IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. NO. 32 OF 2005 The Oriental Insurance Company Limited through its Divisional Manager Divisional Office, Canal Road, Haldwani District Nainital ... Appellant. Vs. 1- Smt. Anju Gairola W/o Late Devi Prsada Gairola, 2- Master Ashutosh Gairola S/o Late Devi Prasad Gairola 3- Master Abhishek Gairola S/o Late Devi Prasad Gairola, All R/o Amit Village, P.O. Gumaniwala, Rishikesh, District Dehradun, Respondent No.2 and 3 are minor through their mother and natural guardian Smt. Sarika. 4- Smt. Pushpa Jain W/o Pawan Kumar Jain, R/o Shyamur Bypass Rishikesh, District Dehradun. 5- Sunil Kumar Tyagi S/o Sagawa Singh, R/o Village Kuterara, Thana Charthawal District Muzafarnagar, U.P. 6- Ram Swaroop Sahani S/o N.C. Sahani, R/o Quarter No.2, V-39, Koti Colony, New Tehri 6/1. Smt. Ram Pyari W/o late Ram Swaroop Sahni, 6/2. Man Mohan Singh S/o Late Ram Swaroop Sahni, Both R/o Geeta Nagar, I.D.P.L. C.T. Gate, Haridwar Road, Opp. Baba Kali Kamli Gaushala Nandu Farm, Rishikesh ...Respondents. Sri D.S. Patni, Advocate for the appellant. Sri B.P. Nautiyal, Advocate for the claimants/respondents. None is present for respondents 4 to 6. WITH A.O. No. 112 of 2005 1- Smt. Anju Gairola W/o Late Devi Prasad Gairola 2- Ashutosh Gairola S/o Late Devi Prasad Gairola, 3- Abhishek Gairola S/o Late Devi Prasad Gairola, All R/o Amit Village P.O. Gumaniwala, Rishikesh District Dehradun .. Appllants. Vs. 1. The Oriental Insurance Co. Ltd. through Divisional Manager Rajpur Road, New Yak Petrol Pump, Dehradun. 2. Smt. Pushpa Jain w/o Pawan Kumar Jain R/o Shyampur Byepass, Rishikesh, District Dehradun. 3. Sunil Kumar Jain W/o Pawan Kumar Jain, R/o Shyampur Byepass, Rishikesh, District Dehradun. 4. Ram Swaroop Sahni S/o M.C. Sahni, R/o Quarter No. T-2, B-39 Koti Colony, New Tehri (Uttaranchal) ... Respondents. Sri B.P. Nautiyal, Advocate for the appellants. Sri D.S. Patni, Advocate for the respondent Insurance Co. None is present for respondent 2 to 4. Dated: April 02, 2008 Hon’ble B.C. Kandpal, J. Both the appeals arise against the judgment and award dated 8-12-2004, passed by Motor Accident Claim Tribunal/IV F.T.C., Dehradun in MACP No. 205/2002, therefore, they are being decided by this common judgment. 2- Brief facts of the case are that on 1-6- 1999 the deceased Devi Prasad Gairola has left his house to fetch gas-cylinder riding in his Scooter U.P. 02-B-8255. When the reached on I.D.P.L. Canal road, suddenly a jeep U.R.M. 759 came there at a high speed and dashed the scootrist and ran away from the spot after crushing his heel. At the same time Vikram coming from Rishikesh side also dragged Devi Prasad Gairola for some distance and due to the injuries sustained in the accident, he has died. The deceased at the time of accident was 39 years of age. Therefore, the claimants filed petition for compensation. 3- The O.P. No.1, owner of Vikram No. U.P. – 7-C-3071, filed written statement before the Tribunal and alleged that she has no knowledge about the accident. She has further alleged that the Vikram was insured with Oriental Insurance Company and it had valid documents. 4- The O.P.No.2, Oriental Insurance Company filed written statement and admitted the insurance of the offending Vikram. It also denied the accident by Vikram and alleged that exaggerated amount has ben claimed. 5- O.P.No.3, driver of Jeep No. U.R.M. 759 also filed his written statement and alleged that the accident occurred due to own fault of the deceased as the gas-cylinder put on his scooter fell down and he lost control and fell down and when he tried to help the deceased suddenly Vikram U.P. 07-3071 came there at a high speed and dragged the deceased for some distance. He also alleged that the Jeep URM 759 was not insured at the time of accident. 6- The opposite party No.4 owner of the Jeep No.URM 759 inspite of service did not contest the petition and was heard exparte against him. 7- 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 Tribunal after hearing learned counsel for parties and considering the material on record, awarded a sum of Rs. 8,40,000/- as compensation, 75% of which was to be paid by Oriental Insurance Company, the insurer of the offending Vikram U.P. 07-3071, and 25% by owner of offending jeep bearing registration URM 759. The owner of Jeep has already paid Rs. 35,000/- to the claimants, therefore, this amount was directed to be deducted from the amount of compensation payable by him. The claimants were also awarded interest @ 6% per annum from the date of filing of the claim petition till the date of final payment. 8- Feeling aggrieved, the oriental Insurance Company Ltd. has filed A.O. 32 of 2005 for setting aside the award and the claimants have preferred A.O. No. 112/2005 for enhancement of compensation. 9. Heard learned counsel for the parties and perused the record. 10- The learned counsel for the Insurance Company/ appellant has submitted that the Vikram was not involved in the accident and it was not a case of composite liability as the accident has occurred due to sole negligence of Jeep No. URM 759, therefore, the Tribunal has committed gross error in fixing 75% liability of the insurance company for contributory negligence. He also contended that huge amount of compensation has been awarded by the Tribunal and the same should be reduced. 11- The learned counsel for the claimants has submitted that the Tribunal has awarded inadequate amount of compensation and the compensation should be enhanced. 12- From the perusal of impugned award it reveals that on the point of contributory negligence issue Nos. 5 and 6 have been framed by the Tribunal. Both these issues have been decided jointly. The Tribunal has held that the accident did not occur due to own negligence of the deceased, but it occurred due to rash and negligence of jeep URM 759. On issue No. 1 the Tribunal held that the Vikram U.P. 07-C-3701 also involved in the accident, as it dragged the deceased from the spot for some distance. To prove the accident, claimants have produced P.W.2 Ram Chandra Terwari. This witness has deposed that the deceased at the spot was crosssing the road and he collided with the jeep. At the time of accident the deceased was on the middle point of the road. This witness has not deposed that the Scooterist was driving it at a high speed. From the F.I.R. it is also clear that the jeep had dashed the deceased and had crushed his right heel. In the evidence of P.W.2, Ram Chandra Tewari and D.W. 3, Sunil Kumar, it has also come that the Vikram came there at a high speed and dragged the deceased from front tyre for 10 to 15 paces and he had died. Therefore, in my opinion, the Tribunal was justified in holding the composite liability of Oriental Insurance Company, the insurer of the offending Vikram and the owner of offending jeep in a proportion of 75% and 25% respectively. 13- The Oriental Insurance Company has admitted the insurance cover of the Vikram. The driving license of Vikram paper No. 45-C/1 has been filed on record and the validity of the said license has not been questioned by either side. In the aforesaid circumstances the Insurance Company has rightly be held liable to pay compensation upto the extent of 75% for the negligence of the offending Vikram. 14- So far as the quantum of compensation is concerned, salary certificate of the deceased paper No. 24-B has been filed on record, according to which the monthly salary of the deceased was Rs. 6,966/- The Tribunal after deducting 1/3rd towards personal expenses, assessed the dependency of the claimants at Rs. 4,644/- and annual dependency comes to Rs. 55,728/-. The deceased was 40 years of age and the Tribunal adopted the multiplier of ‘15’ and after multiplying the annual dependency with multiplier of ‘15’ the total compensation comes to Rs. 8,40,000/-. The Tribunal also awarded interest on the compensation amount @ 6 % per annum from the date of presentation of petition till the date of final payment. The learned Tribunal therefore divided the liability to pay the amount of compensation among the Oriental Insurance Company and the owner of the jeep in the ratio of 75% and 25% respectively. The Insurance Company was directed to pay a sum of Rs. 6,30,000/- and the owner of the jeep was directed to pay a sum of Rs. 2,10,000/-. I do not find any ground to interfere with the method of calculation of compensation adopted by the Tribunal. 15- In view of the above discussion, both the appeals lack merit and are liable to be dismissed. 16- Accordingly, both the appeals, 32/2005, preferred by the Oriental Insurance Company and 112/2005 preferred by the Claimants, are dismissed. The impuged judgment and award dated 8.12.2004 is confirmed. No order as to costs. 17- The statutory amount, if any, deposited in this Court at the time of admission of appeal, the same be remitted to the Tribunal concerned. 18- Let a copy of this judgment be placed in the file of A.O. No. 112 of 2005. (B.C. Kandpal, J.) ISB