IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 131/2008 Preetam Singh and another .. Appellants. Versus Raj Kumar Pathak and another .. Respondents. Mr. S.K. Mandal, learned counsel for the appellants. Mr. Bharat Tewari, Advocate for the respondent No.2. Dated: 3-10-2008 UHon’ble B.C. Kandpal, J. This appeal, under Section 173 of the Motor Vehicles Act, 1988, has been preferred against the judgment and award dated 9-3-2007, passed by Motor Accident Claims Tribunal/District Judge, Udham Singh Nagar, in MACT Case No. 122 of 2006. 2- Brief facts of the case are that on 28-3-2006 at about 6.30 P.M. Nirmal Singh alias Neetu, his wife Smt. Jaswant Kaur and Manjit Kaur were standing in front of F.C.I. Godown Rudrapur so as to catch the bus to go to Sitarganj. Suddenly Bolero Jeep No. U.P. 25-P-0450 came there from Rudrapur side in a negligent manner and dashed them, due to which Jaswant Kaur and Nirmal Singh sustained grievous injuries. Both of them were carried to Rudrapur Hospital. From there they were referred to higher medical center. Smt. Jaswant Kaur died at Roadways Bus Stand when she was being carried to Haldwani. The F.I.R. of the accident was given by the claimant at P.S. Rudrapur on 14.4.2006 but the police did not register the case, therefore, on 8.5.2006 he sent the report to S.S.P. Udham Singh Nagar by registered post. The deceased Smt. Jaswant Kaur was 40 years of age and he used to spend Rs. 3,000/- per month towards 2 the maintenance of the family. Therefore, the claimants filed the claim petition for a sum of Rs. 6,00,000/-. 3- The opposite party No.1, owner of the offending Bolero Jeep No. U.P. 25-P- 0450, filed his written statement and alleged that the accident did not occur due to rash and negligence of his driver. The accident was caused due to own negligence of the deceased. The driver of the offending jeep was having valid driving license and it was insured with opposite party No.2, I.C.I.C.I. General Insurance Company and the liability to pay the compensation is on the shoulder of the insurance company. 4- The opposite party No.2, the I.C.I.C.I. also contested the claim petition and filed its written statement. The insurance company denied the factum of accident and alleged that the driver of the offending Jeep was the necessary party but he was not made party in the petition, therefore, the petition is bad for non joinder of necessary party. The driver was not having valid driving licence, hence the liability cannot be fixed upon the insurer. 5- The learned Tribunal on the pleadings of parties framed the following issues in the claim petition:- 1- Whether the accident, on 28.3.2006 at about 6.30 P.M. in front of F.C.I. Godown, Rudrapur District Udham Singh Nagar, has occurred due to the negligence of the driver of Bolero Jeep No. U.P. 25- P- 0450, in which Jaswant Kaur has died, due to the injuries sustained by her in the accident? If so, its effect?. 3 2- Whether the claimants are entitled to get any compensation? If so, what amount and from whom?. 6- Parties in support of their claim, adduced evidence before the Tribunal. Thereafter, the learned Tribunal, on the basis of material available on record, awarded a sum of Rs. 1,72,000/- as compensation along with interest @ 7% per annum from 15.5.2006 till the date of actual payment against the opposite party No.2, the I.C.I.C.I. General Insurance Company. 7- Feeling aggrieved, the claimants have preferred this appeal for enhancement. 8- I have heard Sri S.K. Mandal, learned counsel for the appellants and Sri Bharat Tiwari, learned counsel for the respondent/insurance company and perused the record. 9- Learned counsel for the claimants/appellants has submitted that the Tribunal has assessed the notional income on lower side as the accident in the instant case pertains to the year 2006 and due to price hike the notional income should have been assessed at Rs. 36,000/- per annum, in view of the observation of this Court in various decisions. Therefore, the amount of compensation should be enhanced. 10- From perusal of record it reveals that the claimants have produced Richpal Singh,P.W.2, to prove that the accident has occurred due to the rash and negligence of driver of offending Bolero Jeep. This witness has deposed that on 28.3.2006 at about 6.30 P.M. he was going Bagwada and he had seen the accident in 4 which the driver of Bolero Jeep No. U.P. 25P- 0450 had dashed Nirmal Singh and Smt. Jashwant Kaur on wrong side and he had fled away from the place of accident along with the Bolero Jeep. The opposite parties did not adduce any evidence to establish this fact that the accident has occurred due to own negligence of the deceased. The owner of the offending jeep also proved that the driver was possessing valid driving license and the Jeep was insured with I.C.I.C.I. General Insurance Company and at the time of accident it had valid insurance. Therefore, the Tribunal has rightly held liable the insurance company to pay the compensation. 11- As far as the quantum of compensation is concerned the Tribunal has calculated the dependency of the claimants on the notional income of Rs. 15,000/- per annum, as the claimants did not file any cogent and reliable evidence to prove the income of the deceased, which is absolutely on lower side. The accident has occurred in the year 2006 and in view of the verdict of the Division Bench of this Court given in A.O. No. 2 of 2005, Sobhan Singh and another Vs. New India Insurance Company and another, decided on 1.11.2006, the notional income should be taken at Rs. 36,000/- per annum due to price hike for the purpose of calculating the annual dependency of the claimants and after deducting 1/3Prd P towards the personal expenses, the total dependency comes to Rs. 24,000/- per annum. The deceased was aged 48 years, therefore, keeping in view the age of the deceased the multiplier in this case can not travel more than 9 in any case, in view of the observation made by Hon’ble Apex Court in the cases of Tamil Nadu State Transport Corporation Ltd. vs. S. Rajapriya & Ors, reported in 2005(4) Supreme 87, and The Managing Director, TNSTC vs. Sripriya & Ors. reported in 5 2007 (5) Supreme 301. Therefore, the compensation comes to Rs. 24,000/- X 9= Rs. 2,16,000/-. The Tribunal also awarded a sum of Rs. 2,000/- towards funeral expenses and a sum of Rs. 5,000/- for loss of consortium and loss of estate and in my opinion the claimants are entitled to get the aforesaid sums. In this way the total compensation comes to Rs. 2,16,000/- + Rs. 2,000/- + Rs. 5,000/-= Rs. 2,23,000/-. The Tribunal awarded interest @ 7% per annum from the date of filing the petition till the date of actual payment and in my opinion the rate of interest shall remain intact. 12- In view of the discussion made above, the appeal is allowed. The impugned judgment and award dated 9-3-2007 is modified upto the extent that the claimants are entitled to get a sum of Rs. 2,23,000/- as compensation from the respondent I.C.I.C.I. General Insurance Company, along with interest @ 7% per annum from the date of filing the petition till the date of actual payment, instead of Rs. 1,72,000/-, as has been awarded by the Tribunal. ISB ( B.C. Kandpal, J.) 6