Miscellaneous Appeal No. 10 of 2006 **** Against the judgment, dated 09th September, 2005, passed by the Additional Sessions Judge, IV, Nawadah, in M.V. Claim Case No. 63 of 2003/93of 2003 **** 1. Krishna Nandan Prasad, s/o Shi Ramashray Prasad 2. Sanju Devi, w/o of Shri Krishna Nandan Prasad Both residents of village Sarwanhanpur, Janki Tola, Post Vakipur, Machaiawa, P.S. Fatwaha, district Patna .. Applicants-Appellants Versus 1. New India Assurance Company Ltd., A body Corporate constituted under the Companies Act, Nagmati Road, Gaya, through Divisional Manager .. Opposite Party no. 3/ Respondent 1st set 2. Naresh Kumar Singh, s/o late Ram Ekbal Rai, r/o village Vigrahpur, P.S. Jakkanpur, district Patna (owner of Truck no. BR-23G-5491) 3. Md. Rafique, s/o Hafij Miyan, r/o Dargah Road, P.S. Sultanganj, district Patna (driver of Truck no. BR-23G-5491) .. Opposite Parties 1 & 2/ Respondents 2nd Set **** For the appellants .. M/S Marasmani & Manish Kumar, Advs. For opposite party no. 1 .. Mr. Ashok Priyadhashni, Adv. For respondents 2 and 3 .. Mr. Sidhendra Nrayan Singh Adv. **** P R E S E N T THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the parties. 2 2. This Miscellaneous Appeal is directed against the order, dated 07th September, 2005, passed by the Additional District Judge, IV, Nawadah, in M.V. Claim Case No. 63 of 2003/93 of 2003 by which the Motor Accident Claims Tribunal has gave a compensation to the tune of Rs.1,00,000/-. 3. The case of the claim is that on 20.05.2003 at 04.00 p.m. while deceased, Sunil Kumar Yadav, was going on motorcycle, when reached near Akauna by pass then truck, bearing registration no. BR 23G 3491, hit the motorcycle of the deceased, thereafter, hit the tree and turned upside down. The deceased, Sunil Kumar Yadav, died. He was earning Rs.3,000/- per month and was unmarried. 4. The Tribunal held that the deceased was driving the motorcycle without any driving licence and, further, held that driving motorcycle without any valid licence, itself, is a grave negligence and it is a case of contributory negligence so deceased was liable for deciding to the extent of 50% and further computed the amount at the rate of Rs.10,000/- per annum as provided in 2nd Schedule of Motor Vehicles Act, 1988. 5. The learned counsel for the appellants, however, challenged the order on the ground that though the deceased was driving the vehicle having no licence, but, there is no finding that the accident took place due to the rash and negligent driving and there is nothing on the record to suggest that the deceased was guilty of any act which materially contributed to the accident and resulted in the death. However, contended that the doctrine of contributory negligence will not apply and, moreover, under the facts and circumstances of this case there is no finding of rash and negligent driving or contributory negligence against the deceased and, hence, apportionment of award is not justified and for which reliance has been placed upon a decision 3 reported in (2008) 12 S.C.C., 436 (Sudhir Kumar Rana Vrs. Surendra Singh & Ors.). The learned counsel for the appellants has, further, contended that the claim of the appellants is Rs.2,000/- per month as income of the deceased as a Compounder, but, instead of computing the income at the rate of Rs.2,000/- per month as income has been computed as per 2nd Schedule of the Motor Vehicles Act, 1988, which is a fixed income of Rs.10,000/- per annum which is meant for a person, who is not earning or less than 15 years in age, hence, claim granted by Tribunal nor proper and prayed for it’s enhancement 6. The learned counsel for the insurance company, however, contends that the deceased was driving the motorcycle without a valid licence which is an offence and, hence, it shall deem that he has contributed to the accident. It has, further, been contended that the income of the deceased is concerned, or the compensation has been computed in view of the fact that the evidence about income of the deceased does not inspire confidence as the deceased claimed to be a Compounder, but, no document in support that he was eligible and had a valid qualification for being a Compounder and, hence, since the income of the deceased has not been produced to the satisfaction of the Tribunal, hence, the fixed income as given in 2nd Schedule rightly taken into consideration and, further, contends that matter deciding the multiplier the age of deceased and age of the claimants is to be taken into consideration amongst the age of deceased and claimant the age which is greater be taken into consideration further that since the deceased was unmarried so a deduction for the personal expense of deceased ought to be to the tune of 50 per cent. 4 7. Hence, on the respective submissions, the question for consideration whether the deduction for the contributory negligence is justified in the case of the appellants and whether the quantum of compensation fixed is required consideration as per the submission made. 8. However, admittedly the deceased was about 19 years old and in collusion with a truck while the deceased was driving the motorcycle, but, without a valid licence. However, from the perusal of the impugned order it is apparent that it is admitted fact that the deceased was 19 years old and the accident took place while he was driving a motorcycle without a licence. However, and there is no evidence or material on record to suggest that the accident took place due to negligence or any act of commission or omission on the part of the deceased and the mere fact hat deceased was driving vehicle without a valid licence my not lead to reasonable or logical conclusion for contributory negligence and this view is supported in decision reported in (2008) 12 S.C.C., 436 (supra) where in the facts of the case the accident took place when a boy aged about 17(1/2) years old was driving a motorcycle without a valid licence met with an accident with a truck and the Tribunal held the deceased as guilty of contributory negligence as he was driving the motorcycle without a valid licence materially contributed to the accident and resulted in the fatal injury and damage, the concept of contributory negligence would apply and, further, held that the driving of a motorcycle without a licence though is an offence, but, that by itself may not lead to a finding of negligence question raised before Supreme Court held that merely because deceased was driving the vehicle without a licence that itself is not attracted to hold him guilty for the contributory negligence and to face the consequence. However, under the present facts and circumstances there is no 5 material to suggest that the deceased was contributed or driving the vehicle rashly and negligently and, hence, the finding recorded by the learned lower Court that the claimants are entitled for contributory negligence and deduction of 50 per cent compensation is not sustainable and, hence, the finding recorded to deduct 50 per cent for contributory negligence by the Tribunal is not sustainable. 9. The next question for consideration is about the quantum. However, the evidence regarding the income certificate of the doctor that he was earning Rs.2,000/- per month as a Compounded, however, there is nothing brought on record that the deceased was having a primary qualification for the Compounder and, hence, the Tribunal has rightly not considered. However, the Tribunal took Rs.15,000/- per annum as the income of the deceased as per 2nd Schedule of Motor Vehicles Act, 1988. However, 2nd Schedule is applicable to a person if he is a minor or is not earning. However, under the facts and circumstances, it has come in evidence that the deceased was working and was earning and, hence, it is not proper to assess his income at the rate of Rs.15,000/- per annum, as per 2nd Schedule and is not sustainable in fact and law. However, if the evidence about his income not satisfactory and the deceased was adult and working then the Minimum Wages Act may be taken into consideration to assess the income of deceased at the relevant time. The minimum wage at the relevant time is assessed as Rs.75/- per day is taken in consideration then the income of the deceased as per the Minimum Wages Act, computing the income for his every 26 days in a month it will come to Rs.1950/- per month and, hence, since the deceased was an unmarried person and, hence, the deduction for his personal expense as per Sarla Verma case, reported in (2009) 6 S,C.C., 121 (Sarla Verma Vrs. 6 DTC) is 50 per cent of his income, hence, the income per annum is Rs.1950 x 12 comes to round about figure as Rs.11,500/-per annum and since it has come that the age of the deceased was nineteen years and the age of mother 35-40 years and since the well established principle at amongst the age of deceased and claimant which ever is higher to be taken into consideration and, hence, age of claimant, the mother of deceased, as 35-40 years, the multiplier of 16 is applicable and not the multiplier of 20 as assessed by Tribunal, hence, the multiplier of sixteen is applicable and, hence, the claim of depending comes to Rs.1,84,000/-, hence, taking into consideration that the claimants is entitled to Rs.1,84,000/- and the insurance company is liable to pay the sum at the interest of 6 per cent per annum. 10. Hence, Miscellaneous Appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 20th day of August, 2010, N.A.F.R./Cp:3/S.A.