P.C. Pant, J.
1. This appeal, preferred under Section 173 of Motor Vehicles Act, 1988, is directed against the judgment/ award dated 15.6.2004 passed by Motor Accidents 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 vehicle to the claimants.
2. Brief facts of the case are that on 24.5.2002, Rajesh Kumar (deceased) was going on a motor cycle registration No. UP 47-2951 from Rudrapur to Kashipur. When he reached near village Maheshpura at Rudrapur-Kashipur Road, a truck registration No. UHJ 9049, which was being driven rashly and negligently by its driver, dashed at his motor cycle. Consequently, the motor cycle got unbalanced and dashed at another standing truck registration No. UP 04-A 0574. As a result of which Rajesh Kumar died due to injuries sustained by him,, 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 income was Rs. 7,000 per month. The truck registration No. UP 04-A 0574 was owned by Satnam Singh, appellant, while truck registration No. UHJ 9049 was owned by Rajendra Sharma, respondent. The truck registration No. UP 04-A 0574 was insured with New India Assurance Co. Ltd., Kashipur with policy cover note No. 995333, while truck registration No. UHJ 9049 was insured with National Insurance Co. Ltd., Kashipur. The claimant-respondent Maya Devi is mother of the deceased. The claimants-respondents Rakesh Kumar and Pradeep Kumar are brothers of the deceased and claimant-respondent Poonam is sister of the deceased. The claimants sought compensation to the tune of Rs. 20,00,000 by filing the Claim Petition No. 232 of 2002 before Motor Accidents 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. UHJ 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 Co. Ltd., with whom truck registration No. UHJ 9049 was insured under the policy cover note No. 025145. Satnam Singh, appellant, owner of the other 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 Co. Ltd., with whom his truck was insured under policy cover note No. 995333. New India Assurance Co. Ltd. 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 motor cycle was not insured 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 Co. Ltd. is not liable to make any payment. National Insurance Co. Ltd. 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. UHJ 9049 was insured, has pleaded that the terms of the policy disentitled the owner to be compensated by the insurance company in the impugned accident. The 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 Satnam Singh, owner of the truck registration No. UP 04-A 0574. Aggrieved by which, this appeal has been preferred by him.
3. We heard the learned Counsel for the parties and perused the entire record.
4. From the evidence of PW 2, Pramod Kumar, read with the copy of the postmortem report, paper No. 68-C/5 and the copy of inquest report, paper Nos. 68-C/6 and 68-C/7, it is proved on the record that Rajesh Kumar died in a road accident on 24.5.2002. 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 PW 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. 3,10,5 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, we are in agreement with learned Tribunal to the extent of the assessment of amount of dependency, i.e., Rs. 5,27,000 and Rs. 3,000 towards funeral expenses, etc., totalling the amount of loss suffered to Rs. 5,30,000.
5. But, we are unable to agree with the learned Tribunal that 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, we see the facts from the first information report or from the oral evidence on record adduced by PW 3, Pramod Kumar, DW 1, Satnam Singh and DW 2, Rajendra Sharma, it is very clear that the truck registration No. UP 04-A 0574 was standing on the road and motor cycle in question bearing registration No. UP 47-2951 in which Rajesh Kumar (deceased) was travelling dashed at said truck after getting unbalanced from the impact it got from truck registration No. UHJ 9049. Considering all facts and 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. UHJ 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 per cent of the contributory negligence is on the part of the truck registration No. UHJ 9049, out of remaining sixty per cent, 30 per cent contributory negligence is on the part of the motorcyclist (as none of the witnesses produced on behalf of the claimants have stated that motorcyclist was driving with normal speed on his left side) and rest 30 per cent lies with the owner of the truck registration No. UP 04-A 0574, which was parked 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. UHJ 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. We are of the opinion that out of the amount of loss suffered to the tune of Rs. 5,30,000, 30 per cent thereof, i.e., Rs. 1,59,000, the claimants are not entitled as there appears to be 30 per cent 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. UHJ 9049 is 40 per cent, 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 per cent, its liability as to amount of compensation comes out to be Rs. 1,59,000. Since, truck registration No. UHJ 9049 was insured with National Insurance Co. Ltd., Kashipur under policy cover note No. 025145 and truck registration No. UP 04-A 0574 was insured with New India Assurance Co. Ltd., 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 Co. Ltd. and the responsibility to pay amount of compensation to the tune of Rs. 2,12,000 is on the National Insurance Co. Ltd.
6. Therefore, the appeal is allowed. The impugned award dated 15.10.2004 is set aside. 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 Co. Ltd., respondent No. 7 and rest of the amount of Rs. 1,59,000 shall be paid by New India Assurance Co. Ltd., the respondent No. 6. The claimants shall also get 6 per cent 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 cent per annum. The amount of Rs. 25,000 deposited on 5.5.2005 by the appellant in this Court shall be refunded to him. No order as to costs.