IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 374 of 2006 Ratiram and another …… Claimants/Appellants. Versus The New India Insurance Company Ltd. and 2 others …….. Opp. Parties/Respondents. Mr. Vir Kunwar Singh holding brief of Mr. Manish Arora, learned counsel for the appellants. Mr. P.C. Maulekhi, learned counsel for the New India Insurance Co. UDated: 16-09-2008 UHon’ble B.C. Kandpal, J. This appeal, under Section 173 of the Motor Vehicles Act, 1988, arises against the judgment and award dated 22-3-2006, passed by First F.T.C./Addl. District Judge, Roorkee/Motor Accident Claims Tribunal, in MACT Case No. 127 of 2004. 2- The facts of the case, in short, are that on 25-1-2004, Bijendra Kumar was going to Chauli Plot riding in a Motorcycle. A Maruti Van bearing registration No. U. P. 14-J-8000, which was being driven in a high speed, came there from Roorkee side, and dashed the Motorcycle, due to which Bijendra Kumar, who was driving the Motorcycle, fell down after sustaining grievous injuries. He was brought to the Civil Hospital where he was declared dead by the doctors. The first information report of the accident was lodged by Rajesh. The deceased was a robust person of 21 years of age and used to run a tent-house business. His monthly income was about Rs. Ten thousand from the said business. He also used to do agricultural work on 40 Bighas land and used to earn about Rs. Ten thousand. The claimants, 2 who are parents of the deceased, preferred claim petition for award of compensation of Rs. 26,27,000/-. 3- The opposite party Nos. 1 and 3, who are owner and driver of the Maruti Van U.P. J-8000 respectively, have filed joint written statement and denied the allegations made in the claim petition. They alleged that the offending Maruti Van was insured with New India Insurance Company and its driver was having valid driving license. They further alleged that the accident has occurred due to own fault of the Motorcyclist, as he was driving the vehicle in a rash and negligent manner. Their further assertion was that the liability of compensation, if any, is upon the insurer. 4- The opposite party no.2, the New India Insurance Company also contested the claim before the Tribunal by filing written statement. The Insurance Company has alleged that the accident was the result of rashness on the part of the motorcyclist. The petition was bad for non-joinder of party to petition of insurer of motorcycle. It also alleged that the driver of Maruti Van involved in the accident, had no valid driving license. The vehicle was also not having R.C. and permit and exorbitant amount of compensation has been claimed. 5- On the pleading of parties, the learned tribunal framed relevant issues. Thereafter, parties adduced evidence in support of their case. The learned tribunal after hearing learned counsel for the parties and considering the entire material available on record, awarded a sum of Rs. 56,000/- as compensation along with interest @ 6% per annum from the date of petition till the date of final payment against the owner of the offending Maruti Van. 3 6- Feeling aggrieved the claimants have preferred this appeal for enhancement of compensation. 7- Heard learned counsel for the parties and perused the record. 8- The learned counsel for the claimants/ appellants has submitted that the tribunal has awarded insufficient amount towards compensation for the death of a young boy. He also submitted that tribunal also fell in error by not relying on the documents and evidence adduced by the claimants pertaining to the income of the deceased. He, therefore, urged that the amount of compensation be enhanced and liability be fixed against the owner as well as the insurer of the offending Maruti Van. 9- The learned counsel for the respondent/ insurance company has submitted that the Maruti Van involved in the accident had no valid permit and R.C., its driver was also not having valid driving license, and the deceased, who was driving the motorcycle, was also not having a driving license, and in these circumstances the learned Tribunal has rightly fixed contributory negligence of both the vehicles involved in the accident in a ratio of ½ each. He also submitted that there was breach of condition of policy, hence the insurance company has rightly been exonerated from the liability of compensation. 10- From perusal of record it reveals that P.W.2, Rajesh and P.W.3, Jitendra are the eyewitnesses of the accident. These witnesses have specifically deposed that the Maruti Van has dashed the motorcycle on wrong side. The opposite parties did not adduce any evidence in 4 rebuttal. Therefore, the tribunal was justified in holding that the accident has occurred due to the negligence of Maruti Van. The tribunal after scrutinizing the various documents filed before it, came to the conclusion that Maruti Van had no road permit and fitness certificate and the driver Ishraj was not possessing the license to drive the passenger vehicle, therefore, breach of conditions of insurance policy was committed. The tribunal further held that the deceased was also not possessing driving license at the time of accident. He was carrying three passengers without wearing helmet and he was also liable for negligence in committing the accident. In view of the entire material on record and the facts and circumstances of the case I find that the learned tribunal was quite justified in holding both the driver of Maruti Van as well as the motorcycle liable for negligence in equal share. The Insurance Company has rightly been exonerated from the liability to pay compensation. 11- So far as the quantum of compensation awarded by the tribunal is concerned, according to the claimants the deceased used to run the tent-house business as well as the agricultural work, but no documentary and other reliable evidence has been adduced to establish the income of the deceased. This fact has also not been proved by cogent and reliable evidence that the deceased actually used to do the work of tent-house. No document was filed to show that how much agricultural land was in the ownership of the deceased’s family. Therefore, the Tribunal has rightly taken the notional income of Rs. 15,000/- per annum of the deceased and after deducting 1/3Prd P towards the personal expenses, the net dependency was calculated at Rs. 10,000/- per annum. The deceased was unmarried. The claimants are the parents of the deceased. 5 Therefore the compensation was to be calculated according to the age of the parents of the deceased. The father and mother of the deceased are 52 years and 50 years of age respectively. Therefore, the tribunal has rightly adopted the multiplier of ‘11’ on the age group of 50 to 55. Hence, the total compensation comes to Rs. 10,000/- X 11=Rs.1,10,000/-. The Tribunal also awarded a sum of Rs. 2,000/- towards funeral expenses. As the liability of both the vehicles involved in the accident was fixed in equal share, therefore, the amount of Rs. 56,000/- has rightly been awarded as compensation payable by the owner of the offending Maruti Van. For the other half amount the deceased himself was negligent and therefore I do not find any infirmity in the finding recorded by the tribunal on the point of quantum as well as the liability fixed by the learned tribunal upon the owner of Maruti Van as well as the deceased who himself was driving the offending motorcycle. 12- For the discussion made above, the appeal lacks merit and is liable to be dismissed. 13- Accordingly, the appeal is dismissed. The impugned judgment and award dated 22-3-2006 is upheld. (B.C. Kandpal,J.) ISB