IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 468 of 2005 The Oriental Insurance Co. Ltd. … Appellant Versus Shri Bhim Raj Singh & another … Respondents Sri V.K. Kohli, senior Advocate, assisted by Sri I.P. Kohli, Advocate, for appellant Sri N.S. Negi, Advocate, for respondent no. 1 Dated: April 9, 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 02.09.2005, passed by Motor Accident Claims Tribunal/District Judge, Chamoli, in Motor Accident Claim Case No. 21/2005, Shri Bhim Raj Singh versus The Oriental Insurance Company Limited and another. Briefly stated the facts giving rise to the present appeal are that the claimant-Shri Bhim Raj Singh filed a claim petition under Section 166 of Motor Vehicles Act, for the grant of compensation on account of death of deceased-Jagmohan Singh in a motor vehicle accident. According to the claimant, on 09.05.2002, when deceased-Jagmohan Singh was travelling through Marshal Jeep No. U.A.07- 1638 to attend a marriage ceremony, the said vehicle which was being driven by its driver rashly and negligently, met with an accident under the limits of village Salana, due to which deceased- Jagmohan Singh sustained grievous injuries on his person and when he was taken to hospital the doctors declared him dead. The claimant has pleaded that the deceased used to earn Rs.4000- 5000 from the work of farming, mistri and laboring. The claimant thus claimed for a sum of Rs.10,00,000/- as compensation against the opposite parties. The opposite party no. 1-insurance company has filed written statement refuting the contents of claim petition. It has further pleaded that at the time of accident, registration certificate, permit, pollution control certificate, driving certificate and insurance policy etc. relating to involved vehicle were not valid. It has also pleaded that deceased at the time of accident was sitting on the roof of the Jeep and the said vehicle was possessing more passengers more than its capacity. The vehicle was being plied in contrary to the conditions of insurance policy and driver of said vehicle was not holding valid driving licence, therefore, the insurance company is not liable to pay compensation. The opposite party no. 2-Raj Pal Singh filed his written statement and alleged that at the time of accident vehicle involved in accident was insured with opposite party no. 1-Oriental Insurance Company Ltd. and all the papers relating to said vehicle were valid. The deceased was sitting in the roof of jeep and he fell down due to his own negligence. He has also pleaded that deceased was rushed to hospital by opposite party no. 2, where deceased died. The opposite party no. 2 was driving his vehicle in an average speed. Therefore, the insurance company is liable to pay compensation. 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 allowed the claim petition and awarded a sum of Rs. 2,66,000/- as compensation, in favour of claimant, payable by opposite party no. 1-The Oriental Insurance Co. Ltd., along with an interest @ 5% per annum from the date of filing the petition till its realization. The Tribunal also directed that this amount of compensation is to be paid by opposite party no. 1- insurance company, within a period of one month from the date of judgment. Feeling aggrieved by the aforesaid impugned judgment and award, the appellant-insurance company has preferred the appeal before this Court. Heard Sri V.K. Kohli, senior Advocate, assisted by Sri I.P. Kohli, learned counsel for appellant, Sri N. S. Negi, learned counsel for respondent no. 1 and perused the record. Learned counsel for the appellant-insurance company has submitted that the learned Tribunal has wrongly assessed the notional income of the deceased at Rs.36,000/- per annum, instead of Rs.15,000/- per annum as prescribed in IInd Schedule of Motor Vehicles Act. He also contended that the learned Tribunal has also committed error in selecting the multiplier of ’11’ in place of ‘10’ as in the case of unmarried the multiplier of ‘11’ should have taken into consideration. I have gone through the impugned judgment and award thoroughly. The evidence reveals that witness PW-1 deposed in his statement that deceased-Jagmohan Singh was going through Marshal Jeep No. U.A. 07-1638 on 9.5.2002 after attending marriage ceremony and the said vehicle met with an accident at Pokhri-Hafla Road near Salna, due to rash and negligence of its driver, in which son of claimant died. This witness has also been cross examined and he has stated that the deceased was not sitting on the roof of vehicle rather he was sitting inside the vehicle. He was given information with regard to death of deceased from Pokhri Hospital and he stated that he himself did not see the accident. The witness DW-1 produced by opposite parties has deposed that at the time of accident deceased was sitting on the roof of vehicle and he fell down due to his own negligence while vehicle was running. The deceased was taken to hospital where he died. The evidence of claim petition and DW-1 further reveals that deceased along with other passengers was travelling in the offending vehicle for attending the marriage ceremony, but opposite parties had not been able to produce any independent witness in order to support the statement of DW-1 that deceased died due to his own negligence. The claimant in order to support his case filed paper no. 26Ga photocopy of F.I.R., paper no. 27Ga/1 photocopy of post mortem report, paper no. 28Ga, photocopy of charge sheet and paper nos. 29Ga/1 to 29Ga/3, photocopy of ‘Panchayatnama’. The Tribunal after having considered the entire evidence available on record came to the conclusion that on 9.5.2002 at about 5.00 p.m. Marshal Jeep No. U.A. 07-1638 met with an accident at Pokhri-Hafla Road near Salna, due to rash and negligence of its driver, in which deceased- Jagmohan Singh died. The Tribunal further held that since the vehicle at the time of accident was not being plied in contrary to conditions of insurance policy and all the papers relating to offending vehicle were valid, therefore, the insurer of offending vehicle-The Oriental Insurance Co. Ltd. is liable to pay compensation to the claimant. The finding recorded by Tribunal with regard to rash and negligence of driver of offending vehicle and liability upon insurance company to pay compensation, appears to be just and proper and I do not find any reason to disturb this finding recorded by Tribunal. So far as the quantum of compensation is concerned, the claimant has come up with the case that the deceased had been earning Rs.4000-5000 from the work of farming, mistri and laboring, but no evidence has been adduced by the claimant in this regard. In case, if no evidence could be adduced by the claimant in order to show the actual income of the deceased, then the formula of notional income would certainly be applicable in the facts and circumstances of the present case. The Tribunal has taken the notional income as Rs. 36,000/- per annum. The Division Bench of this Court in A.O. No. 2 of 2005, Shobhan Singh and another vs. New India Insurance Company and another, decided on 1.11.2006, has enhanced the notional income from Rs. 15,000/-per annum to Rs. 36,000/- per annum due to hike in the price index. Therefore, in view of above decision also, the amount of notional income taken by the Tribunal as Rs.36,000/- per annum appears to be just and proper. Therefore, the annual dependency of the claimant, keeping in view the notional income as Rs. 36,000/- per annum and after deducting 1/3rd out of it towards personal expenses of deceased, comes to Rs. 24,000/- per annum. It is an admitted case that at the time of accident the deceased was 54 years of age, which has also been proved by paper no. 18Ga, copy of Parivar Register, therefore, keeping in view the age of deceased multiplier of ‘11’ adopted by the Tribunal appears to be just and adequate. After adopting the multiplier of ‘11’ as well as keeping in view the annual financial dependency of the claimant, the total compensation to be awarded in favour of claimant, comes to Rs. 24,000/- x 11= Rs.2,64,000/-. Therefore, the Tribunal has rightly awarded the amount of compensation to the claimant towards loss of dependency and the same does not require any interference. As far as amount awarded by the Tribunal under the head of ‘funeral expenses’ is concerned, the same does not require any interference. The interest as has been indicated in the award also does not require any interference. . For the reasons stated above, the appeal lacks merit and is liable to be dismissed. Accordingly, the appeal is dismissed. The impugned judgment and award passed by Tribunal, is confirmed. (B.C. Kandpal, J.) SP