IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 18/2007 The New India Assurance Company Ltd. …….Appellant. Versus Ram Singh and others … Respondents. WITH A.O. No. 17/2007 The New India Assurance Company Ltd. .. Appellant. Versus Smt. Paruli Devi and others .. Respondents. Sri T.A. Khan, learned counsel for the appellant/New India Ass. Co. Sri Sudhir Singh, learned counsel for respondent/owner of the vehicle. None has appeared on behalf of the claimants/respondents. Dated: 16-12-2008 UHon’ble B.C. Kandpal, J. Both these appeals, filed U/S 173 of the Motor Vehicle Act, 1988, relate to the same accident, therefore, they are being disposed of by this common judgment. 2- A.O. No. 18/2007, has been filed against the judgment and award dated 7-11-2006, passed by Motor Accident Claims Tribunal/ Addl. District Judge/I F.T.C., Haldwani, in MACT Case No. 194/2005, in which the learned Tribunal has awarded Rs. 3,16,500/- as compensation against the New India Assurance Company, in lieu of death of deceased Manoj Singh. A.O. No. 17/2007, has been filed against the judgment and award dated 7-11-2006, passed by Motor Accident Claims Tribunal/ Addl. District Judge/I F.T.C., Haldwani, in MACT Case No. 195/2005, in which the learned Tribunal has awarded Rs. 3,67,000/- as 2 compensation against the New India Assurance Company, in lieu of death of deceased Kesar Ram. In both the cases the Tribunal has directed the Insurance Company to deposit the amount of compensation within a month, failing which interest @ 9% per annum shall be payable from the date of filing the petition till the date of actual payment. 3- The brief facts of the case are that on 24.6.2005 deceased Kesar Ram and Manoj Singh after unloading the goods from Mahindra Pickup bearing registration No. U.A. 02/1455, were returning to their home. The said vehicle was being driven by Hira Singh. When the vehicle reached ½ kilometer ahead on Mahakali Marg from the temple, it met with an accident and fell-down to 30 feet deep ditch. In the said accident both Kesar Ram and Manoj Singh sustained grievous injuries. They were brought to Community Health Center Gangoli Haat and thereafter to District Hospital Pithoragarh, where Manoj Singh succumbed to the injuries on 24.6.2005 whereas another injured Kesar Ram has died on 25.6.2005. The legal heirs of the deceased persons filed claim petitions. According to them both the deceased used to earn Rs. 5,000/- per month from the labour work. 4- The opposite party/owner of the offending vehicle filed his written statement and denied the rash and negligence on the part of his driver. He further alleged that the driver was having valid driving license and his vehicle was insured with New India Assurance Company for the period 8.3.2005 to l7.3.2006, therefore, he denied his liability. 3 5- The opposite party no.2, New India Assurance Company also contested the petitions and filed his written statement. According to the insurance company the offending vehicle was a goods vehicle and at the time of accident it was carrying the passengers more than its capacity and there was breach of condition of policy. The insurance company further alleged that the insurer could only be made liable when the owner of the vehicle establishes that the vehicle was having valid documents and its driver was also having effective driving license and the vehicle was not being plied in contravention of condition of insurance policy. 6- The learned Tribunal, on the basis of pleadings of parties, framed relevant issues in both the claim petitions. Thereafter, parties adduced evidence in support of their claims. The learned Tribunal, after considering the evidence on record and hearing learned counsel for the parties, allowed the petitions for compensation against the insurance company. 7- Feeling aggrieved the New India Assurance Company has preferred these appeals before this Court. 8- I have heard learned counsel for the New India Assurance Company and the learned counsel for the owner/respondent and perused the record. 9- Learned counsel for the appellant has submitted that the vehicle in question was goods vehicle and it was not permitted to carry three persons including driver, hence breach of condition of insurance policy of committed. Therefore, the Tribunal has committed a manifest error in fixing the liability of the insurance company to pay the compensation. 4 10- From perusal of record it reveals that the assertion of the claimants is that both the deceased Kesar Ram and Manoj Singh were employed as a labourer by the owner of the truck and at the time of accident they were returning to their home after unloading the goods from the offending vehicle Mahindra Pickup U.A.02/1455. According to them the accident took place due to the fact that the driver in order to save a cow lost control over the vehicle and fell-down in the deep ditch. P.W.2, Bahadur Singh Mehara is an eyewitness of the occurrence. This witness has deposed that at the time of accident he was coming on a T.V.S. Victor. The driver of the Mahindra Jeep was driving the vehicle in a high speed. The driver of that vehicle took pass from him and after travelling some distance a cow came in front of the vehicle due to which he lost control over the vehicle and fell-down in deep ditch. From the above statement it is quite clear that the driver of the offending vehicle was driving the vehicle at the time of accident in a rash and negligent manner and due to his negligence the vehicle met with accident. 11- So far as the submission of the learned counsel for the insurance company/appellant pertaining to the deceased persons travelling in the offending jeep as a gratuitous passengers and thereby committing breach of condition of policy is concerned, the same is not tenable on the basis of the evidence on record. D.W.1, Mahesh Singh Bhariyal, owner of the offending vehicle Mahindra Pickup, has deposed before the Tribunal that both the deceased persons were engaged by him in the vehicle as a labourer and he used to pay them monthly salary @ Rs. 5,000/-. In his cross-examination this witness has stated that no cleaner was in the vehicle and 5 both the deceased persons were sitting in the vehicle in the capacity as a labourer, besides the driver. 12- The F.I.R. was lodged by the driver of the offending vehicle Sri Hira Singh. He has mentioned this fact that in the vehicle he and two deceased persons Kesar Ram and Manoj Singh were sitting. Therefore, it is quite clear that only three persons were travelling in the vehicle at the time of accident. He has further mentioned in the F.I.R. that some pedestrians, coming from the temple were also got injured due to falling of the vehicle. In the aforesaid circumstances it is further clear that at the time of accident there were only three persons sitting in the offending vehicle and some pedestrians were also got injured due to falling of the vehicle. Against the above evidence available on record, the insurance company has produced D.W.2, Gyanesh Sharma, Investigator of the company. This witness although has deposed that there were more persons sitting in the offending vehicle at the time of accident but he could not tell the name of the persons from whom he had come to know about the number of persons sitting in the vehicle. He simply stated that he had interrogated the pedestrians of the locality. As stated above, the driver of the offending vehicle has mentioned this fact in the F.I.R. that some pedestrians were also injured in the said accident and at the same time he has specifically mentioned this fact that he and the two deceased persons were sitting inside the vehicle. Therefore, the allegation of the insurance company that more persons were sitting in the vehicle is not acceptable. 13- The insurance company has not taken specific plea that only three persons including the driver were insured in the insurance policy. Copy of insurance policy has not been brought on record. However the cover note 6 filed on record shows that premium of Rs. 25/- for the driver, and Rs. 100/- for four labourers ( Rs. 25/- each) has been realized from the insured. In the aforesaid circumstances it cannot be said that the vehicle was insured only for three persons, including the driver. The learned Tribunal has found all the documents viz. driving license, insurance cover, registration etc. to be valid, therefore, the Insurance Company has rightly been held liable to pay the compensation in both the claim petitions. 14- I have also perused the finding of the learned tribunal recorded on the quantum of compensation and I find myself in full agreement with the conclusion drawn by the tribunal. It has come on evidence that both the deceased persons were working as a labourer. No satisfactory evidence was adduced with respect to their income therefore the tribunal has rightly taken wages @ Rs. 100/- per day, i.e. Rs. 3,000/- per month and after deducting 1/3Prd P towards personal expenses the annual dependency was calculated at Rs. 24,000/-. The multiplier was also adopted as per the Schedule- II appended to Section 163-A of the Motor Vehicle Act. The quantum of compensation as awarded by the learned Tribunal in both the claim petition, also need no interference by this Court. 15- For the reasons recorded above, the appeals lack merit and are liable to be dismissed. 16- Accordingly both the appeals are dismissed. The impugned judgment and awards are hereby confirmed. 7 17- The statutory amount deposited in this court, be remitted to the tribunal concerned. 18- Let a copy of this judgment be placed in the file of A.O. No. 17/2007. ISB (B.C. Kandpal, J.) 8