The main legal point established in the judgment is the application of the principle of res ipsa loquitor to establish negligence and the need to assess composite negligence in determining compensation.

R.A. SINGH, J.-This first appeal has arisen out of judgment and award dated 16.7.1997 passed by Shri AK. Jain, the then Vth Additional District Judge, Bulandshahr, in M.AC.P. No. 217 of 1993 Smt. Vinesh Kumari and others v. Rajmdra Klimar and others, wherein the above claim petition has been allowed to the extent of Rs. 25,000/- only alongwith interest at the rate of 12 % per annum from the date of presentation of the claim petition till its realisation. The opposite parties No.3 to 5 have been held jointly and severally liable to pay the award amount of compensation.

2. A perusal of record would go to show that the claimant Smt. Vinesh Kumari and four others moved claim petition No. 217 of 1993 against the opposite parties under section 166 of Motor Vehicles Act, 1988 for compensation of Rs. 14,10,000/- with this allegation that on 21.6.1993 Narendra Kumar was on official duty of Life Insurance Corporation of India and after audit and inspection he was coming by his Fiat Car No. UAC. 7733 from Khurja to Bulandshahr and when the car reached near village Bhalauli on the highway, it collided with parked Truck No. U.M.O. 9543 at 9.30 p.m. as it was very dark and there was no parking light or indicator on the parked truck in question to show its presence on the road at the time of accident. The driver of Fiat Car No. UAC 7733 could not notice the said parked truck and the accident took place in which Narendra Kumar succumbed to his injuries sustained therein. The accident took place due to negligence of driver of Truck No. U.M.O. 9543, who parked the said truck on highway without any indication or parking light. The post-mortem examination of dead body of deceased Narendra Kumar was conducted by the doctor of District Hospital, Bulandshahr, on 22.6.1993. The age of the deceased was 38 years at the time of accident and he was drawing about Rs. 5,800/- per month as salary and all the claimants were dependents on the income of deceased. The claimants claimed Rs. 14,10,000/- as compensation along with interest on account of death of Narendra Kumar in this accident.

3. The opposite party No.2 National Insurance Company in its written statement denied the accident and alleged that no such accident took place, and if any accident had occurred that was due to negligence of driver, who was driving the above car involved therein.

4. The opposite parties No.3 and 4 in their written statements admitted that the deceased was in the employment of L.I.C. and on official duty on the date of accident where he was travelling in above Car No. U.A.C. 7733. The accident in question took place due to negligence of the driver of above Truck No. U.M.O. 9543 and the above car was insured with Oriental Insurance Company. The opposite party No.5 Oriental Insurance Company in its written statement alleged that the accident took place due to negligence of driver of above truck who was not impleaded as party in the claim petition. The driver of above car was also not impleaded as party and there was no registration of car and no valid driving licence of above car driver.

5. The learned Tribunal framed the following issues on the basis of the pleadings of parties --

(1) Whether the accident took place on 21.6.1993 at 9.30 p.m. near village Bhalauli at Khurja Bulandshahr Road, District Bulandshahr, due to negligence of driver of truck No. U.M.O. 9543 in which Narendra Kumar died? if so, its effect?

(2) Whether the drivers of car and truck were not having valid driving licence at the time of accident?

(3) To what amount of compensation the claimants are entitled?

(4) Whether the accident in question took place due to rash and negligent driving of driver of Car No. U.A.C. 7733? If so, it effect?

(5) Any other relief, if any?

6. The learned Tribunal decided issues No.1 and 4 simultaneously holding that the claimants could not prove the negligence either on the part of truck driver or car driver. Issue No.2 was decided against both the insurance companies with this