IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 254 of 2006 U.P. State Road Transport Corporation ….Appellant Versus Suresh Chandra Upadhiyay & others..Respondents Sri Ashish Joshi, Advocate, for appellant. Sri Kishore Kumar, Advocate, for respondents nos. 1 & 2. Sri B.K. Gupta, Advocate, for respondent no. 3. Dated: May 2, 2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred against the judgment and order dated 9.9.2004 passed by Motor Accident Claims Tribunal/Addl. District Judge/F.T.C. III, Dehradun, in M.A.C.T. Case No. 291 of 2002, Sri Suresh Chandra Upadhiyay & another versus National Insurance Company Limited & others. The claimants-Sri Suresh Chandra Upadhiyay and Smt. Usha Upadhiyay filed a claim petition against the opposite parties under Section 166 of Motor Vehicles Act before the Claims Tribunal for grant of compensation, on account of death of their son-Rajeev Upadhiyay in a motor accident. According to the claimants, on the fateful day the deceased-Rajeev Upadhiyay was going to Khurja by Maruti Van No. D.L.6 CC-5234, which was being driven by Sri Mahendra Pal. When the said vehicle reached near Vinit Hotel Village Maman, Bulandshahr, Khurja, G.T. Road at about 8.30 a.m., the driver of Bus No. UP-14 B-0845 which was coming from opposite direction rashly and negligently, lost control on his driving and brought his bus on wrong side of the road and dashed the said Maruti Van. All passengers and driver of Maruti Van and deceased (Rajeev Upadhiyay) got multiple grievous injuries on their person. The deceased-Rajeev Upadhiyay and driver of said Maruti Van dies at the spot itself due to injuries sustained by them in the accident. The deceased was a healthy person of 25 years of age and after completion of his Engineering he got appointment letter from Multi-national Company and salary was settled Rs.15,000/- per month. The claimants claimed a sum of Rs.25,80,000/- as compensation against opposite parties. The opposite party no. 1-National Insurance Company Limited filed written statement and alleged that at the time of accident Maruti Car of opposite party no. 2 was being driven by its driver very carefully and accident had taken place due to rash and negligence of driver of offending bus. In case if any liability to pay the compensation is fixed, it is on the shoulder of opposite party no. 4- UPSRTC. Therefore, the claim petition filed against insurance company is liable to be rejected. The opposite party no. 2 did not contest her case by filing written statement, hence, order was passed to proceed exparte against her, on 28.5.2004, The opposite parties no. 3 and 4 filed their joint written statement denying the allegations made in the claim petition. They have pleaded that Bus No. UP-14B-0845 belonging to UPSRTC was being plied at Khurja-Delhi road in 21.7.2002. When the said bus reached near village Khalasia, Maruti Van No. D.L.6 CC-5234 being driven in high speed overtook the truck which was moving ahead of said Maruti Car, due to which it lost its control and collided with bus of Corporation on driver side. Thus, the accident occurred due to rash and negligence of driver of Maruti Car. The claim petition has been filed on wrong facts and the same is liable to be dismissed. 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 decreed the claim petition in favour of claimants for a sum of Rs.6,24,000/-, payable by opposite parties no. 1 and 4 i.e. National Insurance Co. Ltd. and UPSRTC, alowg with an interest @ 5% per annum from the date of filing the petition till the date of actual payment. The Tribunal also fixed the liability to pay the compensation upto an extent of 70% on UPSRTC and 30% on National Insurance Co. Ltd. Feeling aggrieved by the aforesaid judgment and award, the appellant-UPSRTC has preferred the appeal before this Court. Heard Sri Ashish Joshi, learned counsel for appellant/UPSRTC, Sri Kishore Kumar, learned counsel for respondents no. 1 & 2, Sri B.K. Gupta, learned counsel for respondent no. 3-insurance company and perused the record. Learned counsel for the appellant-UPSRTC has submitted that the learned Tribunal has wrongly held that accident took place due to negligence on the part of driver of bus and fixed the liability to pay 70% of awarded amount of compensation. I have gone through the impugned award and have considered the arguments of learned counsel for the appellant. From perusal of evidence it reveals that there is contributory negligence on the part of drivers of both the vehicles i.e. bus and Maruti Car. But as per site plan, it reveals that bus was being plied by its driver to the right side from middle of the road, where the accident occurred and under this circumstance, the negligence on the part of bus driver appears to be on higher side. Therefore, the Tribunal was justified in holding that negligence on the part of driver of the bus comes to 70%, being heavier than Maruti Car and more negligence of bus driver than of Maruti Car, while negligence on the part of driver of Maruti Car comes to 30%. I do not find any infirmity in the finding recorded by the Tribunal in this regard. As far as amount of compensation to be awarded in favour of claimants is concerned, it appears by the tribunal is on higher side in view of the pronouncement of the Hon’ble Apex Court cited in the case of Tamil Nadu State Transport Corporation Ltd. Versus S. Rajpriya & others, reported in 2005 (4) SC 87 and The Managing Director, TNSTC versus Sripriya & others, reported in 2007(5) Supreme 301. The multiplier keeping in view the age of the deceased in this case cannot be move than ‘10’. Therefore, I adopt the multiplier ‘10’ in this case, instead of ‘13’ as has been adopted by the Tribunal. As far as income of the deceased is concerned, the Tribunal has assessed the income of deceased at Rs.6000/- per month keeping in view the relevant material available on record. The finding of the Tribunal for assessing the income of the deceased is not liable to be disturbed. After deducting 1/3rd out of that amount, the total financial dependency of claimants comes to Rs.4000/- per month, which comes to Rs.4000 x 12=Rs.48,000/- per annum. After adopting the multiplier of ‘10’ keeping in view the age of parents the total financial dependency of claimants comes to Rs.48,000 x 10=Rs.4,80,000/- The liability to pay the compensation upto an extent of 70% shall be on UPSRTC and the remaining 30% on Maruti Car. The interest as indicated in the impugned judgment and award shall remain intact. Accordingly, the appeal is partly allowed. The impugned judgment and award is modified to the extent that claimants are entitled to get compensation to the tune of Rs.4,80,000/- (Rupees Four Lacs Eighty Thousand), instead of Rs.6,24,000/- as has been awarded by the Tribunal, along with an interest of 5% from the date of filing the petition till the date of actual payment. (B.C. Kandpal, J.) SP