IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 262 of 2009 IFFCO-TOKIO General Insurance Company Ltd. … Appellant. Versus Smt. Bhagirathi Tiwari and two others. … Respondents. Mr. H.C.Pande, Advocate, learned counsel for the appellant-Insurance Company. Mr. Ganesh Kandpal, Advocate, learned counsel for the respondent no.1 and 2-claimants. Date August 19, 2011. Hon’ble B.S.Verma, J. Heard learned counsel for the parties. This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short the Act) is directed against the award dated 11- 5-2009 passed by the Motor Accidents Claims Tribunal/ District Judge Bageshwar (for short the Tribunal) in Motor Accident Claim Petition No. 09 of 2008 Smt. Bhagirathi Tiwari Vs. Govind Giri and another, whereby a compensation of Rs. 9,02,000/- has been awarded to the claimants-respondent no.1 and 2 along with interest @ 8% per annum against the Insurance Company-appellant, as mentioned in the impugned award. Relevant facts, giving rise to the present appeal in brief, are that the claimants-respondent nos. 1 and 2 filed claim petition under Section 166 of the Act before the Tribunal for compensation of Rs. 12,25,000/- alleging therein that the son of the claimants, namely Mahesh Chandra Tiwari alias Sunil, aged about 19 years was travelling by KMOU bus no. UK 02/2305 on 21-5- 1988 and he lost his life in a motor vehicle accident due to rash and negligent driving by its driver. The deceased was running a tea and daily need shop at Bageshwar and was earning Rs. 8000/- per month. The ill-fated vehicle was insured with the appellant- 2 insurance company and the same was owned by respondent no. 3- Govind Giri. The claim petition was contested by the owner of the vehicle by filing written statement. It was asserted that the owner was not at fault and that the driver of the vehicle also died in the motor vehicle accident. The compensation, if any, is payable by the insurer of the vehicle. The appellant-insurance company also contested the claim petition and filed its written statement asserting therein that the accident in question occurred not due to rash and negligent driving by the driver of the vehicle but due to bad road condition and that the owner has violated the provisions of the Act. The compensation has been claimed on baseless grounds and that there is collusion between the claimants and the owner of the vehicle. The learned Tribunal framed as many as four issues in the case, recorded the evidence led by the parties, heard them and after perusing the evidence, the learned Tribunal has held on Issue No. 1 that the accident in question occurred due to rash and negligent driving by the driver of the offending vehicle. On Issue No.2, which was framed on the pleadings of the insurance company, the Tribunal has held that the owner has not violated any policy conditions and the owner was having valid papers at the time of the accident. On Issue No. 3 and 4, relating to the relief and quantum of compensation, the learned Tribunal has observed that the claimants have not filed any documentary evidence to substantiate the income of the deceased to the tune of Rs. 8,000/-, but has assessed the income of the deceased at Rs. 7,000/- per month from the shop, run by the deceased. The learned Tribunal after deducting 1/3rd amount towards personal expenses of the deceased has worked out loss of annual dependency as Rs.56,000/-. The learned Tribunal considering the age of the deceased to be 18 years has applied the multiplier of 16 and thus worked out total 3 compensation towards loss of dependency as Rs. 8,96,000/-. In addition, the claimants were awarded amount of Rs. 6,000/- towards funeral expenses and loss of love and affection. Ultimately, by the impugned order, the award was decreed for a sum of Rs. 9,02,000/- along with interest at the rate of 8% per annum. Before the learned Tribunal, the appellant Insurance Company has moved an application under Section 170 of the Act, which was allowed by the Tribunal on 6-4-2009. In this appeal, the learned counsel for the appellant has submitted that the learned Tribunal has lost sight of the fact that the alleged income of the deceased had not been substantiated by any documentary evidence, therefore, the Tribunal ought to have taken notional income of the deceased @ Rs. 36,000/- per annum as has been settled by a Division Bench of this Court. Learned counsel for the appellant has further submitted that the deceased was admittedly a bachelor, therefore, the deduction towards personal expenses ought to have been made 50%. Learned counsel further submitted that the multiplier in the present case ought to have been applied considering the age of the mother of the deceased. I have pondered over the matter and in my view, the submissions made by the learned counsel for the appellant has some force. So far as the income of the deceased is concerned, the learned Tribunal has not accepted the version of the claimants that the deceased was earning Rs. 8,000/- per month from the alleged shop and has observed that no evidence as to the income of the deceased has been led. But on the other hand, the learned Tribunal without any basis has held that the deceased might have earning Rs. 7,000/- per month from the tea shop. Even no independent witness was adduced before the Tribunal to corroborate that the deceased 4 was running a shop in a conspicuous place so as to fetch a regular income from the shop. In such circumstances, it cannot be held that there was any fixed income of the deceased. In such a case, the notional income of Rs. 36,000/- per annum would be taken into account, as has been settled by a Division Bench of this Court in the case of Smt. Mayawati and others Vs. New India Assurance Company Ltd. and another [2006(2) U.D., 657]. Undisputedly, the deceased was a bachelor at the time of his accidental death and he was aged about 19 years. The age of the mother of the deceased has been mentioned 40 years in column no. 7 of the claim petition. There is no reason to disbelieve these facts as no evidence to the contrary has been led by the appellant. Since the deceased was a bachelor at the time of his accidental death, a deduction of 50% towards personal expenses of the deceased would be made from the notional income of Rs. 36,000/- per annum, in view of the law laid down in the case of Sarla Verma (SMT) and others Vs. Delhi Transport Corporation and another [(2009) 6 Supreme Court Cases, 121], in paragraph no. 31 of the judgment. Thus, the loss of dependency would come to Rs. 18,000/- per annum. The age of the mother of the ceased was 40 years. Therefore, the proper multiplier to be applied in this case is 15 instead of 16 as applied by the Tribunal. Thus, the total loss of dependency would come to Rs. 18,000/- x 15 =Rs. 2,70,000/-. Learned counsel for the claimant-respondent nos. 1 and 2 has submitted that the learned Tribunal has not awarded the adequate compensation towards loss of estate, funeral expenses and loss of love and affection and only a lump-sum amount of Rs. 6,000/- has been awarded, which cannot be said to be adequate. The submission of the learned counsel for the claimants has some force on this score. 5 The Apex Court in the case of Sarla Verma (supra) has awarded a sum of Rs. 5000/- under the head of “loss of estate” and Rs. 5000/- towards funeral expenses in addition to a sum of Rs. 10,000/- as loss of consortium. The motor accident in the present case had taken place on 21-5-2008. The parents have lost their young and brought up son aged about 19 years, who was the sole earning member in the family. Therefore, following the ratio of this case-law, I am of the view that the claimants in the case at hand are also entitled to a sum of Rs. 5,000/- each towards loss of estate and funeral expenses. The claimants will also be entitled to a sum of Rs.15,000/- towards loss of love and affection. Accordingly, the claimants are entitled to a total compensation of Rs.2,95,000/- instead of Rs. 9,02,000/- as awarded by the learned Tribunal. Rest of the finding including that of award of interest recorded by the learned Tribunal shall remain undisturbed. For the reasons and discussion above, the appeal deserves to be partly allowed. The impugned award is liable to be modified to the above extent. The appeal is partly allowed. The claimants- respondent nos. 1 and 2 are entitled to compensation of Rs. 2,95,000/-(Rupees two lacs ninety-five thousand only) along with interest at the rate of 8% per annum as awarded by the learned Tribunal. The impugned award stands modified to that extent. The amount deposited in appeal with the Registry of this Court, if any, shall be remitted to the Tribunal concerned. All pending applications stand disposed of. (B.S.Verma, J.) RCP