IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A. O. No. 722/2006 Smt. Kabotari Devi and others … Appellants. Versus Kalyan Singh and another ..Respondents. Mr. Lalit Sharma, learned counsel for the appellants. Mr. Sudhir Kumar, learned counsel for the respondent No.1. Mr. M.K. Goel, learned counsel for respondent No.2. Dated: 20-10-2008 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 27-9-2005, passed by Motor Accident Claims Tribunal/District Judge, Pauri Garhwal, in MACT Case No. 54/2003. 2- Brief facts of the case giving rise to this appeal are that on 18-2-2003, Gulab Singh was returning in Bus No. U.P. 06-6253 along with the wedding party. When they reached near village Kathud Devikhaal at about 6P.M., the bus fell in a deep ditch due to rash and negligence of it driver, in which Gulab Singh died along with other persons at the spot. The deceased at the time of accident was 58 years of age and he was a retired person from Sales Tax Department. He was getting pension @ 2500/- per month and he used to do agricultural work and was earning about Rs. 5,000/- per month. The claimants filed claim petition in lieu of death of Gulab Singh. 3- The opposite party No.1, owner of the offending bus filed his written statement and denied the allegations 2 of the claim petition. He alleged that the bus was carrying 38 passengers and other persons were on the road. The accident did not take place due to the negligence of its driver. The offending bus was insured with Oriental Insurance Company and the insurer is liable to pay the compensation. 4- The opposite party No. 2, Oriental Insurance Company also contested the claim petition by filing its written statement and denied the allegations made in the petition. The insurer alleged that the vehicle was being driven against the terms of insurance policy and its driver was not possessing valid driving license. Therefore, the insurance company cannot be held liable to pay the compensation. 5- The learned Tribunal, on the pleadings of parties, framed relevant issues in the claim petition. Thereafter, the claimants adduced evidence in support of their claim petition. The Tribunal after hearing learned counsel for the parties and perusing the material available on record, awarded a sum of Rs. 80,000/- as compensation against the Oriental Insurance Company and directed to pay the compensation within two months, failing which interest @ 9% per annum shall be payable from the date of filing the petition till the date of actual payment. 6- Feeling aggrieved the claimants have preferred this appeal for enhancement. 7- Heard learned counsel for the parties and perused the record. 3 8- Learned counsel for the claimants/appellants has submitted that the Tribunal has committed manifest error by deducting 1/3rd twice from the amount of compensation. He also argued that the Tribunal has awarded conditional interest on the amount of compensation whereas they are entitled to get interest from the date of filing the petition till the date of actual payment. 9- As far as the factum of accident is concerned, the finding recorded by the Tribunal that the accident took place on account of the rash and negligent driving of the driver of the offending bus is concerned, that appears to be completely justified on the basis of the evidence adduced on record and I am in total agreement with the finding recorded by the Tribunal. 10- So far as the quantum of compensation is concerned, from the evidence on record, it reveals that the age of the deceased has been mentioned as 62 years in the post mortem report. Although the claimants have alleged that the deceased was getting pension of Rs. 2,500/- per month and he also used to do agricultural work and his income was Rs. 5,000/- per month, but no cogent and reliable evidence has been adduced. The Tribunal has taken into consideration the income of the deceased for calculating the amount of compensation as Rs. 3,000/- per month, i.e. Rs. 36,000/- per annum and adopted the multiplier of 5 at the age of 62. The tribunal after deducting 1/3rd towards personal expenses, calculated the total dependency as Rs. 1,20,000/-. The Tribunal further deducted 1/3rd towards lump sum payment. In my opinion the twice deduction of 1/3rd does not appear to be reasonable. Therefore, the finding 4 recorded by the Tribunal by which the Tribunal has deducted 1/3rd amount of compensation twice is liable to be set aside. In my view the claimants are entitled to get Rs. 1,20,000/- in lieu of death of Gulab Singh (instead of Rs. 80,000/- as has been awarded by the tribunal). 11- The Tribunal awarded conditional interest @ 9% per annum. In my opinion the claimants are entitled to get interest @ 6% per annum from the date of filing the petition till the date of actual payment. 12- For the reasons recorded above, the appeal is liable to be partly allowed. 13- Accordingly, the appeal is partly allowed. The judgment and order dated 27-9-2005, is modified to the extent that the claimants/appellants shall be entitled to get a sum of Rs. 1,20,000/- as compensation along with interest @ 6% per annum from the date of filing the petition till the date of actual payment, instead of Rs. 80,000/- as has been awarded by the Tribunal. (B.C. Kandpal, J.) ISB 5