IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. NO. 139/2006 Smt. Rajeshwari Devi and others ….. Appellants. Vs. Vijay Kumar and others ….. Respondents. AND A.O. NO. 138/2006 Smt. Rajeshwari Devi and others ….. Appellants. Vs. Vijay Kumar and others ….. Respondents. Mr. Sudhir Singh, Advocate for the appellants. Mr.Deepak Sharma, holding brief for Sri Ramji Srivastava, Counsel for respondent No.1. Mr. R.B. Aggarwal, Advocate for respondent/Insurance Co. Mr. B.N. Maulekhi, holding brief for Sri Pramod Belwal, Advocate for respondent No.3. Dated: 22-4-2008 Hon’ble B.C. Kandpal, J. In both these appeals the claimants are the same and since these claims arise out of the same accident, therefore, these appeals are being decided by this common judgment. 2- A.O. No. 139/20069 has been preferred against the judgment and award dated 30-11-2005 passed by Motor Accident Claim Tribunal/District Judge, Uttarkashi in MACT Case No. 24/2003. In this case Pankaj Chaudhary has died in a motor accident. The Tribunal has awarded a sum of Rs. 1,72,000/- along with interest @ 6% per annum from the date of application till the date of final payment, payable by New India Assurance Company. A.O. No. 138/2006 has been preferred against the judgment and award dated 30-11- 2005 passed by Motor Accident Claim Tribunal/District 2 Judge, Uttarkashi in MACT Case No. 23/2003. In this case Kishori Lal Chaudhary has died in a motor accident. The Tribunal has awarded a sum of Rs. 1,42,000/- along with interest @ 6% per annum from the date of application till the date of final payment, payable by New India Assurance Company. 3- According to the claim petitions, Kishori Lal Chaudhary was employed as Manager/Oil Distributor in Avinash Oil Company Uttarkashi. On 9-3-2003 Kishori Lal Chaudhary and his son Pankaj Chaudhary were going in Oil Tanker No. U.P. 11-A-2562 to distribute the oil from Uttarkashi to Jogath. At about 4 P.M. on Chinyali-Jogath Motor Road the said tanker fell in a Khud due to rash and negligence of its driver. The driver, Kishori Lal Chaudhary and his son Pankaj Chaudhary died at the spot. The claimants have preferred the claim petitions for compensation in lieu of deaths of Kishori Lal and Pankaj Chaudhary. 4- The Opposite Party/owner of the Tanker filed written statement and alleged that the accident has occurred due to breaking of wall of the road and the accident was the act of God. He also alleged that he has sold the said Tanker on 15.2.1998 to M/S Avinash Oil Company and the said Company is liable to pay compensation. 5- The New India Assurance Company also filed its written statement and alleged that the driver of the Truck had no valid driving license and the Truck was not having valid registration, fitness and route permit. The petitions have been preferred with collusion of owner of the vehicle. 3 6- The learned Tribunal framed relevant issues in both the claim petitions. Thereafter the claimants examined Smt. Rajeshwari Devi as P.W.1 and Dhani Ram Bahuguna as P.W.2 and also filed documentary evidence. The O.P. owner of the Truck also filed copies of driving license, cover note etc. 7- The learned Tribunal after hearing learned counsel for the parties and considering the evidence on record, allowed both the claim petitions. For the death of Kishori Lal Chaudhary an amount of Rs. 1,42,000/- and for the death of Pankaj Chaudhary a sum of Rs. 1,72,000/- was awarded as compensation, along with interest @ 6% per annum from the date of filing the petitions till the date of final payment, payable by New India Assurance Company. 8- Feeling aggrieved, by the impugned judgment and awards the claimants have preferred this appeals for enhancement. 9- Heard learned counsel for the parties and perused the record. 10- The learned counsel for the appellants has submitted that the Tribunal has ignored the evidence on record pertaining to the monthly income of the deceased persons and has wrongly taken the notional income for purposes of calculating the dependency. The findings recorded by the Tribunal regarding loss of dependency are bases on conjectures and surmises and as such the compensation is liable to be enhanced. 11- On the other hand learned counsel for the Insurance Company has opposed the submission of the 4 learned counsel for the appellants and alleged that the claimants could not prove the income of the deceased persons, and the Tribunal has rightly taken the notional income for purposes of assessing the dependency. 12- After having considered the submissions raised by learned counsel for the parties, I do not find any force in these appeals filed by the claimants for enhancement of the compensation. 13- Perusal of record reveals that according to the claimants the deceased Pankaj Chaudhary was aged 17 years at the time of accident and he used to assist his father in the work of oil distribution and his monthly income was Rs. 2,000/- but the claimants have not filed any documentary and reliable evidence about the salary of Pankaj Chaudhary. The Tribunal, therefore, has taken the notional income of Rs. 15,000/- and after deducting 1/3rd towards personal expenses, Rs. 10,000/- was assessed the annual dependency of the claimants. In the post mortem report the age of the deceased Pankaj Chaudhary has been mentioned 19 years, therefore, the Tribunal has rightly adopted the multiplier of 16 and the total dependency comes to Rs. 10,000/- X 16= Rs. 1,60,000/-. The tribunal also awarded Rs. 2000/- towards funeral expenses and Rs. 10,000/- for loss of love and affection and in this way the total compensation of Rs. 1,72,000/- has rightly been awarded for the death of Pankaj Chaudhary. 14- So far as the compensation awarded for the death of Kishori Lal Chaudhary is concerned, again the claimants could not prove the actual income of the deceased. No salary certificate has been filed. Had the deceased Kishori Lal been getting salary of Rs. 5000/- 5 per month, the claimants should have easily filed the salary certificate, after getting the same from the employer. Therefore, the Tribunal has rightly taken the notional income of the deceased in this case also and after deducting 1/3rd towards personal expenses, a total annual dependency was assessed as Rs. 10,000/-. In the post mortem report the age of the deceased was shown as 50 years, therefore, the multiplier of 13 has rightly been applied in this case. The Tribunal again awarded Rs. 2,000/- for funeral expenses and Rs. 10,000/- for loss of consortium. In this way the total dependency of Rs. 1,42,000/- has rightly been assessed and awarded to the claimants by the Tribunal. 15- The Tribunal also awarded interest @ 6% per annum from the date of filing the petitions till the date of final payment and the same does not require interference by this Court. 16- For the foregoing reasons, I am of the considered view that the claimants/appellants have not been able to establish their case for enhancement of compensation, hence the appeals are liable to be dismissed. 17- Accordingly, A.O. No. 139 of 2006 and A.O. No. 138 of 2006 are dismissed. The impugned judgments and awards passed in the respective claim petitions, dated 30-11-2005 are confirmed. 18- Let a copy of this judgment be placed in the file of A.O. No. 138/2006. (B.C. Kandpal, J.) ISB 6