IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 544/2007 New India Assurance Co. Ltd. … Appellant. Versus Smt. Kamla Devi and others … Respondents. Sri T.A. Khan, learned counsel for the appellant. Sri Yogesh Pandey, learned counsel for respondents/claimants. Sri M.C. Pandey, learned counsel for respondent/owner of offending vehicle. Dated: 23-3-2009 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of the Motor Vehicle Act, arise out against the judgment and award dated 20-9- 2007, passed by Motor Accident Claim Tribunal/District Judge, Champawat, in MACP No. 5/2006, Smt. Kamla Devi and others Vs. Rajeev Kumar and others. 2- Brief facts of the case, giving rise to this appeal, are that on 29-1-2003, Shankar Lal was going as a pillion rider on a motorcycle bearing registration No. U.P. 06-2832 on Tanakpur- Khatima motor road. The driver of Truck No. U.P.25/6739 dashed the motorcycle near Banbasa petrol pump in a rash and negligent manner, due to which Shankar Lal sustained grievous injuries on his left hand, right leg and on various part of his head. He was treated at Gangacharan Hospital, Bareilly and Hospital at Pilibhit, in which about Rs. 1,60,500/- were spent. A further sum of Rs. 46,000/- was also spent on his treat at the house of Shankar Lal. Due to the injuries Shankar Lal died. At the time of his death he was 35 years of age and his monthly income was Rs. 7,000/-. The claimant filed petition for compensation against the opposite parties. 2 3- The opposite party No.1, filed his written statement before the trial court and denied the accident by his truck. He further alleged that another claim petition No. 31/2004 was also filed before the Tribunal for the injuries of Shankar Lal, in which compensation has been awarded to the claimants. He also alleged that the accident has occurred due to rash and negligence of motorcyclist. However, his truck was having valid registration, fitness, insurance and the driver was also possessing effective driving license and the claim is liable to be dismissed. 4- The opposite party No.2, also reiterated the facts as narrated by opposite party No. 1 and denied his liability. 5- The opposite party no.3, New India Assurance Company also contested the petition and denied the averments made in the claim petition. The insurance company alleged that the accident has occurred due to the rashness of motorcyclist; the driver of the offending truck was not having valid and effective driving license, therefore the claim petition is liable to be dismissed. 6- The tribunal on the basis of pleadings of parties framed relevant issues in the claim petition. Thereafter parties adduced evidence in support of their cases. 7- The tribunal after hearing learned counsel for the parties and considering the material available on record, awarded a sum of Rs. 4,55,883/- along with interest @ 6% per annum from the date of filing the petition till the date of actual payment against the New India Assurance Company. 8- Feeling aggrieved, the New India Assurance Company has preferred this appeal before this Court. 2 3 9- Heard learned counsel for the parties and perused the record. 10- Learned counsel for the appellant has submitted that the accident took place in the year 2003, whereas the death of the deceased has taken place in the year 2005 and there was no reason to believe that the death was the direct result of the injuries sustained in the accident. He further submitted that tribunal failed to consider this aspect that the deceased was having 60% disability and the compensation should have been calculated keeping in view the percentage of the disability, but the tribunal awarded the compensation for the death of the deceased, which is wrong and is liable to be set aside. 11- From perusal of record it reveals that the claimants preferred petition in lieu of death of Shankar Lal due to the injuries sustained by him in the accident. P.W.2, Jubair Khan is the eye witness of the accident. According to this witness he is resident of the village of deceased Shankar Lal. On 29-1- 2003 at about 4.00 P.M. he was taking tea at Banbasa Station. Shankar Lal riding in motorcycle was going to Khatima. Suddenly a truck came there and dashed the motorcycle and got injured Shankar Lal who was sitting on it as a pillion rider. Shankar Lal was unconscious. He was carried to Bareilly for treatment. This witness has specifically deposed that the accident took place due to rash and negligence of truck driver bearing registration No. U.P. 25- 6739, in which Shankar Lal sustained grievous injuries and died later-on due to the said injuries. P.W.1, Smt. Kamala Devi wife of the deceased also deposed that after sustaining injuries by her husband in the accident, he was treated at Bareilly and thereafter at Pilibhit. She has further deposed that death of her husband has occurred due to injuries suffered by him in the accident. The opposite parties did not adduce any 3 4 evidence to controvert this fact that the death of Shankar Lal has occurred due to the injuries sustained by him in the accident. 12- In the aforesaid facts and circumstances of the case the learned tribunal has rightly given the finding that the death of Shankar Lal has occurred due to the injuries sustained by him in the accident. The tribunal further recorded a finding that the accident has occurred due to the rash and negligence of the driver of the truck in question. In view of the evidence available on record, I am in total agreement with the above finding the tribunal that the accident has occurred due to rash and negligence of the driver of truck and the motorcyclist was snot responsible for causing the accident. The tribunal further held that photo copy of driving license of the driver of the offending truck paper No. 66-C/1 was filed on record and from perusal of this document it was quite clear that the driver was having valid and effective driving license and accordingly fixed the liability of the insurance company with whom the truck was insured at the time of accident. 13- The record further reveals that the deceased Shankar Lal has preferred MACP No. 31/2004 for compensation for the injuries suffered by him in the accident but that petition was withdrawn by the claimants on the ground that Shankar Lal has died and permission to file fresh petition for compensation in lieu of his death was sought. The tribunal vide order dated 18-3-2006 granted permission to the claimants to file fresh petition after the death of Shankar Lal. Copy of that order has been filed on record as paper No.10-C. Therefore, after the death of Shankar Lal compensation could not be calculated on the basis of disability certificate issued during his life time. The 4 5 submission of the learned counsel for the appellant bears no force in this regard. 14- So far as the amount of compensation is concerned, the tribunal has taken the notional income of the deceased as Rs. 36,000/- per annum as no proof of income was filed. After deducting 1/3rd towards personal expenses of the deceased the net annual dependency comes to Rs. 24,000/-. The deceased at the time of his death was 35 years of age therefore the multiplier of 17 adopted by the tribunal is a just and proper multiplier. Therefore the compensation comes to Rs. 24,000/- X 17= Rs.5,08,000/-. The tribunal further awarded a sum of Rs. 5000/- towards loss of love and affection and Rs.2,000/- towards funeral expenses. Claimants also filed medical bills relating to the treatment of the deceased to the tune of Rs. 50,883/- and the tribunal has awarded this amount to the claimants. The tribunal also recorded a finding that at the time of accident the claimants were given Rs. 10,000/- towards expenses of treatment of the deceased, by opposite party, therefore, the tribunal deducted this sum from the amount of compensation. In this way the total compensation comes to Rs. 4,08,000/- + Rs. 5,000/- + Rs. 2,000/- + Rs. 50,883/-= Rs. 4,65,883/- (-) Rs. 10,000/- = Rs. 4,55,883/-. The tribunal also awarded interest @ 6% per annum from the date of filing the petition till the date of actual payment. In my opinion the learned tribunal has passed a just and proper award in favour of the claimants and the same needs no interference by this court. 15- For the reasons recorded above, in my opinion the appeal lacks merit and is liable to be dismissed. 16- Accordingly, the appeal is dismissed. The impugned judgment and award is hereby confirmed. 5 6 17- The statutory amount of compensation deposited with this court at the time of presentation of the appeal, be remitted to the tribunal concerned. (B.C. Kandpal, J.) ISB 6