IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 317 of 2006 Smt. Pushpa Tiwari … Appellant Versus Dilbag Rai and others … Respondents Mr. Mohd. Azim, Advocate on behalf of Mr. B.S. Parihar, Advocate for appellant Mr. T.A. Khan, Advocate for respondent no. 3 Mr. M.K. Goyal, Advocate for respondent no. 4 Dated: September 2, 2008 Hon’ble B.C. Kandpal, J. This appeal, preferred under Section 173 of Motor Vehicles Act, 1988, has been filed by the owner of Jeep No. UP-22A/7020, against the judgment and award dated 16.10.2004, passed by Motor Accident Claims Tribunal/District Judge, Udham Singh Nagar in MACP No. 67 of 2003, Dilbag Rai & another versus Oriental Insurance Company Limited and others. The claimants filed a claim petition before Claims Tribunal for grant of compensation on account of death of their son deceased-Atul Kumar in a motor accident alleging therein that on 07.05.2002 deceased-Atul Kumar was coming from Khatima towards Sitarganj by motorcycle bearing Registration No. UA-06/9250 and when at about 11.00 a.m. he reached at Tiraha of Hydel Colony after crossing the bridge of Nanak Sagar, then Jeep No. UP-22A/7020, driven by its driver rashly and negligently, hit the motorcycle, with the result deceased sustained injuries on his person and 2 succumbed to those injuries during treatment. It has also been alleged that deceased was 20 years of age and his monthly income of Rs.4,000/-. Opposite parties contested the claim by filing written statements and denied their liability to pay the amount of compensation. Opposite party no. 2- owner of Jeep No. UP-22A/7020 has pleaded that the liability to pay the amount of compensation, if any, is of opposite party no. 3, who is the insurer of Jeep No. UP-22A/7020. Opposite parties no. 1 and 3, insurers of motorcycle NO. U.A.06/9250 and Jeep No. UP-22A/7020 pleaded that they had not been given any information about the alleged accident and vehicle was being plied in breach of rules of insurance of Motor Vehicles Act. The Tribunal on the basis of pleadings of the parties framed relevant issues in the claim petition. Parties led evidence in support of their cases. The learned Tribunal after having considered the entire evidence available on record and hearing learned counsel for the parties decreed the claim petition for a sum of Rs.1,65,000/- along with interest of 5% per annum from the date of filing the petition till the actual payment. The learned Tribunal vide impugned judgment and award directed the owner of offending Jeep No. UP-22A/7020 to pay the amount of compensation. Feeling aggrieved by the aforesaid impugned judgment and award, the appellant/owner of offending Jeep has preferred the present appeal before this Court. 3 Heard Mr. Mohd. Azim, Advocate on behalf of Mr. B.S. Parihar, learned counsel for appellant- owner of offending Jeep, Mr. T.A. Khan, learned counsel for respondent no. 3-Oriental Insurance Company Limited, Mr. M.K. Goyal, learned counsel for respondent no. 4-The New India Assurance Co. Ltd. and perused the record. None is present for respondents 1 & 2/claimants-respondents. The impugned judgment and award suffers with material illegality apparent on the face of the record on account of the reason that liability to pay the amount of compensation has been wrongly fixed upon the owner of offending jeep in question. The Tribunal has assessed the entire martial available on record and has held that driver of offending jeep was having valid and effective driving licence on the date of accident. The Tribunal has further held that the offending jeep in question was also insured with New India Assurance Company Ltd. on the date and at the time of accident. No breach of any condition of insurance policy has also been committed by any of the parties. Once the Tribunal has held that driver of offending jeep was having valid and effective driving licence as well as jeep was also insured with New India Assurance Company Limited on the date and at the time of accident, then there was no reason to fix the liability to pay the amount of compensation on the shoulder of owner of offending jeep. The finding recorded by the Tribunal thereby fixing the liability upon the owner of jeep in question, is absolutely perverse and against the provisions of law. Once the jeep in question was insured with the insurance company and there was no breach of policy, then it is the 4 liability of insurance company to pay the amount of compensation and not of the owner of offending jeep. The conclusion drawn by the Tribunal in the impugned judgment and award thereby directing the owner of offending jeep to pay the amount of compensation, is liable to be set aside. Learned counsel for New India Assurance Company Limited, Sri M.K. Goyal has raised the submission that it is a case of contributory negligence and learned Tribunal has ignored this aspect of the matter. The argument raised by learned counsel for New India Assurance Company Ltd. is devoid of any force. The insurance company i.e. New India Assurance Co. Ltd. has also taken this plea in its written statement but insurance company has not adduced any evidence in support of its plea before the Tribunal. The insurance company also did not press the issue before the Tribunal that it is a case of contributory negligence and the accident took place on account of contributory negligence of driver of motorcycle (deceased). Learned counsel for insurance company has further argued that multiplier adopted by the Tribunal in this case is on higher side. He has further submitted that deceased was unmarried and keeping in view the age of parents of deceased the multiplier of ‘16’ which has been adopted by the Tribunal, is certainly on higher side. I also do not find any force in this argument. It is not in dispute that deceased was unmarried and 5 amount of compensation should be calculated keeping in view the age of parents. In the instant case, the age of parents of deceased is 44 years and 43 years respectively on the date of accident. The plea taken by the claimants in the petition is that the deceased was studying in convent school and his career was bright as he was being passing his classes with brilliant marks. However, keeping in view the age of parents of deceased the multiplier does not appear to be on higher side. The amount of compensation which has been awarded by the Tribunal is Rs.1,65,000/- along with interest at the rate of 5% per annum from the date of filing the petition till the date of actual payment, cannot be said to be on higher side in any case. On the basis of assessment of evidence on record, I am of the view that appeal is liable to be allowed. The appeal is accordingly allowed. The impugned judgment and award is modified to the extent that amount of compensation awarded by the Tribunal, is to be paid by insurer of jeep in question i.e. The New India Assurance Company Limited, along with interest indicated in the impugned judgment and award, within a period of two months. The statutory amount deposited by appellant with this Court be remitted to the Tribunal concerned. (B.C. Kandpal, J.) SP 6