IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 205/2008 Smt. Lalita @ Renu and others …. Appellants. Versus Sudhir Kumar and others … Respondents. Sri Mohd. Azim, learned counsel for the appellants. Sri V.K. Kohli, learned Senior Advocate for the respondent /National Insurance Comp. None has appeared for other respondents. Hon’ble B.C. Kandpal, J. (Oral) This appeal, under Section 173 of the Motor Vehicle Act, has been filed against the judgment and award dated 11-2-2008, passed by Motor Accident Claim Tribunal/Addl. District Judge/ I F.T.C. Rudrapur, Udham Singh Nagar, in MACT Case No. 44/2008, Smt. Lalita @ Renu and others Vs. Sudhir Kumar and others. 2- Brief facts of the case are that on 5-1-2004, deceased Purushotam riding in a cycle was coming to his house. At about 6.30 p.m. when he reached at Sanjay Nagar bridge on Kichha bypass canter truck No. U.P. 02-D- 3944 came there from opposite direction and in order to save a cow it dashed with the deceased and the deceased sustained injuries and died at the spot. According to the claimants the deceased was employed in Nagar Palika Parishad, Rudrapur and was getting Rs. 3,500/- per month salary. The claimants filed claim petition for compensation in lieu of death of the deceased. 3- The opposite party no.1, owner of the offending vehicle filed written statement and denied the rash and negligence of his truck. He however 2 alleged that the vehicle was insured with National Insurance Company and the driver was having valid driving license. Therefore the liability of compensation is upon the shoulder of insurer of the vehicle. 4- The opposite party no.2, National Insurance Company also contested the claim petition and denied the involvement of the truck in the accident. The insurance company alleged that it can be held liable to pay the compensation only after it is established that the driver was having valid and effective driving license and the vehicle was possessing all the valid documents at the time of accident. The insurance company also challenged the employment of the deceased in Nagar Palika Parishad Rudrapur. 5- The opposite party no.3, driver of the offending vehicle also contested the claim petition and alleged that the accident has occurred in order to save the cow at the place of occurrence. He also alleged that he was having valid driving license and the vehicle was insured with National Insurance Company. 6- The learned tribunal, on the basis of pleadings of parties framed relevant issues in the claim petition. Thereafter parties led evidence in support of their case. The tribunal after hearing learned counsel for the parties and considering the entire material available on record, has decreed the claim petition for a sum of Rs. 59,500/- as compensation against the National Insurance Company along with interest @ 7% per annum from the date of filing the petition till the date of actual payment. 3 7- Feeling aggrieved the claimants have preferred this appeal before this court for enhancement. 8- I have heard learned counsel for the parties and perused the entire material available on record. 9- Perusal of impugned judgment and award reveals that the tribunal has awarded the compensation against the National Insurance Company, but the approach adopted by the tribunal is erroneous. The accident in this case has taken place on 5-1-2004. The deceased was going in the cycle and the truck, which was coming from the opposite direction, hit the cycle of the deceased which resulted into his death. The tribunal while deciding issue No.1 has discussed all the evidence and came to conclusion that the accident took place on account of the contributory negligence of the truck driver as well as the deceased who was riding on the cycle at the time of accident. It is now to be seen that what is the ratio of negligence on the part of the deceased as well as the driver of the truck involved in the accident, which was insured with National Insurance Company (respondent No.2). The truck being the bigger vehicle and was plying on the highway at the time of accident, therefore, the responsibility on the truck driver was heavier than the other persons going on the road like pedestrians, cyclists etc. Had the truck driver been vigilant at the time of accident he could have very well avoided the accident. The evidence on record shows that the canter while overtaking the motorcycle dashed the cyclist crushing him beneath the tyre of the truck. It is not a case of the parties 4 that the road was blind curve at the place of accident, therefore, the driver of the truck had sufficient opportunity to see the cyclist coming from opposite direction from a sufficient distance. Therefore, in view of the dictum of ‘Res Ipsa Loquitor’ the truck driver was not vigilant and was rash and negligence at the time of accident. As I have already held that the ratio of negligence on the part of the truck driver is heavier than the cyclist, therefore, I hold that the truck driver in this case is responsible for rash and negligence up to an extent of 80%. The remaining 20% liability rests on the shoulder of cyclist for the reason that the cyclist had also sufficient opportunity to see the truck coming from the opposite direction. Had he been vigilant and careful he could have also avoided the accident. 10- For the reasons stated above the ratio of the negligence on the part of truck driver as well as the deceased falls 80% and 20% respectively. The deceased at the time of accident was 32 years of age and his notional income is taken as Rs. 30,000/- per annum. After 1/3rd deduction towards personal expenses of the deceased, the total annual dependency of the claimants comes to Rs. 20,000/-. In view of catena of decisions of Hon’ble Apex Court proper multiplier in this case, in the light of the age of the deceased, would be 14 and after adopting the multiplier of 14, the amount of compensation comes to Rs. 20,000/- X 14= Rs. 2,80,000/-. As I have already observed that the deceased was rash and negligent upto 20% hence 20% amount is to be deducted from the total amount of the compensation. Therefore the amount 5 of compensation payable by the National Insurance Company to the claimants comes to Rs. 2,80,000/ (-) Rs. 56,000/- = Rs. 2,24,000/-. 11- As far as the rate of interest awarded by the tribunal is concerned, that appears to be justified and needs no interference. 12- For the reasons stated above the appeal is liable to be partly allowed. 13- Accordingly, the appeal is partly allowed. The impugned judgment and award is modified up to the extent that the claimants are entitled to get a sum of Rs. 2,24,000/- from the National Insurance Company, as compensation along with the interest indicated in the impugned judgment and award, instead of Rs. 59,500/-, as has been awarded by the tribunal. Dated: 29-7-2009 (B.C. Kandpal, J.) ISB 6