IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 452 of 2008 Smt. Beena & another … Appellants Vs Mangal Singh Rawat & others … Respondents Sri Sandeep Kothari, learned counsel for the appellants Sri D.S. Patni, learned counsel for the respondent No. 3/Insurance Company Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed by the appellants against the judgment and award dated 29.08.2008 passed by Motor Accident Claim Tribunal/District Judge, Tehri Garhwal in M.A.C. Case No. 24 of 2007, Smt. Beena & another Vs Mangal Singh Rawat & others. 2. Brief facts of the case are that on 20.09.2007, the deceased – Sri Mahaveer Prasad was travelling in Mahindra Max Cab No. UP07G/9314 and going from Chamba to Village Choprival, when the said vehicle crossed the Chamba about 1 km on the Chamba Mossorrie Road, due to rash and negligent driving of its driver, the said vehicle met with accident, in which, Mahaveer Prasad sustained serious injuries and succumbed to injuries. According to the claim petition, the deceased was working as a Munim in Mandi Samiti, Chamba and was getting Rs. 6,000/- per month as salary The claimants are the family members of his family and dependents upon the deceased. Therefore, the claimants filed claim petition before the Tribunal concerned for a sum of Rs. 9,84,000/- as compensation. 3. Thereafter notices were issued to the opposite parties. The opposite parties contested the claim petition by filing their written statement before the Tribunal concerned. 2 On the basis of the pleadings of the parties, the Tribunal has framed following issues:- 1. Whether the accident in question took place at about 7:35 p.m. on 20.9.07, 2.5 Kms ahead Chamba on Chamba – Mussoorie motor road, District Tehri Garhwal due to rash and negligent driving of vehicle Mahendra Maxicab No. UA07G/9314 by its driver resulting death of Mahabir Prasad as alleged? 2. Whether the driver of the ill-fated vehicle was not having valid driving licence as well as the owner of the vehicle did not possess valid permit fitness etc. of the vehicle as alleged by OP insurance company in paragraph No. 10 and 12 of its WS? If so, its effect? 3. To what compensation, if any, are the petitioners entitled and from whom? 4. Thereafter, the parties led the evidence in support of their case. After hearing learned counsel for the parties and perusing the entire material available on record, the Tribunal decreed the claim petition to the tune of Rs. 1,37,000/- along with conditional interest of 8% per annum vide judgment and order dated 29.08.2008. 5. Feeling aggrieved by the aforesaid judgment and award, the appellants/claimants has preferred this appeal before this Court for enhancing the amount of compensation. 6. Heard Sri Sandeep Kothari, learned counsel for the appellant, Sri D.S. Patni, learned counsel for the respondent No. 3 and perused the record. 3 7. The Tribunal decided issue No. 1 related to the rash and negligent driving of the driver of the vehicle in question. The Tribunal while deciding this issue considered the First Information Report lodged by Sri Parshuram, postmortem report of the deceased as well as statement of the witnesses. The Tribunal while deciding issue No. 1 considered the statement of Vinod Dabral (P.W.2), who has stated that on the date of accident he was travelling in the jeep in question along with other passengers. He has further stated that the driver of the jeep driving the jeep in a very rash and negligent manner, due to which he lost control over the same, it met with an accident resulting death of Mahaveer Prasad. This witness has further stated that the road was straight where the accident took place. Therefore, the Tribunal has rightly held that on the date of the accident, if the vehicle in question was being plied in a normal speed the accident could be avoided. I am in total agreement with the finding recorded by the Tribunal. The Tribunal has rightly held that the accident took place due to rash and negligent driving of the driver of the vehicle in question. 8. The Tribunal has decided issue No. 2 which relates to the documents pertaining to the vehicle as well as driving licence of the driver. From the perusal of paper No. 43C/2, it reveals that the driver of the vehicle in question was having the valid and effective driving licence. The copy of the documents pertaining to the vehicle in question also produced before the court below, therefore, the Tribunal has rightly decided the issue No. 2 in favour of the claimants. Therefore, the finding recorded by the Tribunal with regard to the driving licence is absolutely right. 4 9. As the appeal has been preferred by the claimants/appellants for enhancement of the amount of compensation, therefore, the only point to be discussed in this appeal is as to whether the amount of compensation awarded by the Tribunal can be held to be justified or not. 10. As far as the amount to be awarded in favour of the claimants is concerned, the trial court has discussed this point while deciding issue No. 3, but the approach adopted by the Tribunal in this case appears to be erroneous. The Tribunal has also considered the annual income of the deceased as Rs. 15,000/-, which appears to be absolutely unjustified in the light of the observations made by the Division Bench of this Court in A.O. No. 2 of 2005, Shobhan Singh & another Vs New India Insurance Company Ltd. & another, decided on 01.11.2006 wherein it has held that in view of the price hike the notional income of the deceased to be taken as Rs. 36,000/- and after deducting 1/3rd amount as personal expenses of the deceased, the financial dependency of the claimants shall comes to Rs. 24,000/- per annum. In this case also the claimants have pleaded that the deceased was a Munsi in Mandi Samiti, Chamba and he used to earn Rs. 6,000/- per month as salary. However, no positive and cogent evidence has been adduced by the claimants in order to prove the income of the deceased, therefore, in absence of any cogent and positive evidence the notional income should be taken for purposes of calculation of dependency of the claimants. In view of the aforesaid decision discussed by me (supra) the notional income is taken as Rs. 36,000/- and after deducting 1/3rd of it as personal expenses of the deceased, the financial dependency of the claimants comes to Rs. 24,000/-. 5 11. Further from the perusal of the impugned judgment and award, it reveals that the multiplier adopted by the Tribunal as ‘13’ appears to be on the higher side. The deceased was 47 years of age at the time of the accident. Keeping in view the dictum of Hon’ble Apex Court in The New India Assurance Company Ltd. Vs Smt. Kalpana & others reported in (2007) 2 Supreme Court Cases (Cri) 94, T.N. State Transport Corporation Vs S. Rajapriya & others reported in (2005) 6 SCC 276 and The Managing Director, TNSTC Vs Sripriya & others reported in 2007 (5) Supreme 301 in the instant case, the multiplier cannot travel more than ‘9’. On the basis of the aforesaid calculation, the amount of compensation comes to Rs. 2,16,000/- (24000 X 9). As far as the amount awarded by the Tribunal under other different heads does not require any interference. Thus the total amount of compensation comes to Rs. 2,23,000/- (216000 + 2000 +5000). I am further of the view that the conditional interest indicated in the impugned judgment and award as @ 8% per annum which cannot be said to be justified. However, I am of the view that the claimants are entitled for an interest @ 7% per annum from the date of filing the claim petition till the actual date of payment. 12. With the aforesaid observations, the appeal is partly allowed. The impugned judgment and award is modified upto the extent that the claimants are entitled to get Rs. 2,23,000/- instead of Rs. 1,37,000/- along with interest @ 7% instead of conditional interest of 8% per annum as has been awarded by the Tribunal from the date of filing the claim petition till the actual date of payment. (B.C. Kandpal, J.) 10.06.2009 ASWAL