IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal Against Award No. 29 of 2005 Oriental Insurance Company Ltd. Pauri Garhwal, through its Divisional Manager Haldwani (Nainital) … Appellant Vs 1. Km. Shristi Rawat (minor) D/o Dinesh Singh Rawat 2. m. Kirti Rawat (minor) D/o Dinesh Singh Rawat 3. Master Vishwajeet Singh (minor) 4. Dinesh Singh Rawat S/o Dr. D.S. Rawat All R/o Near Ram Leela Ground Pauri Garhwal 5. Dilbar Singh Rawat S/o Sri Matbar Singh Rawat R/o Village Dhanai Talla Patti Gagvasanu District Pauri Garhwal Owner of Vehicle No. UP06 /6185 6. Vimal Rana S/o Sri Madan Rana Village Bansori, Patti Gagvansanu Pauri Garhwal Driver of the vehicle …Respondents Sri T.A. Khan, learned counsel for the appellant Sri P.c. Bisht, learned counsel for the respondents Hon’ble B.C. Kandpal, J. This appeal under Section 173 of Motor Vehicles Act has been filed by the appellant against the judgment and order 11.10.2004 passed by Motor Accident Claim Tribunal/District Judge, Pauri Garhwal in M.A.C.P. No. 58 of 2002, Km. Sristi Rawat & others Vs Dilbar Singh Rawat & others whereby the Tribunal awarded a sum of Rs. 8,86,400/- as compensation in favour of the claimants. 2. Brief facts of the case are that Suchita Rawat on 21.11.2001 going to her school at Patti Gagwadsuen, District Pauri by jeep bearing No. UP06/6185, at Lavali Pauri Motor Marg, the jeep in question met with an accident due to rash and negligent driving of the driver. As a result of the said accident, Smt. Suchita Rawat sustained serious injuries, She was immediately taken to District Hospital, Pauri where, the doctor declared her dead. According to the claim petition, she was working as a teacher and used to earn Rs. 7,500/- per month as salary. The claimants are the legal heirs of the deceased and filed claim petition to the tune of Rs. 20,00,000/- before the Tribunal concerned. 3. A written statement was filed by the owner of the offending vehicle wherein the accident has been admitted. It has been submitted that in his absence, the driver of the vehicle in question Jaipal Singh Rana went to his in-laws (sasural) and handed over the vehicle to his brother, namely, Vimal Rana who caused the accident. It has been submitted that after getting the information about the accident, he went to Pauri. Sri Vimal Rana was holding valid driving licence to drive the Light Motor Vehicle. The offending vehicle was insured with Oriental Insurance Company. It has been submitted that Sri Vimal Rana and the Insurance Company is liable to pay the compensation, if any. 4. Sri Vimal Rana, the driver in question has filed a written statement submitting therein that he was doing the duties of driver on the said vehicle and was having a valid driving licence. The accident in question had taken place due to technical fault. The vehicle was being driven very cautiously. 5. The Oriental Insurance Company Ltd. has filed the written statement and denied the accident. It has been submitted that the vehicle in question was being driven in contravention of the insurance policy. The vehicle was not insured and the driver in question was not having valid driving licence. The papers, such as, registration certificate, fitness certificate, permit ect. with regard to the vehicle in question were not in order. The compensation claimed is in exaggeration. It has been submitted that the vehicle in question was carrying more passengers than that of its capacity. 6. On the basis of the pleadings of the parties, the Tribunal has framed following issues:- 1. Whether Smt. Suchita Rawat died due to injuries in an accident on 21.11.2001 at about 04:15p.m. near Balori Lawali Pauri Road on account of rash and negligent driving of a jeep bearing registration No. UP06/6185, as alleged in the claim petition? 2. Whether the said jeep No. UP06/6185 was insured with O.P. No. 3 at the time of accident? 3. Whether the driver of said Jeep No. UP/6185 was not holding valid and effective driving licence at the time of accident? 4. Whether the said Jeep No. UP06/ 6185 was driven in violation of terms and condition of the insurance policy at the time of accident? 5. What amount of compensation, if any, are the petitioner entitled and from whom? 7. After having considered the arguments advance by the parties and perusing the evidence led by the parties, the Tribunal awarded a sum of Rs. 8,86,400/- in favour of the claimant and against the Insurance Company vide judgment and order dated 11.10.2004. 8. Feeling aggrieved by the aforesaid order, the appellant/Oriental Insurance Company Ltd. preferred this appeal before this Court. The claimant/respondent also filed cross appeal against the aforesaid judgment and award for enhancement of amount of compensation 9. Heard Sri T.A. Khan, learned counsel for the appellant/Insurance Company, Sri P.C. Bisht, learned counsel for the respondents No. 1 to 4 and perused the record. 10. The owner of the vehicle in question has produced insurance policy cover note and papers related to the vehicle. The driver of the vehicle in question and the Insurance Company have not adduced any evidence. The Tribunal has taken into consideration, the insurance cover note i.e. paper No. 25ga which shows that the vehicle in question was insured for a period of 23.02.2001 to 22.02.2002. After taking into consideration paper No. 25ga i.e. registration certificate of the vehicle and driving licence of Vimal Rana, Claims Tribunal thereafter, has recorded the finding that the driver was holding valid driving licence and the registration certificate and insurance police of the Jeep in question were in order. 11. On perusal of the paper No. 25ga shows that it is a goods carrier where three passengers are permitted. On that ground the claims tribunal has given the right to the insurer to recover the amount from the insured, as there were more than three passengers in the vehicle in question. 12. Counsel for the respondent has pointed out that the accident had not taken place due to overloading as there is a statement of the driver that the accident had taken place due to technical defect. Further, since the claims Tribunal has already given the recoverable rights against the owner, the same shall be confined only in the light of the judgment of United India Insurance Company Ltd. Vs Annapurna Shandilya & others reported in 2007 ACJ 1168, it has been held as under:- “12. First we shall come to the submission raised by Mr. Sanjay Agrawal, learned counsel appearing on behalf of the appellant – United India Insurance Co. Ltd. that number of persons traveling in the vehicle were 10, whereas the vehicle is insured and covers the insurance of 3 + 1 persons. In our considered opinion, taking passengers more in number that covered under insurance, insurer cannot escape from liability as it is not substantial breach of the policy as held by Apex Court in B.V. Nagarraju Vs Oriental Insurance Co. Ltd. 1996 ACJ 1178 (SC). The Apex Court has followed the decision of Skandia Insurance Co. Ltd. Vs Kokilaben Chandravadan, 1987 ACJ 411 (SC), in view of the fact that there was “breach of carrying humans in a goods vehicle more than the number permitted in terms of the insurance policy, it was laid down tha the same cannot be said to be such fundamental breach so as to afford ground to the insurer to deny indemnification” unless there were some factors which contributed to the causing of the accident. The Supreme Court has laid down in B.V. Nagaraju (supra) that exclusion term of the insurance policy must be read down to serve the main purpose of it to indemnify the insured.” 13. Having considered the arguments advanced by learned counsel for the parties as well as going through the entire material available on record and perusing the aforesaid decision of Hon’ble Apex Court, I do not find any illegality or infirmity in the impugned judgment and order passed by the Tribunal. While awarding the amount of compensation, the Tribunal has relied upon the paper No. 20ga, which is salary certificate issued by the Basis Siksha Adhikari. Perusal of the aforesaid document, it reveals that the deceased was getting salary as Rs. 9,775/- per month. It has further come to my notice that the Tribunal has considered her age 33 years, therefore, the Tribunal adopted the multiplier of 17 as per schedule of Motor Vehicle Act, 1988, then the income of the deceased comes to Rs. 1,17,300/- and after adopting the multiplier of 17 it comes to Rs. 19,94,100/-. After deducting 1/3rd of the income of the deceased, which he would have spent on himself, the loss of dependency comes out to be Rs. 13,29,400/-. Learned Tribunal, further deducted 1/3rd of the income, as amount was being paid lump sum which the deceased would not have received by his earning in one go. And, therefore, finally Rs. 8,86,400/- was directed to be paid as compensation to the claimants. Learned counsel for the claimants, argued that 1/3rd of income has been wrongly deducted twice by the Tribunal. In view of the heavy amount, which was directed to be paid in one go, 1/3rd of the amount of dependency has rightly been deducted in the facts and circumstances of this case, which cannot be said to be unjust. 14. In view of the above, discussion, I do not find any ground to interfere in the impugned judgment and award passed by the Tribunal. The appeal lacks merit and is liable to be dismissed. 15. The respondents/claimants also filed cross appeal against this appeal for enhancement of the amount of award. As I have already discussed above that the amount of compensation does not require any interfere. In my opinion, the amount awarded by the Tribunal is perfectly justified, which does not require any interference at this stage. 16. Accordingly, the appeal filed by the appellant/Insurance Company as well as cross appeal filed by the respondents/claimants are dismissed. 17. The statutory amount deposited by the appellant at the time of filing the appeal be remitted to the Tribunal concerned. (B.C. Kandpal, J.) 26.03.2008 ASWAL