G.B. Patnaik, J.
1. This is an appeal under Section 110-D. of the Motor Vehicles Act against the award of the 2nd Motor Accidents Claims Tribunal, Sambalpur, Claiming enhancement of compensation awarded by the Tribunal.
2. The appellants who are the widow and son of deceased Om Prakash Joshi, who on the date of death was an Assistant Engineer in the Orissa State Electricity Board, filed a Claim petition Claiming Rs. 3,55,000/- as compensation. It was alleged that on 17.8.1982 at 2.00 p.m. while the deceased was proceeding to his house from the office for taking his lunch, the vehicle tearing registration No. OAO 2325 came from the opposite direction at a high speed and collided with the motor cycle as a result of which the deceased was thrown off the vehicle and sustained grievous injuries. He was admitted into the Ispat Hospital at Rourkela and later on was removed to the hospital at Cuttack, where ultimately he succumbed to the injuries on 1.10.1982. The deceased was aged 35 years on the date of death.
3. The owner filed a written statement admitting the accident but denied the rashness or negligence on the part of his driver and it was his case that the deceased himself was driving the motor cycle at a very high speed and in reckless manner as a result of which it dashed against the car.
The insurer also filed a written statement admitting that the vehicle had been insured with it, but pleaded that the accident was on account of the negligence of the deceased.
4. Before the Tribunal, three witnesses were examined on behalf of the Claimants. So far as the owner is concerned, he was neither examined nor took any further part in the proceedings. But on behalf of the Insurance Company, the Assistant Adminis-trative Officer was examined. The Tribunal on consideration of the materials placed before it came to the conclusion that the accident occurred on account of negligence on the part of the driver of the motor car as well as the deceased who was driving the motor cycle. The Claims Tribunal assessed the negligence of the car driver at 25 per cent. On the question of quantum of compensation, the Tribunal adopted the multiplier system and recorded a finding that the total dependency comes to Rs. 72,000/-. But, in view of its earlier conclusion that the negligence of the car driver is only 25 per cent, the Tribunal awarded compensation to the tune of Rs. 18,000/- to the Claimants. In addition, the Tribunal awarded Rs. 2,000/- towards medical expenses and in all compensation of Rs. 20,000/ - was awarded. It is this award which is being assailed in this appeal.
5. Mr. Ray appearing for the appellants contends that the Tribunal committed gross error in not recording the evidence but in only noting down the substance of the evidence and there the ultimate conclusion is vitiated. He further urges that the finding that the deceased while driving the motor cycle was also negligent, is based on no evidence and, therefore cannot be sustained and consequently the theory of contributory negligence will not apply. So far as the quantum of compensation arrived at by the Tribunal is concerned, Mr. Ray contends that the Tribunal has not considered several relevant materials and has illegally come to hold that the total amount of dependency would work out only at Rs. 72,000/-. According to Mr. Ray, a young Engineer who the d at the age of 35 and normally would have superannuated at the age of 58 years could have risen very high in the career and the Tribunal committed error in finding out the dependency at only Rs. 72,000/-.
Mr. Mohanty appearing for the Insurance Company, respondent No. 2 submits that no doubt the conclusion of the Tribunal is not justified but this would be a fit case where this Court should remand the matter so that parties would have opportunity of leading evidence and the Tribunal would be in a position to award just compensation. Mr. Panda appearing for the owner has nothing further to add as the owner has no liability and it is the insurer who would be liable to pay the entire amount of compensation.
6. In view of the nature of evidence and the manner of recording of evidence by the Tribunal, I was inclined to remand the matter for fresh disposal by giving opportunities to the parties concerned. But Mr. Ray appearing for the appellants contends that more than nine years have lapsed in the mean time and remitting the matter to the Tribunal again would consume some more time and the poor Claimants have already suffered a lot and, therefore, Mr. Ray prays that instead for remanding the matter, on the existing materials, the quantum of compensation may be determined and the award of the Tribunal may be modified. Undoubtedly, more than nine years have lapsed from the date of the accident. The wife and the minor child of the deceased must have suffered terribly, as the only earning member of the family met with the accident and the d at the young age of 35. An order of remand would obviqusly consume quite some more time. I am, therefore, persuaded to accept the submission of Mr. Ray appearing for the appellants to dispose of this appeal rather than remanding the same. In that view of the matter, it would be necessary now to examine the evidence on record for the purpose of finding out whether the conclusion of the Tribunal is at all justified.
7. Coming to the question whether the deceased was at all negligent in driving the motor cycle, I have gone through the evidence recorded by the Tribunal. There is not an iota of material on record from which it can even be inferred about the negligence of the deceased while driving the motor cycle on the relevant date. On the other hand, the Claimants' evidence through PW 3 who saw the accident is categorical to the effect that the car was being driven at a very high speed and the motor cycle was not at a high speed and the car collided with the motor cycle. The owner, no doubt, in his written statement had taken a stand that the deceased while driving the motor cycle was negligent but excepting making that assertion in the written statement, the owner never participated in the proceedings nor did he adduce any evidence in support of the stand taken in the written statement. In that view of the matter and in view of the unchallenged testimony of P.W. 3, J have no hesitation to come to the conclusion that the Tribunal committed gross error in recording a finding that the deceased was also negligent in driving the motor cycle and Sic was negligent to the extent of 75 per cent. The conclusion of the Tribunal on that score is based on surmises and conjecture rather than on the materials produced, I would, there Sore, set aside the said conclusion of the Tribunal and hold that it was only the driver of the car who was solely responsible for the accident and it is his negligent driving that led the motor car to collide with the motor cycle as a result of which the deceased ultimately succumbed. The Tribunal, therefore, wholly erred in law in applying the principle of contributory negligence to the facts and circumstances of the present case.
8. The next question that arises for consideration is what would be the quantum of compensation which the Claimants can be said to be entitled to. The Tribunal has applied 20 times multiplier system. From the materials on record, it transpires that the deceased was an Assistant Engineer and had he continued in service he would have superannuated only at the age of 58 and, therefore, would have continued for 23 years more. Even on the date of the accident, as an Assistant Engineer he was drawing a salary of Rs. 1,113/-. Reasonably an Assistant Engineer can expect to be promoted at least to the post of an Executive Engineer during his service career even though a little amount of luck would have placed him as a Superintending Engineer. Normally the life period in this part of the country is 65 years in the minimum. But even without going into the aforesaid uncertainties, if Rs. 1,113/- is taken, to be the income of the deceased on the relevant date, and out of the same he was utilising Rs. 800/- for the family, then the entire amount during the service career of the deceased which the family would have got would work out roughly to Rs. 2,21,000/-. Mr. B.P. Ray in this setting contends that the minimun compensation should be Rs. 2,00,000/- to be awarded to the Claimants. Having heard Mr. Ray for the appellants and Mr. Mohanty for the respondent No. 2 and bearing in mind the principles for award of compensation in several decisions of this Court as well as that of the Supreme Court, I am of the considered opinion that a sum of Rs. 1,75,000/- could be the adequate compensation for the two appellants, namely, the wife and the son of the deceased. Since the Tribunal has already awarded a sum of Rs. 20,000/-, the appellants would be entitled to the enhanced compensation of Rs. 1,55,000/-. The award of the Tribunal is modified accordingly and the insurer, the respondent No. 2, is directed to pay the enhanced compensation amount of Rs. 1,55,000/- to appellant Nos. land 2 within three months from today. Out of this, a sum of Rs. 55,000/- (fifty-five thousand) be kept in a Fixed Deposit in the name of appellant No. 2, the minor son, and the balance Rs. 1,00,000/ (one lakh) be paid to the mother, appellant No. 1, by means of a demand draft or crossed cheque drawn on any bank at Rourkela. If the insurer fails to pay the amount in question within three months as indicated above, then the appellants would be entitled to interest at the rate of 12 per cent per annum from the date of the judgment till the amount is actually paid.
The Miscellaneous appeal is accordingly allowed. There will, however, be no further order as to costs.