IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 259 of 2006 United India Insurance Company Ltd. … Appellant Vs Smt. Neema Parihar & others … Respondents Sri D.S. Patni, Advocate for the appellant Sri B.S. Adhikari, Advocate for the respondent Nos. 1 to 3 and 5 Sri Bhuvnesh Joshi, Advocate for respondent No. 4 Sri Arvind Vashisth, Advocate for the respondent No. 6 Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed by the insurer of vehicle No. HR66/0523 against the judgment and award dated 16.02.2006 passed by M.A.C.T./District Judge, Bageshwar in Motor Accident Claim Tribunal Case No. 5 of 2005, Smt. Neema Parihar & others Vs Prem Prakash Sharda & others. 2. Brief facts of the case are that on 06.08.2004 at about 02.00 P.M. when the deceased – Umed Singh was going in a vehicle belonging to the Indian Army from Bhatinda to Suratgarh and when the said vehicle reached at Chotaula, Tehsil Dabwali, District Sirsa, Haryana, a truck bearing registration No. HR66/0523 coming from the opposite direction in a rash and negligent manner hit the vehicle belonging to Indian Army. On account of this accident Umed Singh sustained grievous injuries and he died. The age of Umed Singh at the time of the accident is alleged as 30 years in the claim petition and he was drawing salary of Rs. 6,787/- per month. The claimants on account of the death of Umed Singh, thus, filed the claim petition before the Tribunal. 3. The claim petition was decided ex-parte against the United India Insurance Company – insurer of vehicle No. 2 HR66/0523 vide order dated 27.04.2005. Thereafter on application filed by the Insurance Company, the order was recalled and Insurance Company was given an opportunity to be heard. The Insurance Company filed the written statement pleading therein that the claim petition has been filed by the claimants in connivance with the owner of the truck involved in the accident. The other plea taken in the written statement that the driver was not in possession of the valid driving licence at the time of the accident and the amount claimed is too excessive. Another ground taken by the Insurance Company is that the accident is a result of contributory negligence of the driver of both the vehicles involved in this accident but the claimants have not arrayed the Union of India and the driver of the vehicle belonging to Indian Army in the claim petition deliberately. The respondent No. 5 Smt. Basanti Devi is the mother of the deceased and she has also filed the written statement supporting the case of the claimants. 4. The Union of India was subsequently arrayed in the claim petition as opposite party No. 4 vide court’s order dated 23.07.2005. The number of Indian Army vehicle No. 03D154187-A was incorporated in the paragraph 15 of the claim petition through amendment, but the Union of India has not filed any written statement before the Tribunal. The Tribunal after having perused the pleadings adduced by the parties framed following issues:- 1 Whether on 06.08.2004 at about 02:00 a.m. the accident took place due to rash and negligent driving of the driver of vehicle No. HR66/0523 at Chatola, Tehsil Dabwali, District Sirsa, Haryana? If so, its effect? 3 2 Whether Umed Singh has died due to the injuries sustained by him on above date, time and place of the accident? If so, its effect? 3 To what amount of compensation the claimants are entitled to get and from whom? 4 Whether the claimants are entitled to get any other relief? 5 Whether the vehicle in question was being plied in breach of policy as mentioned in WS filed by respondent No. 2 in para 18? If so, its effect? 6 Whether the vehicle in question was not having valid vehicle chalan certificate, registration certificate, insurance certificate and other certificates on the date of accident? If so, its effect? 7 Whether the driver of the offending vehicle was not having the valid driving licence? If so, its effect? 5. The claimants in support of their case produced P.W. 1 – Neema Parihar – widow of the deceased Umed Singh. No other evidence had been adduced by either party. The Insurance Company/United India Insurance Company Ltd. filed an application under Section 170 of the Motor Vehicle Act for permitting them to produce the evidence. This application was allowed. In documentary evidence, the salary certificate of the deceased, the copy of the provident fund, fitness certificate of the vehicle involved in the accident, registration certificate of the vehicle, insurance policy paper etc. were filed. 6. The Tribunal after having considered the entire material available on record and hearing learned counsel for the parties decreed the claim petition for a sum of Rs. 9,18,000/- as compensation along with interest @ 8% per 4 annum from the date of filing the claim petition till the actual date of payment vide judgment and award dated 16.02.2006. 7. Feeling aggrieved by the aforesaid judgment and award, the appellant/insurer of the vehicle in question has preferred this appeal before this Court. 8. Heard Sri D.S. Patni, Advocate for the appellant, Sri B.S. Adhikari, Advocate for the respondent Nos. 1 to 3 and 5, Sri Bhuvnesh Joshi, Advocate for respondent No. 4, Sri Arvind Vashisth, Advocate for the respondent No. 6 and perused the record. 9. As far as the factum of the accident is concerned, the Tribunal has discussed this aspect while deciding issue Nos. 1 and 2 in the impugned judgment and award. It is evident from the record that the deceased – Umed Singh had been travelling in an Army Truck on 06.08.2004 at about 02:00 p.m., and it met with an accident with truck No. HR66/0523. On account of this accident, Umed Singh succumbed to injuries. Smt. Neema Parihar – wife of the deceased Umed Singh has been produced as P.W.1 and she has corroborated the evidence made in the claim petition. Although, she is not an eyewitness, but she has stated that her husband had been travelling in the Army vehicle on 06.08.2004 and on account of the collision between the vehicles, her husband succumbed to injuries. The factum of the accident has not been denied either by the Union of India or by the insurer of vehicle No. HR66/0523. Rather the insurer of truck No. HR66/0523 is United India Insurance Company has taken a plea in the written statement that both the vehicles had contributed the negligence in this case. This plea is an admission to the fact that the accident had taken 5 place on account of collision between two vehicles. Therefore, on the basis of the material available on record, it is established that on 06.08.2004 at about 02:00 p.m., the Army vehicle in which Umed Singh had been travelling collided with truck No. HR66/0523 and in this accident Umed Singh succumbed to injuries. 10. Now, it is to be seen as to the vehicle No. HR66/0523 is liable for rash and negligent only or both the vehicles i.e. Army vehicle had contributed the negligence in this accident or not. It is not disputed that in this accident, there is a collision between the two vehicles. The Union of India has neither filed any written statement nor has adduced any evidence in order to show that the Army vehicle had not contributed any rash and negligence in this case. 11. Smt. Neema Parihar (P.W.1) has stated that truck (truck Volvo 340) No. HR66/0523 was coming from the opposite direction in a rash and negligent manner and it hit the Army vehicle. Although she is not an eyewitness but in view of the fact that the Insurance Company has also taken the plea that both the vehicles had contributed the rash and negligence in this accident clearly goes to show that both the vehicles had in fact contributed the rash and negligence in this accident. 12. Keeping in view the dictum of ‘Res ipsa loquitor’, it is also established that there was a head on collision between the two vehicles i.e. Army vehicle and the truck No. HR66/0523. There is no evidence on record available, which shows that in what manner the accident had taken place, but keeping in view this aspect that it was a head on collision and the accident took place on a highway, it appears to me that 6 driver of both the vehicles had been rash and negligent at the time of the accident. Both the vehicles are big vehicles and their drivers had to take greater care and caution in driving their vehicles on the road, but it appears to me that both the drivers had been rash and negligent; therefore, they could not avoid the accident. It cannot be ignored that driver of both the vehicles had sufficient opportunity to see the vehicles coming from the opposite directions to each other and if they would have taken care and caution, the accident would certainly had been avoided. Neither the owner and driver of the truck No. HR66/0523 nor the driver or any other person from Army vehicle had came forward before the Tribunal to plead their case. It is thus quite clear that the accident had taken place on account of rash and contributory negligence on the part of both the vehicles and driver of both the vehicles are equally liable for the rash and negligent which caused the accident and in which Umed Singh succumbed to injuries. 13 As far as amount of compensation to be paid in favour of the claimants is concerned, the Tribunal has discussed this aspect while deciding issue Nos. 3 and 4, but the approach adopted by the Tribunal appears to be erroneous, firstly, on the ground that the Tribunal has fixed the sole liability upon the insurer of vehicle No. HR66/0523 to pay the amount of compensation. It is true that the truck No. HR66/0523 was insured with the United India Insurance Company Ltd. but I have already observed that both the vehicles are equally responsible for causing the accident on account of the contributory rash and negligence, therefore, it is wrong to observe that only the insurer of truck No. HR66/0523 would be liable to pay the amount of compensation awarded by the Tribunal in favour of the claimants. 7 14. As far as the income of the deceased, it is established from the record that the deceased had been getting a salary of Rs. 6,787/- per month. The Tribunal after deducting 1/3rd from the salary of the deceased as personal expenses has calculated this amount as Rs. 54,296/- per annum. I am of the view that the calculation made by the Tribunal does not require any interference. However, the Tribunal has adopted the multiplier of ‘18’ in this case, which certainly appears to be on the higher side. In view of the pronouncement of Ho’ble Apex Court in The New India Assurance Company Ltd. Vs Smt. Kalpana & others reported in (2007) 2 Supreme Court Cases (Cri) 94, T.N. State Transport Corporation Vs S. Rajapriya & others reported in (2005) 6 SCC 276 and The Managing Director, TNSTC Vs Sripriya & others reported in 2007 (5) Supreme 301, the multiplier cannot travel more than ‘14’ in any manner in the instant case. The deceased was aged about 30 years at the time of the accident. Therefore, in my opinion the just and proper multiplier in this case would be ‘14’ instead of ‘18’. After adopting the multiplier of ‘14’ the total amount of compensation to be awarded in favour of the claimants comes to Rs. 7,60,144/- (rounded Rs. 7,60,000/-). 15. The Tribunal further fell in error in awarding a sum of Rs. 2,672/- under other different head. I fail to understand that on what basis of calculation; the Tribunal has awarded this much of amount in favour of the claimants. However, I award a sum of Rs. 2,000/- in favour of the claimants for the expenses of funeral instead of Rs. 2,672/- as has been awarded by the Tribunal. 8 16. The Tribunal has further erred in awarding the rate of interest of 8% per annum. This rate of interest also appears on the higher side and I am of the view that the rate of interest in this case should be 6% instead of 8% per annum. 17. On the basis of the aforesaid calculation, the total amount to be awarded in favour of the claimants comes to Rs. 7,62,000/- along with interest @ 6% per annum from the date of filing the claim petition till the actual date of payment. 18. As I have already observed that both the vehicles have equally contributed rash and negligence in this accident, therefore, half of the awarded amount shall be paid by the respondent No. 6 – Union of India and rest half of the amount shall be paid by the insurer/appellant – United India Insurance Company Ltd. 19. The direction issued by the Tribunal in the operative portion of judgment “that if any stage, the Insurance Company finds that the accident took place on account of the rash and negligent driving of driver of truck No. HR66/0523, the Insurance Company shall recover the amount of compensation from the owner of the said truck” is against the provision of law and is not sustainable in the eye of law. The owner cannot be held liable to pay any amount of compensation as the driver was having the valid driving licence and the vehicle was insured with the appellant. Hence, the aforesaid direction issued by the Tribunal is set aside. 20. Accordingly, the appeal is partly allowed. The impugned judgment and award dated 16.02.2006 is modified upto the extent that the claimants are entitled to get a sum of Rs. 7,62,000/- (instead of Rs. 9,80,000/- as has been awarded 9 by the Tribunal) along with interest @ 6% per annum (instead of @ 8% per annum) from the date of filing the claim petition till the actual date of payment. The appellant/insurer of vehicle No. HR66/0523 as well as Union of India are liable to pay the said compensation in equal share. 21. As far as the apportionment of the award in favour of the claimants is concerned, the same shall be given, as under:- 1. Km. Shalu (minor) D/o deceased Rs. 3,50,000/- 2. Master Suraj (minor) S/o deceased Rs. 2,50,000/- (The above amount shall be kept in the form of fixed deposit with some nationalized bank till they attain the age of majority) 3. Smt. Basanti Devi – mother of the deceased shall get Rs. 30,000/- out of the total awarded amount. 4. Smt. Neema Parihar – wife of the deceased shall get the rest of the amount. 22. 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.) 04.05.2009 ASWAL