IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.64 of 2005 Judgment reserved on:18.5.2009 Date of decision: 26.5.2009 Sagar Lal and others ….. Appellants. Vs. Geetan Devi and anr. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. Vivek Thakur and Mr. Kush Sharma, Advocates. For the Respondents : Mr. K.D. Sood, Advocate, for respondent No.2. Kuldip Singh, Judge. This appeal is directed against the award dated 12.8.2004 passed by Motor Accident Claims Tribunal, Bilaspur in M.A.C. Case No.9 of 2003, awarding Rs. 2,62,000/- along with interest at the rate of 9% per annum from the date of petition till the date of deposit in favour of respondent No.1 with the direction that respondent No.2-insurer would deposit the award amount first but can recover the amount from Sagar Lal appellant subsequently. 2. The pleaded case of respondent No.1 is that her son Pawan Kumar, aged 21 years was engaged by Lachhu Ram owner Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… as labourer and was travelling in tractor No.HP-23-6399 on 29.9.2002 from village Mihara to Baran-Da-Ghat. The tractor met with an accident due to rash and negligent driving of Sagar Lal appellant No.1, as a result of which trolley, tractor and left side tyre of tractor crushed Pawan Kumar, who died on the spot. The deceased was earning Rs.5,000/- per month. The respondent No.2 was the insurer of the tractor at the time of accident. The appellants legal heirs of Lachhu Ram were collectively impleaded as owners of tractor. On those facts the respondent No.1 had filed claim petition, claiming Rs.20 lac compensation. 3. The petition was contested by appellants 1 to 4, they denied the claim of the respondent No.1 but admitted that the tractor was insured with respondent No.2-insurer. The respondent No.2- insurer contested the petition by filing reply and took preliminary objections that the tractor was being plied in contravention of Motor Vehicles Act. The preliminary objections of validity of permit, fitness certificate, driver was not holding valid and effective driving licence at the time of accident, there was no contract of insurance between owner of the vehicle and the insurer, Pawan Kumar was unauthorized, gratuitous passenger sitting on the tractor at the time of accident were taken. It was pleaded that insurer is not liable to pay any compensation. On merits, the claim was denied. 4. On the pleadings of the parties, the following issues were framed by the Tribunal:- 1. Whether Shri Pawan Kumar had died on account of rash and negligent driving of tractor No.HP-23-6399 by its driver? OPP …3… 2. If issue No.1 is proved, to what amount of compensation and from whom is the petitioner entitled to ? OPP 3. Whether the driver of vehicle No.HP-23-6399 had not been in possession of a valid and effective driving licence at the time of the accident, if so, with what effect? OPR-2 4. Whether Shri Pawan Kumar was unauthorized/gratuitous passenger travelling in vehicle No.HP-23-6399, if so, with what effect? OPR-2 5. Relief. 5. Issue No.1 was answered in affirmative and issues No.3,4 in negative, under issue No.2 an amount of Rs.2,62,000/- was awarded in favour of respondent No.1. The respondent No.2-insurer was directed to deposit the award amount firstly with liberty to recover the said amount from Sagar Lal. 6. Heard and perused the record. On behalf of the appellants, it has been submitted that learned Tribunal has erred in allowing the petition. The respondent No.1 is not entitled to any compensation. In alternative respondent No.1 is not entitled to more than Rs.75,000/-. In any case, respondent No.2-insurer is liable to pay the amount, if any to be awarded in favour of respondent No.1. The learned counsel for respondent No.2-insurer has supported the impugned award. 7. Ex.PA is the FIR regarding the accident, Ex.PB is the post mortem report of Pawan Kumar aged 21 years indicating that he was run over by the tractor and died instantaneously. PW-1 Geetan Devi has stated that her son Pawan Kumar aged 21 years was …4… working as labourer on the tractor and died in the tractor accident. He was earning Rs.5,000/- per month. In cross-examination conducted on behalf of owners she has stated that she cannot tell how the accident had happened. She was not cross-examined by the owners of the tractor that Pawan Kumar had not died in tractor accident. 8. PW-2 Surjit Singh has stated that on 29.9.2004 he had seen that Pawan Kumar had died in an accident due to rash and negligent driving of the tractor driver. On behalf of the of the owners driving licence Ex.R-1, RC Ex.R-2, Insurance Policy Ex.R-3 were tendered in evidence and the evidence was closed. On behalf of respondent No.2-insurer no evidence was led. 9. The statements of PW-2, PW-3, FIR Ex.PA and post mortem report Ex.PB have proved the negligence of the tractor driver for causing the accident. The appellants and respondent No.2 have not rebutted the evidence led by respondent No.1 on negligence. The Tribunal has rightly appreciated the material on record in coming to the conclusion that accident took place due to the rash and negligent driving of the tractor driver in which Pawan Kumar had died. 10. PW-1 has stated that her son was earning Rs.5,000/- per month but there is no corroborative evidence on record to show that the deceased was earning Rs.5,000/- per month. The learned Tribunal has taken the income of the deceased at Rs.2100/- per month. In my opinion no fault can be found with the income of the deceased assessed at Rs.2100/- per month by the Tribunal. PW-1 has stated that Pawan Kumar was her only son. She is widow and …5… she does not have any source of income. She was totally dependent upon Pawan Kumar. There is no rebuttal to this effect. Therefore. the Tribunal in the facts and circumstances of the case has rightly assessed the dependency of respondent No.1 at Rs.1400/- per month or Rs.16,800/- per annum. 11. The respondent No.1-claimant was 50 years when she made her statement on 26.2.2004, in other words at the time of accident she was about 48 years of age. The Tribunal has applied multiplier of 15 which in my opinion is on the higher side. In Bilkish vs. United India Insurance Company Ltd. and another (2008) 4 SCC 259 the parents were aged 47 and 42 years and the deceased was 20 years of age and the Supreme Court on those facts has applied the multiplier of 12. In the present case PW-1 Geetan Devi mother of the deceased was about 48 years at the time of death of Pawan Kumar. Therefore, in view of Bilkish supra the appropriate multiplier is 12. Thus, compensation comes to Rs.16,800 x 12 = Rs.2,01600/-, a sum of Rs.10,000/- awarded by the Tribunal on account of conventional amount does not require any interference. Thus, total amount of compensation comes to Rs.2,01600 + Rs.10,000/- = 2,11,600/- . 12. The insurance policy Ex.R-3 does not advance the case of the appellants in as much as in policy Ex.R-3 the insured has been shown the H.P. Agricultural & Development Bank, Ghumarwin. The appellants have not explained how in policy Ex.R-3 the name of insured has been shown as H.P. Agricultural & Development Bank, Ghumarwin. In fact the policy Ex.R-3 was placed on record by …6… appellants. The insurer has accepted the award of depositing the award amount first and then to recover the same from Sagar Lal as directed by the Tribunal. In these circumstances, the award is modified on the quantum only and is reduced to Rs.2,11,600/- instead of Rs.2,62,000/- awarded by the Tribunal. The rate of interest and rest of the directions of the Tribunal are kept intact. 13. No other point was urged. 14. The result of the above discussion, the appeal is partly allowed, and an award of Rs.2,11,600/- along with interest at the rate of 9% per annum from the date of petition till deposit is passed in favour of the respondent No1-claimant and rest of the directions of the Tribunal regarding the mode of payment of award amount to respondent No.1-claimant by insurer and right of the insurer to recover that amount from Sagar Lal are upheld. No costs. May 26, 2009. ( Kuldip Singh ) (sks) Judge.