Manak Mohta, J.
1. The instant appeal has been preferred by the claimants against the judgment and Award dt. 17.04.2007 passed by the learned Judge, Motor Accident Claims Tribunal, Rajgarh District Churu in MACT Case No. 88/2005, whereby the learned Court-below has partly allowed the claim petition and awarded compensation in the sum of Rs. 2,02,000/- in their favour.
2. Brief facts of this appeal are that on 01.10.2005 at about 10.00 PM deceased Bhalaram @ Ram Prasad and Mohar Singh started on Tractor No. RJ-10-R/4792 from Rajgarh for Nagal badi. Mohar Singh was driving the Tractor and deceased Bhalaram was sitting on the Tractor. When they reached near Lutana Barrier at Hissar Road, then, one Bus bearing No. RJ- 18P/1160 driven by its driver Sant Ram came behind them and dashed the said Tractor, on account of which, the trolley of the Tractor turtled, Bhalaram fell down and sustained injuries during accident, whereby, Bhalaram @ Ram Prasad died on the spot and Mohar Singh sustained injuries on his person. An FIR of this incident was lodged at Police Station Rajgarh. The police after thorough investigation, filed challan under Sections 279, 337 and 338 IPC against respondent No. 2-Sant Ram (Driver of the offending Bus). The legal heirs of deceased Bhalaram filed a claim petition for compensation of Rs. 33,38,500 on different heads in the Court of Motor Accident Claims Tribunal, Churu.
3. The respondents No. 2 and 3, owner and driver respectively of the offending Bus filed reply to the claim petition denying all the averments made in the claim petition. Further in the reply it was stated that their Bus was insured with respondent No. 1, thus, if any liability of paying compensation arises, then, the Insurance Company would be responsible.
4. In reply to the claim petition filed by respondent No. 1-Insurance Company has denied all the averments for want of knowledge. Further stated that the accident took place due to missing of indicator light on the trolley, therefore, the owner and driver of the tractor were responsible for the payment of compensation and prayed that the claim petition may be rejected.
5. It is revealed from the record that owner injured person Mohar Singh also filed a claim petition, therefore, both the claim petitions were tagged together and disposed of by a common judgment.
6. On the basis of pleadings of the parties, the following issues were framed by the learned Tribunal:
7. After hearing the parties, the learned Judge, MACT Rajgarh in case No. 88/1985 filed by the appellants has decided all the issues in favour of the appellants and has partly allowed the claim petition after considering the material on record and has awarded total Rs. 2,02,000/- as compensation to the claimants. In case No. 22/2006 filed by Mohar Singh, the learned Tribunal has awarded Rs. 99,400/- as compensation against the bus driver, owner and Insurance Company of the Bus.
8. Being dissatisfied by the amount awarded as compensation under the judgment and Award dt. 17.04.2007 passed by the learned Tribunal, the claimant-appellants has preferred the instant appeal before this Court for enhancement of compensation. The notices of appeal were given to the respondents. None appeared on behalf of respondent No. 1 i.e. the Insurance Company despite service of notice.
9. I have heard learned Counsel for the parties and carefully perused the record. During the course of arguments, it was contended by the learned Counsel for the appellants that the learned Tribunal has not properly considered and appreciated the material available on record and has given erroneous findings on the income of the deceased and has determined inadequate compensation, that deserves to be set aside and that amount of compensation is required to be enhanced. It was further contended that deceased Bhalaram @ Ram Prasad was expert in driving the vehicle as well as he was Mistry. This fact has been proved by oral evidence. Learned Counsel for the appellants drew my attention towards the statement of AW 1 Mst.Sunita. AW 1 Mst.Sunita, in her statement, has stated that her husband was Tractor Mistry and he used to earn Rs. 5000/- per month. Likewise, AW 2 Jaiveer has stated that at the time of accident, Bhalaram was driving the tractor. In addition to that, AW 3 Moharsingh also stated that he got his tractor repaired by deceased Bhalaram @ Ram Prasad. There is no rebuttal from the other side to disbelieve the statements of the witnesses. On the basis of the material available on record, it was submitted that earning of Bhalaram was Rs. 5000/- per month and further it was submitted that having knowledge of driving the vehicle as well as Mistry, the income shown by AW 1 Mst.Sunita was not excessive. The learned Tribunal should have taken the said income of Bhalaram and on that basis, the compensation should have been determined but the learned Tribunal has given finding that income of Bhala Ram was not found proved and on that basis, notional income of Rs. 15,000/- p.a. has been taken and compensation has been determined accordingly. It was also contended that, that was against the record and to this extent, the finding of the learned Tribunal is required to be quashed and on the basis of the aforesaid income, adequate compensation may be determined. It was also stated that the learned Tribunal has awarded meager amount on the other heads, they should also be enhanced. On the basis of the aforesaid submissions, prayer was made to enhance the compensation and accept the appeal.
10. On the contrary, the learned Counsel for the respondents No. 2 and 3 supported the judgment and Award passed by the learned Tribunal. It was further contended that with regard to the income of the deceased, no independent corroborative evidence have been placed by the claimants, therefore, the learned Tribunal has rightly concluded the issues and prayed that the appeal may be disallowed.
11. I have considered the rival contentions of the parties and perused the material available on record. On the basis of the contention raised before me, the question remains for consideration whether income of the deceased has rightly been determined by the learned Tribunal or it requires any interference? So far as the finding with regard to issues No. 1 and 2 that accident occurred due to rash and negligent driving of the Bus driven by Sant Ram driver is concerned, that is based on the statement of AW 3 Mohar Singh who was travelling in the same tractor and that finding is not indispute. The learned Tribunal has rightly held that the accident occurred due to rash and negligent driving of the offending bus driven by Sant Ram. It was fortified by the material that the police has filed challan after investigation against Sant Ram driver of the bus.
12. Before adverting to other main contentions, I have considered the statement of AW 1 Mst.Sunita who is widow of deceased Bhalaram @ Ram Prasad. She has stated in her examination-in-chief that her husband was tractor mistry and he used to earn Rs. 5000/- per month. There is no cross on this point from the opposite side. It is further fortified by the other witness AW 3 Mohar Singh that deceased Bhalaram was tractor Mistry. AW 3 Mohar Singh has stated that he got repaired his tractor bearing No. RJ 10R/4792 by the deceased Bhalaram. AW 3 Mohar Singh has also stated that Bhala Ram was driving the tractor. There is no rebuttal from the other side that Bhalaram was not knowing to drive the tractor and he was not knowing the work of Mistry and on the basis of these material it could easily be inferred that the deceased was having knowledge of driving the tractor and was having the knowledge of tractor repairing. It has also been established by AW 3 Mohar Singh that he used to earn Rs. 5000/-p.m. that is not abnormal or excessive but the learned Tribunal has disbelieve this statement and gave a finding that income of the deceased has not been proved. In that case, the learned Tribunal has determined/assessed by taking notional income of Rs. 15000/- p.a. and out of that, after deducting 1/3rd of the income for his personal expenditure, Rs. 10000/- has been assessed for family expenditure. But to my mind, the finding of the learned Tribunal is not correct. There is no reason to disbelieve these statements of the witnesses and on the basis of that, atleast, income of the deceased from driving and mistry, could be assessed as Rs. 3000/- per month. There were further chances of increasing the income of the deceased, therefore, compensation awarded by the learned Tribunal, requires reconsideration. After taking into consideration, the age of the deceased, which has been shown as 20 years at the time of accident, therefore, the learned Tribunal has rightly taken the multiplier of 17, while maintaining the same multiplier, the income of the deceased has been assessed Rs. 3000/-p.m. Out of that, taking 1/3rd amount of the income for his personal expenditure, it came to Rs. 2000/- per month, which if he would have alived that amount, he would have provided to his family members for maintaining family needs. The claimant Mst. Sunita is a widow. The other claimants were also dependent on his income. Thus on that basis the net assessment of compensation comes to Rs. 2000 x 12 x 17 = 4,08,000/- which the appellants are entitled to receive. The learned Tribunal has also awarded under the other different heads for consortium, love and affection, and loss to service Rs. 32,000/- that is to be taken as it is. Total compensation comes to Rs. 4,40,000/- In this way, the claimants are entitled to receive enhanced amount of Rs. 2,38,000/- and interest thereon. The said offending bus was found insured with the respondent-Insurance Company. After rejecting their contentions, the learned Tribunal has also responsible for the payment of compensation in appeal no dispute has been raised. Thus, the respondent- Insurance Company is also responsible for payment of enhanced compensation.
13. On the basis of the aforesaid discussion, the appeal is partly allowed and the judgment and Award is modified to the extent that in place of awarded compensation of Rs. 2,02,000/- the appellant will get Rs. 4,40,000/ - which is enhanced by Rs. 2,38,000/- from driver, owner and Insurance Company of the Bus jointly and severally. Further they will also get interest @ 7 % p.a. on the enhanced amount of compensation from the date of filling the application. As the Bus is insured with the Insurance Company, thus, is directed to make payment after deducting any amount has been paid against this Award. The remaining due amount along with interest will be deposited or paid within one month faling which, the claimant will be free to start recovery proceedings against the respondents. A copy of the order be sent to the office of the Insurance Company. Rest of the judgment and Award is confirmed. No order as to costs.