IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 43 of 2006 Smt. Reshu Sharma and others .. Appellants. Versus Rajesh Sethi and another .. Respondents. Sri A.K. Joshi, learned counsel for the appellants. Sri Hemant Singh Bisht, holding brief of Mr. Pankaj Purohit, learned counsel for the respondent No.2. Mr. Bharat Tiwari, holding brief of Mr. Sarvesh Agrawal, Advocate for respondent No.1. Dated: 24-11-2008 UHon’ble B.C. Kandpal, J. This appeal, under Section 173 of the Motor Vehicles Act, arises out against the judgment and award dated 26-9-2005, passed by Motor Accident Claims Tribunal/ Additional District Judge/II F.T.C., Nainital, in MACP No. 71 of 2003, Smt. Reshu and others Vs. Rajesh Sethi and another. 2- The facts of the case, in a nutshell, are that Sanjeev Kumar Sharma along with relatives and friend on 8-1-2003 were travelling in Maruti Car No. DL 2- C/C/7301, from Manglore to Roorkee. Sanjeev Kumar himself was driving the Car. When the Car reached near G.T. Road Roorkee, truck No. U.P.07/H/0097 coming from opposite direction, dashed the Maruti Car in a rash and negligent manner. All the occupants of the car sustained grievous injuries and they were shifted to Government Hospital Roorkee, where the doctors declared Sanjeev Kumar dead. The deceased was running a P.C.O. and he was also an Agent in L.I.C. His monthly income was Rs. 10,000/-. 2 3- The opposite party No.1, owner of the Truck No. U.P.-07/H/0097, did not contest the claim inspite of service and the petition was heard exparte against him. 4- The opposite party No.2, United India Insurance Company alleged that no information of the accident was given to it by the owner of the truck involved in the accident. The driver of the truck was not possessing a valid and effective driving licence and the owner of the Truck is required to prove that the driver was possessing effective and valid driving license and the vehicle was also having valid registration, fitness etc. 5- The opposite party No.3, owner of Maruti Car No. D.L.-C/C/ 7301, filed his written statement and alleged that the driver of the Car was having valid driving license and the car was insured with United India Insurance Company, therefore, the liability to pay the compensation, if any, is upon the shoulder of the insurance company. 6- The Tribunal, on the basis of pleadings of parties, framed issues in the petition. Thereafter, parties adduced evidence in support of their claim. The Tribunal, after hearing the learned counsel for the parties and perusing the material available on record, decreed the claim petition for a sum of Rs. 5,70,000/- against the United India Insurance Company. The Tribunal also gave the recoverable right to the United India Insurance Company against the owner of the truck in question. 7- Feeling aggrieved the claimants have preferred this appeal for enhancement of the compensation. 3 8- Heard learned counsel for the parties and perused the record. 9- Learned counsel for the claimants/appellants has submitted that the Tribunal has ignored the evidence of the claimants and awarded a meager amount of compensation. He further alleged that the tribunal has not awarded any interest on the awarded amount and they are entitled to get interest. 10- The impugned award reveals that the owner of the offending truck bearing registration No. U.P. 07/H/0097 did not contest the petition before the tribunal inspite of service and the petition was heard exparte against him. The assertion of the claimants is that the accident had occurred due to the negligence of truck driver. The claimants in order to prove the rash and negligence of the truck, has produced P.W.2, Teerath Ram, who is an eye witness of the occurrence. This witness was also travelling in the Car, which met with accident. He has deposed that at the place of accident the driver of the Car was driving the same on the left side and the truck No. U.P. 07/H/0097, coming from opposite direction in a high speed, dashed the car in a negligent manner and dragged the car upto 100 feet. This witness also lodged the report of the accident at P.S. Manglore. The police after investigation, submitted charge sheet against the driver of the truck and criminal case is pending against him in competent court of jurisdiction. Copy of site-plan paper No. 54-B/5, prepared by police during investigation has been filed before the tribunal. On perusal of this site plan, it reveals that the car was being driven on its extreme left side of the road and the truck dashed the car going to its right side. The truck also dragged the car upto 125 paces from the place of 4 accident. The opposite parties did not adduce any evidence on the point of negligence and the evidence adduced by the claimants remained uncontroverted. From the above evidence adduced by the claimants showing the rash and negligence on the part of truck driver, the Tribunal has rightly come to the conclusion that the driver of the Car has no negligence in committing the accident. 11- The United India Insurance Company also raised the plea before the Tribunal that the driver of the offending truck was not having valid and effective driving license. The insurance company got examined D.W.1, Chandra Mohan Rawat, an employee of R.T.O. Office Dehradun. This witness has deposed that according to office record, Sashi Kant, who was driving the offending truck, was never issued any driving license and at the serial number mentioned in paper No. 5-C/9, the so called driving license of Sashi Kant, has been allotted to Shyam Singh S/o Tirath Singh. The owner of the offending truck did not participate in proceedings of the claim petition. Therefore, in view of above evidence, the Tribunal has rightly held that the driver of the offending truck was not having valid and effective driving license and there was breach of condition of insurance policy. The recoverable right has rightly been given to the insurer against the insured to recover the amount of compensation. 12- Now coming to the point of quantum of compensation, according to the claimants the deceased was running a P.C.O. and he was also an Agent in L.I.C. and his monthly income was Rs. 10,000/-. Some documentary evidence pertaining to P.C.O. and income tax return have been filed. The income tax return of the 5 year 1996 brought on record shows the annual income of Rs. 14,080/-. The learned Tribunal looking to the above evidence, assessed the monthly income of the deceased as Rs. 5,000/- the annual being Rs. 60,000/-. The tribunal after making 1/3Prd P deduction towards personal expenses of the deceased, assessed the annual dependency of Rs. 40,000/- of the claimants, who are legal representatives of the deceased. The deceased at the time of accident was 33 years of age and the tribunal adopted the multiplier of ‘14’ thereby the total dependency being Rs. 40,000/- X 14= Rs. 5,60,000/-. The tribunal further awarded a sum of Rs. 5,000/- each under the heads of loss of love and affection and funeral expenses and in my opinion the claimants are entitled to get this amount of Rs. 10,000/-. The total compensation awarded by the Tribunal, thus, comes to Rs. 5,60,000/- + Rs. 10,000/- = Rs. 5,70,000/-. I do not find any infirmity in the quantum of compensation awarded by the Tribunal. The claimants have no case of enhancement. 13- Here it may be added that the Tribunal has not awarded any interest on the amount of compensation and in my view, the claimants should be awarded interest @ 5% per annum from the date of filing the petition till the date of actual payment. 14- For the discussions made above, the appeal is liable to be partly allowed, so far as the interest part is concerned. 15- The appeal is partly allowed. The impugned judgment and award dated 26-9-2005, is modified upto the extent that the claimants/appellants are entitled to get the amount of compensation of Rs. 5,70,000/-, 6 awarded by the tribunal, along with interest @ 5% per annum from the date of filing the petition till the date of actual payment, payable by the United India Insurance Company. The recoverable right given to the insurance company against the insured/owner of truck in question, shall remain intact. ISB ( B.C. Kandpal, J. ) 7