CHANDO AND ORS. Vs. MADAN LAL AND ORS.

JUDGEMENT

(1.) THIS appeal has been preferred by the claimants seeking enhancement of compensation of Rs. 2,38,000/ - for the death of deceased -Birji Singh and Rs. 96,000/ - for the death of deceased -Mukesh, husband & son respectively of appellant No. 1 Chando, who both died in a road accident. Shri Imran Khan, learned counsel for the claimant -appellants has argued that the Tribunal has erred in law in accepting income of the deceased -Birji Singh at Rs. 1800/ - per month. He was a trained Mechanic and evidence shows that his monthly income was Rs. 4,000/ -. In this connection, learned counsel for the appellants has referred to the document Exb. 10, the certificate of the Proprietor of the Workshop Prakash Tractor Repair in which deceased Birji Singh was employed. Proprietor of the said workshop is Ramkishore AW 3, who has appeared in the witness box to prove that certificate. In cross -examination, he stated that he was paying Rs. 140/ - per day to deceased Birji Singh and he was the best mechanic in his workshop. He was paying to him Rs. 4,000/ - per month but also stated that on certain days, deceased used to avail leave on certain days. He was Proprietor of the workshop therefore he issued certificate. Learned counsel for the appellants also referred to the statement of appellant No. 1 AW 1 Smt. Chando, wife of deceased Birji Singh and mother of deceased -Mukesh. She stated that deceased Birji Singh was a earning a sum of Rs. 4000 -4500 per month from the workshop. Apart from this, he was also cultivating the agriculture field measuring 20 bigha and was earning a sum of Rs. 1.5 lacs p.a. after making deductions towards all expenditure incurred on agriculture. She further stated that there exists now only two daughters after the death of her husband -Birji Singh and son -Mukesh, who could have taken care of the agricultural field and also the responsibility of the family. Her son -Mukesh used to earn Rs. 4,000/ - per month from the work of Radio/TV repair as a Mechanic in the shop of Mahendra situated at Neemdarwaja, Bharatpur. Learned counsel referred to the statement of AW 2 Saudan Singh, eye -witness, who stated that when deceased Birji Singh, Mukesh and Satish were going on motorcycle, Tanker No. RJ23 -G -179 coming from Bharatpur hit them, as a result of which, all the three died on the spot. He has also proved the fact that deceased -Birji Singh apart from working at the workshop, also doing the work of cultivation. He used to earn Rs. 4,000/ - per month as a Mechanic and also Rs. 1.5 -2 lacs from the agriculture fields. Mukesh was working as a Radio/TV Mechanic in the shop at Anah Gate and used to earn Rs. 4,000/ - per month. Learned counsel submitted that when there is evidence of eye -witness to say that accident took place because of the total negligence on the part of the Tanker, there was no justification for deducting 50% for contributory negligence on the part of deceased -Mukesh out of the compensation payable to the claimants. However, this fact is not proved even otherwise from the site plan and the fact that the police filed challan as against the Tanker driver. Learned counsel argued that the income of deceased -Mukesh son of appellant -Chando was wrongly accepted at Rs. 1500/ - per month when learned Tribunal made deduction of 50% of compensation. Multiplier of 15 has also wrongly been applied in his case even though his age was 21 years. The learned Tribunal ought to have applied the multiplier of 18 considering that father and son both died in a road accident and multiplier of 18 should have been applied upon the own age of deceased -Mukesh.

(2.) SMT . Chitra Goyal, learned counsel appearing for the respondent -insurance company has opposed the appeal and argued that mere production of the income certificate by the Proprietor of the Workshop, where deceased -Birji Singh was working as a Mechanic does not prove his income to be of Rs. 4000/ - per month. Learned counsel submitted that even though Ram Kishore, the Proprietor of the said Workshop has appeared as a witness as AW 3 but he was not able to show that he is actually paying Rs. 4000/ - per month to deceased -Birji Singh. He also stated that deceased -Birji Singh used to remain on leave on certain days. Learned counsel submitted that multiplier of 15 has rightly been applied because deceased -Birji Singh was 40 years of age. It was argued that multiplier of 15 has also rightly been applied in the case of deceased -Mukesh taking the age of his mother to be of 39 years because at the relevant time, he was 21 years of age. 50% amount has rightly been deducted from the compensation attributing contributory negligence towards deceased -Mukesh considering the fact that three persons were riding on the motorcycle. Learned counsel for the insurance company therefore submitted that the award is just and reasonable and it is not liable to be interfered with.

(3.) COMING now to the claim for the death of Mukesh, there is peculiarity death to this case, in that, not only the husband of appellant No. 1 and father of claimant appellant Nos. 2 and 3 has died but only other male member of the family i.e. Mukesh son of appellant No. 1 and brother of appellants No. 2 and 3 has also died. The Tribunal has applied the multiplier of 15 on the basis of the age of mother -Smt. Chando aged 39 years at the relevant time but has not considered the fact that once Birji Singh, husband of appellant Smt. Chando died and if deceased Mukesh would have survived, the entire family would be dependent upon Mukesh. It is indeed a hard case where both husband and major son of appellant No. 1 had died. Although normally, in the case of a unmarried boy, not only the multiplier has to be applied depending on the age of the parents but also deduction has to be made to the extent of 1/2(50%). Tribunal in the present case, applied the multiplier of 15 on the age of the mother i.e. 39 years but has made deduction of 1/3rd. In the present case, departure has to be made because deceased Mukesh was only male member of the family and the entire family would have been dependent upon him, if he would have survived. For this reason, not only multiplier should be adopted on the age of deceased -Mukesh himself aged 21 years but also deduction of 1/3rd instead of 50% would not be justified. As far as income of Mukesh is concerned, evidence on record suggests that he was working as a Radio/TV Mechanic with one Mahendra at Neemdarwaja, Bharatpur and was earning Rs. 4,000/ - per month but considering the fact that he was 21 years of age and considering the value of rupee in 2000, accepting his income to be of Rs. 1500/ - per month by the Tribunal could be just and reasonable.