IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal Against Order No. 538 of 2005 Mahipal … Appellant Vs The Oriental Insurance Company Ltd. & others … Respondents Sri Ramji Srivastave, learned counsel for the appellant Sri Pankaj Purohit, learned counsel for the respondent No. 1 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 09.09.2005 passed by Motor Accident Claim Tribunal/Additional District Judge/2nd Fast Track Court, Dehradun in Motor Accident Claim Case No. 85 of 2004, Mandan Pal & another Vs Mahipal & another whereby the Tribunal awarded a sum of Rs. 92,400/- as compensation along with interest @ 6% per annum from the date of filing the claim petition till the actual date of payment. The Tribunal has further directed that the Insurance Company will have the right to recover the amount of compensation from the owner of the vehicle/appellant. 2. Brief facts of the case are that Sri Kanhaiya Lal – deceased was coming Dehradun from Bhopal in a truck bearing registration No. UA07B/4968, in which the deceased was employed as conductor. The said truck was being driven by its driver in a very rash and negligent manner. When the said truck reached near Brenta Police Chawki, it dashed with another truck bearing registration No. UP80K/9144, which was standing on the side of the road without any indicator. In this said accident, the deceased got serious injuries and he was immediately admitted in the Dholpur Hospital where he 2 was declared dead due to serious injuries sustained by him in the accident. The claimants are the parents of the deceased. According to the claim petition, the deceased was 20 years of age at the time of accident and used to earn Rs. 4,000/- as a conductor/cleaner. Therefore, they filed the claim petition for a sum of Rs. 8,00,000/- as compensation before the Tribunal. 3. The opposite party No. 1 – Mahipal – owner of the truck No. UA07B/4968 contested the claim petition admitting the factum of accident in which, Rajan Pal has died. He has further stated that the deceased was working in the truck as a conductor and was getting a salary of Rs. 3,000/- per month. He has stated that he was having the valid and effective driving licence on the date of accident. It has further pleaded that the truck in question was insured with the Oriental Insurance Company Ltd., therefore, the claim petition was liable to be dismissed against the applicant/him. 4. The Oriental Insurance Company Ltd. also contested the claim petition by filing its written statement before the Tribunal denying the allegations made in the claim petition. It has further pleaded that the claimants have not made the party to the owner of truck No. UP80K/9144 as well as insurer of the said vehicle, therefore, the claim petition was bad for non-joinder of the necessary parties. It has also alleged that the driver of the truck No. UA07B/4968 was not having the valid and effective driving licence. Therefore, the claim petition was liable to be dismissed against the Insurance Company. 5. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues, which were discussed in a great detail. Therefore, 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 decreed the claim petition for a sum of Rs. 92,400/- along with interest @ 6% per annum from the date of filing the claim petition, till the actual date of payment vide judgment and order dated 09.09.2005. The Tribunal has given the recoverable right to the Insurance Company from the owner of truck No. UA07B/4968. 6. Feeling aggrieved by the aforesaid judgment and award, the owner of the truck No. UA07B/4968 has preferred this appeal for quashing of the recoverable right given by the Tribunal concerned. 7. Heard Sri Ramji Srivastave, learned counsel for the appellant, Sri Pankaj Purohit, learned counsel for the respondent No. 1 and perused the record. 8. As far as the rash and negligent driving is concerned, the Tribunal on the basis of the material available on record held that the accident took place due to rash and negligent driving of the driver of Truck No. UA07B/4968. The Tribunal also held that the Insurance Company has proved that the driver of another truck No. UP80K/9144 parked the said truck on the second lane, therefore, the Tribunal held contributory negligence of 30% upon it. So far as the point relating to the rash and negligent driving is concerned, the Tribunal has rightly held responsible to both the vehicle involved. 9. Learned counsel for the appellant has submitted that the deceased Rajan Pal was working as a cleaner in Truck No. UA07B/4968. Therefore, finding to the effect that the 4 Insurance Company will have the right to recover the amount of compensation from the appellant appears to be bad in the eye of law. Hence, the recoverable right given to the Insurance Company is liable to be dismissed. 10. On the other hand, learned counsel for the respondent/Insurance Company has contended that the Tribunal after considering the evidence available on record came to the conclusion that the deceased was traveling in the truck in question as gratuitous passenger. In his evidence Mahipal (D.W.1) has stated that the deceased was working as a conductor in the said truck but he could not produce any documentary evidence which may show that the deceased was working as a conductor in the truck in question. The Tribunal also considered the statement of Madan Pal (P.W.1) who has stated that his son was 20 years of age and working as a conductor in truck No. UA07B/4968 and food expenses was given by the owner of the truck – Mahipal. He has also stated that the owner of the truck has not given any receipt of salary. In the copy of the First Information Report – paper No. 18C nowhere it is mentioned by Mahipal (D.W.1) – owner of the truck that the deceased was employed as conductor in the truck in question. The Tribunal has recorded the finding that the owner of the truck was not the relative of the deceased. The Tribunal has categorically stated that the owner of the truck and claimants have given the above statement only to get the amount of compensation from the Insurance Company. The Tribunal has further categorically held that the age group of 20 years and without education can get only Rs. 100 to Rs. 150/- per day. In this way, the Tribunal in order to calculate the income of the deceased considered notional income of Rs. 15,000/-. After deducting 1/3rd towards personal expenses, the annual income of the deceased comes to Rs. 10,000/-. As 5 the deceased was unmarried person, therefore, the Tribunal considered the age of the parents as 48-49 years. Considering the age of the parents of the deceased, the Tribunal adopted the multiplier of ‘13’, which appears to be quite reasonable. In this way, the amount of compensation comes to Rs. 1,30,000/- (10000 X 13). The Tribunal further awarded a sum of Rs. 2000/- towards funeral expenses. The Tribunal has held contributory negligence of 30% of the driver of another truck. In this way the amount of compensation comes to Rs. 92,400/- (132000 X 70/100). Thus the total amount of compensation comes to Rs. 92,400/-. 11. Considering the entire evidence available before me, the owner of the vehicle has fail to prove that the deceased was not sitting as a gratuitous passenger, therefore, in the absence of any evidence, the Tribunal has rightly provided recoverable right to the Oriental Insurance Company Ltd. which need not require any interference. The Tribunal has rightly given recoverable right to the Insurance Company, which does not require any interference at this stage. 12. Accordingly, the appeal is dismissed. The impugned judgment and award is hereby confirmed. No order as to costs. (B.C. Kandpal, J.) 01.09.2008 ASWAL