O.P. Saxena, J.
1. These are two connected appeals under Section 110-D of the Motor Vehicles Act against the award dated 30-3-77 made by the Motor Accident Claims Tribunal, Aligarh (V Additional District Judge) awarding a compensation of Rs. 40,000/- with pendentelite and future interest at 6% per annum and proportionate costs against the opposite parties Nos. 1, 4 and 6 and dismissing the petition against opposite party No. 3.
2. The facts giving rise to these appeals are that on 4-11-72 between 1.30 P.M. and 2 P.M., on the Aligarh-Tappal Road, an accident took place in which Ram Pal Singh was seriously injured and he ultimately succumbed to the injuries. He was going on a cycle on his way back home and Truck No. U.S.D. 8292 came from behind and dashed against his cycle. He was removed to Malkhan Singh Hospital where he died on 16-11-72 as a result of the injuries caused to him during the accident.
3. On 4-11-72 at 3.30 P.M., A.W. 3 Yad Ram Singh lodged report Ex. 4 at P.S. Lodha regarding the accident.
4. Ram Pal Singh was a resident of village Lodha, Pergana and Tehsil Koil, District Aligarh. He was employed as Class III Mechanic in Government press, Aligarh. Opposite parties Nos. 1 and 2 Jainti Prasad and Gauri Shanker are real brothers and were formerly the owners of Truck No. U.S.D. 8292. The truck was insured with merged in opposite party No. 5 New India Assurance Co. Ltd. Opposite party No. 3 is the father of opposite party No. 4 Om Prakash. Opposite party No. 1 Jainti Prasad Sharma is said to have transferred his half share in the truck in favour of opposite party No. 4 Om Prakash. The opposite parties Nos. 1 to 4 were impleaded as the owners of the truck and opposite parties Nos. 5 and 6 were impleaded as the insurers.
5. Smt. Ramshri Devi is the widow of the victim. The victim also left behind three minor children. The widow gave an application claiming a compensation of Rs. 80,000/-. It was said that the accident took place due to the rash and negligent driving of the truck.
6. Opposite party No. 1 contended that he had sold his half share in the truck to opposite party No. 4 Om Prakash and he had no interest in the truck since 4-3-72.
7. Opposite party No. 2 contended that opposite parties Nos. 1 and 3 had no concern with the truck and denied that an accident took place with the truck owned by him and opposite party No. 4 Om Prakash. It was said that the claim is time barred. The plea that the petition is bad for non-joinder of Raisul Has an, driver was also taken.
8. Opposite party No. 3 denied any concern with the truck.
9. Opposite party No. 4 raised similar pleas as raised by opposite party No. 2.
10. Opposite parties Nos. 5 and 6 did not dispute that Truck No. U.S.D. 8292 belonging to opposite parties Nos. 1 and 2 Jainti Prasad and Gauri Shanker was insured with opposite party No. 5 Anand Insurance Co. Ltd. which ultimately merged with opposite party No. 6 New India Assurance Co. Ltd. It was, however, said that the facts regarding the accident are not admitted and the liability of the Insurance Company cannot exceed Rs. 50,000/.
11. The Tribunal held that opposite parties Nos. 1, 2 and 4 are the owners of the truck, that the petition is not bad for non-joinder of the driver, that the accident took place due to the rash and negligent driving of the truck and that opposite parties are liable to pay a sum of Rs. 40,000/- as compensation. The Tribunal passed the impugned order and hence these appeals.
12. Sri S.A. Khan appeared for the appellants in F.A.F.O. No. 231 of 1977.
13. Sri A.K. Saxena appeared for the appellant in F.A.F.O. No. 237 of 237.
14. Sri N.K. Sharma appeared for the claimant respondent in both the appeals.
15. There is no substance in the contention of Sri S.A. Khan that the accident did not take place due to the rash and negligent driving of the truck. A.W. 3 Yad Ram Singh and A.W. 4 Roshan Singh have deposed in support of the claimant's version. The evidence shows that the victim was going on the left patri of the road. Two trucks were coming from behind. The truck painted green was on the metalled portion of the road. Truck No. U.S.D. 8292 which was painted yellow was coming behind. It tried to over take the other truck painted green from the wrong side. As a result of this it dashed against the appellant who was going on left patri of the road.
16. A.W. 3 Yad Ram Singh lodged report Ex. 4 on 4.11.72 at 3.30 P.M. at P.S. Lodha and it also corroborates the claimant's version. The opposite parties have not led evidence to show that the truck was being driven carefully and the accident took place due to the negligence of the victim. They have led evidence in support of the version that no accident took place with the truck.
17. O.P.W. 1 Raisul Hadan, the driver was examined in rebuttal. He, however, stated that no accident took place from his truck. O.P.W. 2 Debi Charan is the Munim in Jattari Transport Company and he stated that the truck remained standing in the Transport Company from 6 A.M. to 9 P.M. His evidence does not show that the truck was defective. The Tribunal rightly pointed out that the opposite parties did not produce the Challan book which would have shown as to whether this truck was plied on that day or not. O.P.W. 3 Giri Garao Prasad also stated that no accident took place from Truck No. U.S.D. 8292. He, however, remained at his house on that day O.P.W.A Panna Lal stated that he found the truck at the Transport Company when he went there to give food to his son Om Prakash. He did not note the time. He is the father of opposite party No. 4 who is one of the owners of the truck. The tribunal has considered the evidence produced by the parties and has given good reasons for accepting the claimants version. We are thus satisfied that the Tribunal rightly held that the accident took place due to the rash and negligent driving of the truck.
18. Shri A.K. Saxena and S.A. Khan submitted that the Tribunal did not make any deduction for lump sum payment of compensation. Sri. N.K. Sharma submitted that the victim left behind a widow and three minor sons. He also wanted to challenge the compensation awarded to the claimant. In any case he submitted that the amount awarded may not be reduced.
19. We have carefully considered the submissions made before us. We are of the opinion that it is not open to Sri. N.K. Sharma to challenge the amount of compensation awarded by the Tribunal as he did not file any appeal or cross-objection. The contention of the learned Counsel for the appellants is correct that a deduction for a lump sum payment should have been allowed according to the rules. We are thus of the opinion that after making a 20% deduction the Tribunal should have awarded a sum of Rs. 30,000/- as compensation.
20. The appeals are partly allowed. The awarded made by the Tribunal is modified. The compensation payable to the claimant is reduced to Rs. 30,000/- with interest at 6% per annum from the date of petition to the date of payment and the claimant will also get proportionate costs. The costs of the appeals shall be, however, easy.