IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal Against Order No. 120 of 2008 Sanjay Malhotra …Appellant Versus Prem Ram Tamta & others ... Respondents And Appeal Against Order No. 282 of 2007 Prem Ram Tamta & others …Appellants Sanjay Malhotra and another ... Respondents In A.O. No. 120 of 2008: Sri Sharad Sharma, Advocate for appellant Sri M.K. Goyal, Advocate for respondent no. 3 In A.O. No. 282 of 2007: Sri Kishore Kumar, Advocate for appellants Sri Sharad Sharma, Advocate for respondent no. 1 Sri D.S. Patni, Advocate for respondent no. 2 Dated: August 19, 2008 Hon’ble B.C. Kandpal, J. Since both the cases are arising out of the same judgment and award and common question of fact of law is involved in both the cases, as such, they are being decided by the common judgment. These appeals, preferred under Section 173 of Motor Vehicles Act, 1988, are directed against the judgment and award dated 24.04.2007 passed by Motor Accident Claims Tribunal/District Judge, Champawat, in Motor Accident Claim Case No. 31/2006, Prem Ram Tamta & another vs. Sanjay Malhotra & another, whereby the claim of the claimants was allowed for an amount of compensation to the tune of Rs.1,57,000/-. 2 The claimants-Prem Ram Tamta and another filed a claim petition before Claims Tribunal on account of death of their daughter-Km. Neha in a motor accident alleging therein that deceased-Km. Neha along with other Baratis was going in Barat from Dehradun to Almora by Tavera Car No. U.A.08E/9801. When the said car reached about five kms. ahead from Najimabad, it met with an accident due to rash and negligent driving of its driver. In the said accident, three persons including Km. Neha travelling in vehicle died and other passengers sustained injuries. It has also been alleged that deceased-Km. Neha was a brilliant student of Class IX and had she been alive, she would have done much progress. Opposite party no. 1-Sanjay Malhotra is the owner of offending vehicle and opposite party no. 2-Oriental Insurance Company Ltd. is the insurer of offending car. The claimants claimed a sum of Rs.7,40,000/- as compensation against opposite parties. Opposite party no. 1 has filed written statement denying almost all the contents of claim petition. In the additional pleas, it has been pleaded that at the time of accident driver of vehicle was having valid driving licence, insurance certificate, registration etc.; driver of vehicle was not at fault in the said accident; the drier was driving the vehicle slowly on his side. It has further been pleaded that claims has been demanded excessively. It has also been pleaded that the liability to pay the compensation, if any, is of opposite party no. 2. Opposite party no. 2-insruance company has filed written statement denying the contents of 3 claim petition for want of knowledge. In the additional pleas, it has been pleaded that claim petition has been filed by claimants on wrong and baseless facts. It has also been pleaded that claimants did not produce income certificate, age certificate and post mortem report of deceased. It has further been pleaded that the vehicle was carrying more passengers than its capacity, which is breach of permit and insurance policy. The amount of compensation and interest has been claimed excessively. Therefore, the claim petition filed by claimants is liable to be dismissed. The Tribunal on the basis of pleadings of the parties framed relevant issues in the claim petition. Parties led evidence in support of their cases. The learned Tribunal after having considered the entire material available on record and hearing learned counsel for the parties decreed the claim petition for a sum of Rs.1,57,000/-in favour of claimants, against opposite party no. 2-Oriental Insurance Company Limited and allowed the claim petition exparte against opposite party no. 1-Sanjay Malhotra. The Tribunal also directed that the claimants shall also be entitled to get interest at the rate of 6% per annum from the date of filing the petition i.e. 4.8.2006 till the date of actual payment. The Tribunal further directed that opposite party no. 2-insurance company shall have the recoverable rights to recover the amount of compensation from opposite party no. 1-Sanjay Malhotra (owner of offending vehicle). Feeling aggrieved by the impugned aforesaid judgment and award, the appellant/Sanjay 4 Malhotra i.e. owner of vehicle in question, has preferred the appeal before this Court. The claimants have also filed appeal i.e. A.O. No. 282 of 2007 before this Court for enhancement of amount of compensation. Heard Sri Sharad Sharma, learned counsel for appellant, Sri M.K. Goyal, learned counsel for respondent no. 3 and perused the record. Learned counsel for appellant-owner of vehicle in question has submitted that owner of vehicle cannot be held liable for payment of compensation, as the vehicle in question was registered, insured and driver was having valid driving license and vehicle was being plied safely without any negligence on its side. He has further submitted that amount of compensation awarded by the Tribunal is excessive. On the other hand, learned counsel for claimants has submitted that amount of compensation awarded by learned Tribunal is meager and it is liable to be enhanced by this Court. As far as issue no. 1 with regard to factum of accident, the Claims Tribunal has discussed all the evidence adduced by the parties and thereafter has recorded a categorical finding that on 6.5.2006 in between 12-12.30 p.m. near Bajepur-Najimabad, District Bijnor accident had occurred due to rash and negligent driving of driver of Car No. UA- 08E/9801, in which thirteen year old Km. Neha died. I do not find any illegality in the finding 5 recorded by Tribunal in this regard and the same deserves to be confirmed. While deciding issue no. 2, the Tribunal recorded a finding that on the date of accident driver of offending vehicle was having valid and effective driving licence. I do not find any illegality in the finding recorded by the Tribunal in this regard and same deserves to be confirmed. While deciding issue no. 3, the Tribunal recorded a finding that on the date of accident offending vehicle was validly and effectively insured with opposite party no. 2. I do not find any illegality in the finding recorded by the Tribunal in this regard and same deserves to be confirmed. While deciding issue nos. 4 and 5, the Claims Tribunal held that on the date of accident owner of offending vehicle was not having valid and effective permit and vehicle was being plied in breach of conditions of insurance policy. I do not find any illegality in the finding recorded by Tribunal in this regard and same deserves to be confirmed. As far as issue no. 6 with regard to amount of compensation to be awarded in favour of claimants is concerned, the record reveals that at the time of accident age of deceased-Km. Neha was 13 years and she was a student of class IX in Government Girls Inter College. The Tribunal keeping in view the facts and circumstances of the case taken into consideration the notional income of deceased as Rs.15,000/- per annum and after deducting 1/3rd out of it towards personal expenses of deceased, has 6 assessed the annual dependency at Rs.10,000/-. The deceased was 13 years of age at the time of accident and therefore for calculating the amount of compensation the age of the parents would be material. In the instant case, at the time of accident age of father and mother were 45 and 38 years respectively and thus the average age comes to 41.5 years. The Tribunal in view of schedule given in Section 163-A of Motor Vehicles Act selected the multiplier of ‘15’ and after adopting the multiplier of ‘15’ the amount of compensation has been worked out to Rs.10,000 x 15=Rs.1,50,000/-. The Tribunal further awarded a sum of Rs.5,000/- to the claimants towards loss of love and affection of their daughter (deceased) and a sum of Rs.2,000/- towards funeral expenses of deceased. Thus, the Tribunal awarded a total sum of Rs.1,57,000/- as compensation to the claimants. I, therefore, am of the view that the Tribunal awarded a just and proper amount of compensation to the claimants and it needs no interference. I do not find any illegality in the method adopted by the Tribunal in calculating the amount of compensation. The Tribunal further recorded a finding that since on the date of accident offending car Tavera No. UA-08E-9801 was insured with opposite party no. 2-Oriental Insurance Co. Ltd., therefore, the liability to pay the amount of compensation is of opposite party no. 2-Oriental Insurance Company Limited. The Tribunal also held that since car in question was being plied by its owner without permit and owner of vehicle breached the conditions of insurances policy, therefore, opposite party no. 2- insruance company shall have the recoverable 7 rights to recover the amount of compensation from opposite party no. 1-owner of vehicle. I do not find any illegality in the above findings recorded by the Tribunal and same deserve to be confirmed. In view of above discussion, the appeals lack merit and are liable to be dismissed. Accordingly, both the appeals are dismissed. The impugned judgment and award dated 24.04.2007 is hereby confirmed. Let a copy of this judgment be placed in the file of A.O. No. 282 of 2007. (B.C. Kandpal, J.) SP 8