IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal from Order No. 230 of 2003. Kishan Lal Mahawar S/O Shri Madan Lal Mahawar and three others. … Appellants. Vs. Surendra Singh and two others. … Respondents. With Cross Objection No. 1599 of 2005. IN AO No. 230 of 2003 Shri Surendra Singh. … Objector. Sri Rajendra Dobhal, Senior Advocate, learned counsel for the appellants. Sri Ashok Agarwal, Advocate, learned for the respondent No. 1-owner of vehicle. Sri R.B.Agarwal, Advocate, learned counsel for the respondent no.3-Insurance Co. Date September 17, 2009. P.C.: Hon’ble B.S.Verma, J. This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short the Act) is directed against the judgment and award dated 28-5-2003, passed by the Motor Accident Claims Tribunal/District Judge, Dehradun, (for short Tribunal) in Motor Accident Claim Case No. 70 of 2002, Kishan Lal Mahawar and others Vs. Surendra Singh and others, whereby compensation of Rs. 1,20,000/- has been awarded along with interest @ 9% per annyum from the date of claim petition till payment against New India Insurance Company as mentioned in the order. 2 2. Brief facts giving to the present appeal are that Smt. Renu wife of Kishan Lal Mahawar, aged about 36, years lost her life in a motor vehicle accident, which occurred on 18-12-2001 involving Bus No. DBP-1095. It is alleged in the claim petition that on the fateful day at about 4-20 p.m. the deceased was going along with her husband and son Master Harshit on scooter from Prem Nagar to her house at Selakui. The scooter was being driven by the husband of the deceased and the deceased was a pillion rider thereon. When they reached near Nanda Ki Chowki, Chakrata Road, Dehradun, within the limits of Police Station Cantt. Dehradun, the offending bus which was being driven rashly and negligently by its driver hit the scooter with the result the Smt. Renu sustained grievous injuries and she died instantaneously on the spot. The husband and the minor son also suffered injuries in the motor accident. It is also alleged that the deceased was a young and healthy lady and she used to earn about Rs. 6,000/- per month from tuition work. She was expecting a bright future, had she not died in the motor accident. It is also alleged that the report of the accident in question was lodged on the same day at about 4-45 p.m. by one Kashi Ram and the autopsy on the dead body was conducted at 9-15 p.m. the same night. The offending bus was owned by respondent no.1 Surendra Singh and it was duly insured with the New India Insurance Company. The bus was being driven by Raju @ Rajeev. The deceased left behind her husband and two minor daughters and one minor son. The claim petition under Section 166 of the Act has been filed by the claimants, who are husband and minor children of the deceased, for compensation of Rs. 15,10,000-00 on different counts along with interest @ 18% per annum. Prayer for compensation on the principle of no fault liability under Section 140 of the Act has also been made. 3. The owner and driver of the offending vehicle, who have been arrayed as respondent nos. 1 and 2 to the claim petition, filed their joint written statement and contested the claim petition. They have denied the material allegations made in the petition but has admitted the accident to have taken place on the date, time and place 3 mentioned in the petition. It was denied that the deceased was going on scooter along with her husband. It was asserted that the compensation claimed is excessive and without any basis. The allegation of rash and negligent driving by the driver of the bus has been denied or that the deceased died on account of the injuries caused to her due to negligence of the driver of bus. The source of income of the deceased and her income were denied. In the additional pleas, it has been stated that the accident occurred due to own negligence of the scooterist, who tried to overtake the bus for which the scooterist is responsible. It was also asserted that the offending bus was duly insured with the insurance company-respondent no.3 hence the insurer is responsible for payment of compensation, if any. 4. The insurance company filed its separate written statement and contested the claim petition. Insurance Company has admitted the motor accident having been taken place at the time, date and place mentioned in the claim petition, but denied all other material allegations. The insurer also alleged that the scooter No. U.P.-09L- 6663 was involved in the motor accident. It was asserted that the compensation claimed is highly exorbitant and excessive and without any basis. In additional pleas, it has been asserted that the petition is bad for non-joinder of owner and insurance company of the scooter. The accident occurred due to rash and negligence on the part of the scooterist. It was also asserted that the deceased was not an earning member. The driver of the bus was not having a valid driving licence at the time of the accident, hence the insurer is not liable for compensation. It was also asserted that the scooter was overloaded and was being driven rashly and negligently. 5. On the pleadings of the parties, following issues were framed by the learned Tribunal in the claim petition:- ISSUES. 1. Whether on 18-12-2001 at about 4-20 pm. At Nanda Chowki, Chakrata Road Dehradun, when the claimant Kishan Lal was 4 going to his home on scooter along with his wife-deceased and child, the bus no. DBP-1095, which was being driven rashly and negligently by its driver, hit the scooter with the result the wife of claimant Renu sustained grievous injuries and she died? 2. Whether due to accidental death of Smt. Renu, which occurred on the said date, time and place, the claimant is entitled to get compensation? If so, from which of the O.Ps.? 3. Compensation? 4. Whether the petition is bad for the non-joinder of the insured and insurer of the Scooter involved in the accident? If so, its effect? 5. Whether the accident took place due to contributory negligence of the scooter driver? 6. In support of the claim petition, the claimant has filed photostat copies of the F.I.R. and that of post mortem examination report of the deceased as well as medical prescription slip of the claimant. He also filed documents relating to the education and income tax return for the year 2000-2001 of the deceased. The claimant Kishan Lal in oral evidence examined himself as P.W.1. On the other hand, the respondents, in documentary evidence, filed photo copy of driving licence of the driver of the bus and photo copy of the insurance policy of the offending bus and also examined Sri K.L.Sharma, as O.P.W. No. 1. 7. The learned Tribunal took Issue Nos. 1 and 5 relating to the negligence together for decision. After considering the evidence on record, the Tribunal has held that the motor accident had occurred due to rash and negligence on the part of the driver of the offending bus. As regards contributory negligence, it was observed that the driver of the bus was more responsible for the accident, but at the same time it was held that on the scooter three persons were going, therefore, there was contributory negligence on the part of the scooterist also. Accordingly, it was held that the driver of the offending bus was negligent to the extent of 75% and scooterist was 5 negligent to the extent of 25%. On Issue No. 4, it was held that the petition is not bad for non-joinder of necessary parties. The learned Tribunal on the point of income of the deceased did not find favour with the claimant that the deceased was an earning member. However, for the purposes of compensation notional income @ Rs. 15,000/- as provided in Second Schedule appended to Section 163-A of the Act was taken into account and after deducting 1/3rd towards personal expenses of the deceased, the loss of dependency was assessed at Rs. 10,000/- per annum. The learned Tribunal applied the multiplier of 16 to work out the total amount of compensation, i.e. Rs. 1,60,000/-. Out of this amount, 25% compensation was deducted towards contributory negligence and thereby compensation of Rs. 1,20,000/- was assessed to be payable by the owner of the vehicle. It was also found that the driver of the offending bus was not having a proper driving licence for driving the heavy vehicle rather he was having driving licence to drive light motor vehicle. It was also found that the bus was duly insured, hence the insurance company was made liable to pay compensation and recoverable rights were given to the Insurance Company to recover the compensation from the owner of the bus. Ultimately, the insurance company was directed to pay compensation of Rs. 1,20,000/- along with interest @ 9% per annum, as mentioned in the impugned award. 8. Aggrieved by the impugned award Claimant Kishan Lal Mahawar for himself and on behalf of the minor children has preferred the present appeal for enhancement of compensation before this Court. On the other hand the owner of the vehicle Surendra Singh has filed cross-objection registered as No. 1599 of 2005 and it has been prayed that the impugned award be set aside and in the alternative, prayed for setting aside the finding recorded on Issue No. 2 and 3 in so far as it was held that the bus driver was not having a driving licence and the liability of compensation be fastened upon respondent no.6-Insurance Company alone. Plea of non-joinder of owner and insurance company of the scooter has also been taken in the cross-objection. 6 9. The objector Surendra Singh has also moved an application under Order 41, Rule 27 of the C.P.C. and has sought permission of the Court to bring on record the driving licence issued in favour of the driver of the offending vehicle, Mr. Rajeev Kumar from the office of the R.T.O.(Administration) Dehradun, photocopy of which has been annexed as Annexure-2 to the Cross-objection. 10. I have heard learned counsel for the parties and perused the material placed before the Court. 11. The appellant is aggrieved by the finding of the learned Tribunal on the point of negligence as well as on the amount of compensation and has prayed for grant of additional award to the tune of 13,90,000/-. 12. Learned counsel for the appellant in support of his case has vehemently urged that the scooter, which was being driven by the claimant Kishan Lal Mahawar on the fateful day was dashed from back side by the driver of the offending bus and the motor accident in question is not case of head on collision. It has been submitted that there is sufficient evidence on record to prove that the scooter was hit from the backside; therefore, the finding of contributory negligence recorded by the learned Tribunal is against the evidence on record and without any basis. Learned counsel for the appellant also pointed out that the finding of the learned Tribunal that the scooterist was accompanied by his wife and a third person is also not tenable because the deceased was accompanied by a minor son aged about 5 years, therefore, it could be said that there were three persons riding on the scooter and on that count the scooterist was not in a position to control the scooter. 13. Before the learned Tribunal, Kishan Lal Mahawar has examined himself as P.W.1. In the very second line of his statement on oath, he has stated that the offending bus no. DBP-1095 being driven rashly hit the scooter from backside. This fact is not 7 controverted that the bus hit the scooter from backside. This witness was cross-examined at length on behalf of the insurance company. P.W.1 has denied that due to overloading, he could not control the scooter. He also denied that besides the deceased, his all the three children were riding the scooter. No suggestion was given to this witness that the motor accident occurred due to negligence on his part. In such circumstances, when the offending bus was coming from behind the scooter, it was for the driver of the bus to have taken care that the scooter going ahead was not hit. Had the driver of the offending bus been cautious and careful, the accident could have been avoided and the deceased Renu had not lost her life in the motor accident. The finding of the learned Tribunal that there had been contributory negligence is not tenable. 14. The learned counsel for the Insurance Company has contended that the driver of the offending bus was not having a valid driving licence, rather he was having a driving licence to driver light motor vehicle, therefore, learned Tribunal was fully justified in fastening the liability of compensation upon the Insurance Company with recoverable rights. Further contention of the learned counsel for the insurance company is that the driver of the offending bus must have an endorsement of Public Service Vehicle of transport authority on the driving licence. 15. I have considered the arguments advanced by the learned counsel for the insurance company. A copy of the driving licence has been filed by the objector-owner of the bus along with the cross- objection in this appeal and the original has been produced before this Court. By comparing the photo copy of the of the driving licence with the original driving licence, I find that there is an endorsement of the Transport Authority that the driver was authorized to drive heavy transport vehicle. 16. So far as the argument that endorsement of public service vehicle (PSV) was not made in the driving licence of the driver of 8 offending bus, I find that no such plea was taken by the insurance company in its written statement. Moreover, the insurance company had not pressed for framing of any such issue before the Tribunal. The finding of the learned Tribunal on the point of driving licence is that the endorsement of heavy motor vehicle ought to have been made for driving of the bus, which falls under the category of heavy vehicles. The contention raised on behalf of the insurance company that the driver was not having a valid driving licence is not acceptable because while comparing the original driving licence with the Photostat copy of driving licence filed in this appeal, it is evident that there is endorsement of Heavy Transport Vehicle and the driver was authorized to drive heavy transport vehicle w.e.f. 8-3-2000. It is not the case of the insurance company that the bus does not fall under the category of Heavy Transport Vehicle. It is admitted to the O.P.W.1 K.L.Sharma, an official of the R.T.O. Office Dehradun that such an endorsement could be obtained from any R.T.O. Office. In view of the peculiar circumstances that before the learned Tribunal, a photocopy of the driving licence of Sri Rajeev Kumar has been filed as paper no. 33-C1. No effort was made by the Insurance Company to produce the driver Rajeev Kumar in the witness box to examine the veracity of the contents of the driving licence possessed by him, who could be the best witness to depose whether or not he was having a valid driving licence on the date of accident in question. As the original driving licence was produced before this Court whose Photostat copy has been filed as Annexure-2 to the cross-objection, I am satisfied that the driving licence held by the driver of the offending bus is a valid driving licence. In any view of the matter, the finding recorded to the contrary by the learned Tribunal on the point of validity of driving licence is liable to be set aside. The finding of the learned Tribunal on Issue No. 4 that the claim petition is not bad for non-joinder of insured and insurer of the ill-fated scooter does not call for any interence. 17. So far as the contention of the learned counsel for the claimant-appellants that the income of the deceased was not properly taken into consideration and that compensation awarded for the 9 accidental death of the deceased is not just and adequate is concerned, it would suffice to mention that the claimant-appellant had failed to produce any document regarding the income of the deceased, rather he has admitted in his cross-examination that he does not have knowledge to whom his wife was imparting tuition. In the absence of any evidence, the learned Tribunal has rightly taken aid of the second schedule appended to Section 163-A of the Act and has considered the notional income @ 15,000/- per annum for working out the amount of compensation. The learned Tribunal has deducted 1/3rd thereof towards personal expenses and has rightly assessed the annual loss of dependency @ Rs. 10,000/-. The learned Tribunal has applied multiplier of 16 to workout the total amount of compensation. The amount of compensation of Rs. 1,60,000/- along with simple interest @ 9% per annum as awarded by the learned Tribunal appears to be just and adequate compensation in the facts and circumstances of the case. 18. Having considered the submissions of the learned counsel for the claimant-appellant, owner-objector as well as the insurance company on the point of contributory negligence and the validity of driving licence of the driver of the offending vehicle as well as the quantum of compensation, in view of the discussion made hereinbefore, it is held that the driver of the offending bus alone was responsible for the accident resulting into the death of Smt. Renu, the wife of the claimant Kishan Lal Mahawar. It is also held that the scooterist was not at fault. It is also held that the driver was having a valid driving licence on the date of motor accident in question. The finding recorded to the contrary by the learned Tribunal on these counts is set aside. It is also held that the claimant is entitled to get a sum of Rs. 1,60,000/- along with interest @ 9% per annum as awarded by the learned Tribunal. Since the offending bus was duly insured with the insurance company, respondent no.3, therefore, the entire amount of compensation, i.e. Rs. 1,60,000/- and the interest @ 9% per annum from the date of filing of claim petition, i.e. 10-4-2002 till payment shall be payable by the Insurance Company-respondent no.3. 10 The appeal therefore, deserves to be partly allowed. The impugned award is liable to be modified accordingly. 19. The appeal is partly allowed. The impugned award dated 28-5-2003 is modified to above extent. Rest of the findings recorded by the learned Tribunal are maintained. Cross-objection (No. 1599 of 2005) filed by the owner of the offending bus stands disposed of accordingly. The claimant-appellants are entitled to compensation of Rs. 1,60,000/- along with simple interest @9% per annum from 10-4- 2002 till payment. The entire compensation along with interest shall be payable by the respondent no.3- Insurance Company within a period of 45 days, as directed by the learned Tribunal. No order as to costs. (B.S.Verma,J.) RCP 11