Judgment:
S.B. Sakrikar, J.
1. The unsuccessful non-applicants have directed this appeal against the Award dated 27th January, 1992 passed by XIII Additional M. A.C.T., Indore in. Claim Case No. 55/91, thereby, granting compensation of Rs. 1,88,400/- with interest at the rate of 12% p.a. from the date of filing of the suit till realisation of the amount in favour of the claimant respondent and against appellants.
2. Facts lie in narrow compass. On 11.12.1987 at about 7.30 to 8.00 in the evening, deceased Gangaprasad, husband of respondent No. 1, was coming on his moped from the side of Chimanbagh at Subhash Marg. When deceased Gangaprasad reached the Petrol Pump, at the same time, bus No. MPW 1553, coming from opposite direction, hit the moped of the deceased from the front side and after that collided with some cyclists coming behind deceased Gangaprasad. It was stated in the application that at the time of accident, the bus was driven by the appellant No. 2 Kishanlal, driver rashly and negligently. Appellant No. 1 is the owner of the vehicle. As a result of the accident, Gangaprasad died on the spot and his moped was damaged. Some cyclists also sustained injuries in the alleged accident. The Claim Petition was filed by the respondent for award of compensation, due to death of her husband, in the accident. The claim petition was resisted on behalf of the appellant. Learned Tribunal considering the evidence adduced on behalf of the respondent/claimant, partly allowed the claim petition and awarded the compensation as indicated above. Aggrieved by the award of compensation of the Tribunal, the appellants have filed this appeal.
3. We have heard Mr. Zelawat learned Counsel for the appellants. None appeared for the respondent/claimant.
4. The contentions of the learned Counsel for the appellants is that from the evidence of the claimant, negligence of the bus driver is not proved. Hence, the appellants are not liable to pay any compensation. Other contentions of the learned Counsel for the appellants is that the amount of compensation awarded by the learned Tribunal is on the higher side and requires appropriate modification.
5. From the statements of Jagdishchandra (AW 1), who was injured in the same accident has filed separate application for award of compensation and stated In his statement that on the date of accident, when he was going on his cycle from Chimanbag to Nilkanth Colony, at the same time, near Dewas Ghat bridge, bus No. MPW 1553 coming from opposite direction driven rashly and negligently suddenly hit him causing grievous injuries to him. Statement of Jagdishchandra is corroborated by the statement of Shivgopal, (AW 3), who witnessed the incident. Shivgopal (AW 3) in his statement has stated that at the time of incident when he was standing at the petrol pump of taking petrol in his rickshaw, at the same time, bus coming from Rambag Chouraha and going towards Chimanbagh, hit one Luna Moped, which coming from the opposite direction. Due to this accident, rider of Luna sustained injuries and he was ta ken to the hospital for the treatment. Witness Shivgopal also stated in his statement that at the' time of accident, the bus was driven rashly and negligently and' suddenly, hit the Luna which was coming from the opposite direction by the left side of the road. Nothing is found in the cross-examination of the witness, which makes their statements unreliable. In rebuttal, driver Kishanlal was examined on behalf of the appellants but in view of the statements and reports witnesses, his uncorroborated statements is found dependable.
6. In our opinion, learned Tribunal has rightly decided Issue No. 1 is favour of the claimant/respondent, on the point of rash and negligent driving of tine bus driver. Therefore, nO interference is necessary on the finding recorded by the learned Tribunal on issue No. 1.
7. With regard to the finding on issue Nos. 5 to 6 relating to the quantum of compensation awarded by the learned Tribunal, learned Counsel contended that the learned Tribunal has committed an error in assessing monthly earnings of the deceased, at Rs. 1200/- per month and also committed the error in assessing the dependeny at Rs. 600/- per month and accordingly yearly dependency at Rs. 7200/-. Learned Tribunal also committed error in applying multiplier of 22 for the assessment and loss of dependency. Learned Counsel conceded before us that amount of consortium of Rs. 30,000/- awarded by the learned Tribunal is also excessive which may suitably be modified.
8. In view of the statement of respondent/claimant, Smt. Sheeladevi (PW 2) who specifically stated in her statement that her husband deceased Gangaprasad was carrying on the business of manufacturing of clips of electric fittings, and from this business he was earning about 1200/- per month. In the cross examination in para 5, she specifically stated thather husband was giving her Rs. 1200/- per month for the domestic expenses. Therefore, she is stating that her husband was earning Rs. 1200/- per month from his business. There is no reason to disbelieve the statement of respondent/claimant, Sheeladevi (AW 2) widow of the deceased. In our opinion, the learned Tribunalhas rightly assessed the finding on issue No. 5 holding that earnings of the deceased was Rs. 1200/- per month from his business.
9. Learned Tribunal while assessing compensation under the head 'dependency' assessed the dependency at Rs. 600/- per month and the yearly dependency to the tune of Rs. 7,200/- and then applied multiplier of 22, for assessing the dependency. In our opinion, the learned Tribunal has committed the error in assessing the monthly dependency at Rs. 600/- and in applying the multiplier of 22.
10. In : AIR1994SC1631 ; General Manager, Kerala State Road Transport Corporation, Trivandrum v. Mrs. Susamma Thomas and Ors. has held that in assessing the monthly dependency of 1/3rd of the total earnings of the deceased should not normally be considered for his own expenses and the 2/3rd amount shall be taken into consideration for calculating the dependency. In view of the decision of the Apex Court, in the present case considering the total income of the deceased at Rs. 1200/- per month, the monthly dependency comes to Rs. 800/- per month and the yearly dependency comes to Rs. 9600/-.
11. It is not disputed that the age of the deceased at the time of accident was 38 years. In view of the principles laid down by the Apex Court in Susamma's case (supra) proper multiplier, in the present case, should not exceed 14. Learned Tribunal has committed an error in applying the multiplier of 22. Therefore, we assess the compensation under the head 'dependency' to Rs. 9600/- x 14: 134,400/- We are also of the opinion that the amount of consortium awarded by the learned Tribunal is also on higher side. The deceased has left only respondent/ widow of the deceased and no other family members. The compensation of Rs. 30,000/- under the head 'consortium' awarded by the learned Tribunal appears to be excessive. In view of the facts and circumstances of the case, we reduce the consortium of Rs. 30,000/- to Rs. 15300/-, which in our opinion is just and proper compensation under this head.
12. In our opinion, the respondent/claimant is found entitled for the total compensation of Rs. 134,400/- under the head 'dependency' plus Rs. 15,500/- under the head 'consortium' totaling to Rs. 1,49,900/-. On arounding we award total compensation payable to the claimant at Rs. 1,50,000/- only.
13. As a result of the foregoing discussion, the award passed by the learned Tribunal requires modification and the same is accordingly modified as discussed above.
14. In the result, this appeal is partly allowed. The compensation awarded by the learned Tribunal is reduced to total compensation at Rs. 1,50,000/- and directed the appellants to pay the aforesaid compensation to the respondent/ claimant along with the interest and the costs of the petition as awarded by the learned Tribunal. The appellants are entitled to get set off, if any amount is paid or deposited by them in compliance with the award of the learned Tribunal.
15. In the circumstances, there shall be no order as to costs.
16. Before parting with the record, we find it fit to observe that if this modification results in a situation of refund of some amount, then tribunal shall be free to consider the request of reasonable time of installments. We say so because none appeared for the claimant here to state the position in this behalf.