BADIBAI Vs. ONKAR LAL

JUDGEMENT

(1.) THIS appeal has been filed by the Appellants wife and minor children of deceased Ratanlal -(Claimants) against an award passed under Section 110 of the Motor Vehicles Act by the Motor Accidents Claims Tribunal, Indore.

(2.) THE Appellants filed the application alleging that on 27th November, 1972 in the morning at about 8 -30 or 9 -00 Ratanlal was proceeding on a bicycle on the Indore - -Sanwer Road to Pankaj Factory. When he came near Mukhiya's house Respondent No. 2, who was driving truck No. MPL 2363 owned by Respondent No. 1, came from behind. The vehicle was being driven rashly and negligently and the deceased was knocked down by this truck resulting in his death. It was alleged that the deceased at that time was 25 years of age and was earning Rs. 3/ - per day by working in the Pankaj factory and was also earning Rs. 2/ -per day by working in a brick kiln. Before the Tribunal Respondent No. 2 remained ex parte. The two other Respondents submitted their written -statements. In their written -statements it was alleged that the deceased was going on the road on the right -hand side (wrong side). The negligence however, was denied. The learned Member of the Tribunal after recording evidence held that the accident took place on account of contributory negligence on the part of the deceased. As regards compensation, the learned Member accepted the statement that the deceased was getting about Rs. 3/ - per day and held that the deceased must be giving about Rs. 45/ - per month to the family, i.e. the Appellants. And estimating this help for 30 years, taking the normal age to be 60 years, the learned Member came to the conclusion that Rs. 16,200/ - would be the compensation the Appellants may be entitled to. But this the learned Member reduced on the basis of proportional negligence and ultimately awarded Rs. 5,400/ -. It is against this that the Appellants have preferred this appeal.

(3.) LEARNED Counsel for the Respondents, on the other hand, contended that the Tribunal on the basis of evidence led by the Appellant herself found that the accident took place on account of contributory negligence on the part of the deceased and therefore that finding could not be interfered with. Learned Counsel also contended that the Appellant led no further evidence to prove what in fact was the daily earning of the deceased; but the learned Member appreciated the evidence of the Appellant in the context of the labour conditions and accepted that Rs. 3/ - per day may be the earning of a labourer during that period and on that basis arrived at a conclusion which could not be said to be too low a figure and therefore there is no occasion to interfere with the assessment of compensation done by the learned Member of the Tribunal. Learned counsel, however, contended that some concession should have been given on account of lumpsum payment to the Appellants and that not having been done the compensation deserves to be reduced on that ground.