IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 459 of 2005 Oriental Insurance Company Ltd. … Appellant Versus Sri Santosh Kumar Nathani & another … Respondents Sri K. K. Shah, Advocate, for the appellant Sri B. P. Nautiyal, Advocate, for respondent no. 1 Dated: April 9, 2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred against the judgment and decree dated 18.7.2005 and 22.7.2005 passed by Motor Accident Claims Tribunal/District Judge, Pauri Garhwal in M.A.C. Case No. 116 of 2002, Shri Santosh Kumar Nathani versus Oriental Insurance Company Ltd. and another. Briefly stated the facts, according to the claimants, are that on 21.7.2002 claimant- Santosh Kumar Nathani was coming on a Maruti Van No. U.P. 07-C-1203 from Chailsain to Gumkhul. The driver of said vehicle was driving the vehicle very rashly and negligently, on account of which near Kirtikhal the said vehicle met with an accident and fell into a ravine. The said vehicle was carrying in all 5 persons including the claimant who was injured in the said accident. The claimant-injured was immediately rushed to Government Hospital Kotdwar, from where he was sent to Himalayan Institute Jollygrant where he remained admitted from 21.7.2002 to 9.8.2002 and since 9.8.2002 the claimant was being treated at his home. The claimant-injured has pleaded that his spine was fractured at two places, his left hand elbow was injured, left toe was badly injured and due to the injury on the spine he is bed ridden and is not capable of doing any work. The claimant has further pleaded that he has spent Rs. 1,50,000/- on his treatment and a sum of Rs. 17,50,000/- was totally claimed by him as compensation. The claimant has also pleaded that he was 30 years of age and was running a readymade garments shop at Village Gumkhul from where he was earning Rs. 8000/- to Rs. 10,000/- per month. The opposite party no. 1-Oriental Insurance Company Limited filed written statement and admitted the registration of insurance of vehicle but denied the accident and injuries sustained to claimant-injured in the accident. It has pleaded that offending vehicle was being plied by a person who was not holding valid and effective driving licence. The claim petition has been filed on wrong and baseless ground and hence, the same was liable to be dismissed. The opposite party no. 2-onwer of offending vehicle filed written statement admitting therein the occurrence of accident. But he has denied rest of the contents of the claim petition. He has pleaded that all the papers/documents relating to the said vehicle were in order and the vehicle was being driven by a driver having a valid driving licence. He has further pleaded that at the time of accident the vehicle was insured with Oriental Insurance Company Limited and if any liability to pay compensation to the claimant arises, it rests upon the insurance company. He has further pleaded that the said accident had taken place due to a mechanical fault in the said vehicle. The learned Tribunal on the basis of pleadings of parties framed relevant issues in the claim petition. Parties led evidence in support of their cases. The learned Tribunal after having considered the material available before it and hearing learned counsel for the parties, partly allowed the claim petition and awarded a sum of Rs. 8,39,000/- as compensation, in favour of claimant, payable by opposite party no. 1-Oriental Insurance Company Ltd. The Tribunal also directed that this amount of compensation is to be paid by opposite party no. 1- insurance company within a period of two months, failing which, insurance company shall have to pay interest @ 9% per annum from the date of filing the petition till the date of actual payment. Feeling aggrieved by the aforesaid impugned judgment and decree, the appellant-insurance company has preferred the appeal before this Court. Heard Sri K.K. Shah, learned counsel for appellant-insurance company, Sri B.P. Nautiyal, learned counsel for respondent no. 1-claimant and perused the record. I have perused the impugned judgment and award thoroughly. The perusal of F.I.R. lodged by Hari Singh on 22.7.2002 shows that on 21.7.2002 when he was coming from Kirtikhal through Maruti Van No. U.P. 07-C 1203, the said vehicle met with an accident about 200 Mtr. ahead from Kirtikhal and fell into a ravine. The said vehicle was carrying in all 5 persons, namely, Santosh Nathani (claimant), Govind Singh, Manoj Negi, Pooran Singh and Hari Singh (informant) and on account of the said accident two persons out of them sustained nominal injuries whereas two other persons sustained grievous injuries who were rushed immediately to Government Hospital, Kotdwar. This fact has also been proved by PW-1 Sri Santosh Kumar Nathani in his deposition and this witness has not been cross examined. The learned Tribunal having considered the contents of F.I.R. and evidence adduced before it came to the conclusion that accident occurred due to rash and negligence of driver of offending vehicle on 21.7.2002. Therefore, in my view, the Tribunal was justified in holding that accident occurred due to rash and negligence of driver of offending vehicle on 21.7.2002. As far as amount of compensation to be granted to the claimant is concerned, the record reveals that income of the claimant-injured has been assessed by the Tribunal at Rs. 4,000/- per month. The Tribunal has assessed the income of the deceased at Rs. 4,000/- per month without having any documentary evidence available on record. The Tribunal itself has recorded a finding that the claimant could not produce any document in order to show his actual monthly income. The Tribunal did not have any other option except to adopt the principle of notional income under these circumstances, therefore, in the absence of any evidence with regard to income of the claimant- injured, the notional income of the claimant is to be taken into considered and in view of decision of the Division Bench of this Court in A.O. No. 2 of 2005, Shobhan Singh and another vs. New India Insurance Company and another, decided on 1.11.2006, the notional income of the claimant- injured comes to Rs. 36,000/- per annum. The certificate produced by the claimant-injured shows that he suffered 50% permanent disability. The claimant-injured was running the business of readymade garments and in view of statement of PW-3 Dr. Punit Gupta the condition of the claimant- injured is that he is not able to work and virtually bed-ridden. Therefore, it appears to me that for all practical purposes the claimant-injured suffered 100% permanent disability and he is not able to perform his work regularly as in view of the injuries sustained by him his life has come under peril and further the claimant-injured has also lost the future promotion of his career as well the probability of any better job. Further, keeping in view the pronouncement of Hon’ble Apex Court in the case of Tamil Nadu State Transport Corporation Ltd. Versus S. Rajpriya & others, reported in 2005 (4) SC 87, the method of applying the multiplier has been propounded therein but the Tribunal instead of adopting a proper multiplier in this case has considered the loss of income of the claimant for a period of 30-35 years on flimsy grounds which in any case cannot be said to be reasonable as nobody can pre-suppose the future uncertainty of any person. In the instant case, the claimant-injured was 30 years of age at the time of accident, therefore, keeping in view his age as well as his income a multiplier of ‘13’ would be just and reasonable in the instant case and after adopting the multiplier of ‘13’ the total amount of compensation to be awarded in favour of claimant comes to Rs. 36,000 x 13=Rs.4,68,000/-. The Tribunal has awarded a sum of Rs. 1,00,000/- under the head of medical treatment to the claimant-injured which appears to be justified and I do not find any reason to disturb this finding. Further, the Tribunal has awarded a sum of Rs.39,000/- for purchase of medicines etc. which also appears to be reasonable. The evidence on record reveals that the claimant-injured is suffering from such an ailment that he requires continuous medical treatment, therefore, I think it would be justified to further award a sum of Rs.50,000/- to the claimant for future medical treatment. On the basis of aforesaid calculation, the total amount of compensation to be awarded in favour of claimant comes to Rs.4,68,000 + Rs.1,00,000 + Rs.39,000 + Rs.50,000=Rs.6,57,000/-. The interest indicated in the impugned judgment and award is not to be disturbed and the same shall remain intact. On the basis of aforesaid reasons, the impugned judgment and award passed by the Tribunal is modified to the extent that the amount of compensation to be awarded in favour of claimant, is Rs.6,57,000/- (Rupees Six Lacs Fifty Seven Thousand only), instead of Rs.8,39,000/- as has been awarded by the Tribunal. Accordingly, the appeal is partly allowed. The impugned judgment and award is modified to the above extent. Sri B.P. Nautiyal, learned counsel for respondent no. 1 has submitted before the Court that the total amount deposited by the insurance company has been withdrawn by the claimant. If it is so, then the insurance company is at liberty to draw the proceedings for recovery of balance amount from the claimant. (B.C. Kandpal, J.) SP