1 S.B.CIVIL MISC. APPEAL NO.965/1997 ( Smt.Radha Somani and ors. Vs. Kunj Bihari and ors.) Date of Judgment : 05-02-2009 HON'BLE MR.JUSTICE GUMAN SINGH Mr.S.P.Sharma,for the appellants. Mr.Mr.Tripurari Sharma, for the respondent- Insurance Company. Mr.Abdul Rahim Khan, for respondent no.2. Heard learned counsel for the parties. 2. This appeal has been preferred by the dependents of deceased Kailash Chand Somani for enhancement of compensation awarded by the learned Motor Accident Claims Tribunal (District Judge), Kota vide judgment dated 6.8.1997 whereby a sum of Rs.96,000/- was awarded by way of compensation. 3. According to the facts of the case, accident took place on 11.7.92 when the deceased Kailash Chand Somani was coming from Kanwas to Kota in tractor trolley No.RJ-20E-639 and he fell down of the trolley and died on account of injuries sustained as he was run over by trolley. 4. The learned Tribunal decided the claim by giving finding that the deceased was sitting on the pipe of the trolley and fell 2 down and thus contributed 50% in the accident. 5. The learned counsel for the appellants submitted that the learned Tribunal has failed to appreciate the point of negligence in right perspective as the deceased was not found to be in drunken state as per the post mortem report and he cannot be said to have contributed the accident. The accident occurred on account of his falling from the trolley and then resultant injuries by tyre of trolley. It is further submitted that the compensation awarded is on lower side and same deserves to be enhanced on the basis of second schedule to the M.V.Act by adopting the multiplier of 16 in view of age of deceased which was 39 years. 6. Per contra, learned counsel for the respondents supported the judgment of the Tribunal and submitted that the learned Tribunal has taken into consideration evidence adduced during inquiry and has awarded adequate compensation and calls for no interference. It is also submitted that the negligence of the deceased is apparent 3 as he was sitting on the pipe of the trolley which contributed resulting in accident causing death. 7. After hearing the rival contentions, and going through the award as also record of the case, it is revealed that PW-2 Rajesh has categorically deposed that deceased was sitting on the pipe of the trolley and he fell down because his hand slipped from the pipe. At the time of accident, this witness was also present there in the trolley. In view of above evidence, the finding of the learned Tribunal regarding contributory negligence cannot be said to be perverse as the same is based on evidence as the deceased himself contributed in the accident. However, in the totality of facts & circumstances of the case, the contributory negligence on the part of the deceased deserves to be assessed to the extent of 40% only. Likewise, the deceased was of 39 years old and adequate compensation deserves to be computed after adopting multiplier of 16 under the second schedule to the M.V.Act. That apart, amount of loss of consortium deserves to be enhanced from Rs.10,000/- to Rs.15,000/- and 4 each of the three minor children also deserve to be awarded Rs.5,000/- for loss of love and affection apart from Rs.2,000/- by way of funeral expenses. Thus the total amount of compensation can be computed as under: 2864-1/3rd (for expenses of deceased)=1910 x12x16(multiplier)=3,66,720x60% =2,20,032+15000(additional amount for loss of consortium)+15,000(loss of love & affection to three children)+2000(funeral expenses)=2,52,032-96,000(already awarded)= 1,56,032/- (to be additionally awarded) 8. Accordingly, appeal of the appellants is partly allowed and the Award passed by the learned Tribunal is modified to the extent that the appellants shall get a sum of Rs.1,56,032/- by way of additional enhanced compensation from the date of appeal i.e. 15.10.97, with 6% interest to be paid within three months. Thereafter interest shall be paid @9% per annum. The rest of the terms of award shall remain unchanged. Record if any be sent back forthwith. (GUMAN SINGH),J. Srawat/- item no.h-2