IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 677 of 2006 Rajender Prasad …Appellant Versus Lalit Joshi & others …Respondents With Appeal From Order No. 755 of 2006 Lalit Mohan Joshi …Appellant Versus Smt. Ganga Devi & others …Respondents In A.O. No.677 of 2006:Sri Neeraj Upreti, Advocate for appellant Km. Shruti Joshi, Advocate for respondent no. 2 Sri D.S. Patni, Advocate for respondent no. 3 In A.O. No.755 of 2006:Sri J.C. Pandey, Advocate for appellant Sri J.S. Bisht, Advocate for respondent no. 1 Sri D.S. Patni, Advocate for respondent no. 3 Dated: November 17, 2008 Hon’ble B.C. Kandpal, J. Since both these appeals are arising out of the same judgment and award and common question of fact of law is involved in both the appeals, as such, they are being decided by this common judgment. A.O. No. 677 of 2006, under Section 173 of Motor Vehicles Act, 1988, has been preferred against the judgment and award dated 10.08.2006 and decree dated 17.08.2006 passed by Motor Accident Claims Tribunal/District Judge, Pithoragarh in Motor Accident Claim Petition No. 66 of 2003, Rajender Prasad vs. Lalit Joshi & others. 2 A.O. No. 755 of 2006, under Section 173 of Motor Vehicles Act, 1988, has been preferred against the judgment and award dated 10.08.2006 and decree dated 17.08.2006 passed by Motor Accident Claims Tribunal/District Judge, Pithoragarh in Motor Accident Claim Petition No. 89 of 2003, Smt. Ganga Devi vs. Lalit Joshi & others. Claimants-Rajender Prasad and Smt. Ganga Devi filed two separate claim petitions no. 66/2003 and 89/2003 before Claims Tribunal for grant of compensation on account of injuries sustained by them in the accident alleging therein that on 3.7.2003 they were travelling in Jeep No. U.P.03/2972 as passengers. The said jeep was being driven by its driver-Shyam Singh rashly and negligently. At about 11.00 a.m. when the said jeep reached near Makmanale, it met with an accident and fell into Khad. In the said accident, claimants sustained injuries, while two-three persons died at the spot itself. Thus, the claimants claimed different amount of compensation against the opposite parties. Opposite parties no. 1 and 2-owner and driver of offending Jeep No. UP-03/2972 filed their written statement and pleaded that on the date of accident the driver of vehicle was driving the vehicle carefully and near Madmanale the said vehicle met with an accident due to mire and in the said accident there was no rash and negligence on the part of driver of vehicle. They have also pleaded that on the date of accident fitness certificate, permit etc. relating to vehicle in question were valid and driver of vehicle was holding valid driving licence and vehicle in 3 question was insured with National Insurance Co. Ltd. and the said vehicle was being plied in accordance with conditions of insurance policy as well as traffic rules. Therefore, the liability to pay the amount of compensation, if any, is of insurance company no. 3-insruance company. Hence, opposite parties no. 1 & 2 prayed for dismissal of claim petition filed against them. Opposite party no. 3-National Insurance Co. Ltd. filed its written statement and pleaded that at the time of accident owner of vehicle in question was not having valid papers relating to vehicle and driver was not holding valid driving licence and vehicle was being plied in breach of conditions of insurance policy. It has also been pleaded that claim petition has been filed on wrong and exaggerated grounds and vehicle in question was carrying the passengers more than its capacity, which is breach of conditions of insurance policy. The learned Tribunal on the basis of pleadings adduced by the parties framed relevant issues in the claim petition, which were discussed in great detail. Parties led evidence in support of their case. The learned 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.1,59,150/- in M.A.C. No. 66/2003 as well as Rs.21,901/- in M.A.C. No. 89/2003. The Tribunal further directed that said amount of compensation was to be paid to the claimants by the insurance company within a period of forty days, failing which, the claimants 4 shall also be entitled to get interest at the rate of 8% per annum from the date of award till the date of actual payment. The Tribunal while passing the impugned judgment and awards also directed that amount of compensation to be paid to the claimants, although shall be paid by the insurer of vehicle i.e. National Insurance Co. Ltd., but insurance company shall have the recoverable rights from the owner of vehicle in question with regard to amount of compensation. Feeling aggrieved by the aforesaid impugned judgment and awards dated 10.8.2006 and drecree dated 17.8.2006, claimant-appellant (Rajender Prasad) has filed A.O. No. 677 of 2006 for enhancement of compensation, whereas owner of vehicle Jeep No.U.P.03/2972 (Lalit Joshi) has filed A.O. No. 755 of 2006 before this Court. Heard learned counsel for the parties and perused the record. Learned counsel for the appellant/owner of vehicle Jeep No. U.P.03/2972 has submitted before me that in this case offending vehicle was having the permit for carrying 9 + 1, in all 10 passengers at a time. Although the evidence on record shows that the vehicle was carrying 14 passengers and on account of overloading the accident took place and the vehicle fell into ‘Khad’. He has further submitted that in this accident the claim petitions were filed only by three persons. He has thus submitted that in view of decision of the Hon’ble Apex Court in the case of National Insurance Co. Ltd. versus Anjana Shyam and others, reported in (2007) 7 SCC 445, 5 and Oriental Insurance Company Ltd. versus Amit and others, reported in 2007 (1) U.D.,385 (Uttarakhand High Court), it is the liability of insurance company to pay the amount of compensation upto the limit of permitted passengers. Learned counsel for the insurance company, on the other hand, has made the rival contention that it is a case of fundamental breach of insurance policy, therefore, the insurance company cannot be held to be liable for payment of amount of compensation. He has further stated that the ratio given in the judgments cited above by learned counsel for appellant/owner of offending vehicle would not apply to the facts and circumstances of the present case. After giving thoughtful consideration to the arguments advanced by learned counsel for the parties, I am of the view that in this case the permitted number of passengers was 9 + 1. It is not disputed by learned counsel for the appellant/owner of offending vehicle that claim petitions which were filed by the different claimants are not more than ‘10’ in any case. Learned counsel for appellant/owner of offending vehicle has already submitted before me that claim petitions are three in total number. If that is the situation, then the insurance company in view of decision of the Hon’ble Apex Court in the case reported in (2007) 7 SCC 445 (surpa), is liable to pay the amount of compensation to the claimants. The Hon’ble Apex Court in paragraph nos. 22 and 23 of aforesaid decision has clearly observed as under: 6 “22. Then arises the question, how to determine the compensation payable or how to quantify the compensation since there is no means of ascertaining who out of the overloaded passengers constitute the passengers covered by the insurance policy as permitted to be carried by the permit itself. As this Court has indicated, the purpose of the Act is to bring benefit to the third parties who are either injured or dead in an accident. It serves a social purpose. Keeping that in mind, we think that the practical and proper course would be to hold that the Insurance Company, in such a case, would be bound to cover the higher of the various awards and will be compelled to deposit the higher of the amounts of compensation awarded to the extent of the number of passengers covered by the insurance policy. 23. Illustratively, we may put it like this. In the case on hand, 42 passengers were the permitted passengers and they are the ones who have been insured by the Insurance Company. 90 passengers have either died or got injured in the accident. awards have been passed for varied sums. The Tribunal should take into account the higher of the 42 awards made, add them up and direct the Insurance Company to deposit the lump sum. Thus, the liability of the Insurance Company would be to pay the compensation awarded to 42 out of the 90 passengers. It is to ensure that the maximum benefit is derived by the insurance taken for the passengers of the vehicle, that we hold that the 42 awards to be satisfied by the Insurance Company would be the 42 awards in the descending order starting from the highest of the awards. In other words, the higher of the 42 awards will be taken into account and it would be the sum total of those higher 42 awards that would be the amount that the Insurance Company would be liable to deposit. It will be for the Tribunal thereafter to direct distribution of the money so deposited by the Insurance Company proportionately to all the claimants, here all the 90, and leave all the claimants to recover the 7 balance from the owner of the vehicle. In such cases, it will be necessary by the Tribunal, even at the initial stage, to make appropriate orders to ensure that the amount could be recovered from the owner by ordering attachment or by passing other restrictive orders against the owner so as to ensure the satisfaction in full of the awards that may be passed ultimately.” Further, the Division Bench of this Court has also observed in the judgment reported in 2007(1) U.D.,385 (supra) that merely overloading would not bring the matter within the ambit of fundamental breach unless there is an evidence that it was the case that excess passengers were sitting on the front seat due to which the driver could not drive the vehicle properly and could not be able to negotiate the bend due to overloading. In the instant case, in case, if the pleading of insurance company is that the accident took place on account of fundamental breach of the policy, then it was the duty of the insurance company to place the evidence in order to show that the accident occurred due to overloading as well as fundamental breach, but the insurance company has not adduced any such type of evidence. Therefore, I am of the view that in the light of the judgments of the Hon’ble Apex Court as well as the Division Bench of this Court, the liability of the insurance company to pay the amount of compensation is there. The owner of offending vehicle in question cannot be said to be liable to pay the amount of compensation to the claimants. The direction issued by the Tribunal in the impugned judgment and awards to this effect that the amount of compensation to be paid by the 8 insurance company would be recovered from the owner of vehicle, is set aside. As far as A.O. No. 677 of 2006 is concerned, the same has been filed by the claimant-Rajender Prasad for enhancement of compensation. As far as amount of compensation to be awarded in favour of claimant-Rajender Prasad is concerned, it is worthy to mention here that accident in this case has taken place in the year 2003. The Tribunal has adopted notional income of claimant-Rajender Prasad as Rs.15,000/- per annum, which does not appear to be convincing. In view of the decision of the Division Bench of this Court rendered in the case of Smt. Godavari Devi and others vs. U.P. State Road Transport Corporation and another, reported in 2006 (2) U.D.,665, the notional income of a person should be assessed at Rs.30,000/- per annum. In the present case, the age of deceased at the time of accident was 31 years. Therefore, In view of the latest pronouncement of the Hon’ble Apex Court given in the cases of Tamil Nadu State Transport Corporation Ltd. Versus S. Rajpriya & others, reported in 2005 (4) SC 87, The Managing Director, TNSTC versus Sripriya & others, reported in 2007(5) Supreme 301, New India Assurance Co. Ltd. vs. Kalpana (Smt) and others, reported in (2007) 2 SCC (Cri) 94 and Laxmi Devi & others vs. Mohammad Tabbar & another, reported in 2008 UAD 587, the multiplier in this case could not travel more than ‘13’ in any case. 9 If the notional income of Rs.30,000/- per annum is taken into consideration and the multiplier of ‘13’ is adopted, then the total amount of compensation comes to Rs.30,000 x 13=Rs.3,90,000/-. The claimant had suffered permanent disability upto the extent of 50% in this accident, therefore, he is entitled for 50% out of total amount of compensation, which comes to Rs.1,95,000/-. The Tribunal also awarded a sum of Rs.31,150.86 for medical expenses, a sum of Rs.10,500/- for transportation and a sum of Rs.5,000/- for physical and mental agony, which appears to be justified and needs no interference. On the basis of aforesaid calculation, I am of the view that total amount of compensation to be awarded in favour of claimant comes to Rs.1,95,000 + Rs.31,150.86 + Rs.10,500 + Rs.5000=Rs.2,41,650,86 (rounded Rs.2,42,000/-). For the foregoing reasons, A.O. No. 677 of 2006 is partly allowed. The impugned judgment and award dated 10.8.2006 passed in M.A.C. No. 66/2003, is modified to the extent that a sum of Rs.2,42,000/- (Rupees Two Lacs Forty Two Thousand), instead of Rs.1,59,150/- as has been awarded by the Tribunal, is to be paid to the claimant-Rajender Prasad by the insurer of vehicle i.e. National Insurance Co. Ltd., along with interest @ 6% per annum from the date of filing the petition till the date of actual payment (instead of conditional interest of 8% indicated in the impugned judgment and award). 10 Accordingly, A.O. No. 755 of 2006 is allowed. The impugned judgment and award dated 10.08.2006 passed in M.A.C. No. 89/2003, is modified to the extent that amount of compensation awarded in favour of claimant shall be paid by the insurance company and not by the owner of offending vehicle. The claimant shall also be entitled interest at the rate of 6% per annum from the date of filing the petition till the date of actual payment (instead of conditional interest @ 8% per annum as indicated in the impugned judgment and award). Let a copy of this judgment be placed in the file of A.O. No.755 of 2006. (B.C. Kandpal, J.) SP