IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 371 of 2006 Anil Kumar & another … Appellants Vs United India Insurance Company Ltd. & others … Respondents Sri V.K. Kohli, learned Senior Advocate assisted by Sri I.P. Kohli, learned counsel for the appellants Sri Pankaj Purohit, learned counsel for the respondent No. 1. Sri I.S. Mehra, learned counsel for the respondent Nos. 2 to 7 WITH Appeal From Order No. 499 of 2006 United India Insurance Company Ltd. … Appellant Vs Mata Prasad & others … Respondents Sri Pankaj Purohit, learned counsel for the appellant Sri V.K. Kohli, learned Senior Advocate assisted by Sri I.P. Kohli, learned counsel for the respondents Hon’ble B.C. Kandpal, J. Both the appeals are directed against the common judgment and award arising out of same accident. One appeal has been filed by the owner of the vehicle in question, while another has been filed by the United India Insurance Company Ltd. for setting aside the impugned judgment and award. Therefore, both these appeals are heard and disposed of by this common judgment. For the sake of convenience, I am mentioning the facts in A.O. No. 371 of 2006. 2. Appeal No. 371 of 2006 under Section 173 of the Motor Vehicle Act has been filed by the appellants against the judgment dated 20.05.2006 passed by Motor Accident Claims 2 Tribunal/Additional District Judge/IVth Fast Track Court, Dehradun in Motor Accident Claim Petition No. 66 of 2001. 3. Appeal No. 499 of 2006 under Section 173 of the Motor Vehicle Act has been filed by the appellant/United India Insurance Company Ltd. against the judgment dated 20.05.2006 passed by Motor Accident Claims Tribunal / Additional District Judge / IVth Fast Track Court, Dehradun in Motor Accident Claim Petition No. 94 of 2001. 4. Brief facts of the case are that on 18.02.2001 at about 08:30 p.m. Wali Mohammad was returning to home after selling his vegetables and fruits by Tata Truck No. UP07A/4787 as gratuitous passenger. When the said truck reached near I.M.A., Dehradun on Chakrota Road, the driver of the truck lost control over the same and it collided with the tree. The said truck was being driven by its driver in a very rash and negligent manner. Wali Mohammad was taken to the Doon Hospital where he has died during the course of his treatment. At the time of the accident, the deceased was selling fruits and vegetables in Prem Nagar and used to earn Rs. 150/- per day. The claimants are the dependents upon the deceased. Therefore, the claimants filed the claim petition before the Tribunal for a sum of Rs. 5,75,000/- as compensation in lieu of the death of the deceased. 5. The opposite party No. 1 – driver of the truck contested the claim petition by filing written statement before the Tribunal admitting the factum of accident. He has also alleged that the deceased was traveling in the truck free of cost. He has further pleaded that the accident took place due to steering failure. Therefore, the claim petition was liable to be dismissed against him. 3 6. The opposite parties No. 2 and 3 also contested the claim petition by filing their joint written statement denying most of the allegations made in the claim petition. It has pleaded that on the date of accident, the driver of the truck in question was having the valid and effective driving licence. It has also pleaded that after seeing the driving licence of the opposite party No. 1, they have engaged him as a driver. It has also pleaded that on the date of accident, the vehicle in question was insured with the United India Insurance Company Ltd. It has also alleged that the liability of compensation lies upon the Insurance Company and the claim petition against them liable to be dismissed. 7. The opposite party No. 4 – United India Insurance Company Ltd. also contested the claim petition before the Tribunal denying most of the allegations made in the claim petition. It has also pleaded that the claimants have not given any information about the accident. It has also alleged that the liability of compensation, if any, lies upon the owner as well as driver of the vehicle in question. 8. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues, which were discussed in a great detail. Thereafter, both the parties led evidence in support of their case. After hearing learned counsel for the parties, the Tribunal has decreed the claim petition for a sum of Rs. 1,25,000/- in favour of the claimants against, which the owner and driver of the vehicle in question preferred appeal No. 371 of 2006. Appeal No. 499 of 2006 has been preferred by the United India Insurance Company wherein the Tribunal awarded a sum of Rs. 11,500/- against the appellant/United 4 India Insurance Company vide judgment and award dated 20.05.2006. 9. Heard learned counsel for the appellants, learned counsel for the respondent and perused the record. 10. Sri V.K. Kohli, learned Senior Advocate appearing on behalf of the appellant has contended his arguments that the vehicle in question was insured for five passengers. In order to support his submission, he has invited my attention towards paper No. 75C1/1, which is certificate of insurance issued by United India Insurance Company Ltd., wherein the capacity of passengers was mentioned as five. On the basis of this document, he has submitted that the vehicle in question was insured for five persons, therefore, the Tribunal has wrongly, fastened the liability of compensation upon the appellants and the impugned judgment and award against the appellants is liable to be set aside. 11. Sri Pankaj Purohit, learned counsel for the respondent/United India Insurance Company Ltd. has made the rival contention. He has submitted that the vehicle in question was being plied in a capacity of goods vehicle and the deceased was traveling in the said vehicle as a gratuitous passenger. In order to support his contention, he has invited my attention towards paper No. 24C1, which is cover note of the insurance policy wherein five passengers were permitted to travel in the said vehicle including one driver, one conductor and three labourers. He has further submitted that the deceased was not travelling in the vehicle in the capacity of driver, conductor or labourers. He was travelling in the Tata 407 as a gratuitous passenger, therefore, the Tribunal has 5 rightly fastened the liability of compensation upon the owner of the vehicle in question. 12. No other point has been pressed by the learned counsel for the parties. 13. After hearing learned counsel for the parties and scrutinizing the entire record available before me, I am of the view that the Tribunal on the basis of the material available on record rightly fastened the liability of compensation upon the appellants. It is not disputed that the vehicle in question was being plied as a goods vehicle and it is also not disputed that the deceased was neither the employee nor the conductor of the vehicle in question. As far as the submission advanced by learned counsel for the appellants is concerned, I do not find any force in the submission advanced by him. It is clear from the cover note wherein the distribution of passengers was described. It has also come from the perusal of the record that the deceased was traveling in the vehicle in question as a owner of the goods and he was not traveling as a gratuitous passenger, therefore, the liability of compensation lies upon the Insurance Company. They have not produced any witness in order to prove the version. Therefore, the Tribunal has rightly held that the deceased was traveling in the vehicle as a gratuitous passenger and fastened the liability of compensation upon the appellants. I do not find any ground to interfere in the impugned judgment and award. 14. As far as the amount of compensation is concerned, the Tribunal in the absence of any evidence pertaining to the monthly income of the deceased taken into consideration notional income of Rs. 15,000/- per annum and after deducting 1/3rd towards personal expenses, the financial 6 dependency of the claimants comes to Rs. 10,000/-. The deceased as 55 years age at the time of the accident, therefore, the Tribunal adopted the multiplier of ‘11’ which appears to be quite justified. In this way, after calculating the above sum, the amount of compensation comes to Rs. 1,10,000/- (10000 X 11). The Tribunal further awarded a sum of Rs. 5,000/- towards loss of consortium and further awarded Rs. 5,000/- towards love and affection and further Rs. 5,000/- towards funeral expenses. Thus, the total amount of compensation comes to Rs. 1,25,000/- (110000 + 5000 + 5000 + 5000) in favour of the claimants. The amount awarded by the Tribunal appears to be just and proper. 15. In appeal No. 499 of 2006, Sri Pankaj Purohit, learned counsel for the appellant has submitted that the Tribunal wrongly recorded the finding that the claimant/Mata Prasad was a labourer of the truck. He has further submitted that there is no evidence available on record, which may show that he was working as a labourer in the truck in question. He has submitted that the claimant was actually traveling in the vehicle as a gratuitous passenger. Therefore, the impugned judgment and award is liable to be set aside against the appellant/United India Insurance Company Ltd. 16. From the perusal of the claim petition, it reveals that the claimant shows himself as labourer in the truck in question. The Insurnace Company did not produce Narendra Kumar as witness in order to support his contention. Therefore, the Tribunal has rightly held that the claimant was working as a labourer in the vehicle in question. As far as the amount of compensation is concerned, the Tribunal has awarded Rs. 1,500/- under the head of medical bills, Rs. 5,000/- under the head of physical and mental agony and 7 further Rs. 5,000/- under the head of loss of income. Thus the total amount of compensation comes to Rs. 11,500/- in favour of the claimant/Mata Prasad and against the appellant/United India Insurance Company Ltd. I do not find any merit in this appeal also and the same is dismissed accordingly. 17. For the foregoing reasons, I see no ground to interfere in the impugned judgments and awards. The appeals stand dismissed. There will be no order as to costs. 18. In view of the above observations, the cross appeal No. 318 of 2008 filed in A.O. No. 371 of 2006 stands dismissed. 19. The statutory amount deposited by the appellants before this Court in both the appeals be remitted to the Tribunal concerned. 20. Let the copy of this judgment be placed in A.O. No. 499 of 2006. (B.C. Kandpal, J.) 14.10.2008 ASWAL