1. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T HARI PRASAD & ANOTHER Vs. KHUDA RAM & OTHERS S.B.CIVIL MISC.APPEAL NO. 1510 OF 2007 against the judgment and Award Dated 1.2.2007 passed by the learned Judge, Motor Accident Claims Tribunal, Nagaur in M.A.C.T. Claim Case No.59/2005. DATE OF JUDGMENT :: 23rd MAY, 2008 PRESENT HON'BLE MR.JUSTICE MANAK MOHTA Mr. Rajesh Panwar, for the appellants. Mr. Sanjeev Johari, for the respondent No.3. None present on behalf of the respondents No.1 and 2. BY THE COURT : By this appeal, the claimant-appellants have challenged validity and propriety of the judgment and Award dated 1.2.2007 passed by the learned Judge, M.A.C.T. Nagaur in MACT Case No. 59/2005, whereby, he awarded the compensation of Rs.1,32,000/- with interest @ 7% per annum 2. from the date of filing the claim petition i.e. 26.9.2005 in favour of the claimants. Briefly stated the facts of the case are that on 11.8.2005 at about 9.15 PM while Vinod aged 15 years was going on his cycle from Railway Station, Nagaur to his house at Basni Railway Crossing Gate then a Truck bearing No. RJ-18G/2962, which was being driven rashly and negligently at a high speed by its driver Kurda Ram (respondent No.1), was coming from Manasar Chouraha towards Railway Station just infront of the Bungalow of Sub-Divisional Magistrate, hit the cycle rider Vinod, as a result of which, he fell down and got crushed under the wheels of the offending truck and he succumbed to the injuries at the spot. The police also registered a case of this accident against the truck driver and after investigation filed a challan against him in the court for rash and negligent driving and causing accident. A total sum of Rs.32,46,000/- were claimed as compensation under different heads. It was asserted in the claim petition that deceased Vinod, at the relevant time, was doing the private job of accounts on Computer and in total was getting Rs.6000/- per month and he was having good knowledge of 3. computer work. It was alleged that due to untimely death in accident, the parents suffered loss of income as well as suffered loss of love, services and affection. It was further submitted that deceased used to pay total earnings to the claimants but due to his death, they have been deprived of it. Respondents No.2 and 3 are said to be owner and insurer of the Truck as the accident occurred due to rash and negligent driving of the said truck, in which, Vinod lost his life. Thus, it was stated that the driver and owner of the truck as well as the insurer of the Truck are jointly and severally responsible for the payment of compensation. A prayer was made to award reasonable and just compensation. Respondents No.1 has filed reply to the claim petition denying the responsibility of causing accident and further stated that the deceased himself was negligent in driving bicycle and due to that, the accident occurred. It was also stated in the reply that the deceased was not an earning member and looking to the age of the deceased, the claimant-appellants could not be said to be dependent upon the income of the deceased. The exorbitant compensation has been claimed, as such, they were not entitled to get any sort of compensation. It was further stated that at the time of accident, the truck was insured with respondent No.3, therefore, if any liability of compensation 4. arises then the Insurance Company will be liable to pay compensation to the claimants. No separate reply was filed by the owner of the truck(respondent No.2). In reply submitted by Insurance Company (respondent No.3), the factum of truck being insured with Company, was admitted. It was further stated that the driver of truck was not having a valid and effective driving licence and no intimation with regard to accident was given to the Company, which were in violation of terms and conditions of policy. Thus, respondent No.3 was not liable to pay compensation. On the basis of pleadings of parties, the relevant issues were framed by the learned Tribunal. During trial, statements of PW 1 Hari Prasad (father of the deceased), PW 2 Babulal (an eye witness of the occurrence), and PW 3 Mukesh Bhandari were recorded. The claimant also produced relevant documents and got them exhibited. From the side of defence, no evidence was produced. After hearing the parties, the learned Tribunal held that the accident occurred solely due to rash and negligent driving of the truck driver resulting in death of Vinod and turned 5. down the other defences taken by the Insurance Comapny. The learned Tribunal after considering the material, awarded compensation of Rs.1,32,000/- to the claimants with interest @ 7% per annum from the date of filing of the claim petition and held jointly and severally responsible driver and owner of the vehicle as well as Insurer of the Truck for the payment of the same. Being dis-satisfied with the amount of compensation awarded by the learned Tribunal, the claimant-appellants have filed the present appeal for enhancement of compensation amount. Notice of the appeal was issued and record was called for. I have heard learned counsel for the parties and carefully perused the records . During the course of argument, the learned counsel for the appellant submitted that the learned Tribunal has not properly considered and appreciated the facts and has not properly applied the settled preposition of law and awarded meager amount of compensation without properly determining the income of the deceased and without applying correct 6. multiplier. It was contended that the deceased was a young boy of 20 years and was earning Rs.6000/- per month by private job of accountings on computer with the different persons. It was further contended that if he would not have died in accident, he would have earned much more than Rs.6000/- per month but the learned Tribunal has not considered future prospects. It was contended that at the time of accident his age was 20 years but the learned Tribunal has wrongly assessed his age 15-16 years and again wrongly applied the multiplier of 15 times. The learned Tribunal has wrongly assessed his income Rs.2000/- per month i.e. Rs, 24,000/- per annum against the record and has further deducted 2/3rd for his personal expenses and on remaining amount of Rs.8,000/-per annum determined the loss of dependency and loss of estate to the claimants and awarded compensation on that basis up to the tune of Rs.1,20,000/- and on the other heads awarded Rs.12,000/-, total Rs.1,32,000/-. It was prayed that, the awarded compensation is not adequate, just and proper, therefore, is liable to be modified and may be enhanced reasonably. The learned counsel for the appellant also drew my attention towards the judgments of the Apex Court in this respect and urged that even in a case of death of non-earning member of 13 years or so, the Apex Court has awarded compensation to the tune of Rs.2,25,000/- to the 7. parents. On the basis of the aforesaid contentions, request was made to allow the appeal. On the contrary, learned counsel appearing on behalf of the respondent-Insurance Company submitted that the age and income as stated by the appellant have not been proved, therefore, the learned Tribunal after using its discretion , adequate amount of compensation has been awarded, that is not suffering from any infirmity, that should be maintained and the appeal may be disallowed. I have considered the rival contentions, perused the finding and conclusion drawn by the learned Tribunal. The point arises for consideration in the present appeal is whether the awarded compensation is not just and adequate and it deserves to be enhanced ? So far as the finding of the learned Tribunal with regard to the factum of accident is concerned, that is based on sound reasonings. The police has also after investigation found that the accident occurred due to rash and negligent driving of the truck driver. It is further evident from the site-plan Ex.3 that bi-cycle rider was hit by the said Truck. AW 2 Babulal an eye-witness has stated that the said truck dragged the cycle rider upto a distance of 15-20 feet. He was also witness to the 8. site plan Ex.3. Thus, the finding in this respect is correct and maintained. Before considering the contentions of the appellant with regard to the quantum of compensation, it would be proper to scan in short the evidence and other material placed by the parties. On behalf of the claimants AW 1 Hari Prasad has appeared. He is the father of deceased Vinod. He has stated in his statement, that the age of his son was 18 years and he was engaged in private job of accountinga on computer. He has stated that Vinod was having knowledge of computer. He got training at Jodhpur. He has also produced certificate in this respect. He has also stated that his son used to earn about Rs.6000/- per month by giving services to the different persons. He was also produced a salary certificate Ex. 17 given by one Brij Lal where the deceased was doing part-time job of computer. AW 2 Babulal is the eye-witness of accident. AW 3 Mukesh Bhandari has stated that Vinod (deceased) used to do part-time work on his computer at his press and he used to pay Rs. 2,000/- per month to him. A certificate of having knowledge in computer job i.e. Diploma in Basic Computer Course is also on record. Thus, from the statement of the witnesses and other material, it was established that Vinod (deceased) was having 9. knowledge of computer and at the time of accident, he was 18 years old. From the side of the respondents, no evidence has been led in rebuttal. The learned Tribunal has assessed the income of the deceased only Rs.2000/- per month and but considering the material available on record, the income has not been assessed properly. The salary certificate Ex.17 describes for part-time job at one place from where he was getting Rs. 2000/- p.m. Thus, considering these all, his minimum income is assessed Rs.4000/- per month and out of them, it can be inferred that atleast Rs.2000/- per month, he was providing to the claimants considering his moral duties to maintain the parents he would have continued to provide the amount of Rs. 2000/- p.m. to the claimants, if he would not have died in the accident but due to his untimely death in accident, the claimants have been deprived of from the same. Thus, they have suffered loss on this count, considering the age of the deceased as well as the age of claimants, the multiplier of 16 is deserved to be applied that is appropriate. Thus, loss of dependency and loss of estate under this head comes to Rs. 3,84,000/- (2000 x 12 x 16). The Tribunal has awarded Rs.12,000/- on other heads of love and affection etc. Looking to the age of the parents, the amount is deserved to be increased to Rs. 16,000/-, thus, total compensation comes to Rs. 4,00,000/-. That is just and 10. reasonable and the claimants are entitled to recover the same therefore, the awarded amount Rs. 1,32,000/- is enhanced by Rs.2,68,000/- and determined Rs.4,00,000/-. The claimants are further entitled to receive interest @ 7 % per annum on the enhanced amount of compensation as awarded by the learned Tribunal earlier. In the net result, the appeal is partly allowed. The compensation is modified by enhancing Rs.2,68,000/-and determined to Rs.4,00,000/-. On the enhanced amount of compensation, the interest @ 7 % per annum will be payable. The driver, owner and insurer of the Truck are held jointly and severally held responsible for the payment of the same. The Insurance Company is directed to make payment within two months, failing which, the claimants will be entitled to start recovery proceedings as per law. Rest of the judgment is confirmed. No order as to costs. (MANAK MOHTA),J