Judgment:
1. This appeal has been filed by the claimants-appellants for enhancement of the compensation amount against the judgment/award dated 17th July, 2006 passed by Motor Vehicle Accident Claim Tribunal, Hazaribagh in Misc. Claim Case No. 191 of 2002. By the said judgment/award, the Tribunal has assessed compensation of Rs. 1,82,000/-, but because of the contributory negligence, the Tribunal directed for payment of 50 % of the said amount i.e. Rs. 91,000/- to the claimants- appellants.
2. The facts of the case lie in a narrow compass.
On the unfateful day of accident, the deceased along with his brother was going to Rajrappa by a Motorcycle, On the way, a Trekker bearing Registration No. BR-14P-5268 came rashly and negligently, dashed the motorcycle, as a result, the deceased sustained multiple injuries and brought to the Government Hospital Gola, where he died.
3. The claimants' case is that the deceased, aged about 24 years, at the time of his death was working as a mason and getting Rs. 5000/- per month. The claim was contested by both the owner and the Insurer of the Trekker on various grounds. Their main defence was that the deceased was driving two-wheeler with two pillion riders and both the deceased and two pillion riders were not wearing Helmet and as a matter of fact, they contributed in the accident. The Tribunal firstly held that the accident took place due to the contributory negligence of the deceased also.
4. On the quantum of compensation, the Tribunal proceeded to assess the compensation by taking notional income on the ground that no documentary evidence regarding the earning of the deceased was brought on the record.
5. First, we shall take up the issue of quantum of compensation and to discuss as to whether the Tribunal was justified in taking the notional income.
6. On the point of the earning of the deceased, the claimant-widow examined herself as a witness and also the other witnesses, who have deposed that the deceased was working as a mason. The Profession/occupation of the deceased as a mason, has not been disputed either by the owner or by the insurer of the vehicle.
7. C.W.-1 the widow has deposed that her husband used to go at 9 AM in the morning and return after sun set and by doing the work as mason, he used to earn Rs. 150/- per day.
8. The other witnesses have also said that the deceased was working as a mason and he was earning Rs. 5000/- per month.
9. When these evidences have brought on record, prima facie, we come to the conclusion that the deceased was an earning member. The Tribunal, therefore, ought not to have taken notional income for assessing the compensation. Even no documentary evidence was brought on record, the average monthly income of the deceased at Rs. 3000/- cannot and shall not be ruled out,
10. We, therefore, after taking safely the average monthly income of the deceased at Rs. 3000/-, the annual dependency come to Rs. 24,000/-.
11. Having regard to the facts that the deceased was aged about 24-27 years and died leaving behind a widow and a minor child, multiplier of 15 is to be taken. The compensation amount comes to Rs. 3,60,000/-. Admittedly, the deceased was driving two-wheeler without wearing any Helmet. Not only that, two persons were sitting as pillion riders. This act is in gross violation of the provisions of the motor vehicle Act and also the conditions of the insurance policy.
12. The finding recorded by the Tribunal regarding the contributory negligence cannot be interfered with. The only question remains that in a case where there is a contributory negligence, whether 50% compensation amount shall be deducted?
13. It is well settled that when there is a collision between the heavy vehicle and the lighter vehicle, (here cannot be deduction of half of the compensation amount. The proportionate deduction, in our view, should be 25% out of the total compensation.
14. Taking into consideration the entire facts and circumstances of the case and after deducting the reasonable amount for the contributory negligence, in our view, a sum of Rs. 2,50,000/- shall be just and reasonable compensation.
15. We, therefore, allow this appeal holding that the appellants-claimants shall be entitled to a lump sum compensation amount of Rs. 2,50,000/- (Rs. Two lakhs fifty thousand only). Out of the aforesaid amount, a sum of Rs. 1,00,000/- (one Lakh) shall be deposited in a 'Long Term Deposit Scheme' in the name of minor claimant-appellant.