J.C.S. Rawat, J.
1. This is an appeal under Section 173 of the Motor Vehicles Act, 1988 filed by the claimant for enhancement of the compensation awarded by the Motor Accident Claims Tribunal/District Judge, Rudraprayag, in Motor Accident Claim Case No. 38 of 2003 on 10.3.2004.
2. Brief facts of the case are that on the ill-fated day i.e. 2.8.2003 at about 5.00 p.m. Smt. Deveshwari Devi wife of claimant Trilok Singh was travelling in vehicle (Tata Sumo) No. UA 07-B-4973 which was going from Karanprayag to Srinagar. The said vehicle met with accident due to rash and negligent driving of its driver near Narkota-Khankhara in which Smt. Deveshwari Devi aged about 32 years died and her husband (claimant) received injuries on his head. The deceased was posted as Assistant Teacher under the Basic Education Officer, Chamoli at the time of accident. She was getting monthly salary Rs. 8,044. The claimant filed claim petition for compensation of Rs. 15,00,000 before the Motor Accident Claims Tribunal (hereinafter referred to as the Tribunal).
3. The claim petition was contested by the opposite parties by filing their separate written statement. The opposite party No. 1 Oriental Insurance Company in its written statement denied the allegations of the claim petitions. It was further alleged that the offending vehicle was being driven in violation of the terms and conditions of the policy. Hence, the opposite party-Insurance Company is not liable to pay any compensation. The opposite party No. 2-ownerofthe vehicle in question alleged that the vehicle in question was being driven by a skilled driver who was having a valid driving licence at the time of accident. The accident took place due to the mechanical failure in the vehicle and, if any, liabilities are made out, that shall be borne out by the opposite party No. 2-the Oriental Insurance Company with whom the offending vehicle was insured at the time of alleged accident.
4. The learned Tribunal framed necessary issues on the pleadings of the parties and allowed the claim petition for a total sum of Rs. 4,85,000 as compensation along with interest at the rate of 9% per annum from the date of application till the date of realisation against the Oriental Insurance Company. Feeling aggrieved, the Oriental Insurance Company/opposite party No. 1 has come up in this appeal.
5. In the appeal the Oriental Insurance Company/respondent No. 2 filed cross-objection.
6. We have heard the learned Counsel for the parties and perused the entire record.
7. The learned Counsel for the appellant contended that the learned Tribunal has committed illegality in using the multiplier of '10', whereas in the Motor Vehicles Act, the multiplier of '17' is provided for the age group of 30-35 years and as such the amount of compensation is liable to be enhanced. The learned Tribunal has dealt with this point in issue No. 6. Keeping in view the dependency of the petitioner upon the deceased and the quantum which is being awarded to the appellant, the Tribunal has applied the multiplier of '10'. According to the copy of Parivar Register issued by Village Pradhan (paper No. 5 Ga/8), which was filed by the claimant and proved by him at the time of statement on oath, the deceased was 33 years of age. The Apex Court in the case, United India Insurance Company Ltd. etc., etc. v. Patricia Jean Mahajan and Ors. etc., etc. reported in II (2002) ACC 460 (SC) : 2002 (2) ACJ 100 (SC), has held in para 20 as under:
The Court can not be totally oblivion to the realities. The 2nd Schedule while prescribing the multiplier, had maximum income of Rs. 40,000 p.a. in mind, but it is considered to be a safe guide for applying prescribed multiplier in cases of higher income also but in cases where the gap in income is so wide as in the present case income is 2,26,297 $, in such a situation, it can not be said that some deviation in the multiplier would be impermissible. Therefore, a deviation from applying the multiplier as provided in the 2nd Schedule may have to be made in this case. Apart from factors indicated earlier the amount of multiplicand also becomes a factor to be taken into account which in this case comes to 2,2,6,297 $ that is to say an amount of around Rs. 68 lakh per annum by converting it at the rate of Rs. 30. By Indian standards it is certainly a high amount. Therefore, for the purposes of fair compensation, a lesser multiplier can be applied to a heavy amount of multiplicand. A deviation would be reasonably permissible in figure of multiplier even according to the observations made in the case of Susamma Thomas where a specific example was given about a person dying at the age of 45 leaving no heirs being a bachelor except his parents.
The Apex Court in para-22 of the said judgment has further observed that while awarding compensation, the provisions contained in the Second Schedule may be taken as a guide including the multiplier, but there may arise some cases, as one in hand, which may fall in the category having special feature or facts calling for deviation from the multiplier usually applicable.
8. Keeping in view the facts and circumstances, we find that the multiplier applied in this case is just and proper.
9. Learned Counsel for the appellant further submitted that the Tribunal has erred in reducing the amount one-third twice in calculating the compensation. We find force in this contention of the learned Counsel for the appellant. A Division Bench of this Court, of which one of us (P.C. Verma, J.) was a member, has already held in F.A.F.O. No. 383 of 2001 (Old No. 845/1991), Smt. Kanti Devi and three Ors. v. Oriental Insurance Co. and two Ors. decided on 12th August, 2004, that reduction of one-third twice towards the expenditure is apparently illegal and allowed the appeal filed by the claimant/appellants on this score. The said order has not been challenged in the appeal. In the present case, the Tribunal, firstly, has reduced one-third of the monthly salary Rs. 8,000 which comes to (Rs. 8000-2000 : Rs. 6000 x 12) Rs. 72,000 per annum and after applying the multiplier of' 10' the amount comes to Rs. 7,20,000. Again the Tribunal reduced one-third of Rs. 7,20,000 and allowed the compensation for an amount of (7,20,000-2,40,000) Rs. 4,80,000 on account of death of the deceased and further awarded Rs. 5000 on account of loss of consortium. The reduction of one-third twice towards the expenditure, as also held by this Court in the aforementioned appeal, is apparently illegal. Therefore, the compensation which was liable to be paid to the claimant/appellant was Rs. 7,20,000 on account of death of his wife.
10. The learned Counsel for the Oriental Insurance Company contended that the appellant/claimant was the only legal heir of the deceased. The appellant was himself earning member of the family and he does not fall in the category of the dependant. He further contended that the appellant is an Advocate practising at Rudraprayag. The perusal of the written statement reveals that the Insurance Company had not taken the plea that the claimant is earning the money for maintaining himself. It is not on record as to how much the appellant was earning at the time of the accident of his wife or at present from his profession. There is no evidence adduced by the Insurance Company in support of his contention. The claimant appeared before the Tribunal as P.W. 1. He deposed in his evidence that his wife was earning a sum of Rs. 8,044 per month at the time of accident and was paying Rs. 6,000 to him in addition to that she was a housewife and she used to work of the daily domestic requirements at the residence. No suggestion has been put to the claimant a to how much he earns from his profession. In absence of any evidence on record as to how much he was earning it cannot be said that the claimant was earning sufficient amount and he was not dependent upon the deceased. The death occurred in the year 2003. Rudraprayag is a very small district having a pendency of about 200 cases and there are number of lawyers. It cannot be held that the claimant would have been earning any substantial amount from his profession. Keeping in view the evidence on record, we are of the opinion that the Tribunal has rightly held that the appellant was depended upon the deceased.
11. The learned Counsel for the Objector-Insurance Company further contended that the Insurance Company has a right to contest the case on merit on all the grounds under Section 170 of the Motor Vehicles Act. It was further contended that the respondent No. 3 owner of the vehicle in question did not contest the case properly and the respondent No. 3 and the claimant were in collusion for seeking the compensation from the Insurance Company. It was also pointed out that the learned Tribunal has erred in awarding the compensation without considering the above facts.
12. The Insurance Company has not taken the plea in the written statement before the Tribunal that there was collusion between the parties. Only by filing application under Section 170 of the Motor Vehicles Act (paper No. 17-Kha) the Insurance Company has taken a plea that there is collusion between the owner and a the claimant. We have gone through the record of the case and find that there is neither permission of the Tribunal under Section 170 of the Motor Vehicles Act, nor there is any finding that there has been collusion between the owner and the claimants. In this case the owner of the offending vehicle has contested the case before the Tribunal and has also filed documentary evidence, per list 11-C. Therefore, the appellant-Insurance Company cannot be allowed to challenge the quantum of compensation by filing the cross-objection. The perusal of the record further reveals that there was no collusion between the parties and the evidence on record clearly shows that the parties have diligently pursued the matter before the Tribunal. Further, the award can be challenged by the Insurance Company on limited grounds under the provisions of the Act. We are fortified in our view by the Apex Court judgment in the case of National Insurance Co. Ltd. Chandigarh v. Nicolletta Rohtagi and Ors. III (2002) ACC 292 (SC) : 2003 (1) UC 33. In that case, it has been observed by the Apex Court that, 'even if no appeal is preferred under Section 173 of 1988 Act by an insured against the award of a Tribunal, it is not permissible for an insurer to file an appeal questioning the quantum of compensation as well as findings as regard negligence or contributory negligence of the offending vehicle'. Thus in view of the above law laid down by the Apex Court, the contention raised by the learned Counsel for the Insurance Company is rejected.
13. In view of above discussion, the appeal is allowed partly. The claimant/appellant shall be paid Rs. 7,25,000 as compensation instead of Rs. 4,85,000 by the e respondent No. 2/Oriental Insurance Company along with interest as ordered by the Tribunal, the amount already paid by the Insurance Company shall be adjusted. The cross-objection filed by the Oriental Insurance Company is dismissed accordingly. No order as to costs.