IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 317 of 2004 The Oriental Insurance Company Limited ..Appellant. Versus Smt. Sanjeeda and 3 others ….. Respondents. Mr. T.A. Khan, learned counsel for the appellant. Mr. Sanjeev Singh, learned counsel for the respondent No.1. None has appeared for other respondents. UDated: 6-8-2008 UHon’ble B.C. Kandpal, J. This appeal, under Section 173 of the Motor Vehicles Act, 1988, has been preferred against the judgment and award dated 31-5-2004, passed by Motor Accident Claims Tribunal/ Additional District Judge/I F.T.C., Haridwar, in MACT Case No. 93 of 1997. 2- Brief facts of the case, giving rise to this appeal, are that on 6-9-1997, Mahboob Ali was travelling in Bus No. U.P. 07-A-2188 from Libbarheri to Sisona. At about 4.15 P.M. the bus collided with another bus H.Y.E.1409 near Mandawali village due to the rash and negligence of the bus driver of U.P. 07-A-2188. Mahboob Ali sustained grievous injuries in the accident and died at the spot. Both the drivers of the vehicles also succumbed to the injuries at the spot. At the time of accident the deceased was 30 years of age and he used to earn Rs. 4,000/- per month. Therefore, claimant filed petition for compensation of Rs. 26,05,000/-. 3- Opposite Party No.1, owner of Bus No. U.P. 07- A-2188 did not file any written statement. 2 4- Opposite Party Nos. 2 and 3, Senior Center Incharge, U.P. S.R.T.C., Muzaffarnagar Depot and Regional Manager, U.P. State Transport Corporation Ltd. Meerut, under whose control the vehicle was being plied, have filed joint written statement. They have alleged that both the vehicles were being driven without having due permit. Bus No. U.P. 07-A/2188 was insured with Oriental Insurance Company, therefore, the liability of compensation is upon the shoulder of the insurer and the owner of the bus. 5- The Opposite Party Oriental Insurance Company also contested the claim petition by filing its written statement and denied the averments made in the claim petition. It has alleged that in case the accident was the result of the driver of the Bus, then the insurance company cannot be held liable to pay any compensation. 6- The learned Tribunal on the pleadings of parties, framed issues in the claim petition. Thereafter, the claimant produced herself as P.W.1 and Meharban as P.W.2. She also filed documentary evidence. On behalf of opposite party Nos. 2 and 3 photo copy of agreement between the Corporation and the owner of the ill-fated Bus was filed. 7- The learned Tribunal after hearing learned counsel for the parties and considering the entire material on record, partly allowed the claim petition for a compensation of Rs. 1,87,000/- along with interest @ 8% per annum from the date of filing the claim petition till the date of actual payment against the Oriental Insurance Company Ltd. 3 8- Feeling aggrieved the Oriental Insurance Company has preferred this appeal before this Court. 9- I have heard learned counsel for the appellant and the learned counsel for the respondent/claimant and perused the record. None has appeared on behalf of other respondents in spite of sufficient service of notice. 10- Learned counsel for the appellant has submitted that the driver of the offending Bus was not having valid driving license on the date of accident as such the insurance company should have been exonerated from its liability. 11- From perusal of record it reveals that the insurance company in its written statement has not taken specific plea that the driver of the offending bus was not possessing a valid driving license, rather it was pleaded that the burden to prove this fact that the driver was having valid driving license and the bus was also possessing valid permit, registration, fitness and insurance, was on the claimant. Admittedly, both the drivers of the vehicles had died in the accident. The owner of the offending bus did not contest the claim petition. The opposite party U.P. S.R.T.C. filed agreement paper No. 36-C executed between the U.P.S.R.T.C. and the owner of the bus. In the said agreement registration number, insurance cover etc. of the vehicle have been noted. There is also condition in the agreement that the U.P.S.R.T.C. will have the right to inspect the documents and driving license at intervals. Had the drive of the offending vehicle was not possessing valid driving license the U.P.S.R.T.C. would not have allowed him to drive the vehicle or would have raised this issue before the owner of the Bus, but this was not done. Further, the insurance 4 company or the U.P.S.R.T.C. did not adduce any evidence on record to prove this fact that in fact the driving was not having valid driving license. If the driver was not having valid driving license the insurance company would have raised specific plea in this regard. In the above facts and circumstances of the case, when the driver of the bus had died in the accident and the owner did not contest the claim and no effort was made to adduce evidence pertaining to the fact that the driver was not having a valid driving license, it cannot be said with all certainty that the vehicle in question was being driven by a person having no valid driving license. In the instant case the burden had shifted on the opposite parties to prove this fact which they have failed to discharge the same. Therefore, the contention raised by learned counsel for the insurance company/appellant is not tenable. The finding recorded by the learned Tribunal, holding the insurance company liable to pay compensation, is upheld. 12- Learned counsel for the appellant also submitted that the Tribunal has wrongly assessed the quantum of compensation by way of applying excessive multiplier. 13- The learned counsel for the claimant/respondent opposed this submission of learned counsel for the appellant and contended that the Tribunal has assessed the compensation on the national income of Rs. 15,000/- per annum. The deceased at the time of accident was 30 years of age and the Tribunal has adopted the multiplier of 18 according to the provision of Second Schedule appended to Section 163-A of the Motor Vehicles Act. 5 14- I have perused the impugned award. The learned Tribunal has assessed the dependency of the claimant after taking notional income of Rs. 15,000/- per annum and after deducting 1/3Prd P towards personal expenses, the total annual dependency was assessed at Rs. 10,000/-. The deceased at the time of his death was 30 years of age and in view of Second Schedule appended to Section 163-A of the M.V. Act, the multiplier of ‘18’ which has been adopted by the Tribunal, cannot be said on higher side. Further, the Tribunal was also justified in awarding Rs. 2000/- towards funeral expenses and Rs. 5,000/- for mental agony. 15- In view of above discussion, I do not find any force in this appeal and the same is liable to be dismissed. 16- Accordingly, the appeal is dismissed. The impugned judgment and award dated 31-5-2004 is confirmed. 17- Let the statutory amount, deposited with this Court, be remitted to the Tribunal concerned. (B.C. Kandpal, J.) ISB 6