IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 103 of 2007 Smt. Jayanti Sanwal & others ...Appellants Versus Chairman/Managing Director And another ...Respondents With Appeal From Order No. 876 of 2006 The Oriental Insurance Co. Ltd. ...Appellant Versus Smt. Jayanti Sanwal & others …Respondents Sri Amish Tiwari, Advocate for appellants-claimants Sri Ramji Srivastava, Advocate for respondent no. 1-UPSRTC Sri V.K. Kohli, Sr. Advocate assisted by Sri I.P. Kohli, Advocate for respondent no. 2-Oriental Insurance Co. Ltd. Dated: 21-04-2009 Hon’ble B.C. Kandpal, J. Since both the appeals arise out of same judgment and award and similar question of fact of law is involved in both the appeals, hence, they are being decided together. 2- Both these appeals, under Section 173 of Motor Vehicles Act, 1988, have been preferred against the same judgment and award dated 13.10.2006 passed by Motor Accident Claims Tribunal/ District Judge, Almora, in M.A.C.T. No. 59/2005, Smt. Jayanti Sanwal &others versus Chairman/Managing Director, UPSRTC and others. 3- Brief facts of the case as narrated in claim petition are that deceased was a driver of Bus No. U.A.07-H-3297 2 belonging to Uttaranchal Roadways Transport Corporation. When the deceased was cleaning the front mirror of the bus on 26.10.2005, driver of Bus No.U.P.14 S/2570 driven the vehicle rashly and negligently, hit the deceased and due to the injuries sustained in the accident, he died at the spot. It has further been alleged that deceased was 54 years of age. The deceased was the driver in Uttaranchal Roadways Corporation and was getting the salary of Rs.8,545/- per month. This accident took place at 5 p.m. at Kaisar Bagh Bus Station Campus, Lucknow and report was lodged at Police Station Vazirganj Sadar, Lucknow. 4- Opposite party no. 1-UPSRTC filed its written statement admitting the factum of accident, but denied rest of the contents of the claim petition. In additional pleas, it has been stated that accident did not take place due to rash and negligent driving of vehicle No. UP 14S/2570.The accident occurred due to negligence of the driver of vehicle No. U.P.07H/3297 because the driver of the vehicle No. U.P. 14S/2570 was parking the vehicle at bus station, suddenly, the driver (deceased) get off from the Bus No. U.P. 07H/3297 and came in front of his bus. Due to the act of the deceased, the accident took place while the driver of the bus in question tried to stop by using the brakes. The vehicle in question was insured with O.P. No. 2 from 13.8.2005 to 12.8.2006 and if there is any liability for compensation, the insurance company is liable to pay. 5- Opposite party no. 2-Oriental Insurance Co. Ltd. filed its written statement and denied the contentions of the petition. In the additional pleas, it has been stated that the vehicle in question was being driven against the terms and conditions of the policy. It has been further stated that deceased was an employee of O.P. No. 1, 3 therefore, the petition has been filed with the collusion of O.P. No. 1. The Insurance Company was liable to pay compensation to the petitioners only when the vehicle is being driven with the terms and conditions of the policy and with the valid registration and driving licence. 6- The learned Tribunal on the basis of pleadings of parties framed relevant issues in the claim petition. Parties led evidence in support of their cases. The learned 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.5,15,800/- along with interest of 6% per annum from the date of filing the petition till the date of actual payment, vide judgment and award dated 13.10.2006. The Tribunal further directed opposite parties no. 1 and 2 to pay the amount of award jointly and severally within 60 days from the date of order. 7- Feeling aggrieved by the aforesaid impugned judgment and award, the insurance company has preferred A.O. No. 876/2006 before this Court. 8- The claimants have also filed A.O. No. 103/2007 against the impugned judgment and award for enhancement of amount of compensation. 9- Heard Sri Amish Tiwari, learned counsel for the claimants, Sri Ramji Srivastava, learned counsel for UPSRTC, Sri V.K. Kohli, Senior Advocate assisted by Sri I.P. Kohli, learned counsel for Oriental Insurance Co. Ltd. and perused the record. 10- Learned counsel for the insurance company has argued that vehicle No. U.P.14S/2570 was being driven by its conductor; therefore this vehicle was being driven 4 against the terms and conditions of insurance policy and under these circumstances, the insurance company is not liable to pay the amount of compensation. 11- I fail to appreciate the argument advanced by learned counsel for the insurance company for the reason firstly that insurance company has not taken this plea in its written statement and secondly, insurance company has not adduced any evidence, oral or documentary, in support of its allegations that vehicle was being driven by its conductor and not by the driver. Further, the impugned judgment and award passed by the Tribunal shows that counsel for the insurance company has also not pressed this issue during the arguments too. I therefore do not find any merit in this argument advanced by learned counsel for appellant-insurance company at this stage. 12- Learned counsel for the insurance company has also submitted that amount of compensation awarded by the Tribunal is on exorbitant side. On the other hand, learned counsel for the claimants has submitted that amount of compensation awarded by the Tribunal is meager and same is liable to be enhanced by this Court. 13- As far as amount of compensation to be paid to the claimants is concerned, the Tribunal has dealt with this point while deciding issue no. 4 in the impugned judgment and award. The claim petition shows that deceased was a driver in Uttaranchal Roadways Corporation and on the date of accident he was driving Vehicle No. U.A.-07-H3297. It has been stated by P.W.1 on oath that deceased was getting Rs.8,545/- as salary per month. There is no evidence to controvert the statement of P.W. 1 and 2. Therefore, it is proved that deceased was an employee in Corporation. The claimants filed Paper 5 No. 15C issued by Assistant Regional Manager, Uttaranchal Parivahan Nigam, Almora in which it has been stated that Sri Shiv Datt Sanwal, driver was working with Uttaranchal Parivahan Nigam, Almora Depot, and died on 26th October. As per certificate, basic salary of deceased was Rs.5,000/- and he was getting Rs. 10/- as adhoc, Rs.2950/- as dearness allowance, Rs.215/- as hill allowance, Rs. 340/- as house rent allowance and Rs.30/- as medical allowance and his total salary was Rs.8,545/-. After deducting usual allowances, the net salary of the deceased comes to Rs.7950/- and after deducting one- third towards personal expenses of deceased, the financial dependency comes to Rs.5300/- per month and Rs.63,600/- per year. The finding recorded by the Tribunal in this respect does not require any interference and it deserves to be confirmed. 14- As far as multiplier adopted by the Tribunal in this case is concerned, the record reveals that deceased was aged about 54 years at the time of accident. The Tribunal selected the multiplier of ‘8’ which appears to be certainly on higher side in view of the latest pronouncement 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 and Laxmi Devi & others vs. Mohammad Tabbar & another, reported in 2008 UAD 587. Keeping in view the age of the deceased the multiplier in this case cannot travel more than ‘6’ in any case and if the multiplier of ‘6’ is adopted in this case, then the amount of compensation comes to Rs.63,600 x 6=Rs.3,81,600 /-. The Tribunal further awarded a sum of Rs.5,000/- for loss of consortium and a 6 sum of Rs.2,000/- for funeral expenses to the claimants. I think that the amount awarded by the Tribunal under the aforesaid heads appears to be just and reasonable and needs no interference. The amount of interest indicated in the impugned judgment and award shall remain intact. 15- In view of the aforesaid calculation, the claimants are entitled for a sum of Rs.3,81,600 + Rs.5,000 + Rs.2,000=Rs.3,88,600/- as compensation, along with simple interest of 6% per annum from the date of filing the petition till the date of payment. 16- As far as liability of payment of amount of compensation to the claimants is concerned, the insurance company has not disputed that vehicle in question was not insured with it on the date of accident. Opposite party no. 1 filed paper no. 29C, which is the cover note and paper no. 55C/2 is the detail of the vehicles which were insured with Oriental Insurance Co. Ltd. The Tribunal held that it is proved that Vehicle No. U.P. 14S/2570 was insured with National Insurance Co. Ltd. on the date of accident and deceased was a ‘third party’ and therefore, opposite party no. 2-insurance company as well as owner of vehicle i.e. opposite party no. 1- UPSRTC are jointly and severally liable to pay the amount of compensation. I do not find any infirmity in the finding recorded by the Tribunal in this regard and same deserves to be confirmed. 17- For the reasons stated above, A.O. No. 876 of 2006 is liable to be partly allowed. 18- Accordingly, A.O. No. 876 of 2006 is partly allowed. The impugned judgment and award is modified to the extent that claimants are entitled for a sum of Rs.3,88,600/- (Rupees three lacs eighty eight thousand six hundred only) as compensation (instead of 7 compensation of Rs.5,15,800/- as awarded by the Tribunal), along with interest indicated in the impugned judgment and award. 19- A.O. No. 103 of 2007 preferred by the claimants for enhancement of amount of compensation awarded by the Tribunal, stands dismissed in view of the observations made by me in the body of the judgment. 20- The statutory amount deposited with this Court be remitted to the Tribunal concerned. 21- Let a copy of this judgment be placed in the file of A.O. No. 876 of 2006. (B.C. Kandpal, J.) SP