IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 65 of 2007 United India Insurance Company Ltd. … Appellant Vs Firoj Khan & others … Respondents Sri Pankaj Purohit, learned counsel for the appellant Sri U.P.S. Negi, learned counsel for the respondent Nos. 1 to 4 Sri R.B. Agarwal, learned counsel for the respondent No. 6 Hon’ble B.C. Kandpal, J. This appeal under Section 173 of Motor Vehicle Act, 1988 has been filed by the appellant against the judgment and award dated 24.11.2006 passed by Motor Accident Claims Tribunal/District Judge, Pauri Garhwal in M.A.C.T. Case No. 120 OF 2004, Firoj Khan & others Vs Mohd. Shamim Ahmad & others. 2. Brief facts of the case are that on 28.04.2004, Mohd. Asif (deceased) was going from Srinagar to Srikot on his motorcycle No. UA12/2654 to his shop. When he reached near Choras bridge a truck bearing registration No. UA12/1596 came from the opposite direction and collided with the said motorcycle, in which, the deceased/motorcyclist died at the spot. Firoj Khan is the father of the deceased and Mohd. Asif was the only bread earner to the family members. According to the claim petition, he was 19 years of age and used to earn Rs. 5,000/- per month by running a barber shop out of which, he gave Rs. 4,000/- to his family members. Therefore, the claimants filed the claim petition for a sum of Rs. 12,50,000/- as compensation. 3. The opposite parties contested the claim petition by filing their separate written statement before the Tribunal. The 2 owner of the truck – Mohd. Samim Ahmad denied the allegations made in the claim petition and has submitted that the driver of the truck in question was having the valid driving licence and the truck in question was insured with the New India Assurance Company Ltd. The opposite party No. 2 – New India Assurance Company Ltd. also contested the claim petition alleging therein that the truck in question was not possessing the valid or entire documents pertaining to the vehicle in question. The driver of the motorcycle – Raju was not made the party, therefore, the claim petition was liable to be dismissed. The owner of the motorcycle – Karan Singh Bhandari filed the written statement alleging therein that motorcycle was insured with the United India Insurance Company Ltd., therefore, he was not liable to pay any compensation. The United India Insurance Company Ltd. also contested the claim petition denying that the motorcycle in question was not insured with it. It has also alleged that the accident took place due to negligence of the deceased/motorcyclist himself and he was not possessing the valid driving licence. Therefore, the claim petition was liable to be dismissed against it. 4. On the basis of the pleadings of the parties, the Tribunal framed relevant issues for consideration, which were discussed in a great detail. Therefore, both the parties led evidence in support of their case. After hearing learned counsel for the parties and perusing the entire material available on record decreed the claim petition for a sum of Rs. 2,68,500/- along with conditional interest as compensation in favour of the claimants vide judgment and award dated 24.11.2006. 3 5. Feeling aggrieved by the aforesaid judgment and award the appellant has preferred this appeal before this Court. 6. Heard Sri Pankaj Purohit, learned counsel for the appellant, Sri U.P.S. Negi, learned counsel for the respondent Nos. 1 to 4, Sri R.B. Agarwal, learned counsel for the respondent No. 6 and perused the record. 7. Learned counsel for the appellant has submitted before the Court that the liability of compensation has wrongly been imposed upon the appellant. He has further submitted that the Tribunal did not consider this aspect that the deceased himself driving the motorcycle rashly and negligently. The Tribunal has committed illegality by imposing 50% liability upon the appellant. 8. As far as the factum of the accident is concerned, the Tribunal has recorded a categorical finding after assessing all the material evidence available on record. While deciding the issue Nos. 1 and 2 relating to the rash and negligent driving, the Tribunal relied upon the evidence available on record and held that the accident took place due to negligence of both the vehicles. The Tribunal, on the basis of the report lodged by Raju (pillion rider) wherein it has stated that he was sitting as a pillion rider and the motorcycle was being driven by Mohd. Asif, suddenly, a truck bearing registration No. UA12/1596 coming from the opposite direction hit the said motorcycle, due to the which, Mohd. Asif died at the hospital. The record shows that there was a head on collusion between the motorcycle in which the deceased was traveling and the truck bearing Registration No. UA12/1596 which was coming from the opposite direction at the time of the accident. The 4 dictum of ‘Res ipsa loquitor’ is applicable in the cases of tortious liability. Therefore, I am not supposed to touch the findings recorded by the Tribunal with regard to the rash and negligent driving of the offending vehicles, which resulted this accident. The Tribunal has held that both the vehicles are equally responsible for the said accident. I am in total agreement with the findings with regard to the contributory negligence of both the vehicles. 9. From the perusal of the record, it reveals that the claimants have claimed that the deceased was earning Rs. 5,000/- per month by running a barbershop, but there is nothing on record, which may support the version of the claimants. In the absence of any documentary evidence, the Tribunal considered the notional income of Rs. 36,000/- per annum, which appears to be just and proper. After deducting 1/3rd towards personal expenses, the financial dependency of the claimants comes to Rs. 24,000/-. The deceased was unmarried, therefore, the Tribunal in order to adopt the multiplier considered the age of the parents which are 55 and 47 respectively and considered the multiplier of ‘11’ which also appears to be just and proper. On the basis of the aforesaid calculation, the amount of compensation comes to Rs. 2,64,000/-. The Tribunal further awarded Rs. 2,000/- towards funeral expenses and Rs. 2,500/- towards loss of state. Thus, the total amount of compensation comes to Rs. 2,68,500/-, which appears to be reasonable. As I have already discussed in the body of the judgment that the Tribunal has rightly fastened the liability of 50% upon the appellant, therefore, I do not find any ground to interfere in the impugned judgment and award. The amount of compensation awarded by the Tribunal is perfectly justified. The appeal lacks merit and is liable to be dismissed. 5 10. Accordingly, the appeal is dismissed. The impugned judgment and award dated 24.11.2006 is affirmed. 11. The amount, if any, deposited by the appellant before this Court be remitted to the Tribunal concerned. (B.C. Kandpal, J.) 10.12.2008 ASWAL