IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 759/2006 Kheem Singh Negi … Appellant. Versus Chandan Singh and another .. Respondents. Sri Z.U. Siddiqui, Advocate for the appellant. Sri V.K. Kohli, Senior Advocate, assisted by Mr. I.P. Kohli, Advocate for Respondent/Oriental Ins. Co. WITH A.O. No. 550/2006 Oriental Insurance Co. Ltd. … Appellant. Versus Kheem Singh and 2 others .. Respondents. Sri V.K. Kohli, Senior Advocate, assisted by Mr. I.P. Kohli, Advocate for Appellant/Oriental Ins. Co. Sri Z.U. Siddiqui, Advocate for claimants/respondents. Dated: 20-6-2008 Hon’ble B.C. Kandpal, J. Both these appeals, arise out of the same judgment and award dated 31-7-2006, passed by M.A.C.T./III F.T.C., Nainital, in MACT Case No. 160 of 2005, therefore, the appeals are being decided by this common judgment. 2- Brief facts of the case, giving rise to these appeals, are that on 13.6.2005 at about 9.30 A.M. Mukul @ Mukesh Negi was moving on a cycle towards Sushila Tiwari Hospital, Rampur Road Haldwani and his mother Smt. Pushpa Negi was going on foot. When they reached in front of Axeel Motors, Tractor bearing registration No. UP-22-B-7509 came from behind at a high speed and dashed the cyclist and Mukul died at the spot. The deceased at the time of accident was aged 13 years and he was a student of class-6th. The claimants filed claim petition for compensation of Rs. 9,40,000/-. 2 3- The Opposite Party No.1/owner of the offending Tractor contested the claim petition by filing his written statement before the Tribunal, admitting the accident and ownership of the Tractor. He also alleged that at the time of accident he himself was driving the Tractor. He was possessing valid driving license. The Tractor was insured with Oriental Insurance Company and the liability of compensation, if any, is upon the insurer. 4- The Opposite Party No.2/ Oriental Insurance Company also contested the petition and filed its written statement. According to the insurer the driver was not having valid driving license. The Tractor was meant for agricultural work but at the time of accident water tanker was being carried in it. The Tractor was being run against the terms of insurance policy. Therefore, the insurer cannot be held liable to pay any compensation. The Insurance Company also alleged that an exorbitant amount of compensation has been demanded. 5- The learned Tribunal, on the basis of pleading of parties, framed relevant issues in the claim petition. Thereafter, the claimant and owner (O.P.No.1) adduced evidence in support of their case. However, the Insurance Company did not adduce any evidence. The Tribunal after hearing learned counsel for the parties and considering the material on record, awarded a sum of Rs. 2,62,000/- as compensation against the Oriental Insurance Company. The Trial Court also directed to deposit the amount of compensation within 1 ½ months of passing the award, failing which the claimants shall be entitled to get interest @ 6% per annum from the date of filing of the petition till the actual date of payment. 3 6- Feeling aggrieved, the Oriental Insurance Company has preferred A.O. No. 550/2006 and the claimants have preferred A.O. No. 759/2006 for enhancement. 7- Heard learned counsel for the parties and perused the record. 8- The learned counsel for the Oriental Insurance Company has submitted that the tractor was insured for the use of agricultural purposes whereas at the time of accident it was being used for the commercial purpose for transportation of water. He also contended that the accident took place with the trailer which was loaded with water tanker, the trailer was neither registered nor it was insured, hence the Insurance Company was not liable for any compensation, or in the alternative the right of recovery should have been given to the appellant. Learned counsel also submitted that wrong calculation has been made by the Tribunal while awarding the compensation. 9- On the other hand, learned counsel for the claimants has submitted that a meager amount of compensation has been awarded. According to learned counsel, the deceased was the only son of the claimants. The deceased was a brilliant student and he was the only hope of the entire family, therefore the compensation should be enhanced. 10- The Tribunal on the point of violation of terms of insurance policy has framed issue No.3 in the claim petition, which runs as follows:- 4 “Whether on the date of the accident the Tractor U.P. 22-B-7509 was being driven in violation of terms of insurance policy?. 11- At the outset it is pertinent to mention here that the Oriental Insurance Company has not adduced any evidence in support of its allegations pertaining to breach of terms of insurance policy. On the other hand, Sri Chandan Singh, the owner of the offending tractor who himself was driving the tractor at the time of accident, has produced him as D.W.1 and deposed that he was possessing valid driving license. Copy of license paper No. 22-B/7 has been filed on record. The license was valid for the period 15.9.2003 to 14.9.2023. Registration of the Tractor paper No. 22-B/2 to 22-B/5 has been filed. In the written statement as well as in his statement on oath the owner of the Tractor has alleged that the Tractor at the time of accident was being used for agricultural purposes. He was transporting water for irrigation purpose. This statement of the owner of the offending tractor has not been controverted from the side of by the Insurance Company by adducing evidence in rebuttal. Therefore, it cannot be held that the tractor was being used for other purpose than the agricultural work. 12- Copy of insurance policy paper No. 6-C/3 has been filed by the owner on the record. The offending tractor was insured with effect from 23.6.2004 to 22.6.2005 and premium for extra loading has been paid. It has also come in the evidence of P.W.1, Smt. Pushpa Devi, who was present at the spot that the Tractor came from behind in a very rash and negligent manner and dashed the cyclist, due to which he fell down and died at the spot. I, am therefore, of the opinion that the 5 Tribunal was justified in holding the insurer liable to pay the compensation. 13- So far as the quantum of compensation is concerned, the deceased was 13 years of age and he was a class 6th student. The Tribunal has taken the notional income of Rs. 15,000/- per annum for assessing the dependency of the claimants and adopted a multiplier of ‘15’ and assessed the dependency of Rs. 2,25,000/-. 14- Learned counsel for the Oriental Insurance Company has submitted that the Tribunal has not deducted 1/3rd towards personal expenses and calculated the dependency on the entire amount of notional income. He therefore submitted that the compensation should be assessed after 1/3rd deduction. I do not find any substance in the above argument. The Hon’ble Apex Court in catena of decisions, in the matters of deaths in tender age, has awarded fixed amounts and did not adopt the formula given in IInd Schedule appended to Section 163-A of the Motor Vehicles Act. In the facts and circumstances of the present case, I find that the Tribunal has awarded a reasonable amount towards the compensation. 15- The Tribunal also awarded a sum of Rs. 15,000/- to the parents on account of brilliancy of the deceased; Rs. 10,000/- towards shock due to his death and Rs. 10,000/- for deprivation of love and affection of the only son. The Tribunal further awarded a sum of Rs. 2,000/- towards funeral expenses. In this way a total sum of Rs. 2,62,000/- has been awarded. In the above situation of the case, the discretion exercised by the Tribunal cannot be said to be arbitrary. In my opinion, the Tribunal has awarded a just and proper amount of 6 compensation. The finding recorded by the Tribunal does not require any interference by this Court. 16- For the discussion made above, both the appeals lack merit and are liable to be dismissed. 17- Accordingly, both the appeals are dismissed. The impugned judgment and award dated 31-7-2006 is confirmed. 18- The amount of compensation, if any, deposited in this Court, be remitted to the Tribunal concerned. 19- Let a copy of this judgment be placed in the file of A.O. No. 550/2006. ( B.C. Kandpal, J.) ISB 7