IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Delay Condonation Application No.4578/2009 Restoration Application No. 408/2009 In Appeal from Order No. 291 of 2006 Mahesh Chandra Arya … Appellant Vs Munni Devi & another …Respondents Sri Nand Prasad, Advocate for the appellant. Sri Ganesh Kandpal, Advocate for respondent No. 1 Sri D.S. Patni, Advocate for respondent No. 2 Oral Judgment (per Hon’ble B.C. Kandpal, J.) Heard Sri Nand Prasad, learned counsel for the appellant-applicant on Delay Condonation Application and perused the affidavit filed in support thereto. 2. I find sufficient ground to condone the delay in filing the Restoration Application. Accordingly, Delay Condonation Application is allowed. The delay in filing the restoration application is hereby condoned. 3. Also, heard learned counsel for the appellant/applicant on Restoration Application and perused the affidavit filed in support thereto. 4. I find sufficient ground to recall the order dated 26.02.2009 passed by this Court. 5. Accordingly, Restoration Application is allowed. Let the appeal be restored to its original number, along with stay order, if any. 6. The parties have agreed that the matter be disposed of finally today. 2 7. This appeal, under Section 173 of Motor Vehicles Act, 1988 has been filed by appellant - Mahesh Chandra Arya (owner of Truck No. U.P.-28/0357) against the judgment and award dated 02.09.2003 passed by Motor Accident Claims Tribunal/District Judge, Bageshwar, in M.A.C. Case No. 12 of 2002, Smt. Munni Devi Versus Mahesh Chandra Arya & another, whereby the learned Tribunal has awarded a sum of Rs. 8,64,000/- as compensation to the claimant. 8. Brief facts of the case, according to claimant, are that on 06..07.2002 truck No. UP-28/0357 was plying on road loading brick on it which was belonged to Diwan Ram. Seven numbers of passengers were traveling in the said truck. When the truck in question reached near Nai Basti at Bageshwar Dafot Motor road, due to rash and negligent driving of the driver, the said truck met with accident, as a result, all the seven passengers succumbed to multiple injuries sustained by them. The injured passengers were brought to Almora Hospital and the deceased Deenesh Chanrda was died on the way to the Hospital. It has been alleged that at the time of the accident the deceased Deenesh Chandra was serving in Junior High School as an Assistant Teacher and he was aged about 29 years and was getting a salary of Rs. 6,000/- per month. Thus, the claimants claimed a sum of Rs.10,00,000/- as compensation against the opposite parties. 9. Opposite party no. 1 contested the claim by filing written statement admitting therein that the said accident was not occurred due to negligence of driver of vehicle in question, rather it was occurred due to sudden falling of stone patching of the side of the road. He further submitted that the driver of the truck in question was having the valid and effective driving licence on the date of accident and the said truck was insured with United India Insurance Company. 3 10. Opposite party no. 2 – The United India Insurance Company Ltd. filed its written statement denying the contents of the claim petition. It has further submitted that the owner of the truck in question has not fulfilled all the conditions of insurance policy, hence the insurance company is not liable to pay the compensation. It was further submitted that at the time of the accident the driver of the vehicle was not having the valid and effective driving licence. It has also been stated that the truck in question was only meant for carrying goods and not for carrying the passengers. Hence, the claim petition is liable to be dismissed on the above grounds. 11. The learned Tribunal on the basis of pleadings of the parties framed necessary issues in the claim petition. Thereafter, both the parties led oral as well as documentary 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. 8,64,000/- along with interest at the rate of 9% per annum from the date of filing the petition vide judgment and award dated 02.09.2003. The Tribunal also directed that the amount awarded shall be paid by the owner of the truck No. U.P.-28/0357, Mahesh Chandra Arya. 12. Feeling aggrieved by the aforesaid impugned judgment and award, the appellant-owner of Truck No. UP28/0357, has preferred the present appeal before this Court. 13. Heard Mr. Nand Prasad, learned counsel for appellant, Mr. Ganesh Kandpal, learned counsel for the 4 claimant/respondent No. 1, Mr. D.S. Patni, learned counsel for respondent no. 2, United Insurance Company Ltd. and perused the record. 14. As far as the factum of accident is concerned, the finding recorded by the Tribunal that the accident took place on account of rash and negligent driving of the driver of the offending truck in question is concerned, that appears to be completely justified and I am in total agreement with the findings recorded by the Tribunal in this regard. 15. Learned counsel for the appellant, Mr. Nand Prasad, has emphasized this aspect that the deceased was travelling on the truck in question in order to assist the Diwan Ram, who was carrying his goods for unloading the same and hence, he could not have been treated as gratuitous passenger over the truck in question at the time of the accident. He has also submitted that the truck in question was authorized to carry seven passengers at a time, therefore, the deceased, Dinesh Chandra, could not have been treated as gratuitous passenger over the truck in question in any manner. He has also cited before me a decision rendered by the Hon’ble Apex Court in the case of Oriental Insurance Company Ltd. Vs. Devireddy Konda Reddy & Ors reported in 2003(1) UC 687 in order to support his contention. 16. As far as the ruling, which has been cited by learned counsel for the appellant before this Court is concerned, the ruling cited before me is entirely on different point. It does not apply to the facts and circumstances of the present case. The submission raised by learned counsel for the appellant appears to be devoid of any force on the ground that there is no nexus of the deceased, Dinesh Chandra Arya, 5 who was a teacher by profession at the time of the accident, with the goods which was being carried by the truck in question at the time of accident. The deceased was neither a labourer nor a close relative of Diwan Ram, who was carrying the goods over the truck in question. Therefore, it is just a conjectures and surmises on the part of the learned counsel for the appellant to submit that the deceased had been travelling in the truck in question in order to assist Diwan Ram, whose goods was being carried over the truck in question at the time of the accident. There is no evidence available on record, which may suggest that the deceased, Dinesh Chanrda was, in fact, travelling as a person who had any concern with the goods, which was being carried on the truck in question at the time of the accident. Neither Dinesh Chandra was owner of the goods being carried in the truck nor he had any nexus with the goods being carried in the truck. Therefore, the status of the deceased - Dinesh Chandra, on the truck in question at the time of the accident would be that of a gratuitous passenger and nothing else. In view of the decision of Hon’ble Apex Court in New India Assurance Company Ltd. Vs Asha Rani reported in (2003) 2 Supreme Court Cases 223 has held that the Insurance Company does not have any liability to pay the amount of compensation in case of gratuitous passenger. 17. I think that under these circumstances, the Tribunal has rightly fixed the liability upon the owner of the truck in question to pay the amount of compensation to the claimant and the finding arrived at by the Tribunal in this regard needs no interference. 18. As far as the amount of compensation to be awarded in favour of the claimant is concerned, I think that 6 the approach adopted by the learned Tribunal in this regard appears to be wrong. The learned Tribunal while deciding issue No. 4, has discussed this aspect. The deceased was aged about 29 years at the time of accident and it is stated in the claim petition that he had been drawing a salary of Rs. 6,000/- per month from his occupation, but there is no cogent evidence to establish that the deceased, in fact, had been getting a sum of Rs. 6,000/- per month as a salary. The finding arrived at by the Tribunal in this regard is merely a result of conjecture and surmises. According to the paper No. 41 C/2, the salary which the deceased has been drawing was Rs. 4,350/-. Therefore, the pay pocket in this regard, for want of any cogent evidence, could not have been assessed more that Rs. 5,000/- in any manner. The assessment of the Tribunal in assessing the monthly income of the deceased as Rs. 6,000/- appears to be wrong. In case, pay pocket of the deceased is taken into account as Rs. 5,000/- per month and after deducting 1/3 out of it as personal expenses of the deceased then the financial dependency of the claimant would come to Rs. 3,333/- (rounded Rs. 3,300). In this way, the annual financial dependency of the claimant would be thus Rs. 39,600 (3300 X 12). The age of the deceased was 29 years as is evident from the record at the time of the accident, therefore, keeping in view the age of the deceased as well as in the light of the observation made by Hon’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 in this case cannot travel more than ‘15’ in any manner. The multiplier adopted by the Tribunal as ‘18’ is certainly on the higher side. I am of the 7 view that in this case, the multiplier could not have travel more than ‘15’ in any manner. In case, if the multiplier of ‘15’ is adopted in this case, then the total amount of compensation to be awarded in favour of claimant comes to Rs. 5,94,000/- (39600 X 15) instead of Rs. 8,64,000 (as has been awarded by the Tribunal). 19. As far as the rate of interest is concerned, the Tribunal again fell in error in awarding the rate of interest as 9% per annum from the date of filing of petition till the actual date of payment. The rate of interest indicated in the impugned judgment and award is certainly on higher side. I am of the view that the claimant is entitled a sum of Rs. 5,94,000/- along with an interest of 7% per annum from the date of filing of petition till the actual date of payment (instead of the rate of interest of 9% as indicated by the learned Tribunal). 20. For the reasons stated above, the appeal is partly allowed. The impugned judgment and award dated 02.09.2003 is modified to the extent that the claimant is entitled for a sum of Rs. 5,94,000/- (Rs. Five lacs ninety-four thousand only) along with interest of 7% per annum from the date of filing of petition till the actual date of payment (instead of Rs. 8,64,000/- along with interest of 9% per annum as has been awarded by the Tribunal concerned). 21. The statutory amount deposited by the appellant before this Court be remitted to the Tribunal concerned. (B.C. Kandpal, J.) 23.06.2009 ASWAL