IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 571 of 2005 Smt. Farzana & others … Appellants Versus Nand Ram & others … Respondents Sri H. M. Bhatia, Advocate, for the appellants Sri D. S. Patni, Advocate, for respondent no. 4 Sri T. A. Khan, Advocate, for respondent no. 2 Dated: April 8, 2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred against the judgment and award dated 26.09.2005, passed by Motor Accident Claims Tribunal/District Judge, Pauri Garhwal, in M.A.C. Case No. 13 of 2004. The claimants-Smt. Farzana and others preferred a claim petition under Section 166 of Motor Vehicles Act, for grant of compensation on account of death of Abrar Ahmad in a motor vehicle accident. According to the claimants, on 4.12.2003 deceased-Abrar Ahmad was going through his Motorcycle No. D.L.S. F-3920 from Najibabad to Gurgaon. When he was standing to left side of his motorcycle near Honda Agency at Ghaziabad-Delhi Road, a Truck bearing Registration No. H.R. 38 H- 6355 dashed the motorcycle due to rash and negligent driving of its driver, due to which deceased-Abrar Ahmad fell down on the road and was crushed beneath the front tyre of truck and succumbed to his injuries sustained in the accident. The claimants have pleaded that deceased was 33 years of age at the time of accident and used to earn Rs. 10,000/- per month in average from the work of carpenter. They have also pleaded that opposite party no. 1 is the truck owner, opposite party no. 2 is the insurer of truck, opposite party no. 3 is owner of motorcycle and opposite party no. 4 is the insurer of motorcycle. The claimants thus claimed for a sum of Rs.22,35,000/- as compensation. The opposite party no. 1-owner of the truck inspite of sufficient service upon him, neither filed written statement nor contested his case before the Tribunal. The opposite party no. 2-Oriental Insurance Company Ltd. has filed written statement and denied the factum of death of deceased-Abrar Ahmad in the accident. Though the insurance company denied the factum of accident, it has stated that deceased-motorcyclist was on long journey and accident occurred to own fault of deceased-motorcyclist and therefore the claimants are not entitled to get any compensation. It has also pleaded that motorcycle was being plied unauthorizedly as the deceased was not its owner and motorcyclist had no driving certificate and insurance at the time of accident. It has further pleaded that Truck No. H.R. 38 H-6355 was being plied in violation of conditions of insurance policy and offending vehicle was not holding valid papers, insurance and valid driving licence. It has also stated that since deceased died due to his own fault, hence, the claimants are not entitled to get any compensation. The opposite party no. 3-Sri Haroon, owner of motorcycle filed written statement and took plea that at the time of accident deceased was sitting on motorcycle and the offending truck dashed the motorcyclist from the rear side resulting into taking place of accident. He took additional plea that on the date of accident the motorcycle was insured with National Insurance Company w.e.f. 1.12.2003 to 30.11.2004. Hence, the insurance company is liable to pay compensation, if any. Opposite party no. 4-National Insurance Co. Ltd. filed written statement refuting the contents of claim petition. It took additional plea that accident occurred due to rash and negligence of driver of Truck No. H.R. 38 H-6355, which is insured with opposite party no. 2-Oriental Insurance Co. Ltd. and opposite party no. 1 is the owner of offending truck. Therefore, opposite parties no. 1 and 2 are liable to pay compensation to the claimants. 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 material available before it and hearing learned counsel for the parties, decreed the claim petition for a sum of Rs. 5,44,000/- as compensation, in favour of claimants, against opposite party no. 2- Oriental Insurance Company Limited. The Tribunal also directed the Oriental Insurance Company Ltd. to deposit the said amount of compensation within a period of two months, failing which, insurance company shall have to pay an interest @ 9% per annum from the date of filing the claim petition till the date of actual payment of compensation. Feeling aggrieved by the aforesaid award, the appellants-claimants have preferred this appeal before this Court for enhancement of compensation. Heard Sri H. M. Bhatia, Advocate, for the appellants, Sri D. S. Patni, Advocate, for respondent no. 4, Sri T. A. Khan, Advocate, for respondent no. 2 and perused the record. Learned counsel for the appellants has submitted that the learned Tribunal has committed error in assessing the monthly income of the deceased at Rs. 6,000/-, as income of the deceased was proved as Rs. 10,000/- per month. I have gone through the impugned award. Perusal of record and evidence reveals that PW-1 Abdul Jabbar has stated in his deposition that on 4.12.2003 he along with deceased-Abrar Ahmad was going to Gurgaon through Motorcycle No. D.L. 01 S.F. 3920 owned by Abrar Ahmad and when they are standing in front of Honda Agency at Meerut Road at about 6.00 p.m., a Truck No. H.R. 38H- 6355 coming from back side rashly and negligently, dashed them, with the result, Abdul Jabbar fell to the right side while deceased-Abrar Ahamd fell beneath the front tyre of offending vehicle. Therefore, the learned Tribunal was justified in holding that the accident occurred due to rash and negligent driving of offending truck. As far as amount of compensation to be awarded in favour of claimants/appellants is concerned, the record reveals that the age of the deceased at the time of accident was 33 years. The income of the deceased as has been assessed by the Tribunal is Rs. 6000/- per month. I do not find any reason to disturb the finding recorded by the Tribunal with regard to monthly income of the deceased and it is taken to be Rs. 6000/- per month as has been indicated in the impugned judgment and award. In case, if the income of the deceased is considered to be Rs. 6000/- per month, then out of this amount 1/3rd of the amount is to be deducted as personal expenses of the deceased, then financial dependency of the claimants comes to Rs. 4000/- per month and if this amount is multiplied by ‘12’, the financial dependency of the claimants comes to Rs. 4000 x 12=Rs.48,000/- per annum. Keeping in view the age as well as the income of the deceased, in case if the pronouncement of the Hon’ble Apex Court in the case of Tamil Nadu State Transport Corporation Ltd. Versus S. Rajpriya & others, reported in 2005 (4) SC 87, is taken into account, then multiplier of ‘12’ would be just and reasonable and if the aforesaid multiplier of ‘12’ is applied in this case, the total amount of compensation to be awarded to the claimants, comes to Rs. 48,000 x 12= Rs.5,76,000/-. Therefore, on the basis of aforesaid calculation, the amount of compensation to be granted to the claimants, should be Rs.5,76,000/-, instead of Rs.5,44,000/- as has been awarded by the Tribunal. In view of the above, the appeal is partly allowed. The impugned judgment and award is modified to the extent that the claimants-appellants are entitled to get a compensation of Rs.5,76,000/- (Rupees Five Lacs Seventy Six Thousand Only, instead of Rs.5,44,000/- as has been awarded by the Tribunal. Rest of the findings recorded by the Tribunal shall remain intact. (B.C. Kandpal, J.) SP