IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 429 of 2006 United India Insurance Company Ltd. …Appellant Versus Shri Durga Prasad Nautiyal & others.. Respondents Sri Pankaj Purohit, Advocate, for appellant Sri L. K. Tiwari, Advocate, for respondent no. 1 Dated: May 5, 2008 Hon’ble B.C. Kandpal, J. By way of this appeal, under Section 173 of Motor Vehicles Act, 1988, the insurance company i.e. insurer of vehicle in question has challenged the impugned judgment and award dated 18.04.2006 passed by Motor Accident Claims Tribunal/Additional District Judge/F.T.C. VI, Dehradun, in M.A.C. Case No. 67/2002, Shri Durga Prasad Nautiyal versus United India Insurance Company Limited and others. The claimant-Durga Prasad Nautiyal filed a claim petition before the Claims Tribunal for grant of compensation for the injuries sustained by him in an accident which took place on 17.02.2001 at about 7.00 a.m. when a Hero Honda Motorcycle CBZ-8091 knocked down him. The motorcycle was being driven by its driver rashly and negligently and in the said accident the claimant got injuries/fractures on his left leg. It is further alleged that after the accident the claimant was taken to Hospital on a three-wheeler by Shri Arjun Raina and one of his friend and one person Sri Subhash 2 Tiwari. The claimant had to remain hospitalized from 17.2.2001 to 5.3.2001 for the treatment and thereafter he was shifted to Sehgal Nursing Home, Delhi. According to the claimant at the time of accident he was earning Rs.8,500/- per month from business. The claimant claimed a sum of Rs.10,04,000/- as compensation against the opposite parties. The opposite parties no. 2 and 3-Smt. Nimmi Raina and Sri Arjun Raina filed their written statement and denied that at the time of accident motorcycle was being driven by opposite party no. 3-Arjun Raina. They have pleaded that at the time of accident opposite party no. 4-Sudhir Nautiyal was driving the motorcycle and opposite party no. 3-Arjun Raina was pillion rider. The claimant himself was responsible for the accident as he was crossing the road when the accident occurred. They have also pleaded that though they are not liable to pay compensation to the claimant, even then if any liability is fixed, it goes on insurance company who is insurer of offending vehicle at the time of accident. Therefore, the insurance company is liable to pay compensation, if any. The opposite party no. 4-Sri Sudhir Nautiyal filed written statement and admitted the factum of accident. He also admitted the factum of driving the motorcycle at the time of accident but denied that accident occurred due to his rash and negligence. He has further pleaded that accident occurred due to own rash and negligence of claimant, hence, he could not claim compensation for his own negligence. 3 The opposite party no. 1-insurance company filed written statement and contested the claim petition on the ground that opposite party no. 3- Arjun Raina was plying the vehicle at the time of accident and he was having no valid driving licence. Therefore, the insurance company is not liable to pay compensation. The accident occurred due to own fault of deceased, for which the claimant cannot get benefit. The amount of compensation claimed is excessive. Therefore, the claim petition filed against insurance company is liable to be dismissed. 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 Tribunal after having considered the material available on record and hearing learned counsel for the parties decreed the claim petition in favour of claimant for a sum of Rs.5,27,756/-, payable by United India Insurance Co. Ltd., along with an interest @ 6% per annum. Feeling aggrieved by the aforesaid impugned judgment and award, the appellant-insurance company has preferred the appeal before this Court. Heard Sri Pankaj Purohit, learned counsel for appellant-insurance company, Sri L.K. Tiwari, learned counsel for respondent no. 1 and perused the record. I have gone through the impugned judgment and award thoroughly. The evidence on record reveals that claimant has filed the bills pertaining to 4 his medical treatment for a sum of Rs.1,31,756/- (rounded Rs.1,32,000/-). This amount has been awarded to the claimant by the Tribunal and I come to the conclusion that the aforesaid amount has been awarded by the Tribunal in justified manner and the same does not require any interference. The claimant has filed disability certificate before the Tribunal which indicates that he suffered disability upto the extent of 55% on account of injuries sustained by him in the accident. The age of claimant-injured is 45 years at the time of accident. As far as income of the claimant-injured is concerned, the income tax return filed by the claimant before the Tribunal indicates that he had been earning Rs.7000/- per month as net income. The income tax assessment return has been filed by the claimant, therefore, there is no justification to disbelieve that return and coming to the conclusion that the amount of compensation should be awarded on the basis of notional income of injured- claimant. I, therefore, am of the view that the monthly income of the claimant-injured should be calculated as Rs.7000/- as is evident from the record filed by the claimant. In case, if the income of claimant-injured is assessed at Rs.7000/- per month, then the annual income of claimant comes to Rs.7,000 x 12=Rs.84,000/- and after deducting 1/3rd out of it as personal expenses of the claimant, this amount comes to Rs.56,000/-. Now, keeping in view the age of claimant-injured as 45 years and applying the principle propounded by the Hon’ble Apex Court in the cases of Tamil Nadu State Transport Corporation Ltd. Versus S. Rajpriya & others, reported in 2005 (4) SC 87 and The 5 Managing Director, TNSTC versus Sripriya & others, reported in 2007(5) Supreme 301, multiplier of ‘10’ to be adopted in the present case would be just and proper and after adopting the multiplier of ‘10’ the amount of compensation comes to Rs.56,000 x 10=Rs.5,60,000/-. The claimant has suffered disability upto an extent of 55% as is evident from the disability certificate produced by him before the Tribunal. Therefore, keeping in view the disability suffered by claimant-injured on account of injuries sustained by him in the accident, the total amount of compensation to be awarded in favour of claimant, comes to Rs.5,60,000 x 55%=Rs.3,08,000/- + Rs.1,32,000/- (medical expenses)=Rs.4,40,000/-. The interest indicated in the impugned judgment and award shall remain intact. Learned counsel for the appellant-insurance company has also submitted that at the initial stage the plea of the claimant was that the motorcycle was being driven by one Arjun Raina, son of registered owner of vehicle-Sri P. Raina, but subsequently the name of driver has been changed by the claimant as Sudhir Nautiyal, son of Sri K.C. Nautiyal. Learned counsel for the appellant has stated that as Arjun Raina was not having valid and effective driving licence the claimant had no option except to change the name of driver. I do not find any force in this argument as Tribunal has discussed this aspect in detail and I do not find any ground to interfere in the finding recorded by the Tribunal that the offending motorcycle was being driven by Sudhir Nautiyal at the time of accident. 6 On the basis of assessment of aforesaid evidence, the appeal is liable to be partly allowed. Accordingly, the appeal is partly allowed. The impugned judgment and award is modified to the extent that claimant is entitled to get compensation to the tune of Rs.4,40,000/- (Rupees Four Lacs Forty Thousand), instead of Rs.5,27,756/- as has been awarded by the Tribunal. The interest as indicated in the impugned judgment and award shall remain intact. (B.C. Kandpal, J.) SP 7