of accident in question driver of Maruti Van No. U.P.02C/7157 was having valid and effective driving licence? 3. How much amount are the claimants entitled and from which of opposite parties? Parties led evidence in support of their cases. The 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.3,70,000/- against opposite party no. 2-Oriental Insurance Co. Ltd., along with interest @ 9% per annum from the date of filing the petition till the date of actual payment. The Tribunal further directed opposite party no. 2-insurance company to pay the aforesaid amount of compensation within a period of two months, failing which, claimants shall be entitled to get an interest @ 12% per annum from the date of filing the petition till the date of actual payment. 4 Feeling aggrieved by the aforesaid impugned judgment and order, the appellant-Oriental Insurance Co. Ltd. has preferred the appeal before this Court. The claimants also filed appeal for enhancement of amount of compensation before this Court. Heard Sri D.S. Patni, learned counsel for appellant/insurance company, Sri G.C. Lakhchaura, learned counsel for claimants/respondents and perused the record. As far as issue no. 1 regarding factum of accident, the Tribunal has discussed all the evidence adduced by the parties and thereafter has recorded a categorical finding that accident occurred due to rash and negligent driving of driver of Maruti Van No. U.P.02C/7157, due to which deceased-Jai Prakash died. I do not find any illegality in the finding recorded by the Tribunal in this regard. As far as issue no. 2 with regard to valid and effective driving licence of driver of offending vehicle, is concerned, the burden to prove this issue on opposite party no. 2 that at the time of accident driver of offending vehicle was not having valid and effective driving licence. The record reveals that opposite party no. 2 neither adduced any evidence in support of his statement nor filed any document in this regard. But, opposite party no. 2 neither denied the photo copy of driving licence (paper no. 23C/10) nor stated that said document was fake. 5 The Tribunal has recorded a categorical finding that under these circumstances, this statement of opposite party no. 2 cannot be accepted that driver of offending vehicle was not having valid and effective driving licence at the time of accident and decided issue no. 2 against the opposite party no. 2. I do not find any infirmity in the finding recorded by the Tribunal in this regard. As far as issue no. 3 with regard to amount of compensation to be awarded in favour of claimants is concerned, the record reveals that claimants have pleaded in their written statement that deceased was earning a sum of Rs.4500/- per month as salary. It has also been pleaded that deceased was working as Electrician. The witness PW-3 Chiranji Pal, who was produced in order to show the income of deceased, had neither produced any letter showing the monthly income of deceased nor has produced the attendance and salary register which may indicate that as to what amount of salary was being drawn by the deceased at the time of his death. The Tribunal has thus rightly observed that in the absence of any cogent and reliable evidence with regard to actual income of deceased the notional income of Rs.3,000/- per month would be taken into consideration. I do not find any infirmity in the finding recorded by the Tribunal in this regard. The age of the deceased as per post-mortem report is 42 years. Keeping in view the notional income of deceased, the financial dependency of claimants after deducting 1/3rd out of total income of deceased comes to Rs.24,000/- per annum. 6 Further, keeping in view the age of deceased which was 42 years at the time of accident, the multiplier adopted by the Tribunal as ‘15’ appears to be on higher side. In view of the latest pronouncement of the Hon’ble Apex Court given in the cases of Tamil Nadu State Transport Corporation Ltd. Versus S. Rajpriya & others, reported in 2005 (4) SC 87, The Managing Director, TNSTC versus Sripriya & others, reported in 2007(5) Supreme 301 and New India Assurance Co. Ltd. vs. Kalpana (Smt) and others, reported in (2007) 2 SCC (Cri) 94, the multiplier in the present case would not exceed more than ‘13’. After applying the multiplier of ‘13’ the total amount of compensation to be awarded in favour of claimants comes to Rs.3,12,000/-. The Tribunal also awarded a sum of Rs.10,000/- under other different heads to the claimants, which is not to be disturbed. Thus, the total amount of compensation to be awarded in favour of claimants comes to Rs.3,12,000 + Rs.10,000=Rs.3,22,000/-. As far as interest awarded by the Tribunal on the amount of compensation as 9% per annum, is concerned, it is again on higher side. As pr the current rate of interest, prevailing rate of interest should be 7.5% instead of 9% as awarded by the Tribunal. For the reasons stated above, A.O. No. 823 of 2006 is liable to be partly allowed. So far as A.O. No. 828 of 2006 is concerned, this appeal has been filed by the claimants for enhancement of amount of compensation against the same judgment and award dated 23.09.2006. Learned counsel for claimants has submitted that 7 learned Tribunal has awarded meager amount of compensation to the claimants and it is liable to be enhanced by this Court. I do not find any substance in the above submission advanced by learned counsel for the claimants-appellants. In view of findings recorded by me while deciding A.O. No. 823 of 2006 arising out of same claim petition, this appeal has no force, as the impugned judgment and award has been partly modified and A.O. No. 823 of 2006 has been allowed by me. Therefore, this appeal is liable to be dismissed. Accordingly, A.O. No. 823 of 2006 is partly allowed. The impugned judgment and award is modified to the extent that claimants/respondents are entitled for a sum of Rs.3,22,000/- (instead of Rs.3,70,000/- as has been awarded by the Tribunal), along with interest @ 7.5% per annum (instead of interest @ 9% per annum and conditional interest @ 12% per annum imposed by Tribunal in the impugned award), from the date of filing the petition till the date of actual payment. A.O. No. 828 of 2006 filed by claimants for enhancement of amount of compensation, is dismissed. In case, if the appellant-insurance company has deposited the excess amount with the Tribunal concerned, the appellant-insurance company is permitted to withdraw the same. 8 The statutory amount deposited by the appellant-insurance company before this Court, shall be remitted to the Tribunal concerned. Let a copy of this judgment be placed in the file of A.O. No. 828 of 2006. (B.C. Kandpal, J.) SP