IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 501 of 2007 National Insurance Co. Ltd. ...Appellant Versus Sri Thanak Singh and others …Respondents Mr. Bindesh Kumar Gupta, Advocate for the appellant Mr. B.S. Negi, Advocate for respondents no. 1 to 6 Mr. Pramod Bailwal, Advocate on behalf of Mr. N.S. Pundir, Advocate for respondent no. 7 Dated: 07-07-2009 Hon’ble B.C. Kandpal, J. (Oral) This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred by National Insurance Company Limited, who is the insurer of offending vehicle no. H.R.01-P-1084, against the judgment and award dated 29.8.2007 passed by Motor Accident Claims Tribunal/District Judge, Uttarkashi, in Motor Accident Claim Case No. 8 of 2006, Thanak Singh and others versus National Insurance Company Limited and another, whereby the claimants have been awarded a sum of Rs.4,92,000/- as compensation along with interest @ 6% per annum. Briefly stated the facts as narrated in the claim petition are that on 16.8.2005 at about 4.45 p.m. deceased-Mamraj Singh was going in vehicle no. H.R.01-P-1084 from Gangnani bridge towards work site after taking goods of 11 K.V. electric line. The said vehicle met with an accident near Gangnani due to rash and negligent driving of its driver-Man Bahadur and fell into a ditch, with the result Mamraj Singh died on the spot itself. The dead body 2 of the deceased could not be traced out due to excessive water in the river. In the accident, driver of vehicle also died on the spot. The claimants alleged that at the time of accident age of deceased- Mamraj Singh was 20 years and he was employed as Fitter/Helper in Bharat Construction Company, Gangnani, where he used to get a sum of Rs.5,000/- per month as salary. Besides this, the deceased also used to get income of Rs.4,000/- per month from agriculture and thus the deceased used to earn a total sum of Rs.9,000/- per month. Thus, the claimants claimed a sum of Rs.52,50,000/- as compensation along with interest @ 12% per annum, against the opposite parties. Opposite party no. 1 Bhim Singh Rawat, owner of vehicle no. H.R.01-P-1084 filed his written statement admitting therein the fact that deceased was employed as Helper in Bharat Construction Company, Gangnani and employer of the deceased was Bharat Construction Company. The monthly salary of the deceased was Rs.4,000/-. In the additional pleas, it has been stated that vehicle no. H.R.01-P-1084 was insured with National Insurance Company and its insurance was valid w.e.f. 12.7.2005 to 11.7.2006. It has been alleged that road tax instalments have been paid by the answering respondent in lump sum and registration of vehicle was valid upto 8.7.2018. The amount of compensation claimed is excessive. The liability to pay the compensation, if any, is of insurance company with which the vehicle in question was insured on the date of accident. 3 Opposite party no. 2 National Insurance Co. Ltd., insurer of vehicle no. H.R.01-P-1084 contested the claim by filing written statement and denied its liability to pay the compensation. It has denied that income of the deceased was Rs.9000/- per month as well as income of deceased from other sources. In the additional pleas, it has been stated that alleged accident had not taken place due to rash and negligent driving of its driver, rather it occurred due to sudden mechanical failure in the vehicle. It has also denied that alleged deceased died in the alleged accident. It has also been alleged that the driver of the offending vehicle was not having valid driving licence at the time of accident and he was also not having driving licence to drive the vehicle on hill routes. It has further been alleged that at the time of accident offending vehicle was not having valid fitness certificate and thus the owner of vehicle has breached the policy conditions. The claim petition is also bad for non-joinder of necessary parties i.e. legal heirs of the driver of the offending vehicle. Thus, the answering respondent is not at all liable to pay the compensation to the claimants and the claim petition filed against it deserves to be dismissed. The learned Tribunal on the basis of pleadings of the parties framed necessary issues in the claim petition. Partied led evidence in support of their case. The learned Tribunal having considered the entire evidence available on record and hearing learned counsel for the parties decreed the claim petition for a sum of Rs.4,92,000/-, against opposite party no. 1-National Insurance Co. Ltd., along with interest at the rate of 6% per annum 4 from the date of filing the petition till the date of actual payment, vide impugned judgment and award dated 29.08.2007. Feeling aggrieved by the aforesaid impugned judgment and award, the appellant i.e. National Insurance Co. Ltd. has preferred the present appeal before this Court. Heard Sri Bindesh Kumar Gupta, learned counsel for the appellant, Sri B.S. Negi, learned counsel for respondents no. 1 to 6, Sri Pramod Bailwal, Advocate on behalf of Sri N.S. Pundir, learned counsel for respondent no. 7 and perused the record. Learned counsel for the appellant-insurance company has submitted before this Court that the learned Tribunal has erred in not considering the fact that driver of the offending vehicle was not having valid and effective driving licence at the time of accident; in selecting the multiplier of 15 for the age of 44 years. On the other hand, learned counsel for the respondents have supported the impugned award. As far as possession of valid and effective driving licence at the time of accident is concerned, the learned Tribunal has discussed this aspect while decide issue no. 2 in the impugned judgment and award. It is an admitted fact that the driver of the offending vehicle also died in the accident. Sri Chandra Prakash Shukla, Personal Manager, Bharat Construction Company was produced as 5 PW-3. This witness has deposed that driver of vehicle and his driving licence etc. fell into the river. In the cross examination, this witness has categorically stated that he himself seen the accident. This witness also stated that he tried to get duplicate driving licence, but he could not get the same. Sri Alendra Singh Rana, who is an eye witness of the accident, was produced as PW-2 and he has deposed that vehicle no. H.R.01-P-1084 along with all the passengers sitting in it met with an accident near Gangnani and fell into the river. Further, paper no. 30-C is the report of magisterial inquiry, which reveals that it was found in the inquiry that the offending vehicle was carrying five persons including the driver, who died on the spot due to flowing of their dead body in Bhagirthi river and later on dead body of one Raghuvir Singh only was traced out. The names of Mamraj Singh and driver-Man Bahadur were mentioned in the list of deceased died in the accident. In these circumstances, the learned Tribunal did not find any reason to disbelieve the statement of PW-3 to this effect that driver of the offending vehicle and his driving licence were flown in the flow of river. The learned Tribunal having considered the entire evidence adduced before it came to the conclusion that on the date of accident the driver of the offending vehicle was having valid and effective driving licence to drive the vehicle on hill routes and owner of the vehicle were having all valid and effective papers relating to vehicle in question. I do not find any infirmity in the finding recorded by the Tribunal in this regard and the same is hereby affirmed. 6 As far as factum of accident is concerned, the learned Tribunal has dealt with this point while deciding issue no. 1 in the impugned judgment and award. The learned Tribunal has taken into consideration the statement of Alendra Singh Rana (PW-2), who is the eyewitness of the incident, and statement of Chandra Prakash Shukla (PW-3). These witnesses have deposed that on 16.8.2005 vehicle no. H.R.01-P-1084 met with an accident near Gangnani due to rash and negligent driving of its driver-Man Bahadur, in which 4-5 persons including driver died. The learned Tribunal on the basis of evidence adduced before it recorded the finding that accident was caused due to rash and negligent driving of its driver, as a result of which 4- 5 persons including driver died. The finding recorded by the Tribunal on this point does not require any interference and the same is hereby affirmed. As far as amount of compensation to be paid to the claimants is concerned, the Tribunal, although, has taken into account the pay slip of the deceased which was issued to him by the Personal Manager of Bharat Construction Company, where the deceased used to work. PW-3 Chandra Prakash Shukla has proved the pay slip which was filed before the Tribunal as Ext.-5. This pay slip shows that deceased used to get a sum of Rs.4,000/- per month as salary. The other income as has been stated in the claim petition has not been proved by the claimants by way of any cogent and reliable evidence, therefore, the Tribunal was justified in taking into account the actual income of the deceased as Rs.4,000/- per month. The Tribunal 7 has further rightly deducted 1/3rd out of Rs.4,000/- and has assessed the annual income of the deceased at Rs.32,004/- (rounded Rs.32,000/-). The Tribunal fell in error in applying the multiplier of ‘15’ in this case. The deceased was unmarried person aged about 20 years; therefore, the multiplier would be taken into account on the basis of age of the parents of the deceased. The age of the parents of the deceased at the time of accident was 46 years and 44 years respectively, therefore, keeping in view the various decisions of the Hon’ble Apex Court given in the cases of Tamil Nadu State Transport Corporation Ltd. Versus S. Rajpriya & others, reported in 2005 (4) SC 87, The Managing Director, TNSTC versus Sripriya & others, reported in 2007(5) Supreme 301, New India Assurance Co. Ltd. vs. Kalpana (Smt) and others, reported in (2007) 2 SCC (Cri) 94, the multiplier in this case could not have travelled more than ‘10’ and if the multiplier of ‘10’ is adopted in this case, then the total amount of compensation to be awarded in favour of claimants comes to Rs.32,000 x 10=Rs.3,20,000/-. The amount of Rs.2,000/- for funeral expenses and Rs.10,000/- for loss of love and affection and pain and suffering, awarded by the Tribunal to the claimants, needs no interference. For the reasons stated above, I am of the view that claimants/respondents are entitled for a sum of Rs.3,20,000 + Rs.2,000 + Rs.10,000= Rs.3,32,000/- as amount of compensation along with interest @ 6% per annum, as indicated in the impugned judgment and award, from the date of filing the petition till the date of actual payment 8 (instead of Rs.4,92,000/- as has been awarded by the Tribunal). In the result, appeal is partly allowed. The impugned judgment and award is modified to the extent that claimants-respondents are entitled for compensation of Rs.3,32,000/- (rupees three lacs thirty two thousand only) along with interest @ 6% per annum from the date of filing the petition till the date of actual payment (instead of Rs.4,92,000/- as has been awarded by the Tribunal). The statutory amount deposited by the appellant with this Court be remitted to the Tribunal concerned. (B.C. Kandpal, J.) SP