IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 269 of 2007 Mannu Tandon ...Appellant Versus Gulshan Kumar Mulani & others ...Respondents Sri Z.U. Siddiqui, Advocate for appellant Sri Lalit Sharma, Advocate for respondent no. 1 Sri R.B. Agarwal, Advocate for respondent no. 2 Sri Deepak Rawat, Advocate for respondent no. 4 Dated: 05-05-2009 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the claimant against the judgment and award dated 06.06.2007 passed by Motor Accident Claims Tribunal/District Judge, Nainital, in M.A.C.P. No. 72 of 2006, Mannu Tandon versus Gulshan Kumar Mulani and others. Brief facts of the case as narrated in claim petition are that on 3.9.2005 at 12.30 p.m. claimant-Mannu Tandon was coming to his home and as soon as he reached in front of Nagar Palika, Nainital Road, Haldwani, a motorcycle no. U.A.04C- 1700 being driven by its driver rashly and negligently, hit the scooter of the claimant from the rear side, due to which claimant fell down and suddenly a Bus No. D.L.1PA-3862 belonging to Nirmala Convent School came there and right leg of claimant came under the tyre of bus and was badly injured. It has been alleged that at the time of accident claimant-injured had been working as Manager in Nagpal Tower, Haldwani and used to get a sum of Rs.7200/- per month from the said job. The claimant claimed a sum of Rs.20,00,000/- as compensation against the opposite parties. Opposite party no. 1-Gulshan Kumar Mulani, owner of Motorcycle No. U.A.04C-1700 filed his written statement pleading therein that his vehicle was insured with opposite party no. 2-The New India Assurance Co. Ltd. and therefore the liability to pay the compensation, if any, is of opposite party no. 2-insurance company. Opposite party no. 2-The New India Assurance Co. Ltd. filed its written statement pleading therein that claimant did not make party to insurer of his motorcycle. The answering opposite party had not been given any information of alleged accident. The claimant was driving his motorcycle rashly and he was not having valid driving licence. The accident was caused on account of rash and negligence on the part of claimant and driver of bus involved in the accident. Opposite party no. 3-Nirmala Convent School, owner of Bus No. D.L.1PA-3862, filed its written statement pleading therein that its vehicle was insured with opposite party no. 4-Oriental Insurance Co. Ltd. and therefore the liability to pay the compensation, is any, is opposite party no. 4- insruance company. The driver of answering respondent was having valid driving licence and his vehicle was being plied with all valid papers at the time of accident. Opposite party no. 4-The Oriental Insurance Co. Ltd. filed its written statement pleading therein that the claimant was driving the motorcycle rashly without helmet and in the accident he has contributed the negligence and claim petition filed against answering respondent deserves to be dismissed. The learned Tribunal on the basis of pleadings of the parties framed necessary issues in the claim petition. Parties led evidence in support of their case. The learned Tribunal after having considered the entire material evidence available on record and hearing learned counsel for the parties decreed the claim petition for a sum of Rs.3,10,000/- along with interest @ 6% per annum from the date of filing the petition till the date of actual payment, vide impugned judgment and award dated 06.06.2007. The learned Tribunal also directed that The New India Assurance Co. Ltd., insurer of vehicle No. U.A.04C-1700 shall pay the awarded amount upto an extent of 80%, while Oriental Insurance Co. Ltd., who is insurer of Bus No. D.L.1PA-3862, shall pay the amount of award upto an extent of remaining 20%. Feeling aggrieved by the aforesaid impugned judgment and award, the claimant has preferred the present appeal before this Court for enhancement of amount of compensation. Heard Sri Z.U. Siddiqui, learned counsel for appellant-claimant, Sri Lalit Sharma, learned counsel for respondent no. 1 (owner of motorcycle no. U.A.04C-1700), Sri R.B. Agarwal, learned counsel for respondent no. 2-The New India Assurance Co. Ltd., Sri Deepak Rawat, learned counsel for respondent no. 4-Oriental Insurance Co. Ltd. and perused the record. Learned counsel for the appellant-claimant has submitted before the Court that amount of compensation awarded by the learned Tribunal is meager and same should be enhanced by this Court. On the other hand, learned counsels for the respondents have supported the impugned judgment and award passed by the Tribunal. As far as factum of accident is concerned, the Tribunal has dealt with this point while deciding issue nos. 1 and 3 in the impugned judgment and award. The claimant himself has been examined as PW-1. This witness filed copy of F.I.R. on record. Besides, the claimant filed copy of charge sheet filed in the case lodged with respect to said accident and copy of site plan, which is against driver of motorcycle no. U.A.-04C-1700. This witness stated in his deposition that driver of motorcycle no. U.A.04C-1700 hit his motorcycle from the rear side, due to which he fell down and just then bus of Nirmala Convent School came, which crushed the right leg of the claimant. The site plan filed by this witness clearly reveals that claimant was not at fault in the accident. The learned Tribunal after having considered the entire evidence adduced before it came to the conclusion that on 3.9.2005 at 12.30 p.m. when claimant was going to his home in his motorcycle no. U.A.04C-960, in front of Nagar Palia, Nainital Road, Haldwani, motorcycle no. U.A. 04C-1700 being driven by its driver rashly and negligently hit the motorcycle of claimant from the rear side, due to which claimant fell down and just then bus no. D.L.1PA-3862 being driven by its driver rashly came over there and crushed the right leg of the claimant. In this accident claimant was not at fault and the accident is outcome of contributory negligence on the part of driver of bus no. D.L.1PA-3862 and driver of motorcycle no. U.A.04C-1700 and not the claimant. The Tribunal further held that at the time of accident vehicle involved in the accident was not being plied in breach of conditions of insurance policy. The finding recorded by the Tribunal in this respect does not require any interference and same deserves to be confirmed. As far as amount of compensation to be paid to the claimant is concerned, the Tribunal has discussed this point while deciding issue no. 5, but I am of the view that approach adopted by the Tribunal in awarding the amount of compensation appears to be erroneous. The accident in this case has taken place in the year 2005. The notional income which has been taken into account by the Tribunal is Rs.15,000/- per annum which is certainly on lesser side in view of the decision of Division Bench of this Court passed in A.O. No. 2 of 2005, Shobhan Singh and another vs. New India Insurance Company and another. The notional income thus in the year 2005 is taken into account as Rs.36,000/- per annum. The Tribunal has further fell into error by deducting one-third amount out of total annual income of the claimant- injured. The Tribunal has ignored this aspect that it is a case of injury and not a case of death. The question of deduction of one-third amount from the total annual income of the injured does not arise. Therefore, the total annual income is to be taken into consideration in this case. The Tribunal has adopted multiplier of ‘17’ which appears to be justified keeping in view the age of the injured who was 22 years of age at the time of accident. In case, if the multiplier of ‘17’ is adopted in this case and total annual income of injured is taken into consideration, then total amount of compensation comes to Rs.36,000 x 17=Rs.6,12,000/-. The disability certificate has been filed by the claimant- injured. The injured has also examined doctor as PW-2 who has proved the bills pertaining to medical treatment of the injured. The doctor has also stated that injured remained under his treatment. The bones of his leg were crushed. The doctor has also stated that injured cannot move without the help of sticks. The disability certificate produced by the claimant also indicates that claimant suffered permanent disability upto an extent of 55%. In case, if this disability is taken into account, then claimant is entitled for a sum of Rs.6,12,000 x 55/100=Rs.3,36,600/- as amount of compensation. The Tribunal has taken into account the medical bills of the injured-claimant. The claimant has filed the bills pertaining to Rs.2,14,948/- (rounded Rs.2,15,000/-). The doctor has also been examined in order to establish the genuineness of the bills filed by the injured-claimant, but the Tribunal without assigning any cogent and plausible reason has awarded an amount of Rs.2,00,000/- only towards the medical expenses which, to my mind, appears to be erroneous and I am of the view that claimant is entitled to get an amount of Rs.2,15,000/- towards the medical expenses. Further, the Tribunal has awarded only a sum of Rs.16,000/- to the claimant for physical pain, suffering and mental agony as well as the financial loss, which also appears to be meager. Keeping in view the nature of the injuries sustained by the claimant-injured an amount of Rs.25,000/- should be awarded to him for physical pain, suffering and mental agony as well as the financial loss. On the basis of the aforesaid calculation, the total amount of compensation to be paid to the claimant comes to Rs.3,36,600/- + Rs.2,15,000/- + Rs.25,000/-=Rs.5,76,600/- (rounded Rs.5,77,000/). The Tribunal has come to the conclusion that rash and negligence on the part of driver of motorcycle no. U.A.04C-1700 which is insured by The New India Assurance Co. Ltd. is upto an extent of 80% and remaining part of rash and negligence of driver of Bus No. D.L.1PA-3862 which is insured by Oriental Insurance Co. Ltd., is upto an extent of 20%, therefore, these companies shall be liable to pay the amount of compensation to the claimant accordingly along with interest at the rate of 6% per annum from the date of filing the petition till the date of actual payment. For the reasons stated above, appeal is liable to be partly allowed. Accordingly, appeal is partly allowed. The impugned judgment and award is modified to the extent that claimant is entitled for a sum of Rs.5,77,000/- (Rupees five lacs seventy seven thousand only) as compensation (instead of Rs.3,10,000/- as compensation awarded by the Tribunal) along with interest of 6% per annum from the date of filing the petition till the date of actual payment. (B.C. Kandpal, J.) SP