IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 133 of 2006 Smt. Kalawati & others … Appellants Versus U.P.S.R.T.C. & another … Respondents Sri I.P. Kohli, Advocate, for appellants Sri V. K. Bisht, senior Advocate, assisted by Ms. Sangeeta Miyan, Advocate, for respondents Dated: April 21, 2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of Motor Vehicles Act, 1988, is directed against the judgment and order dated 27.11.2002 passed by Motor Accident Claims Tribunal/Additional District Judge/IV Fast Track Court, Dehradun, in M.A.C.T. No. 137 of 2001. The claimants filed claim petition under the provisions of Motor Vehicles Act, for grant of compensation on account of death of deceased-Bali Ram in a motor vehicle accident. According to the claimants, on 28.2.2001 when deceased-Bali Ram reached through his bullock-cart at Majra Haridwar Bypass Road, near Dharmkanta, P.S. Kotwali, Dehradun, a Roadways bus bearing Registration No. UP 32T-1724 of U.P.S.R.T.C. dashed bullock-cart of deceased-Bali Ram due to which deceased-Bali Ram and his two bullocks died at the spot itself. The claimants pleaded that offending bus was being driven by its driver rashly and negligently. The claimants pleaded that deceased-Bali Ram used to 2 earn Rs.200/- per month by plying the bullock-cart at the time of accident. They have also pleaded that in the said accident bullock-cart of deceased also damaged. The claimants thus claimed for a sum of Rs.12,50,000/- as compensation against the opposite parties. The opposite parties-U.P.S.R.T.C. filed written statement admitting therein the factum of accident but denied that the accident took place due to rash and negligence of bus driver. They pleaded that when the said bus reached at the place of accident the bullock-card came there rashly. The bullocks of deceased got frustrated and deceased i.e. driver of bullock cart lost control over bullocks. They have further pleaded that driver of bus applied the brake to avoid the accident and bullocks collided with bus very rashly with the result accident occurred. The driver of bus was not at fault, therefore, the U.P.S.R.T.C. is not liable to pay any compensation. The learned Tribunal on the basis of pleadings of parties framed relevant issues in the claim petition. Parties led evidence in support of their cases. The learned Tribunal after having considered the material available before it and hearing learned counsel for the parties decreed the claim petition for a sum of Rs.59,500/- as compensation, in favour of claimants, against opposite party no. 1- U.P.S.R.T.C., along with interest @ 7% per annum w.e.f. 29.5.2001 till payment of compensation. The Tribunal also awarded a sum of Rs.5000/- towards death of bullocks and damage of bullock-cart. 3 Feeling aggrieved by the aforesaid impugned judgment and award, the appellants-claimants have preferred the appeal before this Court for enhancement of compensation. Heard Sri I.P. Kohli, learned counsel for appellants, Sri V.K. Bisht, senior Advocate, assisted by Ms. Sangeeta Miyan, learned counsel for respondents and perused the record. Learned counsel for the appellants has submitted that the learned Tribunal has committed error by fixing income of deceased as Rs.15,000/- per annum, whereas deceased was earning only Rs.200/- per day. I have gone through the impugned judgment and award thoroughly. The evidence reveals that opposite parties admitted the factum of accident but denied that accident occurred due to rash and negligence of bus driver. They have pleaded that accident took place as the bullocks on seeing the bus got frustrated and collided with bus. The witness produced by claimants as PW-1 Smt. Kalawati admitted the factum of accident and she stated that she was given information with regard to accident by her son Satya Prakash. Banshi, an eye witness of said accident, has also been produced as PW-2 who has deposed in his statement that he saw the accident at a distance of 10 ft. The bullock-cart of deceased-Bali Ram was being plied by the roadside and he (PW-2) was on other side of road and the bus of U.P.S.R.T.C. dashed the bullock-cart of deceased-Bali Ram due to which deceased-Bali Ram died due to injuries sustained in accident on 4 the way to hospital. The opposite parties produced driver of offending bus-Mohan Lal as DW-1, who has deposed in his statement that when he was plying the bus from Dehradun to Delhi, the deceased along with bullock cart was crushed beneath his bus as bullocks got frustrated on seeing the bus and deceased lost his control over the bullock cart. This witness has been cross examined and he stated that at the time of accident he was plying the bus in fourth gear at a speed of 40-45 Km. per hour. The Tribunal after having considered the evidence adduced by the parties came to the conclusion that accident occurred due to rash and negligence of bus driver. I do not find any reason to disturb the finding recorded by the Tribunal in this regard. As far as amount of compensation to be awarded in favour of claimants is concerned, the Tribunal has adopted the multiplier of ‘5’ keeping in view the age of the deceased as 60 years. The record reveals that no cogent evidence has been adduced by the claimants in order to ascertain the age of the deceased. The claim petition shows that the age of the deceased has been indicated as 46 years, but as per the post mortem report the age of deceased was 60 years at the time of his death. The Tribunal has accepted the age of the deceased as 60 years. I do not find any ground to interfere in the finding recorded by the Tribunal in this regard. The age of the deceased in view of post mortem report is to be accepted as 60 years. The multiplier which has been adopted by the Tribunal keeping in view the age of deceased, appears to be on lower side. In view of schedule given under Section 163-A of M.V. Act the 5 multiplier in this case should have been ‘8’ instead of ‘5’. The respondents have not adduced any evidence to prove that the age of deceased was above 60 years at the time of death. Therefore, in case, if the age of the deceased has been taken as 60 years at the time of death then in view of the schedule given under Section 163-A of M.V. Act, a multiplier of ‘8’ would be just and reasonable and after adopting the multiplier of ‘8’ the financial dependency of the claimants thus comes to Rs.10,000/- x 8=Rs.80,000/-. The amount awarded by the Tribunal under other different heads is not to be interfered with. In view of the aforesaid discussion, the appeal is partly allowed. The impugned judgment and award dated 27.11.2002 is modified to the extent that amount of compensation to be awarded in favour of claimants-appellants should be Rs.89,500/- (Rupees Eighty Nine Thousand Five Hundred Only), instead of Rs.59,500/- as has been awarded by the Tribunal. The amount awarded by the Tribunal towards damage of bullock-cart shall remain intact. The rate of interest as indicated in the impugned judgment and award shall also remain intact. (B.C. Kandpal, J.) SP