HON’BLE SRI JUSTICE GHULAM MOHAMMED C.M.A. No.2954 of 2003 JUDGMENT: This C.M.A. is filed by the A.P.S.R.T.C. aggrieved by the order dated 7.4.2003 passed by the III Additional District Judge-cum-Chairman of Motor Accidents Claims Tribunal, Visakhpatnam in M.V.O.P.No.132 of 1999. The facts giving rise to this appeal are that on 8-12-1998, at about 3.30 P.M. while the deceased-Lingam Ramesh and another were going on a scooter and when it reached Chuttugunta Centre, an R.T.C. bus bearing Registration No. AP 10 Z 4761 came in a rash and negligent manner and hit the scooter. As a result, the deceased died instantaneously. The respondents , who are the parents of the deceased filed a claim petition before the Tribunal claiming compensation of Rs.2,50,000/-. It was pleaded that the deceased was aged about 21 years and was earning Rs. 1,500/- per month. While opposing the petition, the appellant-Corporation filed written statement before the Tribunal stating that on 8.12.1998, three youngsters were riding on the scooter. It denied the plea of the respondents that the accident took place on account of rash and negligent driving of the driver of the bus and stated that on the date of incident when the driver observed that three persons were coming on the scooter from a distance of about 30 to 40 yards in a rash and negligent and in a zig zag manner, slowed down the bus and the scooter crossed the front side of the bus and fell down on the road margin. As a result, the driver of the scooter lost control over the vehicle and fell down on the road, towards right side and the back side outer tyre of the bus ran over his head; whereas the other two persons fell towards their left side. It is further stated that at that time, the left side road margin was under repair and the width of the road is very narrow. In support of their case, the respondents-claimants examined 2 witnesses and the documents, Exs.A1 to A3, which are the copies of F.I.R., charge-sheet, death certificate ad post-mortem report were exhibited. On behalf of the appellant, R.W.1 was examined and Ex. B1 was marked. On a consideration of the evidence on record, the Tribunal held that the accident was a result of rash and negligent driving of the R.T.C. bus. It further held that the deceased, at the time of his death was aged about 22 years and while taking the notional income of the deceased as Rs. 15,000/- annually and after deducting 1/3rd of the amount towards personal expenses, by applying the multiplier of 17, it determined the loss of dependency at Rs. 1,70,000/-. In addition to this, it also granted a sum of Rs.5,000/- towards loss of estate, Rs.2,000/- towards funeral expense; Rs.2,000/- towards transportation charges. In all, the Tribunal granted a sum of Rs.1,79,000/- as compensation. Aggrieved by the same, the appellant-Corporation filed the present appeal. Learned counsel for the appellant contended that the tribunal erred in taking Rs. 15,000/- as annual income of the deceased when there was no evidence to show that the deceased was earning that much amount. Since the deceased was unmarried, the tribunal ought to have taken the age of the mother of the deceased into consideration while determining the loss of dependency and applied the multiplier of 11.40 instead of 17. The learned counsel also contended that the deceased also contributed to the occurrence of the accident since there was triple riding on the scooter at the relevant point of time and the Tribunal was in error in not deducting any amount towards negligence of the deceased. On the other hand, learned counsel for the respondents would support the impugned order and states that the same does not require any interference. The points that arise for consideration in this appeal are whether the deceased was guilty of contributory negligence and whether the dependency assessed by the Tribunal is proper? There is no dispute about the occurrence of the accident. There is also no dispute about the fact three persons were travelling on the scooter at the relevant point of time. As per Section 128 of the Motor Vehicles Act, triple riding is prohibited. It is apt to extract the said provision here, which reads thus: "128. Safety measures for drivers and pillion riders :--(1) No driver of a two wheeled motor cycle shall carry more than one person in addition to himself on the motor cycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the motor cycle behind the driver's seat with appropriate safety measures. (2) In addition to the safety measures mentioned in Sub-section (1), the Central Government may, prescribe other safety measures for the drivers of two wheeled motor cycles and pillion riders thereon." Therefore, on a perusal of the aforesaid provision, it is quite clear that triple riding is prohibited on a two wheeler. In fact, P.W.2. who is the direct witness to the incident has categorically stated in his evidence that at the relevant point of time, the deceased was driving the scooter and himself and another sat as pillion rider and the R.T.C. bus came in a rash and negligent manner and hit the scooter. Though it is the specific evidence of P.w.2, who claims to be an eye-witness to the incident that the driver of the R.T.C. bus drove the bus in a rash and negligent manner, normally, one will certainly feel discomforted when riding a two wheeler with two pillion riders and naturally his balance over the vehicle will be limited by reason of accommodating two pillion riders and he will not have that ease and comfort of riding with one pillion rider. Since in the instant case, it is admitted that there was triple riding on the scooter, therefore, a presumption could be drawn that the rider of the scooter was discomforted by reason of allowing two pillion riders and thus contributed to the accident. Therefore, the contributory negligence is fixed at 75% on the part of the driver of the bus and 25% on the driver of the scooter. In so far as fixation of multiplier is concerned, undisputedly, the deceased was aged about 22 years at the time of his death and since he is an unmarried bachelor, the tribunal ought to have taken the age of the mother of the deceased into consideration while determining the multiplier. In the instant of the case, since the mother of the deceased was aged about 44 years, the appropriate multiplier that would be applicable as per the decision of the Apex Court in SARLA VARMA vs. DELHI TRANSPORT CORPORATION AND ANOTHER([1]), would be ‘14’ instead of 17. Coming to the quantum of compensation is concerned, though there is no evidence to show that the deceased was earning about Rs.1500/- per month, while taking the average monthly income of the deceased as Rs.1500/- and after deducting 1/3rd of the amount towards personal expenses, the net contribution of the deceased towards his family would be Rs.1000/- per month and Rs.12,000/- annually. Accordingly, while taking the earnings of the deceased at Rs.12,000/- per annum and by applying multiplier of 14, the loss of dependency is assessed at Rs. 1,68,000/-, which is rounded off to Rs. 1,70,000/-. Since it has been held that the deceased also contributed to the accident by allowing two more persons to travel on his vehicle in violation Section 128 of the Act, 25% of the compensation amount has to be deducted towards pecuniary damages and after deducting the said amount, respondents are entitled for a total sum of Rs. 1,28,000/-. In addition to this, the respondents are entitled for a sum of Rs. 5,000/- towards loss of estate; Rs.2,000/-towards transportation charges and Rs. 2,000/- towards funeral expenses as awarded by the Tribunal. In all, the claimants are entitled for a total compensation of Rs. 1,37,000/- In so far as interest is concerned, the interest awarded by the Tribunal at 9% per annum is reduced to 7.5% per annum. The appeal is accordingly allowed to the extent indicated above. No costs. __________________________ GHULAM MOHAMMED,J DATE: 22nd July, 2010 pnb [1] 2009(6) SCALE 129