IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No.362/2007 United India Insurance Company Ltd. .. Appellant. Versus Smt. Pawan and 5 others … Respondents. Mr. Pankaj Purohit, Advocate for the appellant. Mr. D.C.S. Rawat, Advocate for respondents 1 to 5. Mr. Mohd. Azim, Advocate for respondent No.6. Dated: 23-7-2008 Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicles act, has been preferred against the judgment and award dated 30-6-2007, passed by Motor Accident Claims Tribunal/District Judge, U.S. Nagar in MACP No. 221/2006. 2- Brief facts of the case, are that on 23.8.2006 deceased Mallu @ Jaibir Singh and Bipin Singh were going to their home from Khairullapur, P.S. Thakurdwara in a motorcycle. At about 5.30 P.M. Truck bearing number H.R.-38-C-6086 came there in a rash and negligent manner and dashed the motorcycle, due to which both the motorcyclists sustained grievous injuries. They were taken to hospital by one Amar Singh where Mallu @ Jaibir Singh succumbed to the injuries. The deceased at the time of death was 25 years of and used to earn Rs. 5,000/- per month. The claimants filed claim petition for a sum of Rs. 10,00,000/-. 3- The opposite party No.1, owner of the offending truck filed his written statement and alleged that the accident occurred due to own fault of motorcyclist, therefore he is not liable to pay any compensation. 2 4- The opposite party No.2, United India Insurance Company also contested the petition by filing its written statement and denied the averments made in the petition. It alleged that the accident occurred due to own fault of the deceased. It also alleged that the driver of the offending truck was not having valid driving licence, hence the liability cannot be fastened upon the insurance company. 5- The learned Tribunal, on the pleadings of parties, framed the following issues:- 1- Whether on 23.8.2006, at about 5.30 P.M. near Surajpur, P.S. Jaspur, District U.S. Nagar, the accident occurred due to rash and negligence of truck driver bearing registration H.R.-38-C-6086, in which Mallu @ Jaibir Singh succumbed to the injuries sustained by him in the accident? If so, its effect?. 2- Whether the driver of the truck in question had valid driving license? If so, its effect?. 3- Whether owner of motorcycle and its insurer company are necessary party to the petition? If so, its effect?. 4-Whether the claimants are entitled to get any amount of compensation? If so, from whom?. 6- The parties in support of their claims adduced evidence. Thereafter the learned Tribunal, after hearing learned counsel for the parties and considering the material on record, awarded a sum of Rs. 4,15,000/- as compensation along with interest @ 7% per annum from the date of filing the petition till the date of actual payment payable by United India Insurance Company. 3 7- Feeling aggrieved the insurance company has preferred this appeal. 8- The claimants/respondents also filed cross objection in the appeal for enhancement of the compensation. 9- Heard Mr. Pankaj Purohit, learned counsel for the appellant and Sri D.C.S. Rawat, Advocate for respondents 1 to 5 and Mr. Mohd. Azim, Advocate for respondent No.6, and perused the record. 10- As far as the quantum of compensation is concerned, the evidence on record clearly establishes this aspect that the deceased was driving the motorcycle and he was hit by the truck No. HR-38-C-6086 coming from opposite direction. The claimants have pleaded in the claim petition that the truck in question was being driven rashly and negligently. The first information report filed by the claimants also establishes this aspect that on 23.8.2006 at about 5.30 P.M. the accident took place in which there was collision between truck No. HR 38-C- 6086 and the motorcycle being driven by the deceased and on account of this accident Mallu @ Jaibir Singh driver of the motorcycle succumbed to the injuries. 11- Learned counsel for the appellant has submitted that although the pleading was adduced by the owner of the offending truck as well as the insurer that the accident took place on account of the contributory negligence of the drivers of both the vehicles, but the Tribunal has not considered this aspect. He has invited my attention towards the statement of P.W.2, Amar Singh an alleged eye witness of the accident, and has stated that in view of statement of P.W.2, it is 4 quite clear that the accident is a result of contributory negligence. 12- Learned counsel for the respondents has stated that the site-plan shows that the truck came to its extreme right direction and hit the motorcycle which shows that the driver of motorcycle was not negligent, but the accident took place on account of rash and negligence of the driver of the offending truck only. He also submitted that the meager amount of compensation has been awarded and the compensation should be enhanced. 13- Having considered the statement of the witness P.W.2, Amar Singh, I am of the view that the driver of the motorcycle, i.e. the deceased had sufficient opportunity to see the truck coming from the opposite direction from a long distance. It is a head-on collision, both the vehicles were coming from the opposite direction to each other at the time of accident, therefore, the drivers of both the vehicles had sufficient opportunity to avoid the accident, but it appears that the drivers of both the vehicles were rash and negligent and only on account of the same the accident took place. Keeping in view the dictum of ‘Res Ipsa Loquitor’, it is quite clear that the road at the place of the accident is quite wide as the statement of Amar Singh P.W.2, reveals that at the place of the accident two trucks at a time can pass easily. It is thus quite clear that the rash and negligent on the part of the motorcycle driver who is the deceased in the present case cannot be overlooked. 14- It is now to be seen as to what extent the rash and negligence is on the part of motorcycle. The motorcycle is admittedly a smaller vehicle than the truck. 5 The driver of the truck had greater responsibility to drive the vehicle with care and caution on the road. The driver of the truck had also sufficient opportunity to avoid the accident but it appears that his rash and negligence is certainly on greater footing. Keeping in view the circumstances due to which the accident took place, it appears to me that the rash and negligence on the part of both the drivers is 75% and 25%, i.e. 75% rash and negligence on the part of driver of the truck and 25% is on the part of driver of motorcycle. 15- As the motorcycle was being driven by the deceased himself, therefore, the claimants are not entitled for the compensation upto an extent of 25% on account of the rash and negligence on the part of driver Mallu @ Jaibir Singh. 16- As far as the income of the deceased is concerned, the Tribunal has assessed the notional income of Rs. 36,000/- per annum and after deducting 1/3rd towards the personal expenses of the deceased a sum of Rs. 24,000/- per annum was assessed the dependency of the claimants, which appears to be justified. However, the Tribunal adopted the multiplier of 17, which is certainly on higher side in view of the dictum of Hon’ble Apex Court in the cases of New India Assurance Co. Ltd. vs. Smt. Kalpana and others, reported in 2007(1) Supreme 514, where the deceased was 33 years of age and the Hon’ble Apex Court applied the multiplier of 13 and the case of Tamil Nadu State Transport Corporation Ltd. vs. S. Rajapriya & Ors, reported in 2005(4) Supreme 87, where the Hon’ble Supreme Court has adopted the multiplier of ‘12’ at the age 38 years. Further, in the case of The Managing Director, TNSTC Vs. Sripriya & Ors., reported in 2007(5) 6 Supreme 301, the Hon’ble Apex Court applied the multiplier of ‘12’ where the deceased was 37 years of age. The deceased was 25 years of age at the time of accident. He was married. The just and proper multiplier in the present case would be 15 and after adopting the multiplier of 15, the total amount of compensation comes to Rs. 24,000/- X 15= Rs. 3,60,000/- and after deducting 25% out of the total amount on account of rash and negligence on the part of driver of motorcycle ,i.e. the deceased the amount comes to Rs. 2,70,000/-. The tribunal also awarded a sum of Rs. 2,000/- towards funeral expenses and Rs. 5,000/- towards loss of consortium and estate. In my opinion the claimants are entitled to receive the above amounts also. Therefore, the total compensation to be awarded in favour of claimants comes to Rs. 2,70,000/- + 2,000/- + 5,000/-= Rs. 2,77,000/-. 17- Interest indicated in the impugned award is 7%, which appears to be on lesser side. To my mind the amount of compensation awarded in favour of claimants by this Court, i.e. Rs. 2,77,000/- shall be payable along with interest @ Rs. 7.5% per annum instead of 7% from the date of filing the petition till the actual date of payment. 18- For the reasons recorded above, the appeal is liable to be partly allowed and the cross objection filed by claimants for enhancement of compensation is liable to be dismissed. 19- Accordingly, the appeal is partly allowed. The impugned judgment and award dated 30-6-2007 is modified upto the extent that the claimants are entitled to get a compensation of Rs. 2,77,000/- along with 7 interest @ 7.5% per annum from the date of filing the petition till the date of actual payment (instead of Rs. 4,15,000/- along with 7% per annum as has been awarded by the Tribunal). The amount so awarded in favour of the claimants shall be paid by the appellant/Insurance Company. 20- The amount awarded in favour of the claimants shall be paid as follows:- The parents of the deceased, Ramkesh Singh and Smt. Somati Devi shall be paid Rs. 25,000/- each instead of Rs. 30,000/-; claimant No.2, Km. Prachi and claimant No.3 Master Sudhanshu shall be paid Rs. 50,000/- each, which shall be deposited in fixed deposit with some nationalized bank, till they attain age the majority. The rest of the amount shall be paid to Smt. Pawan. 21- The cross objection of the claimants/respondents stands dismissed, so far as it relates to enhancement of the compensation. 22- Excess amount of compensation deposited by the appellant shall be refunded to the appellant, subject to the application moved by the appellant before the Tribunal concerned. 23- The statutory amount of compensation deposited at the time of admission of appeal shall be remitted to the Tribunal concerned. ( B.C. Kandpal, J.) ISB 8