S. K. KULSHRESTHA, J.

( 1 ) THE appellants, 23. 2. 2004 of the Motor Accidents Claims feeling aggrieved by the inadequacy of the Tribunal, Mandsaur in Claim Case No. 102 amount awarded as compensation, have of 2003 in which while awarding the sum filed this appeal against the judgment dated of Rs. 6,14,400 for loss of dependency the amount has been restricted to 50 per cent on the ground of the contributory negligence of the deceased and funeral expenses and loss of consortium has been added. An application under section 166 was filed on the averments that on 19. 5. 2003 at about 9. 30 p. m. deceased Mehboob Khan, husband of appellant No. 1 Manjo Bee, father of appellant Nos. 2, 3 and 4 and the son of appellant No. 5, was proceeding on his motor cycle along with his niece Farjana and Mehraj on the pillion to drop them at his in-laws place, the respondent came in a truck bearing registration No. CIK 0052 at an alarming speed and negligently with the result there was collision with the motor cycle resulting in death of Mehboob Khan and injury to Farjana Bee and Mehraj who were on motor cycle as pillion riders. It was contended that Mehboob Khan was employed as mechanic and was getting salary of Rs. 4,800 per month and he was earning about Rs. 2,500 from sundry job of machinery repair and thus his total income was Rs. 7,000 per month.

( 2 ) THE respondent Nos. 1 and 2 in their written statement pleaded that accident occurred on account of negligence of the motorcyclist. The motor cycle was on the wrong side and on seeing the vehicle approaching from the opposite side, it lost its balance and the rider fell down. Insurance company filed reply and stated that since the driver of the truck did not possess any licence, it was relieved of the obligation under the policy in view of the said breach. It also took the plea that it was on account of the negligence of Mehboob Khan that the accident occurred. After conclusion of the trial, the Claims Tribunal awarded the compensation as herein above stated.

( 3 ) LEARNED counsel for the appellants has made twofold contention. His first contention is that the deduction for contributory negligence is erroneous as there was no evidence to prove that the rider of the motor cycle was negligent. His contention is that merely carrying two pillion riders does not per se denote negligence. Similarly from non-production of the driving licence, negligence could not have been inferred. Second contention of the learned counsel is that monthly income has not been properly assessed and the overtime work which the deceased was doing has not been taken into account. Learned counsel has further disputed the correctness of the multiplier applied by the Tribunal.

( 4 ) LEARNED counsel for the insurance company has submitted that since licence was not produced to show that the motorcyclist was authorised to drive a motor cycle and since prima facie there were three persons on the motor cycle, inference of contributory negligence drawn by the tribunal does not call for any interference.

( 5 ) WE have heard the learned counsel for the parties and perused the record.

( 6 ) THE first question that arises for consideration is as to whether in the absence of the licence of the motorcyclist and there being two pillion riders on the motor cycle, can it be inferred that the motorcyclist was negligent. Learned counsel has invited our attention to M. A. No. 550 of 1995 in which a Division Bench of this court has made the following observations:

"it is true that he carried two passengers on his motor cycle as pillion rider while according to the Motor Vehicles Rules only one person could travel as pillion rider. Thus, the deceased committed breach of the rule of the Motor Vehicles rules. For this he could be convicted under the relevant provisions of the motor Vehicles Act but on the basis of it, it cannot be held that he was driving the motor cycle negligently. "

( 7 ) LEARNED counsel has also referred to mohinder Singh Soha

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