IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 39 of 2007 The New India Assurance Company Ltd. ..Appellant. Versus Smt. Rukhsana Begum and others … Respondents. Sri R.B. Agarwal, learned counsel for the appellant. Sri Parikshit Saini, learned counsel for claimants/respondents. Dated: 2-12-2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of the Motor Vehicles Act, arise against the judgment and award dated 22-11-2006, passed by Motor Accident Claims Tribunal/ District Judge, Haridwar, in MACT Case No. 76/2005, Smt. Rukhsana Begum and others Vs. Arvind Kumar and others. 2- Brief facts of the case are that on 30-6-2005, at about 5 P.M. when Noor Ali was going towards Laldhaang riding in his Motorcycle U.A. 04-0416, the driver of Tanker bearing registration No. UA 04-0416 dashed the Motorcycle in a rash and negligent manner, due to which Noor Ali sustained grievous injuries and he succumbed to the injuries. According to the claimants the deceased at the time of his death was 34 years of age and his monthly income was Rs. 6,000/-. 3- The opposite party No.1, owner of the Tanker No. UA 04-0416 contested the claim petition and alleged that the petition is bad for non-joinder of insurer of offending Motorcycle. He has further alleged that the accident has occurred due to own fault of deceased and if any liability to pay the compensation is found then the same is upon the New India Assurance Company the insurer of the offending Tanker. 2 4- The opposite party No.2, driver of the offending Tanker also filed his written statement and alleged that the claimants cannot be held entitled to get compensation on the basis of the averments made in the claim petition. He further alleged that he was possessing valid and effective driving license and the Tanker was insured with New India Assurance Company. 5- The opposite party No.3, the New India Assurance Company also filed its written statement and alleged that the accident was the result of the own fault of deceased. The insurer also took the plea that the Tanker was not being driving with valid documents and its driver was also not having valid and effective driving license. 6- The learned Tribunal after framing issues and the parties adducing evidence, came to the conclusion that the accident was the result of rash and negligence of Tanker driver and awarded a sum of Rs. 7,25,000/- as compensation along with interest @ 5% per annum from the date of filing the petition till the date of actual payment, against the New India Assurance Company. 7- Feeling aggrieved, the New India Assurance has preferred this appeal before this Court. 8- I have heard learned counsel for the appellant/New India Assurance Company as well as learned counsel for the claimants/respondents and perused the record. 9- Learned counsel for the appellant first of all raised the plea that the driver of the offending Tanker was not having valid driving license and the tribunal did 3 not consider this point. He has further submitted that the owner and insurer of the Motorcycle involved in the accident have not been arrayed as respondent in the claim petition, hence the petition was bad for non-joinder of necessary party. It is further argued that the accident was the result of contributory negligence of the vehicles, but the tribunal has not considered this point in the impugned award. 10- The learned counsel for the claimants/respondents has refuted the above submissions and argued that the Tanker driver was having valid driving license and the vehicle was also having insurance cover. He also submitted that the tribunal has considered the evidence of the parties on the point of rash and negligence and rightly held the Tanker driver solely responsible for causing the accident, therefore, the owner/insurer of the Motorcycle involved in the accident were not necessary parties to the claim petition. 11- From perusal of record it reveals that the claimants have adduced oral as well as documentary evidence in support of their claim but the opposite parties, inspite of opportunity, did not adduce any evidence. Although the tribunal did not frame issues on the point of contributory negligence and the driver of the tanker was possessing valid driving license or not?, but the eyewitness of the accident Gulsher P.W.2, has deposed that he had seen the accident with his own eyes. He was coming in his Motorcycle behind the Motorcycle of the deceased and saw that the driver of Tanker No. U.A. 04-0416 had dashed the Motorcycle of the deceased by driving the Tanker in a rash and negligent manner due to which the deceased Noor Ali 4 sustained grievous injuries and he succumbed to the injuries. Copy of F.I.R. lodged at the Police Station has also been filed on record. The F.I.R. was lodged on the day of accident itself and perusal of the same shows that the accident was occurred due to the rashness of driver of the Tanker. Against the above evidence adduced by the claimants, the opposite parties did not file any evidence to establish the contributory negligence of the deceased. Here it may also be mentioned that the driver of the offending tanker has filed his written statement but he could not dare to come in the witness box and tell about the contributory negligence of the deceased. In view of above evidence I am in full agreement with the conclusion drawn by the tribunal that the accident has occurred due to the sole negligence of the Tanker driver. 12- The record further reveals that photocopy of registration, fitness, insurance policy and driving license have been filed on record. The driving license is paper No. 12-C/1 and it has endorsement that the license is renewed upto 5-1-2006. This endorsement was made on 9-7-2003. The accident took place on 30-6-2005, therefore, it is quite clear that the driver of the Tanker was having valid and effective driving license. The insurance policy paper No. 11-C/2 also reveals that the policy was valid from 7-1-2005 to 6-1-2006. Therefore, in view of the evidence available on record, I am of the considered view that the submissions raised by the learned counsel for the appellant have no significance and the findings of the trial court are correct, holding that the driver was having valid driving license and the vehicle was having valid insurance cover. 13- So far as the quantum of compensation is concerned, the learned counsel for the appellant has 5 submitted that the tribunal has awarded a huge amount of compensation on wrong conclusions drawn by it pertaining to income of the deceased, multiplier etc. Therefore, the impugned award is not sustainable in eye of law. He has contended that the tribunal has adopted the multiplier of ‘15’, which is on higher side when the age of the deceased was 35. In support of his above argument he has cited before me the case of Managing Director, TNSTC Ltd Vs. K.I. Bindu and others, reported in (2005) 8 Supreme Court Cases 473 and the case of U.P. State Road Transport Corpn. Vs. Krishna Bala and others reported in (2006) 6 Supreme Court Cases 249. 14- Perusal of record reveals that the claimants have alleged in the claim petition that the deceased used to do the profession of selling milk and his monthly income is shown as Rs. 6,000/- per month. Although the claimants did not file any documentary evidence in support of the income of the deceased, but Smt. Rukhsana, widow of the deceased has made on oath statement that her husband used to earn about Rs. 6,000/- per month from selling the milk. The opposite parties did not controvert the above statement of P.W.1, Smt. Rukhsana by adducing any evidence in rebuttal, therefore the learned Tribunal has accepted the evidence of the claimants on the point of income of the deceased and assessed the monthly income of the deceased as Rs. 6,000/-. In absence of any evidence in rebuttal, the learned Tribunal has believed the on oath statement of P.W.1, Smt. Rukhsana, on the point of monthly income of the deceased and in doing so, the tribunal has not committed any error. The tribunal after deducting 1/3rd towards personal expenses the annual dependency of the claimants was assessed as Rs. 48,000/-. 6 15- I have also considered the above case law cited by the learned counsel for the appellant on the point of multiplier. The Hon’ble Supreme Court has adopted the multiplier of ‘13’ where the deceased were 34 and 36 years of age respectively. The Hon’ble Apex Court in the case Managing Director, TNSTC Ltd (supra) has held that ‘in every case it is the overall picture that matters and court must try to assess as best as it can the loss suffered. It has further been held that the appropriate highest multiplier is to be ‘18’. The highest multiplier has to be for the age group of 21 to 25 years when an ordinary Indian Citizen starts independently earning and the lowest would be in respect of a person in the age group of 60 to 70, which is the normal retirement age.’ 16- In the second cited case of U.P. State Road Transport Corpn. (Supra) the Hon’ble Apex Court has held that ‘the multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by the age of the deceased ( or that of the claimants, whichever is higher) and by calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed over the period for which the dependency is expected to last.’ The Hon’ble Apex Court further held that ‘the multiplier is to be adopted taking note of the prevalent banking rate of interest. As the interest rate is on the decline, the multiplier has to consequentially be raised.’ 17- In the present case the deceased has left behind him, his widow, 6 children aged ranging between 7 1½ years to 10 years and aged parents. The rate of interest awarded by the tribunal on the awarded amount is 5% per annum, the deceased at the time of accident was 35 years of age, therefore, looking to the above peculiar facts of the case, decline in normal rate of interest and the pecuniary loss suffered by the dependents and the period for which the dependency is expected to last, the multiplier of ‘15’ adopted by the tribunal, cannot be said to be unreasonable. Therefore, the rulings cited by learned counsel for the appellant, so far as adopting the multiplier of ‘13’ on the age of 35 years, is concerned, the same are not helpful to his case. In my view the tribunal rightly adopted the multiplier of ‘15’, thereby, computing the total dependency of Rs. 48,000/- X 15 = Rs. 7,20,000/-. The tribunal further awarded a sum of Rs. 5,000/- towards other heads and the total compensation being Rs. 7,20,000/- + Rs. 5,000/-= Rs. 7,25,000/-. The rate of interest awarded by the tribunal is 5% per annum from the date of filing the petition till the date of actual payment and the same cannot be said unreasonable. 18- For the discussion made above, I do not find any ground to interfere in the impugned judgment and award, therefore, the appeal is liable to be dismissed. 19- The appeal is dismissed. The Impugned judgment and award dated 22.11.2006 is hereby confirmed. 20- The statutory amount deposited by the appellant at the time of filing the appeal, be remitted to the tribunal concerned. (B.C. Kandpal, J.) ISB 8