IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Restoration Application No. 3/2009 Delay Condonation Application No.49/2009 In Appeal From Order No. 225 of 2005 Uttar Pradesh State Road Transport Corporation …Appellant Versus Vikram Singh and others … Respondents Sri Rajeev Singh Bisht, Advocate for appellant Sri D.S. Patni, Advocate for respondent no. 2 Dated: 07-01-2009 Hon’ble B.C. Kandpal, J. Sri Rajeev Singh Bisht, Advocate for appellant/applicant. Sri D.S. Patni, Advocate for respondent for respondent no. 2. Heard learned counsel for the parties on delay condonation application and perused the affidavit filed in support thereto. I find sufficient ground to condone the delay in filing the restoration application. Accordingly, delay condonation application is allowed. The delay in filing the restoration application is hereby condoned. Also, heard learned counsel for parties on restoration application and perused the affidavit filed in support thereto. I find sufficient ground to recall the order dated 27.07.2007. Accordingly, restoration 2 application is allowed. The order dated 27.07.2007 is hereby recalled. The appeal is restored to its original number. Heard learned counsel for the parties on merits and perused the record. This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred against the judgment and award dated 28.1.2005 passed by Motor Accident Claims Tribunal/Additional District Judge/4th Fast Track Court, Dehradun, in M.A.C.T. Case No. 282 of 2002, Sri Vikram Singh Versus The Oriental Insurance Co. Ltd. and others. Brief facts of the case, as narrated in the claim petition, are that on 1.10.2002 at about 10.30 claimant was coming to I.T.I. Dehradun through Motorcycle No. H.R.28-4588 owned by opposite party no. 4-Manohar and when the said motorcycle was going to its side at Kuanwala, Bus No. U.P.07H- 8439 being driven by its driver rashly and negligently hit the said motorcycle. In the said accident, claimant sustained serious injuries on his person and his right leg was damaged forever. It has also been alleged that due to the accident claimant has become disabled. Therefore, the claimant claimed a sum of Rs.25,00,000/- as compensation along with interest of 18% per annum against the opposite parties. Opposite party no. 1-The Oriental Insurance Co. Ltd. filed its written statement and pleaded that claim petition was bad for non-joinder of owner as well as insurer of motorcycle as party. The accident 3 has occurred on account of contributory negligence of claimant himself. It has further been pleaded that bus involved in the accident was being plied in contravention of conditions of insurance policy and driver of bus was not holding valid and effective driving licence on the date of accident. Opposite party no. 1 denied the liability to pay the amount of compensation. Opposite parties no. 2 and 3 filed their joint written statement denying the contents of the claim petition and stated that opposite party no. 2 was driving the bus very carefully and accident has not taken place on account of his rash and negligence, rather motorcycle was collided with bus while the claimant, who was driving the motorcycle, was trying to overtake the bus. They have also stated that at the time of accident opposite party no. 2 was having valid driving licence and his vehicle was insured with opposite party no. 1. Thus, opposite parties no. 2 and 3 have stated that they were not liable to pay the amount of compensation and claim petition filed against him was liable to be dismissed with special cost. Opposite party no. 4 filed written statement refuting the contents of the claim petition and stated that accident had occurred on account of rash and negligent driving of bus driver and in the said accident he, who was sitting as pillion rider, also sustained injuries. Opposite party no. 4 also stated that claimant was not entitled to get any compensation and it has also been stated that liability to pay the compensation is of opposite parties no. 1, 2 and 3. 4 Opposite party no. 5-UPSRTC/appellant before this Court, filed its written statement denying the contents of the claim petition and stated that opposite party no. 3 is the registered owner of Bus No.U.P.07H-8439 attached with opposite party no. 5 and driver (opposite party no. 2) is the employee of opposite party no. 3. It has also been stated that as per agreement dated 5.12.2002 the entire liability to pay the compensation rests upon the registered owner as well as insurer of attached bus in case of accident of bus in question. It has further been stated that claimant was not entitled to get any compensation from opposite party no. 5 and liability to pay the compensation is of registered owner and insurer of attached bus. The learned Tribunal on the basis of pleadings adduced by the parties framed necessary issues. Parties led oral as well as documentary evidence in support of their case. The learned Tribunal after having considered the entire material available on record and hearing learned counsel for the parties decreed the claim petition for a sum of Rs.5,61,000/-, along with interest of 6% per annum from the date of filing the petition till the date of actual payment, against opposite party no. 5-UPSRTC, vide judgment and award dated 28.1.2005. Feeling aggrieved by the aforesaid impugned judgment and award, the appellant i.e. UPSRTC has preferred the present appeal before this Court. 5 Heard Sri Rajeev Singh Bisht, learned counsel for appellant-UPSRTC, Sri D.S. Patni, learned counsel for respondent no. 2-The Oriental Insurance Co. Ltd. and perused the record. Learned counsel for the appellant/UPSRTC has submitted that learned Tribunal has committed an error while fixing the liability of compensation upon the appellant inspite of the fact that bus in question was insured with respondent no. 2 i.e. The Oriental Insurance Co. Ltd. He has further submitted that award passed by the learned Tribunal is excessive and exorbitant. On the other hand, learned counsel for respondent no. 2 i.e. The Oriental Insurance Co. Ltd. has made the rival contention by submitting that learned Tribunal has rightly imposed the liability upon the appellant to pay the compensation. In support of his contention, he has placed before me a decision of the Hon’ble Apex Court rendered in the case of Rajasthan State Road Transport Corporation Vs. Kailash Nath Kothari, reported in (1997) 7 SCC 481. Learned counsel for respondent no. 2-insurance company has further submitted that bus in question at the time of accident was under the control of U.P.S.R.T.C., therefore, the liability to pay the compensation is of U.P.S.R.T.C. and not of insurance company. After hearing learned counsel for the parties and perusing the entire material available on record as well as going through the abovementioned decision of the Hon’ble Apex Court, I am of the view 6 that the Tribunal has rightly imposed the liability to pay the compensation upon the appellant. The facts of case in hand are similar to the facts and circumstances of the decision of the Hon’ble Apex Court (supra). The Tribunal on the basis of site map recorded a categorical finding that the bus hit the claimant by coming to its wrong side i.e. right side. The Tribunal further held that no evidence has been adduced by the opposite parties which may establish that accident had occurred on account of rash and negligence of motorcyclist i.e. claimant. The Tribunal after having considered the entire evidence available before it came to the conclusion that on 1.0.2002 at about 10.30 a.m. the accident had occurred on account of rash and negligent driving of driver of Bus No.U.P.07H-8439 by hitting motorcycle No. H.R.28-4588, with the result claimant sustained serious injuries on his person and in the accident motorcyclist was not at fault. I do not find any force in the submission advanced by learned counsel for the appellant. I am in total agreement with the findings recorded by the Tribunal. The Tribunal has rightly fastened the liability to pay the compensation on the shoulder of UPSRTC as the Bus in question at the time of accident was being plied under the control and supervision of UPSRTC. As far as amount of compensation to be awarded in favour of claimant is concerned, the record reveals that claimant has been produced as PW-1 and stated in his deposition that his monthly income was more than Rs.3000/-, but no cogent and plausible evidence has been adduced by him in this regard. The Tribunal in absence of any cogent 7 evidence with regard to income of claimant has assessed the notional income of claimant at Rs.15,000/- per annum, which appears to be justified. Admittedly, the age of the claimant was 25 years and 3 months at the time of accident as per High School Mark sheet (Paper No. 46C/1). The Tribunal keeping in view the age of claimant adopted the multiplier of ‘18’ as given in Section 163-A of M.V. Act, which appears to be just and proper. After adopting the multiplier of ’18 the loss of financial dependency has been worked out to Rs.15,000 x 18=Rs.2,70,000/-. The record further reveals that disability of the claimant is upto the extent of 80% as per disability certificate (paper no. 45B), therefore, the Tribunal rightly held that claimant is entitled to get the compensation to the tune of Rs.2,70,000 x 80/100=Rs.2,16,000/-. The evidence on record reveals that claimant submitted verified copies of medical bills which comes to Rs.3,37,900/-. The Tribunal was of the view that claimant was entitled to get a sum of Rs.3,40,000/- (rounded) as compensation towards his medical expenses and awarded the said amount to the claimant, which appears to be justified and does not require any interference. The Tribunal also awarded a sum of Rs.5,000/- to the claimant for pain and suffering, which also appears to be justified and needs no interference. Thus, the Tribunal has awarded a total sum of Rs.2,16,000/- + Rs.3,40,000/- + Rs.5,000=Rs.5,61,000/- as compensation to the claimant. I do not find any illegality in the method adopted by the Tribunal in calculating the amount of compensation. I also do not find any reason to disturb the said finding 8 recorded by the Tribunal in this regard and the same deserves to be confirmed. For the reasons stated above, the appeal lacks merit and is liable to be dismissed. The appeal is accordingly dismissed. The impugned judgment and award dated 28.1.2005 is hereby confirmed. The statutory amount deposited by the appellant with this Court be remitted to the Tribunal concerned. (B.C. Kandpal, J.) SP