IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal Against Order No. 373 of 2005 The United India Insurance Company Ltd. … Appellant Vs Smt. Shaila Devi & 6 others … Respondents Sri Pankaj Purohit, learned counsel for the appellant Sri Ramji Srivastava, learned counsel for the respondents Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed by the appellant against the judgment and award dated 02.06.2005 passed by M.A.C.T./District Judge, Tehri Garhwal in M.A.C.T. Case No. 17 of 2002, Smt. Shaila Devi & others Vs Papendra Singh & others whereby the Tribunal awarded a sum of Rs. 5,21,000/- as compensation along with interest @ 4% per annum from the date of filing the claim petition till the actual payment. 2. Brief facts of the case are that on 28.03.2002, deceased – Daleb Singh @ Dalip Singh was coming to his home in truck No. USQ/917 along with sand for preparing of his house. At about 01:30 p.m. when the said truck reached near Duadhar, then the said truck met with an accident due to rash and negligent driving of the driver of the truck. In the said accident Sri Dabeb Singh @ Dalip Singh died on the spot. At the time of the accident, he was working in the Public Works Division in the class IV group. The claimants are the dependent upon the deceased and filed the claim petition before the Tribunal concerned for Rs. 7,06,550/- as compensation. 3. Sri Papendra Singh and Sri Surender Singh contested the claim petition by filing their joint written 2 submission. They have alleged that on the date of accident the said truck was being driven by its driver in a very slow and cautiously and the said accident took place due to sudden fault in the truck in question. It has further alleged that on the date of accident, the said truck was insured with the United India Insurance Company Ltd. 4. The United India Insurance Company Ltd. also contested the claim petition by filing written statement before the Tribunal and denying the allegations made in the claim petition. 5. On the basis of the pleadings of the parties, the Tribunal has framed following issues, which reads as under:- 1. Whether the accident in question took place on 28.03.2002 at about 01:30 p.m. at Duwadhar, P.S. Narendrnagar, due to rash and negligent driving of vehicle NO. USQ/917 truck by its driver resulting in the death of Sri Daleb Singh @ Dalip Singh? 2. Whether the deceased Daleb Singh @ Dalip Singh was not authorized to travel in the vehicle and the insurance company opposite party No. 2 bears no liability as alleted in para 5 of the W.S. by it? If so, its effect? 3. To what amount of compensation are the claimants entitled and from which of the opposite parties? 6. The Tribunal after having considered the arguments advanced by learned counsel for the parties and perusing the entire material available on record, decreed the claim petition for a sum of Rs. 5,21,000/- as compensation along with 3 interest @ 4% per annum vide judgment and order dated 02.06.2005. 7. Feeling aggrieved by the aforesaid judgment and award, the appellant/United India Insurance Company Ltd. has filed this appeal before this Court. 8. Heard Sri Pankaj Purohit, learned counsel for the appellant, Sri Ramji Srivastava, learned counsel for the respondents and perused the record. 9. Perusal of the record shows that the claimants have produced Smt. Shaila Devi (P.W.1), Sri Bhag Singh (P.W.2) and Sri Uttam Singh Rana (P.W.3) in support of their case. They have also produced copy of the complaint, postmortem of the body of the deceased and salary receipt which is paper No. 7ga. The opposite parties did not produce any oral evidence. They have filed documentary evidence, which are cover note as paper No. 17ga, driving licence of the driver as paper No. 18ga, permit as paper No. 19ga, inquest report and Tax payment certificate as paper No. 21ga before the Tribunal concerned. 10. The Tribunal, in order to decide the issue No. 1 with regard to the rash and negligence driving recorded the evidence. Smt. Shaila Devi (P.W.1) was not the eyewitness of the accident. Therefore, the Tribunal relied upon the statement of Bhag Singh (P.W.2) who was the eyewitness of the accident, who has stated in his statement that the said accident took place due to rash and negligence of the driver. The owner of the vehicle as well as the driver has admitted the occurrence of accident but no evidence has been adduced by them in order to support the driver. Hence, the Tribunal on the basis of the police report as well as the evidence of Sri 4 Bhag Singh came to the conclusion that the accident took place due to rash and negligent driving of the driver, in which Daleb Singh @ Dalip Singh has died on the spot. 11. Learned counsel for the appellant has submitted before the Court that in the written statement filed by the owner and the driver of the truck, this fact that the deceased was the owner of the goods i.e sand has been denied by the owner as well as in the inquest report. He has further submitted that the deceased was traveling in the truck as a gratuitous passenger. It has further submitted that the story of being the owner of the goods carried in the truck was developed only to get compensation from the appellant Insurance Company. Therefore, the Insurance Company is not liable to pay any compensation. 12. Perusal of the entire record shows, in her statement Smt. Saila Devi (P.W.1) has stated that on the date of accident, her husband was coming in the truck in question which was loaded with sand. She has further stated that the said material was being carried for the purpose of construction of their house. Sri Bhag Singh (P.W.2) has admitted this fact and has stated in his statement that on that day when the accident took place, he reached at the spot and found that the said truck was loaded with sand. The owner of the truck has not adduced any evidence, which may prove that the deceased was the actual owner of the sand loaded in the truck. The Insurance Company did not prove this fact that the deceased was the owner of the sand, which was loaded in the truck in question. On the basis of the evidence led by the parties, the Tribunal came to the conclusion that the deceased was traveling in the truck in question as the capacity of the owner of the sand. The Tribunal further held that the owner of the 5 truck has not adduced any evidence, which prove this fact, therefore, the Tribunal decided issue No. 2 against the Insurance Company as well as owner of the truck. Therefore, the deceased cannot be said to be gratuitous passenger, as he was traveling in the truck along with his sand. 13. As far as the amount of compensation to be awarded in favour of the claimants is concerned, the age of the deceased as per the material available on record was 43 years on the date of accident. The annual income of the deceased as has been assessed by the Tribunal is Rs. 57,000/- and after deducting 1/3rd out of the same under the head of personal expenses of the deceased, the dependency of the claimants comes to Rs. 38,000/- per annum. Keeping in view the age and income of the deceased, the multiplier of ‘13’ as has been adopted by the Tribunal appears to be on higher side. In view of the judgment 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, I am of the opinion that in view of the guidelines given by the Hon’ble Apex Court in the aforesaid judgment (supra) a multiplier of ‘11’ in the instant case would be just and reasonable. After adopting the multiplier of ‘11’ the total amount of compensation awarded in favour of the claimant comes to Rs. 4,18,000/- (38000 X 11). 14. The Tribunal has awarded the interest @ 4% per annum on the amount of compensation which is admittedly on the lower side and in my view this interest should have been 6% per annum from the date of filing the claim petition till the actual payment. Thus the total amount of compensation is modified by this Court which is to be awarded in favour of the claimants comes to Rs. 4,18,000/- along with interest @ 6% 6 per annum from the date of filing the claim petition till the actual payment. Rests of the amount awarded by the Tribunal under different need not require any interference. 15. The appeal is partly allowed. The impugned judgment and award dated 02.06.2005 is modified upto the extent that the amount of compensation to be awarded in favour of the claimants would be Rs. 4,18,000/- instead of Rs. 4,94,000/- as has been awarded by the Tribunal. The Tribunal has further awarded a sum of Rs. 5,000/- each towards physical and mental agony and further awarded a sum of Rs. 2,000/- towards funeral expenses. Thus, the total amount of compensation comes to Rs. 4,45,000/- along with interest as awarded by the Tribunal. The Insurance Company as well as the owner of the truck in question are jointly and severally liable to pay the said compensation. 16. As far as the apportionment of the award in favour of the claimants is concerned, the same shall be as follows:- 1. Ravindra Singh (minor) Rs. 80,000/- 2. Narendra Singh (minor) Rs. 80,000/- 3. Km. Sunita (minor) Rs. 80,000/- (The above amount shall be kept in the form of fixed deposit in some nationalized bank till they attend the age of majority) 4. Smt. Rajmati Devi – mother of the deceased also entitle to get Rs. 80,000/- which shall also be kept in the form of fixed deposit in some nationalized bank for three years 5. Smt. Shaila Devi – wife of the deceased shall be entitle to get rest of the amount, which shall also be 7 deposited in the fixed deposit with some nationalized bank for three years. 17. It is made clear that Smt. Shaila Devi and Smt. Rajmati Devi, wife and mother of the deceased shall have the facility to withdraw the interest earned on the fixed deposit pertaining to their shares. 18. The statutory amount deposited by the appellant before this Court at the time of filing the appeal be remitted to the Tribunal concerned. (B.C. Kandpal, J.) 03.04.2008 ASWAL