IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 205 of 2005 Satnam Singh ...Appellant Versus Smt. Maya Devi & others …Respondents Mr. B.S. Parihar, Advocate for appellant Mr. Mohd. Azim, Advocate for respondent no. 5 Mr. T.A. Khan, Advocate for respondent no. 6 Mr. Lalit Belwal, Advocate for respondent no. 7 None for respondents no. 1 to 4 Dated: 03-03-2009 Hon’ble B.C. Kandpal, ACJ. This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred against the judgment and award dated 15.10.2004 passed by the Motor Accident Claims Tribunal/District Judge, Udham Singh Nagar, whereby in Motor Accident Claim Petition No. 234 of 2002, an amount of compensation to the tune of Rs.5,30,000/- has been directed to be paid by the owner of the vehicle to the claimants. Brief facts of the case, are that on 24.05.2002, Rajesh Kumar (deceased) was going on a motorcycle registration No. UP-47/2951 from Rudrapur to Kashipur. When he reached near village Maheshpura at Rudrapur-Kashipur Road, a truck registration No. U.H.J. / 9049, which was being driven rashly and negligently by its driver, dashed at his motorcycle. Consequently, the motorcycle got disbalanced and dashed at another standing truck registration No. UP 04-A / 0574. As a result of which Rajesh Kumar died due the injuries sustained by him. 2 A first information report was lodged at the police station Bazpur. At the time of his death, the deceased was aged 29 years. It is alleged that his monthly income was Rs. 7,000/- per month. The truck registration No. UP 04-A / 0574 was owned by Sri Satnam Singh (appellant) while truck registration No. U.H.J./9049 was owned by Rajendra Sharma (respondent). The truck registration No. UP 04-A / 0574 was ensured with New India Assurance Company Ltd., Kashipur with policy cover note No. 995333, while truck registration No. U.H.J. / 9049 was ensured with National Insurance Company Ltd., Kashipur. Claimant-respondent, Maya Devi is mother of the deceased. Claimants-respondents, Rakesh Kumar and Pradeep Kumar are brothers of the deceased and claimant-respondent. Km. Poonam is sister of the deceased. The claimants sought compensation to the tune of Rs. 20,00,000/- by filing claim petition No. 232 of 2002 before the Motor Accident Claims Tribunal at Udham Singh Nagar. The claim petition was contested by both the truck owners and both the Insurance companies. In the written statement of Rajendra Sharma, owner of truck registration No. U.H.J. / 9049, the contents of the claim petition are denied. However, it is stated that compensation, if any, payable, is to be paid by National Insurance Company, with whom truck registration No. U.H.J. / 9049 was ensured under policy cover note No. 025145. Sri Stanam Singh (appellant) owner of the another truck registration No. UP 04-A / 0574 has also denied the contents of the claim petition and has alleged that liability, if any, to pay the amount of compensation lies with New India Assurance Company, with whom his truck was ensured under policy cover note No. 995333. 3 The New India Assurance Company has filed its own written statement denying the contents of the claim petition with additional pleas that no information of the accident was provided to it under Section 158(6) of the Motor Vehicles Act, 1988. It is further alleged that, even otherwise the motorcyclist had a contributory negligence in the accident. It is also pleaded that the motorcycle was not ensured with any Insurance company, as such the answering respondent is not liable to make any payment. Lastly, it is pleaded that the truck registration No. UP 04-A / 0574 was a standing truck and there can be no liability as against said truck. Consequently, New India Assurance Company is not liable to make any payment. National Insurance Company filed its own written statement denying the contents of the claim petition with the similar additional pleas as above. This Insurance company with whom truck registration No. U.H.J. / 9049 was ensured, has pleaded that the terms of the policy disentitled the owner to be compensated by the Insurance company in the impugned accident. Learned Tribunal after framing the issues, recording the evidence and hearing the parties, has awarded an amount to the tune of Rs. 5,30,000/- against Sri Satnam Singh, owner of the truck registration No. UP 04-A/0574. Aggrieved by which, this appeal has been preferred by him. It is to be noted that this appeal was previously heard by the Division Bench of this Court and appeal was allowed vide judgment and order dated 8th July, 2005. Thereafter, an application for recall of the judgment was filed by the counsel for National Insurance Co. Ltd. and judgment dated 8th 4 July, 2005 was recalled vide order dated 04.07.2008. Thus, the appeal has come up for hearing before me. Heard learned counsel for the parties and perused the entire record. From the evidence of P.W. 2, Pramod Kumar read with the copy of the postmortem report, paper No. 68-C/5 and copy of inquest report, paper No. 68-C/6 and 68-C/7, it is proved on the record that Sri Rajesh Kumar died in an accident on 24.05.2002. Now, the question is that which of the vehicles involved in the accident are responsible for the accident and who is liable to make the payment of compensation and to what amount? As to the amount of compensation in view of the statement of P.W. 1, Akbar Ali, who is an official of North Eastern Railways, it is clear that Rajesh Kumar (deceased) was employed with the Railways whose basic salary was Rs. 3,105/- per month at the time of the accident. It appears that though total emoluments of the deceased were Rs. 4,701/- per month but as discussed by learned Tribunal the actual carry home salary of the deceased was Rs. 3,875/-. That being so, his annual income comes out to be Rs. 46,500/. If one-third of his salary is deducted on account of the fact that he would have spent that amount on himself, the dependency of the claimants comes out to be Rs. 31,000/- per annum. The deceased was aged 29 years and as such learned Tribunal has rightly applied multiplier of 17. Therefore, I am in agreement with the learned Tribunal to the extent of the assessment of amount of dependency i.e Rs. 5,27,000 and Rs. 3000/- 5 towards funeral expenses etc. totaling the amount of loss suffered to Rs. 5,30,000/-. But, I am unable to agree with the learned Tribunal that Sri Satnam Singh (appellant), owner of the truck registration No. UP 04-A / 0574 is alone liable to make the payment of said amount, for the reason that the impugned accident is a clear case of contributory negligence. Whether, I see the facts from the first information report or from the oral evidence on record adduced by P.W. 3, Pramod Kumar; D.W. 1, Satnam Singh and D.W. 2, Rajendra Sharma, it is very clear that the truck registration No. UP 04-A/0574 was standing on the road and motorcycle in question bearing registration No. UP-47/2951 in which Rajesh Kumar (deceased) was travelling dashed at said truck after getting disbalanced from the impact it got from truck registration No. U.H.J./9049. Considering all facts & circumstances and the evidence on record, it is a case of rash and negligent driving on the part of the driver of truck registration No. U.H.J. / 9049 and also that of motorcyclist. It is also clear that the truck registration No. UP 04-A/0574 was negligently parked over the road without the back dipper light being switched on. That being so, in our considered opinion the 40% of the contributory negligence is on the part of the truck registration No. U.H.J./9049 out of remaining sixty per cent, 30% contributory negligence is on the part of the motorcyclist (as none of the witnesses produced on behalf of claimants have stated that motorcyclist was driving with normal speed on his left side) and rest 30% lies with the owner of the truck registration No. UP 04-A / 0574, which was parked 6 on the road negligently. It has clearly come on the record not only from the first information report but also from the oral evidence that the truck registration No. U.H.J. / 9049 was being driven rashly and negligently by its driver. It has also come on the record that the truck registration No. UP 04-A / 0574 was parked on road without switching on the back dipper light. I am of the opinion that out of the amount of loss suffered to the tune of Rs. 5,30,000/-, 30% thereof i.e. Rs. 1,59,000/-, the claimants are not entitled as there appears to be 30% contributory negligence on the part of the motorcyclist. Therefore, the net amount of compensation payable is Rs. 3,71,000/-. Since the negligence on the part of the truck registration No. U.H.J./9049 is 40%, the liability of owner of said truck comes out to be Rs. 2,12,000/- and that of the owner of the truck registration No. UP 04-A / 0574 being 30%, its liability as to amount of compensation comes out to be Rs. 1,59,000/-. Since, truck registration No. U.H.J./9049 was ensured with National Insurance Company, Kashipur under policy cover note No. 025145, and truck registration No. UP 04-A / 0574 was ensured with New India Assurance Company, Kashipur under policy cover note No. 995333, as such the liability to make the payment of Rs. 1,59,000/- is on respondent New India Assurance Company and the responsibility to pay amount of compensation to the tune of Rs. 2,12,000/- is on the National Insurance Company. After giving thoughtful consideration to the judgment dated 8th July, 2005 passed by the Division Bench of this Court, I am of the view that 7 the Division Bench of this Court has decided the matter after considering the entire material evidence available on record. I share my views with the finding recorded by the Division Bench of this Court. Therefore, the appeal is allowed. The impugned award dated 15.10.2004 is set aside. The claim petition shall stand allowed for Rs. 3,71,000/- only. Out of said amount a sum of Rs. 2,12,000/- shall be paid by National Insurance Company (Respondent No. 7) and rest of the amount of Rs. 1,59,000/- shall be paid by New India Assurance Company (Respondent No. 6). The claimants shall also get 6% interest per annum thereon from the date of claim petition till the payment is made by the aforesaid Companies. If the amount is not deposited within one month from today, the rate of interest payable thereafter shall be 9% per annum. The statutory amount deposited by the appellant with this Court be remitted to the Tribunal concerned. (B. C. Kandpal, ACJ.) SP