IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 563 of 2007 The New India Assurance Company Ltd. … Appellant Vs Smt. Vandana Pandey & others … Respondents Sri V.K. Kohli, learned Senior Advocate assisted by Sri I.P. Kohli, learned counsel for the appellant Sri B.P.S. Mer, learned counsel for the respondent Nos. 1 to 3 Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed by the appellant/Insurance Company against the judgment and award dated 30.10.2007 passed by Motor Accident Claim Tribunal/Additional District Judge/F.T.C. – 2, Dehradun in M.A.C.T. Case No. 200 of 2005, Smt. Vandana Pandey & others Vs Sri Vijay Pal & others. 2. Brief facts of the case are that on 19.04.2005, Narendra Kumar (deceased) was going from Dehradun to his work place at Rajkiye Inter College, Tehri Garhwal on his motorcycle No. UA07D/7569. At about 08:45 a.m., when he reached near Tehri Chamba Marg, suddenly, a truck bearing registration No. UA07C/7862 which was being driven by its driver in a very rash and negligent manner, hit the said motorcycle, due to which Narendra Kumar died at the spot. The first information report was lodged at Thana Daubata on the same day. According to the claim petition, the deceased was working a s a teacher and used to earn Rs. 15,000/- per month. The claimants are the dependents upon the deceased. Therefore, they filed the claim petition for a sum of Rs. 22,10,000/- as compensation. 2 3. Opposite party No. 1 – Vijay Pal, driver of the truck in question could not appear before the court below, therefore, the claim petition proceed ex-party against him. 4. Opposite party No. 2 – Baljeet Singh, owner of the truck in question contested the claim petition by filing written statement before the Tribunal alleging therein that the claimants claimed exorbitant amount of compensation. It has further alleged that the accident took place due to negligence of the motorcyclist himself. It has also alleged that the truck in question was insured with the New India Assurance Company Ltd., therefore, the liability of compensation lies upon the Insurer of the vehicle in question. 5. Opposite party No. 3 – New India Assurance Company Ltd., insurer of vehicle No. UA07C/7862 also contested the claim petition denying this fact that the deceased was earning Rs. 15,000/- per month by teaching. It has also alleged that the accident took place due to rash and negligent driving of the deceased himself. The driver of the motorcycle was not possessing the valid driving licence on the date of accident. It has further alleged that the insured vehicle was plying against the permit, hence the insurer of the vehicle was not liable to pay any compensation. 6. Opposite party Nos. 4 and 5 are the parents of the deceased filed their joint written statement admitting the factum of accident and did not raise any objection against the amount of compensation. 7. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues, which were discussed at great detail. Thereafter, both the parties led evidence in 3 support of their case. After hearing learned counsel for the parties and perusing the entire material available on record, the Tribunal fastened the liability of 70% upon the appellant/the New India Assurance Company and decreed the claim petition for a sum of Rs. 8,25,000/- as compensation in favour of the claimants vide judgment and order dated 30.10.2007. 8. Feeling aggrieved by the aforesaid judgment and award the appellant has preferred this appeal before this Court. 9. Heard Sri V.K. Kohli, learned Senior Advocate assisted by Sri I.P. Kohli, learned counsel for the appellant, Sri B.P.S. Mer, learned counsel for the respondent Nos. 1 to 3 and perused the record. 10. Learned counsel for the appellant has firstly argued that the Tribunal has committed error while deciding the claim petition. From the perusal of the record, it is abundantly clear that the deceased in order to overtake the truck, his motorcycle slightly touched the back side of the truck, due to which accident took place and he came under the back tyre of the truck. Therefore, the Tribunal without considering this aspect that the accident took place due to negligence on the part of the deceased and wrongly fastened the liability upto and extent of 70% upon the insurer of the truck/appellant. 11. From the perusal of the record, it is clear that the factum of accident has not been denied by either party. In order to support his version, the claimants have produced Jitendra Kumar Sharma (P.W.2) before the court below who has stated that the accident took place, when the motorcyclist 4 wants to overtake the truck in question, suddenly, touch the body of the truck and he crushed under the back tyre of the truck. He has further stated that the truck in question was moving towards downwards, therefore, the speed of the truck was on the higher side and the accident took place due to rash and negligent driving of the driver of the truck. The opposite parties did not adduce any evidence or witness in order to support their case, which may prove that the driver of the truck was plying the truck in question slowly and cautiously and due to negligence of the motorcyclist, the accident took place. The Tribunal on the basis of the evidence, site map and facts and circumstances of the case came to the conclusion that the accident took place due to rash and negligent driving of the truck in question. However, the Tribunal further held that the accident could be avoided, when the deceased cautiously blow the horn and driver carefully and fastened the negligent of 30% on the motorcyclist/deceased. It is not disputed that the truck in question was insured with the New India Assurance Company and fastened the liability of 70% upon the Insurance Company/insurer of the truck in question. I am in total agreement with the findings recorded by the Tribunal relating to the contributory negligence. 12. Learned counsel for the appellant has further argued that according to the claim petition, the deceased was 35 years of age and the Tribunal adopted the multiplier of ‘16’ which appears to be on the higher side. In order to support his version he has relied upon 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. 5 13. Learned counsel for the respondents/claimants has contended that the Tribunal has rightly adopted the multiplier of ‘16’ while calculating the amount of compensation. The Tribunal on the basis of the evidence as well as considering the schedule mentioned in Motor Vehicle Act, 1988 has rightly taken into account the multiplier, which does not require any interference at this stage. 14. In order to resolve this controversy, I have gone through the record. According to the claim petition, the deceased was getting Rs. 15,000/- per month. In order to support their version, the claimants have produced paper No. 27C1, which is salary certificate of the deceased. The Tribunal on the basis of this document as well as statement of Uday Pratap Singh taken into account the monthly income of Rs. 9,125/- after deducting G.P.F. and Insurance. In this way, the annual income of the deceased comes to Rs. 1,09,500/-. 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. 73,000/- per annum. The Tribunal in order to calculate the amount of compensation, considering the age of the deceased as 35 years and adopted the multiplier of ‘16’. After hearing learned counsel for the appellant as well as in view of the judgment of Hon’ble Apex Court in The New India Assurance Company Ltd. Vs Smt. Kalpana & others (supra), 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 ‘13’ in the instant case would be just and reasonable. After adopting the multiplier of ‘13’ the total amount of compensation awarded in favour of the claimants comes to Rs. 9,49,000/- (73000 X 13). As I have already observed in the foregoing paragraphs that the driver of the truck was responsible for the rash and negligence in causing 6 the accident, therefore, the claimants are entitled to get the compensation upto the extent of 70% only, as they cannot get the amount compensation for the negligence of the deceased. The amount of compensation to be awarded in favour of the claimant thus comes to Rs. 6,64,300/- (949000 X 70/100). The Tribunal has further awarded a sum of Rs. 2,000/- towards funeral expenses, Rs. 5,400/- towards loss of company. Thus in total the total amount of compensation comes to Rs. 6,71,700/-. 15. In view of the observations made by me in the body of the judgment, I come to the conclusion that the claimants are entitled to get an amount of Rs. 6,71,700/- instead of Rs. 8,25,000/- as compensation. 16. Learned counsel for the claimants also filed cross objection and he has invited my attention towards the rate of interest awarded by the Tribunal. He has submitted that the rate of interest awarded by the Tribunal appears to be on the lesser side. 17. I do not find any force in the submission advanced by learned counsel for the respondents/claimants, as far as the rate of interest is concerned, the interest, as awarded by the Tribunal is perfectly justified. 18. No other point has been raised by the learned counsel for the appellant. 19. Accordingly, the appeal is partly allowed. The impugned judgment and award dated 30.10.2007 passed by the Tribunal is modified upto to the extent that the claimants/respondents are entitled for a sum of Rs. 6,71,700/- instead of Rs. 8,25,000/- along with interest @ 6% 7 per annum from the date of filing the claim petition till the actual date of payment. 20 As far as the apportionment of the award in favour of the claimants is concerned, the same shall be given, as follows:- 1. Master Vivek Kumar (minor) Rs. 1,40,000/- 2. Master Vishal (minor) Rs. 1,40,000/- (The above amount shall be kept in the form of fixed deposit in some nationalized bank till they attend the age of majority) 3. Sri Harswaroop and Smt. Kirpali – father and mother of the deceased also entitle to get Rs. 25,000/- each, which shall also be kept in the form of fixed deposit in some nationalized bank for three years. 4. Smt. Vandana Pandey – wife of the deceased shall be entitle to get a sum of Rs. 1,80,000/-, which shall also be deposited in the fixed deposit in some nationalized bank for five years. It is further directed that rest of the amount be given to the respondent No. 1 - wife of the deceased. 21. In view of the observations made by me in the body of the judgment, the cross appeal filed by the claimants/respondents No. 311 of 2008 is rejected. 22. The amount, if any, deposited by the appellant before this Court be remitted to the Tribunal concerned. (B.C. Kandpal, J.) 10.12.2008 ASWAL