BHAWNA Vs. ASHOK KUMAR

JUDGEMENT

(1.) This appeal has been preferred by three appellants, namely, the wife, father and mother of the deceased Mukesh Kumar. An accident was caused on 28.7.1984 and in that accident one Mukesh Kumar expired. On the claim petition filed by these appellants the learned Tribunal Judge allowed Rs. 15,000/- under Section 92-A of the Motor Vehicles Act, 1939 and Rs. 55,000/- to the claimants but not in equal proportion. It has been stated that the deceased was aged about 21 years. He was working in a private concern and getting Rs. 1,200/- per month as salary. He was also running a patthar khadan from which he was earning Rs. 400/- per month. He was also owning a tractor from which he was deriving an income at the rate of Rs. 400/-per month. It was contended that the deceased was spending Rs. 1,500/- per month towards his family and claimed Rs. 11,00,000/- and odd. The allegation was that while Mukesh Kumar was proceeding on a motor cycle he was hit by a bus No. DLP 4416 which was coming from opposite direction, running at a high speed and the accident was caused due to rash and negligent driving of the driver concerned. Mukesh Kumar received serious injuries and died just after the accident.

(2.) Being aggrieved by the amount of compensation all the claimants filed this appeal. The truck (Sic. bus) owner appeared before this court but did not choose to contest by filing counter affidavit. He was also found absent at the time of hearing. The insurance company filed a cross-objection and contended that out of the total amount awarded to the claimants the insurance company is liable to pay to the extent of Rs. 50,000/-. Learned counsel appearing for the claimants has submitted that the learned Tribunal Judge was not right in holding that the deceased was not earning Rs. 1,200/-per month from the company where he was working as Manager. It has been contended that he was working at Kanpur Granite Stone Company and the said fact of service was proved by Narain Das, PW 3. The salary certificate and copy of the sales tax report have been proved showing that the deceased was an employee of that concern and was receiving Rs. 1,200/- per month. In the judgment the learned Tribunal Judge disbelieved the story of serving the company and also receiving Rs. 1,200/- per month, as stated, on the ground that the father of the deceased and Narain Das, PW 3, being co-owners, it was unusual that any service was offered to the deceased by his father's company and he was receiving emolument for that. He has also stated that the salary certificate has not been proved by the father of the deceased or by PW 3. He has pointed out that in the copy of the sales tax report the deceased was shown as accountant and not as manager. He has also held that no agreement or resolution has been produced by the claimants to show that the service of the deceased was in existence.

(3.) While approaching the reasons forwarded by the learned Tribunal Judge it appears to us that he was very much technical in weighing the evidence in respect of the service of deceased Mukesh Kumar. From Exh. 12 and Exh. 13, salary certificate and copy of the sales tax report, it appears that the deceased was in the service of Kanpur Granite Stone Company ex. facie. Even if we consider that he was not receiving any emolument for the service rendered by the deceased to that firm, be it of his father or anybody else, it was done by him for gain. It has not been proved that it was their family business while it has been taken into account by the learned Tribunal Judge that Narain Das, PW 3, was a partner. After going through the evidence in this respect and reasons recorded by the learned Tribunal Judge we are of the opinion that the deceased Mukesh Kumar was serving the company prior to the accident and was receiving Rs. 1,200/- per month.