IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 203 of 2006 Smt. Jaimala W/o late Shashi Nath Chaudhary & another - Appellants. Versus Roshan Lal and two others - Respondents. Mr. Arvind Vashist, Advocate for the appellants. Mr. K.K. Shah, Advocate for Oriental Insurance Company Ltd. None has appeared on behalf of respondent No.2, owner of vehicle despite service. (Hon’ble B.S. Verma, J.) This appeal under Section 173 of Motor Vehicle Act, 1988, has been preferred against the judgment and award dated 22-11-2005, passed by Motor Accident Claims Tribunal/Additional District Judge/F.T.C. II, Dehradun, in MACT Case No. 28 of 2004, Smt. Jaimala and another versus Roshan Lal and others. Brief facts giving rise to this appeal are that on 26-12-2003, at about 12.30 P.M. deceased Sashi Kant, was travelling in the scooter No. U.P. 07-F-7844, along with Anil Pundir. When they reached near Yak Petrol Pump, City Bus bearing registration No. U.P. 05-0398, dashed the scooter, due to which deceased sustained grievous injuries and later on he died due to the injuries. At the time of death of deceased he was 34 years of age and he was doing the work of Interior Decorator Assistant in the shop of M. K. Bhasin situated at Dekoreen and he was getting a sum of Rs. 6,000/- per month. The deceased left behind him, his widow and a daughter, who were completely dependent upon the deceased. Therefore, the claimants filed claim petition for award of compensation in lieu of death of the deceased. The opposite party Nos. 1 and 2, owner and driver of the bus filed written statement and denied the averments made in the claim petition. They alleged that the Bus was insured with Oriental Insurance Company and the liability to pay the compensation is upon the insurance company. The opposite party No.3, Oriental Insurance Company also filed written statement and denied the averments made in the claim- 2 petition. The insurance company alleged that the accident had occurred due to own negligence of the deceased. The claim petition is bad for non-joinder of necessary parties, as the owner and insurer of Scooter No. U.P. 07-F-7844, have not been impleaded as parties in the petition. The learned tribunal, on the pleadings of parties framed issues in the claim petition. Thereafter parties led evidence in support of their contentions. The tribunal after hearing parties and considering the entire evidence available on record, partly allowed the claim petition against all the respondents and directed the opposite party No.3 Oriental Insurance Company, to pay a sum of Rs. 2,77,500/- as compensation to the claimants and respondent No.5 Smt. Meena Chaudhary, mother of the deceased, along with interest @ 5% per annum from the date of filing the petition till the date of actual payment. Out of compensation, a sum of Rs. 50,000/- shall be payable to Smt. Meena Devi and sum of Rs. 1,25,000/- shall be invested in the name of Km. Jaya under the guardianship of her mother Smt. Jaimala in the fixed deposit, in some nationalized bank and rest of the amount shall be payable to Smt. Jaimala. The learned counsel appearing on behalf of the appellant has submitted that the learned tribunal has committed a manifest error by holding that the accident had taken place due to contributory negligence of the deceased and the driver of Bus No. U.P. 05- 0398, while the accident had occurred due to sole negligence of the Bus driver and the finding of the tribunal on this point is liable to be set aside. Perusal of impugned judgment and award, reveals that the learned tribunal has framed issue Nos. 1 and 2 on the point of negligence and relying on the statement of P.W.2 Vikas, an eye witness of the accident, has recorded a finding that the deceased had tried to cross the road along with the scooter in a hurry, at the place of accident when the Bus driver dashed the scooter from behind, due to which the Bus overturned and dashed the scooter, therefore, the deceased was also responsible for the accident. The finding recorded by the tribunal is against the evidence on record. P.W.2, Vikas, an eye 3 witness of accident has given a categorical statement that the Bus was coming at a high speed and it dashed the scooter from behind. He also stated that at the place of accident there was huge crowd. Therefore, it is was the duty of Bus driver to drive the Bus at a moderate speed as the road was over-crowded at the place of accident. This witness also deposed that the deceased Sashikant along with scooter was trying to cross the road and suddenly the bus came there at a high speed and crushed the deceased and the bus overturned there. He has also stated that Sashikanth was moving on kuchha part of the road. Smt. Jaimala claimant admittedly was not present at the place of occurrence and he had not seen the accident, hence her statement on the point of manner of accident cannot be considered. However, from the statement of eye witness Vikas, it is quite clear that at the place of occurrence the road was overcrowded and the Bus was being plied at a high speed and that was the reason that it was overturned. Had the bus driver been driving the bus at a moderate speed, there was no occasion to overturn the bus, after dashing the scooter from behind. Admittedly, the bus driver dashed the scooter from behind and he had no occasion to see the Bus coming from behind at a high speed. On the other hand, the bus driver had full occasion to the see the scooterist and the crowd at the place of accident from a long distance. Therefore, in the above facts and circumstances of the case, the deceased cannot be held to be negligence for the accident. The finding of the tribunal on this point of contributory negligence is liable to be quashed. Therefore, I hold that the accident had occurred due to sole negligence of bus driver and the deceased had not contributed negligence in causing the accident. Learned counsel for the appellant also submitted that the tribunal has assessed the income of the deceased simply on conjectures and surmises and wrongly assessed the notional income of the deceased as Rs. 3,000/- per month. He also submitted that the multiplier has been adopted on lesser side. Therefore the compensation is liable to be enhanced. I do not find any substance in the above submission of learned counsel for the claimant/appellant. According to claimant her busband deceased Sashikant was working at Interior Decorator Assistant in the shop of Manoj Bhasin and he was getting Rs. 4,5000/- per month and 4 he was also getting commission. However, she did not file any income certificate in this regard. P.W.2, Vikas has given statement on the point of income of deceased that he was doing the work of interior decorator and he used to earn Rs. 5000/- to 6,000/- per month. In his cross-examination he has admitted that the propritor of firm was not giving any salary to them, but only the commission of the work done by them, was being paid. Therefore, the statement of Vikas is not helpful to the claimant. P.W.3, Manoj Bhasin in his cross-examination has admitted that Sashikant was his employee in the year 2001. However, he has no record of the deceased being his employee. This witness has further stated that Sashikant used to go to the houses of customers for doing the work of interior decorator and he himself used to settle his wages with the customers. The learned Tribunal has rightly recorded a finding that the deceased was not the employee of Manoj Bhasin, but he used to do the work of interior decorator at the houses of customers of Manoj Bhasin and he was getting his wages from the customers directly. The learned tribunal has rightly taken the notoional income of deceased as Rs. 100/- per day and Rs.3000/- per month and after decuting 1/3rd towards personal expenses a net dependency of the claimants upon the deceased comes to Rs. 2,000/- per month i.e. Rs. 24,000/- per annum. So far as the age of the deceased is concerned, although the claimant has mentioned the age of the deceased as 32 years but according to the birth certified of the deceased, filed by the claimant, his date of birth was 19-3-1968. The accident had taken place on 16- 12-2003, therefore, the age of the deceased on the date of accident was 36 years. The multiplier of ‘15’ applied by the tribunal at the age of 36 is a suitable multiplier. Therefore, the compensation of Rs. 3,60,000/- assessed by the tribunal is a correct compensation. The tribunal also awarded a sum of Rs. 2,000/- towards funeral expenses, a further sum of Rs. 3,000/- towards loss of estate and again a sum of Rs. 5,000/- towards loss of consortium. In this way the total compensation comes to Rs. 3,60,000/- +Rs. 2,000/-+ Rs. 3,000/-+Rs. 5,000/-= Rs.3,70,000/-. I do not find any error in the calculation of compensation by the tribunal. However, the order of deducting 25% due to own 5 contributory negligence of the deceased is quashed and it is directed that the insurance company is liable to pay the whole amount of compensation. The appeal is partly allowed. The claimants are entitled to get a sum of Rs. 3,70,000/- from Oriental Insurance Company along with the interest has been awarded by the tribunal, instead of Rs. 2,77,500/- as awarded by the tribunal. The other portion of direction issued by the tribunal regarding apportionment of amount of compensation amongst the claimants and respondent No.5 Smt. Meena Chaudhary shall remain intact. Dated: 1-7-2011 (B.S. Verma, J.) ISB 6