IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 309 of 2007 National Insurance Company Ltd. … Appellant Vs Sri Kurban Ali & others … Respondents Sri V.K. Kohli, learned Senior Advocate assisted by Sri I.P. Kohli, learned counsel for the appellant Sri Ramji Srivastava, learned counsel for respondent No. 1 Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed by the appellant/National Insurance Company Ltd. against the judgment and award dated 15.06.2007 passed by M.A.C.T./District Judge/F.T.C.-I, Dehradun in M.A.C. No. 329 of 2005, Kurban Ali Vs Iqbal & others. 2. Brief facts of the case are that on 14.11.2005, Kurban Ali – injured was going to his house from Herbertpur with his friend on scooter No. UGY/5192 on the left side of the road. The injured was sitting as a pillion rider. When they reached near Dharamawala Van Nigam Barrier at about 09:30 p.m., a vehicle Tata 207, bearing registration No. UA07G/7381 which was coming from the opposite direction in a very rash and negligent manner dashed to the said scooter. In this accident, Arif dies on the spot while the injured – Kurban Ali fell down on the road with scooter and received serious and multiple injuries on his whole body and also got three compound fractures on his right leg. Immediately after the accident, the injured was taken to Lehman Hospital, Herbertpur where the doctor gave him primary treatment and thereafter he was referred to Mahant Indresh Hospital for better treatment. According to the claim petition, the injured was 22 years of age and used to earn Rs. 5,000/- per month. 2 Therefore, the claimant/injured filed claim petition for a sum of Rs. 16,00,000/- along with interest @ 18% per annum from the date of accident till the actual date of payment. 3. Opposite party No. 1 – Iqbal – driver of the Tata 207 contested the claim petition by filing written statement before the Tribunal denying the allegations made in the claim petition. It has pleaded that the accident took place due to negligence of the scooter driver. On the date of accident, his vehicle was standing on the side of the road, suddenly, the said scooter came from the opposite side and dashed with the standing vehicle. The driver of the scooter died on the spot while another person sustained serious injuries. He has further stated that the opposite party No. 2 is the owner of the vehicle and the said vehicle was insured with the opposite party No. 3. He has further stated that he was having the valid and effective driving licence on the date of accident. Therefore, the liability, if any, to pay compensation lies upon the Insurer of the vehicle in question. 4. Opposite party No. 2 – Purshottam could not appear before the trial court, therefore, the claim petition proceed against him ex-parte. 5. Opposite party No. 3 – National Insurance Company Ltd. also contested the claim petition by filing its written statement before the Tribunal alleging therein that accident could not take place due to negligence of the truck in question. The accident took place due to rash and negligent driving of the scooter. Therefore, the Insurance Company is not liable to pay any compensation. It has further pleaded that the driver of the truck was not having the valid and effective driving licence. 3 6. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues, which were discussed in a great detail. Thereafter, 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, the Tribunal decreed the claim petition to the tune of Rs. 3,80,000/- against the appellant vide judgment and award dated 15.06.2007. 7. Heard Sri V.K. Kohli, learned Senior Advocate assisted by Sri I.P. Kohli, learned counsel for the appellant, Sri Ramji Srivastava, learned counsel for respondent No. 1 and perused the record. 8. From the perusal of the record, it has come to my notice that the Tribunal framed issue No. 1 relating to the rash and negligent driving. In the evidence, Kurban Ali – injured has stated that on the date of accident, he was sitting as a pillion rider on scooter No. UGY/5192 along with his friend. When they reached near Dharamawala Van Nigam Barrier at about 09:30 p.m. suddenly, a Tata 207 bearing registration No. UA07G/7381 coming from the opposite direction, which was being driven by its driver in a very rash and negligent manner, dashed with the scooter. He has further stated that he sustained serious and multiple injuries on his body and also got three compound fractures on his right leg. On the other side, the driver of Tata 207 has stated that his vehicle was standing on the left side of the road and the scooter driver coming from the opposite direction dashed with his vehicle due to which the driver of the scooter died at the spot and the pillion rider sustained injuries. It has also come to my notice that the driver of Tata 207 could not produce any evidence in 4 support of his version. The Tribunal also considered the First Information Report wherein the cause of accident was the negligence of the driver of Tata 207. On the basis of the material available on record, the Tribunal came to the conclusion that the accident took place due to rash and negligent driving of the driver of Tata 207. From the perusal of the entire record available before me, I am in total agreement with the finding recorded by the Tribunal in this regard. 9. The National Insurance Company Ltd. has pleaded that the driver of vehicle No. UA07G/7381 could not possess the valid and effective driving licence. So far as the driving licence is concerned, the driver – Iqbal filed the photocopy of driving licence before the Tribunal, which shows that the driver of Tata 207 was having the valid and effective driving licence on the date of accident. It is also not disputed that on the date of accident, the vehicle in question was insured with National Insurance Company Ltd. 10. Learned counsel for the appellant has submitted before the Court that the Tribunal has wrongly taken the income of the claimant as Rs. 4,000/- per month without any documentary evidence. In order to support his contention, learned counsel for the appellant has relied upon the decision passed on 01.11.2006 in Appeal No. 02 of 2005, Shobhan Singh & another Vs New India Insurance Company Ltd. & another by the Division Bench of this Court wherein this Court considered the notional income of the deceased as Rs. 36,000/-. 11. I have perused the aforesaid judgment passed by this Court. As far as the amount of compensation to be awarded in favour of the claimant/injured is concerned, the 5 Tribunal after having assessed the material evidence available on record considered the monthly notional income of the deceased as Rs. 4,000/- and the annual income of the injured comes to Rs. 48,000/-. This approach adopted by the Tribunal in calculating the income of the deceased appears to be unreasonable. 12. In the absence of any evidence pertaining to the income of the injured/claimant as well as in view of the judgment given by this Court, the notional income, keeping in view the price hike should be considered to be Rs. 36,000/- per annum where the cogent and reliable evidence establishing the income of the deceased has not been adduced. Furthe the age of the claimant at the time of the accident was 22 years, therefore, keeping in view the age of the claimant the proper and just multiplier would be ‘15’ instead of ‘17’ as has been adopted by the Tribunal. 13. After adopting the multiplier of ‘15’, the amount of total compensation comes to Rs. 5,40,000/- (36000 X 15). As per the disability certificate produced by the claimant before the Tribunal, the claimant has suffered a permanent disability to an extent of 42%. The Tribunal has also held that the name has suffered 42% permanent disability. Hence, on account of the permanent upto the extent of 42%, it can be inferred that the claimant/injured has suffered a financial loss to the tune of 42% on account of his disability. Therefore, this financial loss is taken into account then the amount of compensation to be paid to the claimant thus comes to Rs. 2,26,800/- (540000 X 42/100). The Tribunal has further awarded a sum of Rs. 10,000/- on account of disability suffered by the claimant/injured and further Rs. 2,040/- towards medical expenses, which cannot be said to be unjustified. However, 6 the amount awarded by the Tribunal for a sum of Rs. 5,000/- on account of pain and mental suffering appears to be justified. 14. On the basis of the aforesaid calculation, the total amount of compensation to be paid to the claimant/injured comes to Rs. 2,43,840/-(226800 + 10000 + 2040 + 5000). The Tribunal has also awarded an interest @ 6% per annum on the amount of compensation from the date of filing the claim petition till the actual date of payment which appears to be on the lower side. 15. The interest indicated in the impugned judgment is 6%, which also appears to be on the lower side and looking to the present rate of interest in the banks, it should be 7.5%. 16. In view of the aforesaid observations, the appeal is partly allowed. The impugned judgment and award is modified upto the extent that the claimant/injured is entitled for a sum of Rs. 2,43,840/- along with interest @ 7.5% from the date of filing the claim petition till the actual date of payment instead of Rs. 3,80,000/- along with interest @ 6% per annum. 17. With the aforesaid observations, the appeal is partly allowed. 18. The statutory amount deposited by the appellant before this Court at the time of filing the appeal be remitted to the Tribunal concerned. (B.C. Kandpel, J.) 01.09.2008 ASWAL