HIGH COURT OF UTTARAKHAND AT NAINITAL (1) AO No. 113/2007 The New India Assurance Company Ltd. …Appellant. Versus Prem Singh Bisht and others. …Respondents. Shri Prem Prakash Phartiyal, i/b Shri T.A. Khan, Advocate for the appellant, Shri Mohd. Azim Advocate for respondent nos. 1 & 2, Shri Gopal Krishna, Advocate for respondent no.3. (2) AO No. 183/2007 Prem Singh Bisht (since deceased) And another. …Appellants. Versus Pramod Kumar and another. …Respondents. Shri Mohd. Azim Advocate, Advocate for the appellants, Shri Gopal Krishna, Advocate for respondent no.1. Shri Prem Prakash Phartiyal, i/b Shri T.A. Khan for respondent no. 2. Dated: May 3, 2010 Hon’ble V.K. Bist, J. Both these appeals, preferred under Section 173 of the Motor Vehicles Act, 1988 are directed against the judgment and award dated 12.02.2007 passed by the learned Presiding Officer of the Motor Accident Claims Tribunal/ District Judge, Udham Singh Nagar in Motor Accident Claim Case No. 177 of 2004 ‘Prem Singh Bisht and another vs. Pramod Kumar Agarwal and another’, whereby a sum of Rs. 3,14,000/- alongwith 7% interest per annum thereon has been awarded in favour of the claimants. 2. The Appeal no. 113 of 2007 has been preferred for setting-aside the impugned award and the Appeal no. 183 of 2007 has been preferred for the purpose of enhancement of the amount of compensation. Since in both these appeals the award under challenge is common, parties are same, therefore both these appeals were 2 consolidated and are being decided by a common judgment. Appeal no. 113 of 2007 shall be the leading case. 3. Brief fact, arising out of the claim petition, are that on 27.07.2004 Madan Singh (deceased) was travelling in a motorcycle registration no. UA-06-7057 with Dhirendra Singh. On that day at about 7:45 p.m. when they reached in front of Tarai Filling Station, Bajpur at the road stretched to Bajpur-Haldwani then a Mahindra Pick-Up Jeep Registration No. UA-06B-2312, which was being driven rashly and negligently by its driver, dashed with the vehicle in which the deceased was travelling. Shri Madan Singh instantaneously died at the spot in the accident. A first information report was lodged with the police station Bajpur and a case crime no. 279/2004 was registered relating to the said accident. Autopsy on the dead body of Madan Singh was conducted on 28.07.2004 at L.D. Bhatt, Govt. Hospital, Kashipur. It has been averred in the claim petition that the deceased was aged about 21 years and was without any ailments. In the claim petition it has been asserted that on the date of accident Madan Singh was employed as a Cleaner in the truck of Rajendra Prasad and was earning Rs. 3,000/- per month. In addition to this he was being given Rs. 30/- as daily allowances. The claimants are the parents of the deceased. 4. The respondent no.3 (owner of the vehicle in question) filed his written statement and has accepted his ownership of the Mahindra Pick-Up Jeep Registration No. UA-06B-2312. He submitted that the accident did not take place on account of rash and negligent driving of the driver of Mahindra Pick-Up Jeep Registration No. UA- 3 06B-2312. He submitted that his Jeep was insured with the appellant’s company and sole liability of payment of compensation, if any, is on the said Insurance Company. The appellant/New India Assurance Company with whom the vehicle Mahindra Pick-Up Jeep Registration No. UA- 06B-2312 was insured, contested the claim petition and denied having knowledge of the accident. The Insurance Company has also stated that the accident did not take place on account of rash and negligent driving of the driver of vehicle Registration No. UA-06B-2312, but the accident was the result of negligent driving on the part of the driver of said motorcycle involved in the accident. 5. Learned Tribunal, after framing issues, recorded evidence of the parties and after hearing the learned counsel for the parties passed the award whereby a sum of Rs. 3,14,000/- alongwith 7% interest per annum thereon has been awarded in favour of the claimants. 6. Aggrieved by the said award, the Appeal no. 113 of 2007 has been preferred for setting-aside the impugned award and the Appeal no. 183 of 2007 has been preferred for the purposes of enhancement of the amount of compensation. 7. I have heard the learned counsel for the parties and perused the record. 8. Shri T.A. Khan, the learned counsel for the Insurance Company has submitted that the deceased was unmarried and was aged about 21 years. He stated that parents of the deceased were about 43 years and 44 years of age respectively, therefore, the multiplier should not 4 have been more than 12. He further argued that the driver was having the driving license to drive the light motor vehicles or motorcycle only, but he was not authorized to drive the transport vehicle. Further, the owner of the vehicle did not produce any evidence to show that he had taken due care and he was having no knowledge about non-having valid driving license. Learned counsel for Insurance Company placed reliance on TAC 2006 (Vol. II), (2008) 12 Supreme Court Cases 385 and (2008) 4 S.C.C.-259. 9. Shri Mohd. Azim, Advocate for the claimants has submitted that the compensation awarded by the learned tribunal is insufficient and meager because the deceased was of 21 years and having sound health and in case the said accident would not have been occurred the deceased would have been alive and earned more money. The deceased was doing job of a Cleaner and was earning Rs 3,900/- per month, but the learned tribunal has assessed his income only Rs 3,000/- per month and compensation has wrongly been awarded. Therefore, the amount of compensation be enhanced. 10. In order to prove their case, the claimants produced oral testimony of PW-1 Prem Singh, PW-2 Puran Singh and PW-3 Rajendra Singh and in the documentary evidence the claimants have filed carbon copy of F.I.R., chik F.I.R., charge-sheet, map of the site, copy of postmortem report, salary certificate and copy of driving licence. The owner of the Jeep and its insurance company examined DW-1 Pramod Kumar, DW-2 N.S. Bisht and DW-3 Mohd. Jaan. The owner of the Jeep has produced R.C., driving licence and copy of cover note of insurance. 5 The insurance company has produced surveyor report, F.I.R., tax deposit certificate, R.C., driving licence and copy of insurance cover note. 11. PW-1 is Shri Prem Singh Bisht-father of the deceased. Although, this witness has proved the assertions made in the claim petition, but in the cross- examination he accepted that he did not see the accident. PW-2 Puran Singh has stated that the said accident had occurred on 27.07.2004 at about 7:45 p.m. at Tarai Filling Station, Bajpur. This witness has categorically stated that on the date of incident he was travelling in a motorcycle from village Haripura Harsan to Bajpur and was 25-30 metres away from the place of accident. The deceased Madan Singh alongwith Dheerendra Singh were travelling ahead of him in a motorcycle and when he reached at 7:45 p.m. at Tarai Filling Station at the road stretched to Bajpur-Haldwani then the Mahindra Pick-Up Jeep Registration No. UA-06B-2312, which was being driven rashly and negligently by its driver, dashed with the vehicle in which the deceased was travelling. In the result, Madan Singh Bisht died at the spot. This witness was cross-examined, but nothing has come out to disbelieve his testimony. The witness DW-3 Mohd. Jaan, has also admitted that on the date of incident he was driving the Mahindra Pick-Up Jeep Registration No. UA-06B-2312 in a moderate speed, but not in the rash and negligent manner. The Mahindra Pick-Up Jeep Registration No. UA-06B-2312 was involved in the said accident. In this regard a F.I.R. was lodged. Autopsy on the dead body of Madan Singh was conducted on 28.07.2004 in the hospital. 6 12. Accident is admitted to the parties. PW-2, Puran Singh is an independent witness and his testimony cannot be disbelieved. Finding recorded by the learned Tribunal, that the accident occurred due to rash and negligent driving of the driver of Jeep Registration No. UA-06B- 2312, is affirmed. 13. Now remains only the quantum of compensation, which has been awarded by the learned Tribunal in favour of the claimants. In the claim petition the age of the deceased is mentioned as 21 years at the time of the accident. In the postmortem report, his age has been mentioned as 19 years. The learned Tribunal has assessed the income of the deceased to Rs. 3,000/- per month and after deducting 1/3 amount of own expenses, which the deceased would have spent on himself the rest 2/3 amount as the pecuniary loss was assessed to at Rs. 24,000/- per annum. The deceased was unmarried, therefore the learned Tribunal, while determining the age of the parents has calculated the compensation and applied the multiplier accordingly. In the claim petition, the age of the mother of the deceased is mentioned as 43 years and the age of father of the deceased is mentioned as 44 years, but the claimants have not proved their age by producing any certificates. In these circumstances, the learned Tribunal has rightly applied multiplier of 13 on the amount of pecuniary loss i.e. 24,000 X 13 = 3,12,000/-. Besides it, a sum of Rs. 2,000/- towards funeral charges of the deceased was also awarded. Thus, a total sum of Rs. 3,14,000/- alongwith 7% interest per annum thereon from the date of filing the claim petition as the amount of compensation was awarded in favour of the claimants. 7 14. The learned Tribunal has held that the Mahindra Pick-Up Jeep Registration No. UA-06B-2312 was involved in the accident. This Jeep was insured with the New India Assurance Company Ltd. and the paper no. 16c/4 shows that on the date of accident the insurance was valid and the vehicle was fully covered through the insurance company. The driver of the said vehicle was having a valid licence and all other papers were also valid. Keeping in view the facts and circumstances, the learned Tribunal has fastened the liability upon the New India Insurance Company towards payment of compensation, which does not suffer from any manifest error of law. 15. The insurance company also did not produce any evidence that the accident was caused in any other manner. The Jeep was fully covered with the Insurance Company. The Driver of the vehicle was having valid licence. The Insurance Company did not take any objection regarding driving licence, before the Tribunal nor any such issue was framed. The Insurance Company is not permitted to take such objection now, which it has not taken before the Tribunal. The ratio of the judgments citied by the learned counsel for the Assurance Company, in the facts and circumstances of the case, is not applicable in the present case. I am of the view that sole liability of payment of compensation is upon the Insurance Company. The findings recorded by the learned Tribunal do not warrant any interference. 16. The learned Tribunal has assessed the income of the deceased to Rs. 3,000/- per month and after deducting 1/3 amount of own expenses, which the deceased would have spent on himself the rest 2/3 amount as the 8 pecuniary loss was assessed to at Rs. 24,000/- per annum. The deceased was unmarried, therefore the learned Tribunal while determining the age of the parents has calculated the compensation in this matter and applied the multiplier accordingly. In the claim petition, the age of the mother of the deceased is mentioned as 43 years and the age of father of the deceased is mentioned as 44 years. In these circumstances, the learned Tribunal has rightly applied multiplier of 13 on the amount of dependency i.e. 24,000 X 13 = 3,12,000/-. Besides it, a sum of Rs. 2,000 towards funeral charges of the deceased was also granted. Thus, a total sum of Rs. 3,14,000/- alongwith 7% interest per annum thereon, from the date of filing the claim petition, as the amount of compensation was awarded in favour of the claimants. The findings recorded by the learned Tribunal are quite reasonable. The award has been passed on the basis of oral and documentary evidence led by the parties, which warrants no interference by this Court. 17. Thus, both these appeals fail. Order dated 12.02.2007 passed by the learned Motor Accident Claims Tribunal/ District Judge, Udham Singh Nagar in Motor Accident Claim Case No. 177 of 2004, is affirmed. No order as to costs. 18. Office is directed to send the L.C.R. back and transmit the statutory amount deposited in this Court to the Motor Accident Claims Tribunal/District Judge, Udham Singh Nagar. 19. Let certified copy of this judgment be placed in the connected A.O. No. 183 of 2007. (V.K. Bist, J.) 03.05.2010 NCM: