IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 548 of 2006 National Insurance Co. Ltd. … Appellant Versus Smt. Saraswati Joshi and others … Respondents Sri K.K. Shah, Advocate for appellant Sri Rajendra Dobhal, holding brief of Sri Lokendra Dobhal, Advocate for respondents no. 1 to 4 Sri Mohinder Singh Bisht, Advocate for respondents no. 5 & 6. Dated: June 19, 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 14.6.2006 passed by M.A.C.T./Additional District Judge/FTC 6th, Dehradun, in M.A.C. No. 210 of 2005, Smt. Saraswati Joshi and others vs. Shri Virendra Kumar and others. Brief facts of the case are that on 25.3.2005 at about 4.00 p.m. one Shri Jai Kishan Joshi was going to collect some documents for his employer on his employer’s Scooter No. U.P.07- B-7508 from his office Bio-Tech Incorporation, to his house of his employer Sri Harjinder Singh which was situated at Rochipura, Niranjanpur, Dehradun. When deceased-Jai Kishan Joshi reached near Kargi Chowk, Dehradun, a Truck No. UMS-8457 which was being driven rashly and negligently came from opposite direction and dashed the scooter of Sri Jai Kishan Joshi, 2 on account of which Sri Jai Kishan Joshi sustained grievous injuries. The deceased-Jai Kishan Joshi was immediately rushed to Doon Hospital where he succumbed to injuries sustained by him in the accident. It was further stated that deceased Shri Jai Kishan Joshi was 35 years of age at the time of accident and was employed at Biotech Incorporation as an Assistant and was receiving a monthly salary of Rs.5000/-. The claimants claimed a sum of Rs.12,15000/- as compensation against the opposite parties. The opposite parties no. 1 and 2-owner and driver of Truck No. UMS-8457 filed written statement and denied the factum of accident. It has been pleaded that amount claimed was exorbitant and the age of deceased was stated less. It has also been pleaded that deceased was under the influence of liquor and accident was caused due to rash and negligent driving of scooterist himself. It has further been pleaded that the truck in question was insured with opposite party no. 3-National Insurance Co. Ltd. and if any liability arises to compensate the claimants it if of the insurance company. The opposite party no. 3-National Insurance Co. Ltd. also filed written statement and pleaded that said accident was caused due to rash and negligent driving of scooterist- deceased himself, who was intoxicated. It has also been pleaded that said Truck was being 3 driven cautiously in a slow speed and amount claimed by claimants was said to be exorbitant and petition was liable to be dismissed. The Tribunal after having considered the entire material available on record and hearing learned counsel for the parties decreed the claim petition for a sum of Rs.6,00,000/- in favour of claimants, payable by opposite party no. 3- National Insurance Co. Ltd. along with interest @ 5% per annum from the date of filing the petition till the date of actual payment, vide judgment and award dated 14.06.2006. Feeling aggrieved by the aforesaid judgment and award, the appellant-National Insurance Co. Ltd. has preferred this appeal before this Court. Heard Sri K.K. Shah, Advocate for appellant-insurance company, Sri Rajendra Dobhal, holding brief of Sri Lokendra Dobhal, Advocate for respondents no. 1 to 4, Sri Mohinder Singh Bisht, Advocate for respondents no. 5 & 6 and perused the record. I have gone through the impugned judgment and award thoroughly. The Tribunal, on the evidence led by the parties, held that the deceased died on account of the injuries sustained by him in the motor accident on 25.03.2005; the accident occurred due to rash and negligent driving of the driver of offending Truck No. UMS-8457; and opposite party no. 3- 4 National Insurance Co. Ltd. i.e. insurer of offending Truck was liable to pay compensation to the claimants. I do not find any illegality and infirmity in the finding recorded by the Tribunal in this regard. As far as amount of compensation to be awarded in favour of claimants is concerned, the Tribunal has assessed the monthly income of the deceased at Rs.5000/-. The Tribunal after assessing the entire evidence has taken into consideration that the deceased was earning a sum of Rs.5000/- per month and I do not find any ground to interfere with this finding recorded by the Tribunal. I also take into consideration that the monthly income of deceased at the time of accident was Rs.5000/- and in case, if 1/3rd amount as personal expenses of deceased is deducted out of Rs.5000/-, the financial dependency of the claimants comes to Rs.3400/- per month approximately and this financial dependency after multiplying by ‘12’ comes to Rs.40,800/- per annum. The age of the deceased has been indicated in the claim petition as 35 years. The post mortem report also reveals that the age of deceased at the time of accident was 35 years. The multiplier of 14 as has been adopted by the Tribunal appears to be on higher side. In view of decision of the Hon’ble Apex Court passed in the case New India Assurance Co. Ltd. vs. 5 Kalpana (Smt) and others, reported in (2007) 2 SCC (Cri) 94, the multiplier in the facts and circumstances of the present case cannot travel more than ‘12’. Thereafter, after adopting the multiplier of ‘12’ the amount of compensation to be awarded in favour of claimants comes to Rs.4,89,600/- (rounded Rs.4,90,000/-). The Tribunal has awarded a sum of Rs.5000/- under the head of cremation which also appears to be excessive as in view of the provisions of Motor Vehicles Act the funeral expenses could not have exceeded more than Rs.2000/-. I therefore grant a sum of Rs.2000/- to the claimants under the head of funeral expenses of deceased. Further, the Tribunal has also awarded a sum of Rs.20,000/- for mental agony and a sum of Rs.15,000/- for loss of love and affection which, in my view, does not appear to be justified. I, therefore, direct that the claimants are entitled for a sum of Rs.5000/- under the head of loss of company, love and affection. In view of the aforesaid calculation made by me, total amount of compensation to be awarded in favour of claimants comes to Rs.4,90,000 + Rs.2,000 + Rs.5,000=Rs.4,97,000/-. The interest indicated by the Tribunal in the impugned judgment and award as 5% per annum is certainly on lower side as in view of the present rate of interest given by Banks, the amount of compensation to be awarded in favour of claimants should be paid along with interest @ 7.5% per annum (instead of interest @ 5% per 6 annum awarded by the Tribunal). The amount of compensation so awarded in favour of claimants shall be paid along with interest indicated by me i.e. 7.5% per annum from the date of filing the petition till the date of actual payment. Accordingly, the appeal is partly allowed. The impugned judgment and award is modified to the extent that the amount of compensation to be awarded in favour of claimants is Rs.4,97,000/- (Rupees Four Lacs Ninety Seven Thousand only), instead of Rs.6,00,000/- as has been awarded by Tribunal, along with interest @ 7.5% per annum from the date of filing the petition till the date of actual payment (instead of interest @ 5% per annum as awarded by the Tribunal in the impugned judgment and award). The statutory amount, if any, deposited by the appellant at the time of filing the appeal, be remitted to the Tribunal concerned. (B.C. Kandpal, J.) SP 7