S.S. Jha and S. Samvatsar, JJ.
1. By this judgment both the appeals are decided as they arise out of common award. Misc. Appeal No. 629 of 1999 is filed by the claimants for enhancement of the award whereas Misc. Appeal No. 648 of 1999 is filed by the owner of the vehicle praying that the insurance company be held liable to pay compensation. No other issue is under challenge in these appeals.
2. For the purposes of quantum of compensation, counsel for claimants submitted that Claims Tribunal has determined the income of the deceased from agriculture at Rs. 10,000 per annum. Deceased was also earning Rs. 10,000 from other sources. He submitted that in para 17 of the judgment, Claims Tribunal has held that income of deceased from agriculture was Rs. 10,000 per annum and out of Rs. 10,000 from agriculture, family of the deceased is entitled for loss of income at Rs. 5,000 and considering the income of the deceased from selling milk, Claims Tribunal has determined the dependency of the claimants at Rs. 15,000 per annum. The counsel for the claimants submitted that once the Tribunal has recorded a finding that income of the deceased from agriculture was Rs. 10,000 per annum, it erred in holding that the loss of earning of the claimants was Rs. 5,000 only. In the case of State of Haryana v. Jasbir Kaur, 2003 ACJ 1800 (SC), the income of the deceased from agriculture was Rs. 4,500 per month and the dependency was held to be 2/3rd of the said income which was determined at Rs. 3,000 per month. Thus, on the basis of said ratio, income of the deceased from agriculture is determined at Rs. 6,600 per annum. So far as income from selling milk is concerned, learned counsel for the insurance company contended that the Claims Tribunal has erred in holding that deceased was earning Rs. 10,000 per annum from selling milk. AW 1 Neelam Sharma has deposed that the deceased used to sell milk worth Rs. 9,000 per month. AW 3 Ramdin has deposed that deceased was earning Rs. 5,000-Rs. 6,000 per month by selling milk. Purchaser of milk AW 4 Balvir Singh has deposed that he had paid the deceased Rs. 1,886 for 10 days in the month of August and for 10 days in the month of September, he had paid Rs. 1,866 to the deceased. There is no cross-examination on the question of payment of purchase price of the milk.
3. Thus, considering the facts of the case, it can safely be presumed that the deceased was earning Rs. 1,800 in 10 days from sale of milk. Thus, in a month, he was earning Rs. 5,400 and the yearly income from sale of milk was Rs. 64,800. Out of this amount, for maintenance of she-buffaloes, deceased was spending about Rs. 20,000 in a year. Therefore, the yearly income of the deceased is determined at Rs. 44,000 and the dependency of the claimants is determined at Rs. 29,000 from sale of milk. Thus, total dependency of the claimants comes to Rs. 35,600. Since the deceased was 40 years of age, multiplier of 16 is applied and the compensation is determined at Rs. 5,69,600. To this amount further sum of Rs. 20,400 is added under various heads such as loss of consortium, funeral expenses, etc. and compensation is determined at Rs. 5,90,000 (rupees five lakh ninety thousand). Over and above, the claimants are also entitled to interest at the rate of 7 per cent per annum on the enhanced amount from the date of award.
4. As regards the liability of the insurance company is concerned, we have gone through the pleadings and evidence on record. Though, the insurance company has pleaded that the tractor was driven in breach of the conditions of the policy, but, there is no evidence on record to demonstrate that the offending tractor was driven in breach of conditions of the policy. In the absence of any evidence on this point, we hold that the insurance company is jointly and severally liable to pay compensation with the owner of the vehicle.
5. In the result, both the appeals succeed and are allowed. Owner of the vehicle may recover the amount deposited by him from the insurance company. There shall be no orders as to costs.