JUDGMENT :

Saral Srivastava, J.

1. Heard learned counsel for the parties.

2. Since, these two appeals are arising out of same accident and issues involved are common, therefore, these two appeals are being decided together by common judgment.

3. The F.A.F.O. No. 310 of 2013 has been preferred by the insurance company challenging judgment and order dated 17.10.2012 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.11, Kanpur Nagar in M.A.C.P. No.954 of 2010. F.A.F.O. No. 4322 of 2012 has been preferred by the claimants for enhancement of compensation.

4. The brief facts giving rise to the present appeals are that one Krishna Gopal Tripathi on 24.07.2010 was riding motorcycle No. U.P-78-CB-0080 from office to his home and at about 12:45 pm when he reached near Anjali Nursing Home, a truck No. DL-1GB-1720 driven by its driver rashly and negligently dashed with the motorcycle. As a result of the said accident, Krishna Gopal Tripathi suffered multiple injuries and died. The deceased was stated to be employed as Chief Field Manager, Royal Five Branch Office Sahara Group Company, Kidvai Nagar, Kanpur and was earning about Rs. 65,000/- per month. In the aforesaid backdrop, a claim petition No.954 of 2010 was instituted by dependents of Late Krishna Gopal Tripathi praying for a compensation of Rs. 64,36,000/-.

5. The owner of the truck Isham Pal filed written statement denying the averments of the claim petition. He further pleaded that truck was insured with the United India Insurance Company Ltd. and was driven by a duly licenced driver. It was further pleaded that truck was plied with valid permit and fitness certificate and the liability to pay compensation, if any, is of the insurance company.

6. The insurance company also filed written statement contending therein that claim petition has been instituted on incorrect facts. It further pleaded that the owner of the truck has breached the terms and conditions of the insurance policy and the compensation prayed for is highly excessive and without any basis. On the basis of pleadings of the parties, Tribunal framed as many as four issues.

7. In the appeal preferred by the insurance company, learned counsel for the appellant has assailed the finding of the Tribunal on issue no.1 in respect of negligence of driver of truck and issue no.4 in respect of quantification of compensation. The learned counsel for the appellant has also assailed the finding of the Tribunal in the issue no.4 whereby Tribunal held that there was no valid fitness certificate of the truck on the date of the accident, and as there is reference of permit and driving licence in Section 149 (2) of the Motor Vehicles Act, 1988 but there is no reference of fitness certificate, therefore, the defence of breach of policy to the insurance company that truck was being plied without valid fitness certificate is not available and consequently, it held the liability of insurance company to pay the compensation.

8. On the issue of negligence, the Tribunal noticed the statement of PW-2 Babu Shankar Yadav, eye witness of the accident, who has categorically stated that deceased was riding the motorcycle on the right side of road and truck came in wrong direction and hit the motorcycle and, therefore, the accident was the outcome of the sole negligence of driver of truck. The Tribunal, thereafter, noticed the site plan of the accident and also the contents of F.I.R. and found that the contents of F.I.R. and site plan of the accident which clearly reveals that the accident was the outcome of the sole negligence of driver of truck is corroborated by the testimony of PW-2 and accordingly, it came to the conclusion that the accident had occurred due to the sole negligence of driver of truck.

9. The Tribunal while determining the issue no.4 in respect of quantification of compensation has found that the fitness certificate filed by the owner of the truck was valid upto 16.07.2010 whereas the accident had occurred on 24.0