IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 88 of 2007 National Insurance Company Ltd. … Appellant Vs Udal & others … Respondents With Appeal From Order No. 72 of 2007 National Insurance Company Ltd. … Appellant Vs Santosh Singh & others … Respondents Sri D.S. Patni, learned counsel for the appellant Sri Anurag Bisaria, learned counsel for the respondents/claimants Sri Mohd. Azim, learned counsel for the respondent/owner of vehicle Oral Judgment (per Hon’ble B.C. Kandpal, J.) Both these appeals are being heard together and decided by the common judgment, as the claims in both the appeals relate to the same accident and the facts and questions involved are common. 2. Appeal No. 88 of 2007 under Section 173 of Motor Vehicles Act, 1988 has been filed by the appellant/National Insurance Company Ltd. against the judgment and award dated 30.09.2004 passed by the Motor Accident Claims Tribunal/District Judge/Fast Track court, Kashipur, Udham Singh Nagar, in Motor Accident Claim Petition No. 26 of 2002, Udal Singh & others Vs Sohan Singh & others, whereby the Tribunal awarded a sum of Rs. 2,73,500/- in favour of the claimants and against the appellant. 3. Appeal No. 72 of 2007 under Section 173 of Motor Vehicles Act, 1988 has been filed by the appellant/National Insurance Company Ltd. against the judgment and award dated 30.09.2004 passed by the Motor Accident Claims 2 Tribunal/District Judge/Fast Track court, Kashipur, Udham Singh Nagar, in Motor Accident Claim Petition No. 28 of 2002, Santosh Singh & others Vs Sohan Singh & others, whereby the Tribunal awarded a sum of Rs. 4,17,500/- in favour of the claimants and against the appellant. 4. Brief facts of the case are that on 23.12.2001, tractor trolley No. UP04B/3625 met with an accident in which, Chandrapal Singh and Joga Singh died in the accident. The claimants of Chandrapal Singh have preferred a claim petition before the Tribunal concerned, for a sum of Rs. 19,10,000/- as compensation on the ground that the deceased was 48 years of age and used to earn Rs. 4,500/- per month by doing motor winding work. On the other hand, the claimants of the deceased – Joga Singh have also filed a claim petition before the Tribunal for a sum of Rs. 12,60,000/- as compensation on the ground that the claimant was 25 years of age and used to earn Rs. 4,500/- per month by driving vehicle. 5. Thereafter notices were issued to the opposite parties. On the receipt of the notices, the opposite parties contested the claim petition by filing their separate written statements before the Tribunal. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues in the claim petition. Thereafter, both the parties led evidence in support of their case. 6. After hearing learned counsel for the parties and perusing the entire material available on record, the Tribunal decreed the claim of the deceased – Chandrapal Singh for a sum of Rs. 2,73,500/- along with interest of 5% per annum vide judgment and award dated 30.09.2004. The Tribunal in the claim petition of another deceased – Joga Singh awarded a 3 sum of Rs. 4,17,500/- along with interest of 5% per annum vide judgment and award dated 30.09.2004. 7. Feeling aggrieved by the aforesaid judgments and awards, the appellant/National Insurance Company Ltd. has preferred these appeals before this Court. 8. Heard Sri D.S. Patni, learned counsel for the appellant/Insurance Company, Sri Anurag Bisaria, learned counsel for the respondents/claimants, Sri Mohd. Azim, learned counsel for the respondent/owner of vehicle and perused the record. 9. Learned counsel for the appellant has submitted that the driver of the tractor trolley was not holding effective and valid driving licence at the time of accident. He has also submitted that the owner of the vehicle in fact submitted the passport, which was treated as driving licence by the Tribunal. A review application was filed in this regard, but the Tribunal did not enter into this aspect. 10. I fail to appreciate the argument of the learned counsel for the Insurance Company for the reasons that the Insurance Company itself could not adduce any cogent and reliable evidence before the Tribunal, establishing that the driver of the tractor trolley was not carrying valid and effective driving licence. 11. The facts of the case are that on 23.12.2001 at about 08:00 p.m., Joga Singh (driver of tractor trolley) was going on the road, all of a sudden, tractor trolley turned turtle, in which, the driver of the tractor and Chandrapal Singh sustained serious injuries and succumbed to injuries. The 4 defence taken by the owner of the vehicle as well as driver of the vehicle is that all of a sudden some cattle appeared before the tractor trolley and the driver of the tractor trolley could not control the same, hence, it turned turtle and the accident took place in which the driver of the tractor trolley as well as Chandrapal Singh died at the spot. 12. The finding recorded by the Tribunal that the driver of the tractor trolley was not rash and negligent at the time of the accident appears to be erroneous and I am of the view that this finding is perverse and against the weight of the evidence on record. Had the driver of the tractor trolley been vigilant, he certainly could have control the vehicle, in case cattle appears on the road. There was no question of the tractor trolley being turned turtle on the place of accident. The dictum of res-ipsa-loquitur is taken into account and the circumstance in this case itself indicates that the driver of the tractor trolley was negligent and on account of his own negligence, the tractor trolley turned turtle when the cattle appeared over the road. I fail to understand that how the Tribunal could arrive at a different finding. Smt. Kamla Devi (P.W.1) – wife of the deceased Chandrapal Singh has stated in the deposition before the Tribunal that Joga Singh was driving the tractor trolley in a rash and negligent manner at the time of the accident and when cattle appeared over the road before the tractor trolley, the driver on account of his own negligence could not control the same and it turned turtle. Another witness – Makhan Lal (P.W.2) is the person who was present at the scene of the accident and he has also stated that the tractor trolley was being driven with rashly and negligently and for the same reason the driver of the tractor trolley could not control the same and it turned turtle. Therefore, in view of the evidence available on record, by any stretch of 5 imagination, it cannot be held that the driver of the tractor trolley was not rash and negligent at the time of the accident. I am of the definite view that the evidence in this case positively indicates that the accident took place with rash and negligence on the part of the driver of the tractor trolley and for the same reason it turned turtle when the cattle appeared over the road before the tractor trolley. Therefore, the conclusion drawn by the Tribunal with regard to this aspect that the tractor trolley was not rash and negligent is liable to be set aside. 13. As far as the amount of compensation to be awarded in favour of the claimants in appeal No. 88 of 2007 is concerned, the Tribunal while deciding issue No. 3 has discussed this aspect but the approach adopted by the Tribunal further appears to be wrong. The deceased in this case was aged about 55 years as is evident from the postmortem report. The trial court although has rightly assessed the annual income of the deceased as Rs. 36,000/- but the multiplier adopted by the Tribunal considering the age of the deceased appears to be certainly on the higher side. In case, annual income of the deceased is taken into account of Rs. 36,000/- and after deducting 1/3rd out of it as personal expenses of the deceased, then the financial dependency of the claimants comes to Rs. 24,000/- per annum. In view of the judgment of Hon’ble Apex court in The New India Assurance Company Ltd. Vs Smt. Kalpana & others reported in (2007) 2 Supreme Court Cases (Cri) 94, T.N. State Transport Corporation Vs S. Rajapriya & others reported in (2005) 6 SCC 276 and The Managing Director, TNSTC Vs Sripriya & others reported in 2007 (5) Supreme 301, the multiplier cannot travel more than ‘8’ in any manner, keeping in view the age of the deceased as 55 years. 6 14. On the basis of the aforesaid assessment, the amount of compensation to be awarded in favour of the claimants comes to Rs. 1,92,000/- (24000 X 8) instead of Rs. 2,64,000/-as has been awarded by the Tribunal. The amount of Rs. 9,500/- awarded by the Tribunal under other different heads shall remain intact. The rate of interest indicated in the impugned judgment and award also does not require any interference. 15. For the reasons stated above, the appeal No. 88 of 2007 is partly allowed. The claimants are entitled to get the amount of Rs. 2,01,500/- instead of Rs. 2,73,500/- as has been awarded by the Tribunal along with interest as indicated in the impugned judgment and award. 16. As far as appeal No. 72 of 2007 is concerned, it is not disputed that the deceased had been driving tractor trolley at the time of the accident and as I have already observed that the deceased himself was rash and negligent to cause this accident, therefore, I am of the view that the claimants cannot be said to be entitled for getting any amount of compensation on account of rash and negligence on the part of the driver – Joga Singh (deceased). The Hon’ble Supreme Court in Oriental Insurance Company Ltd. Vs Meena Variyal reported in (2007) 5 Supreme Court Case 428 has held, as under:- “17. It is difficult to apply the ratio of this decision to a case not involving a third party. The whole protection provided by Chapter XI of the Act is against third party risk. Therefore, in a acase where a person is not a third party within the meaning of the Act, the insurance company cannot be made automatically liable merely by 7 resorting to Swaran Singh ratio. This appears to be position. This position was expounded recently by this Court in referring to Swaran Siongh and discussing the law summed up the position thus: (Laximi Narain Dhut case, SCC p. 719, para 38). In view of the above analysis the following situations emerge:- 1. The decision in Swaran Singh case has no application to cases other than third-party risks. 2. Where originally the licence was a fake one, renewal cannot cure the inherent fatality. 3. In case of third-party risks the insurer has to indemnify the amount and if so advised, to recover the same from the insured. 4. The concept of purposive interpretation has no application to cases relatable to Section 149 of the Act. The High Courts/Commission shall now consider the mater afresh in the light of the position in law as delineated above. We are of the perfectful agreement with the above view. 18. In New India Assurance Co. Ltd. Vs. Asha Rani this Court had occasion to consider the scope of the expression “any person” occurring in Section 147 of the Act. This Court held: “… that the meaning of the words ‘any person’ must also be attributed having regard to the context in which they have been used i.e. “a third party”. Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured 8 for any passenger travelling in a goods vehicle, the insurers would not be liable therefore.” 17. Learned counsel for the claimants/respondents could not show me any decision or any provision of law which may permit the claimants to get the amount of compensation in case, where the legal representative of the driver of the offending vehicle was rash and negligent at the time of accident had died. I am therefore, of the view that the claimants in this case cannot be said to be entitled for any amount of compensation to be awarded in this case. 18. For the reasons recorded above, the appeal No. 72 of 2007 is allowed. The impugned judgment and award is set aside. The claimants cannot be said to be entitled for any amount of compensation under the Motor Vehicles Act, 1988. 19. However, in case, the claimants intend so, they may prefer the claim petition by adopting forum under Workmen’s Compensation Act, 1923. 20. The statutory amount deposited by the appellant in both the appeals be remitted to the Tribunal concerned. 21. Let the copy of this order be placed in A.O. No. 72 of 2007. (B.C. Kandpal, J.) 23.06.2009 ASWAL