JUDGMENT :

KAUSHAL JAYENDRA THAKER, J.

1. Heard Sri Sunil Kumar Misra, learned counsel for appellant and Sri Rajneesh Tripathi, learned counsel for the claimants. None has appeared for co-respondent.

2. By way of this appeal, the UPSRTC has felt aggrieved by the judgment and decree dated 20.8.2001 passed by the Motor Accident Claims Tribunal/ XI Additional District Judge, Bulandshahar whereby the respondent-claimants No. 1 to 3 had preferred M.A.C.T. Case No. 95 of 1999 claiming compensation for the death of sole breadwinner. The parties are referred as claimants-and appellants-UPSRTC. The tribunal granted a sum of Rs. 24,85,012/- with interest at the rate of 9%.

3. At the outset in view of the Judgment of Apex Court in UPSRTC vs. Km. Mamta and Others, AIR 2016 SC 948, all the issues which are raised before the appellate court must be decided.

4. The facts as they unfurl from the judgment and record appears that the claimants had preferred the claim petition for damages but inadvertently in caption mentioned petition under Section 163A of the Motor Vehicles Act, 1988 as was mentioned in the caption of the claim petition. The other averments and claim petition was preferred under Section 166 of Motor Vehicles Act, 1988 (hereinafter referred to as 'Act, 1988').

5. The claimants are the legal representatives of the deceased - Rakesh Chandra who died in the vehicular accident. Rakesh Chandra Bhatia, according to claimants was a senior assistant engineer posted in Harduaganj Power Station, Kashimpur, District Aligarh under the U.P. State Electricity Department. This monthly income when the accident occurred was Rs.23,803/-per month. He was survived by his widow and two daughters.

6. The accident took place on 28.1.1999 at 1:30 p.m. at National Highway in the vicinity of village Sikandarabad, just ahead of Idgah between Sikandarabad and Dadari in the district of Bulandshahar. The deceased was in fiat car No. DL-2 C-3693 which met with the bus belonging to UPSRTC bearing No. U.G.U.7161. It is averred that the before the deceased breath his last he had sustained multiple accidental injury. The deceased was moved to Sikandarabad Government Hospital where he was declared dead. The deceased succumbed to the accidental injuries sustained during the accident. The claimants claimed that they were legal representatives of the deceased as one was widow and two and three were his children (daughter).

7. The claimants claimed a sum of Rs.31,29,500/-. The deceased along with the claimants was going from Aligarh to Delhi in his fiat car No. DL-2 C-3693 the parents of the deceased later on were impleaded as proforma parties as opponents. The parents have supported the claim of the petitioner and have also claimed their share. The appellant-UPSRTC filed reply through its Regional Manager denying the claims made in paragraph no. 1 to 10 of the claim petition, they admitted the averment made in paragraph no. 11, 12 and 13 but again as far as paragraph no. 13 and 14 the appellant did not admit as the appellant had no knowledge about the said facts.

8. In the additional reply it is contended by appellants that the claimants are not entitled to get any amount. The appellants pleaded mis-joinder of the parties. The appellants have even denied the factum of manner in which the accident occurred. It is stated that there was rain on the said date. Para 13 of the reply when translated it states that the accident is accepted but the car when it reached the place of occurrence tired to overtake one other vehicle and that is how it came and dashed the bus and, therefore, it is averred that the the deceased was totally negligent whereas the driver of the bus was skilled driver and there was no negligence in driving on his part. It was averred that the insurance company of the car having not been made party, the claim petition required to be dismissed.

9. The parties l