IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 310 of 2007 Uttarakhand Transport Corporation ...Appellant Versus Bahadur Hussain alias Mohammad Raza and others ...Respondents Sri Rajeev Singh Bisht, Advocate for appellant Mr. Mohd. Azim, Advocate for respondent no. 1 to 4 Dated: 24-04-2009 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of Motor Vehicles Act, 1988, is directed against the judgment and award dated 02.05.2007 passed by M.A.C.T./District Judge, Udham Singh Nagar, in M.A.C.P. No. 18 of 2006, Bahadur Hussain alias Mohd. Raza and others vs. Israr Ahmad and others. Briefly stated the facts as narrated in the claim petition are that on 17/18-10-2005 at 1.30 a.m. deceased-Mohd. Shahid was going towards Afzalgarh from Jaspur by plying Truck No. D.L.-1G- 0532 after taking goods and as soon as he reached in front of Petrol Pump at some distance of Rehad, Bus NO. U.P. 07C-4754 belonging to Afzalgarh Depot which coming towards Afzalgarh, came in a rash and negligent manner and hit the truck from the opposite side, on account of which truck was damaged. In this accident deceased Mohd. Shaid (driver of truck) sustained injuries and he was taken to Government Hospital, Kashipur, where due to his critical condition he was referred to Sai Hospital, Moradabad, where he was treated, but on 19.10.2005 he died during treatment due to injuries sustained by him in the accident. According to claim petition, deceased was 24 years of age at the time of his death and used to get a sum of Rs.4000/- per month as salary. The claimants claimed a sum of Rs.28,42,000/- as compensation along with interest against the opposite parties. Opposite party no. 1 owner of vehicle in question filed his written statement admitting therein facts of accident and registration of vehicle in question in his name and denied rest of the contents of claim petition for want of knowledge. In the additional pleas, it has been stated that accident in question occurred on account of rash and negligent driving of driver of Bus No. U.A.07C- 4754 and truck was being plied by its driver Mohd. Shahid (deceased) in accordance with rules of Motor Vehicles Act and his driver was holding valid driving licence and his vehicle was having all valid papers on the date of accident and his vehicle was insured with opposite party no. 2 New India Assurance Co. Ltd., therefore liability to the pay the compensation, if any, is of insurance company. Opposite party no. 2-The New India Assurance Co. Ltd. filed its written statement denying the contents of the claim petition and took additional plea that it had not been given any information of the accident and driver of truck Mohd. Shahid (deceased) was driving the truck unauthorizedly. It has also been stated that if accident had taken place on account of own rash and negligence of deceased himself, then answering opposite party is not liable to pay the compensation. Opposite party no. 3-Uttarakhand Transport Corporation/appellant before this Court filed its written statement admitting therein the factum of accident and denied almost all the contents of the claim petition for want of knowledge. In the additional pleas, it has been stated that alleged accident occurred due to collision with bus by truck being driven rashly and negligently. Therefore, liability to pay the amount of compensation is of opposite parties no. 1 and 2. The learned Tribunal on the basis of pleadings of the parties framed necessary issues in the claim petition. Parties led oral as well as documentary evidence in support of their cases. The learned Tribunal after having considered the entire evidence available on record and hearing learned counsel for the parties decreed the claim petition for a sum of Rs.2,53,228/- along with interest at the rate of 7% per annum, against opposite party no. 3- Uttarakhand Transport Corporation, vide judgment and award dated 02.05.2007. Feeling aggrieved by the aforesaid impugned judgment and award, the appellant i.e. Uttarakhand Transport Corporation has preferred the present appeal before this Court. Heard Mr. Rajeev Singh Bisht, learned counsel for appellant, Mr. Mohd. Azim, learned counsel for claimants-respondents no. 1 to 4 and perused the record. Learned counsel for the appellant has submitted that the learned Tribunal has committed an error by fixing the liability upon the appellant to pay the compensation, while accident was caused on account of sole negligence of driver of Truck No. D.L.1G-0532. He has further submitted that compensation awarded by the learned Tribunal is on exorbitant side. On the other hand, learned counsel for claimants-respondents has supported the impugned judgment and award. As far as factum of accident is concerned, the Tribunal has dealt with this point while deciding issue no. 1 in the impugned judgment and award. The claim petition shows that said accident occurred on account of rash and negligent driving of driver of Bus No. U.P.07C-4754, whereas plea of opposite party no. 3 is that accident occurred on account of rash and negligence of driver of Truck No. D.L.1G-0532. Sharif Ahmad has been produced as PW-2 and this witness in his examination-in- chief has stated that on 17/18-10-2005 at 1.30 a.m. he was plying Tanker No. U.P. 25-6943 towards Jaspur from Afzalgarh and as soon as he reached near Petrol Pump before Rehad, Bus No. U.P.07C-4754 coming forward to his vehicle, which was being driven by its driver rashly, dashed with truck from the opposite direction by coming on its wrong side and both the vehicles coming from opposite direction have stopped and this witness rushed to the placed of occurrence. Rajendra Singh has been produced as DW-1 by the opposite parties. This witness has stated in his deposition that driver of truck dashed with the bus by plying the truck rashly and negligently and coming on its wrong side. Opposite party no. 3 filed copy of F.I.R. in which it is mentioned that Sahendra Pal, driver of Bus No. U.P. 07C-4754 was plying the vehicle towards Kashipur from Rishikesh and no passenger was traveling in the bus at the time of accident. Only conductor-Rajendra Singh (PW-1) was sitting in bus at the time of accident, whereas PW-1 has stated in his deposition that the bus was carrying 20-25 passengers, who also sustained injuries in the accident. Thus, the statement of PW-1 is contradictory to the facts mentioned in the F.I.R., which shows that there were no passengers in the bus at the time of accident and hence evidence of this witness in this regard does not appear to be convincing. The learned Tribunal after having considered the evidence adduced before it came to the conclusion that accident occurred on account of sole rash and negligent driving of driver of Roadways Bus No. U.P.07C-4754, in which driver of truck Mohd. Shahid sustained injuries and subsequently succumbed to injuries and in the accident driver of truck was not at fault. I do not find any illegality in the said finding recorded by the Tribunal and same deserves to be confirmed. As far as amount of compensation to be paid to the claimants is concerned, the Tribunal has dealt with this point while deciding issue no. 2 in the impugned judgment and award. The claim petition shows that deceased-Mohd. Shahid died during his treatment on account of injuries sustained in the accident. The claimants filed medical bills and prescription (paper no.6C/3 to 6C/18), which is amounting to Rs.11,228/-. Thus, the claimants are entitled to get a sum of Rs.11,228/- for medical treatment which incurred before death of the deceased. The claimants stated in the claim petition that deceased had been earning a sum of Rs.6000/- per month, but no cogent and reliable evidence has been put forward by them in order to establish the actual income of the deceased. The learned Tribunal in absence of any cogent evidence with regard to income of deceased has no other option except to take into account the notional income of the deceased and therefore, the Tribunal has rightly taken into account the notional income of deceased as Rs.36,000/- per annum. After deducting one-third out of said amount towards personal expenses of the deceased, the annual financial dependency of the claimants has been assessed at Rs.24,000/-. The Tribunal further selected the multiplier of ‘10’ keeping in view the age of the deceased at the time of accident, which appears to be justified and needs no interference. After applying the multiplier of ‘10’ amount of compensation awarded in favour of claimants has been worked out to Rs.24,000 x 11=Rs.2,40,000/-. The Tribunal further awarded a sum of Rs.2000/- for funeral expenses, which also appears to be just and proper. The finding recorded by the Tribunal in this respect does not require any interference. In view of the above, appeal lacks merit and is liable to be dismissed. Accordingly, appeal is dismissed. The impugned judgment and award dated 02.05.2007 is hereby confirmed. The statutory amount deposited by the appellant with this Court be remitted to the Tribunal concerned. (B.C. Kandpal, J.) SP