HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is or not approved for reporting) Description of the case A.O. No. 565 of 2007 National Insurance Co. Ltd. Vs. Smt. Tara Jahan and others. Approved for reporting. Date of Decision: - 25-02-2008. Initial of Judge: ......................... ,,,,,,,,,,,,,,,,,,,,,,,,,,, ........................ HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. NO. 565 of 2007 1. National Insurance Company Limited through it’s Divisional Manager Divisional Office, Haldwani District- Nainital .....Appellant Vs. 1. Smt. Tara Jahan, W/o Late Sri Barduddin 2. Master Musahid S/o Late Sri Allauddin minor through Smt. Tara Jahan both R/o Kanchanpuri, Khatima Tehsil Khatima, District – Udham Singh Nagar 3. Anwar Ahmad S/o Sri Shamshad Ali R/o Shyam Nagar, Bhumiya Ka Pul Meerut District Meerut At present R/o village Dotai Tehsil & P.S. Garh Mukteshwar District – Gaziabad 4. Master Junaid, S/o Late Sri Allauddin 5. Smt. Nasreen, W/o Late Sri Allauddin Respondent no. 4 minor through his mother & natural guardian Smt. Nasreen Both R/o Kachanpuri, Khatima Tehsil – Khatima, District – Udham Singh Nagar ... Respondents 25.2.2008 Hon’ble Rajesh Tandon, J. Heard Shri D.S. Patni, counsel for the appellant and Shri S.K. Mandal, counsel for the respondent nos. 1 and 2. 2. This is insurer’s appeal. 3. By the present appeal filed under Section 173 of the Motor Vehicles Act, 1988, the appellant has prayed for setting aside the judgment and award dated 2.2.2007 passed by the Motor Accident Claims Tribunal, Udham Singh Nagar in M.A.C.P. No. 128 of 2005. 4. Briefly stated, a motor accident claim petition no. 128 of 2005 was filed under Sections 140 and 166 of Motor Vehicles Act for compensation on account of death of Allauddin (hereinafter referred to as ‘the deceased’) in a motor accident occurred on 13.8.2004. According to the claimants, on 13.8.2004 the deceased was going to Delhi from Khatima after loading vegetables in Canter No. U.A. 03-0046. The owner of the vegetables Jahid, Ajaj Ahmad @ Babu and Islamuddin were also traveling in the said Canter. The deceased was driving the said Canter with due caution. As soon as the Canter reached in front of factory belonging to C.L. Gupta at 9.00 p.m., truck no. H.R. 38 C 7 6769 which was coming from the opposite direction and was being driven rashly and negligently dashed the Canter. As a result of the said accident, the deceased sustained fatal injuries and succumbed to injuries. Islamudding, Jahid and Ajaj Ahmad also sustained injuries. The report of eh accident was lodged in Dindoli Police Station. It has ben stated that the deceased was aged about 30 years at the time of accident and he was earning a sum of Rs. 4,000/- per month towards salary. The claimants have suffered mental agony and they have deprived from the love and affection of the deceased. The claimants have claimed a sum of Rs. 18,34,000/- towards compensation. 5. A written statement has been filed by the defendant no. 1 who has admitted that he is the registered owner of the truck in question and the truck was insured with the National Insurance Company at the time of accident. It has been submitted that the driver was holding a valid and effective driving license at the time of accident. Insurance company is liable to indemnify the claim, if any. 6. The defendant no. 2 i.e. the National Insurance Company did not appear before the claims tribunal inspite of service of notice. Therefore, the claims tribunal has initiated ex parte proceedings against the insurance company. 7. The defendant nos. 3 and 4 has filed the written statement admitting the submissions made in the claim petition. It has been stated that the defendant no. 3 is the son of the deceased and the defendant no. 4 is the wife of the deceased. The defendant no. 4 has not been married again, therefore, she is also entitled for the compensation. 8. On pleadings of the parties, the claims tribunal has framed the following issues: - 1. D;k dfFkr nq?kZVuk fnukad 13-Š-2004 dks le; djhc ‹ cts jkf=] LFkku &lh0,y0 xqIrk QSDVªh ds lkeus] cgn Fkkuk fMUMksyh] ftyk T;ksfrckQqys uxj esa Vªd la[;k ,p0vkj0&3Š lh ˆ‰ˆ‹ ds pkyd }kjk mls rsth ,ao ykijokgh ls pykus ds dkj.k ?kfVr gq;h] ftlesa vykmn~nhu dh e`R;q gks x;h\ ;fn gk¡ rks izHkko\ 2. D;k ;kphx.k dksbZ izfrdkj dh /kujkf”k izkIr djus ds vf/kdkjh gSa\ ;fn gk¡ rks fdruh /kujkf”k o fdl i{kdkj ls\ 9. The claimants have examined Smt. Tara Jahan as P.W.1 and Abdul Jahid as P.W.2. Towards the documentary evidence, the claimants have produced copy of first information report, copy of postmortem report, R.C., insurance cover note, chargesheet as per list 7 ga/1 and certified copies of first information report, postmortem report and chargesheet as per list 23 ga. 10. The defendants have examined Smt. Nasreen as D.W.1. 11. While deciding with regard to cause of accident, the claims tribunal has taken into consideration the statement of P.W.2 Jahid who was the ocular witness of the accident. This witness has deposed that on 13.8.2004, the truck no. H.R. 38 C-6769 came rashly and negligently towards the Canter in question and dashed the Canter as a result of which Allauddin sustained injuries and died in consequence. The claims tribunal has further taken into consideration the first information report showing that the accident had taken place due to rash and negligent driving by the driver of Truck and the chargesheet which shows that a case is pending consideration against the driver of said truck. On the basis of the aforesaid, the claims tribunal has recorded the finding that the accident in question had taken place due to rash and negligent driving of the truck no. H.R.38 C-6769 by its driver as a result of which Allauddin has sustained fatal injuries and succumbed to those injuries. 12. While deciding with regard to quantum of compensation, the claims tribunal has taken into consideration the income of the deceased to the extent of Rs. 3,000/-. After deducting 1/3rd of the same, the monthly dependency was worked out to the extent of Rs. 2,000/- which comes to Rs. 24,000/- per month. Further, the claims tribunal has taken into consideration the age of the deceased to be 30 years and selected the multiplier of 17. By multiplying the annual dependency of Rs. 24,000/- with the multiplier of 17, the amount of compensation was worked out to the extent of Rs. 4,08,000/-. Besides this, the claims tribunal has awarded a sum of Rs. 2,000/- towards funeral expenses and Rs. 5,000/- towards loss of consortium. Thus, the claims tribunal has awarded a sum of Rs. 4,15,000/- towards compensation. 13. Counsel for the appellant has submitted that the alleged notices were sent to the Gaziabad branch of appellant-insurance company at Uttar Pradesh and the officers of the appellant-insurance company in Uttarakhand had no information that the Motor Accident Claim in question is pending in claims tribunal. Therefore, the appellant-insurance company could not contest the claim petition and the award was passed ex parte. Counsel for the appellant has further submitted that he has not been given any opportunity for proving that the driver of the offending vehicle has no driving license and other papers, etc. with regard to the offending vehicles were not in order at the time of accident. 14. On perusal of the record, I find force in the submission advanced by the counsel for the appellant. Appeal, therefore is remanded to the claims tribunal for deciding afresh on the issue no. 1. Liberty is given to the appellant to adduce the evidence before the claims tribunal. He may also raise any other pleas before the claims tribunal except the quantum of compensation. 15. So far as the findings recorded by the claims tribunal with regard to quantum of compensation are concerned, the same are confirmed. The claimants shall not participate in the proceedings before the claims tribunal after remand of the case. 16. The claims tribunal shall decide the points raised by the appellant within a period of 6 weeks from the date of producing the certified copy. 17. A sum of Rs. 2,00,000/-, which is lying in this court, shall be released. The other remaining amount shall be released on finalization of the proceedings before the claims tribunal and the statutory amount shall also be remitted to the claims tribunal. 18. Subject to the aforesaid, appeal partly succeeds and is allowed. No order as to costs. 19. Money withdrawal application no. 558/2008 is also disposed of. (Rajesh Tandon, J.) 25.2.2008 Avneet