JUDGMENT
Bhawani Singh, C.J.
1. This appeal is directed against the award dated 31.1.2000 passed by the Claims Tribunal, in Claim Case No. 17 of 1999.
2. Briefly stated, the accident took place on 27.12.1998 at 11 p.m., when one Gopal Koli (35) fell down from the window of truck No. MP-17-8948 and died leaving behind Leelabai (wife), Raju (son) and Anita (daughter). The truck was owned by Jumma Khan (respondent No. 1), driven by Jai Singh (respondent No. 2) and insured with National Insurance Co. Ltd., Indore. The allegation is that the accident took place due to rash and negligent driving of the vehicle, otherwise it would not have taken place. At the time of accident, the deceased was earning Rs. 1,200 per month, apart from Rs. 30 daily allowance. Compensation of Rs. 22,15,000 is claimed.
3. The owner and driver (respondent Nos. 1 and 2) have admitted that the deceased was a cleaner in the truck and he died while he was getting into the truck from the rear side. The insurance company (respondent No. 3) claims that the driver did not possess a valid driving licence for driving the vehicle, therefore, violated the conditions of the insurance policy, hence not liable to pay any compensation. As a matter of fact, the deceased was responsible for his death being negligent and was travelling by the truck.
4. The Claims Tribunal held that the deceased was cleaner in the truck and died by fall from it, but he was also negligent in not taking care of himself, therefore, liable for the accident up to 50 per cent. Consequently, out of the award, 50 per cent (fifty per cent) of the award, namely, Rs. 78,500 is made payable. Against this award, National Insurance Co. Ltd. (respondent No. 3) has not filed appeal. The present appeal is at the instance of the claimants seeking enhancement of compensation and challenging the finding of the Tribunal holding the deceased liable for the accident to the extent of 50 per cent and exoneration of the insurance company be set aside.
5. Records of the case perused and the counsel for the parties heard. From the evidence, the Claims Tribunal has come to the conclusion that the deceased was cleaner in the truck. This assertion of the claimants is supported by the statements of Leelabai, wife of the deceased and Jumma Khan, owner of the vehicle. This being a finding of fact, we do not propose to disturb it. Therefore, the contention of Mr. S.S. Swami, learned counsel appearing for insurance company that the Investigator appointed by the insurance company found that the deceased was passenger in the truck and not a cleaner, cannot be accepted, being against overwhelming evidence to the contrary and hearsay. Further, his statement is based on Jumma Khan, whose statement in the case and the court is that deceased was cleaner in the truck. Therefore, it cannot be said that the deceased was gratuitous passenger in the vehicle permitted by the truck driver against the conditions of the insurance policy.
6. The next question for examination is whether the Claims Tribunal is right in holding that the deceased was liable to the extent of 50 per cent for the accident being negligent in travelling. It has been alleged that the truck was being driven at a fast speed in a rash and negligent manner, therefore, opening of window and falling of the deceased sitting by the side of window, was likely to happen and has happened in this case. Consequently, he could fall like any other person and falling from the moving vehicle by sudden opening of the window is possible. Therefore, we hold that the deceased was not, in any manner, negligent in travelling by the vehicle as cleaner thereof and conclusion of Claims Tribunal to the contrary is set aside.
7. Having come to the conclusion aforesaid on one aspect of the matter, we shall now deal with the question of payment of compensation, forcefully argued by the learned counsel for the parties.
8. Mr. R.N. Dave, the learned counsel appearing for the appellants, submits that the Claims Tribunal has not assessed the compensation properly. Income of the deceased is not considered as per evidence nor proper multiplier applied in the case. Mr. S.S. Swami, learned counsel appearing for the insurance company, opposes the submissions and submits that with this kind of evidence produced by the claimants, payment of compensation is just and proper, therefore, the appeal deserves to be dismissed. We do not agree with this submission and proceed to enhance the compensation for reasons we record hereafter.
9. Deceased was being paid Rs. 1,200 per month by way of salary and Rs. 30 daily allowance as per the claim supported by Jumma Khan, owner of the vehicle. In absence of evidence to the contrary, the deceased was earning Rs. 2,100 per month. After making deductions of 1/3rd towards personal expenditure, monthly dependency comes to Rs. 1,400, yearly Rs. 16,800. By using multiplier of 17, the compensation works out to Rs. 2,85,600 plus Rs. 24,500 (Rs. 10,000 for the loss of expectancy of life, Rs. 10,000 for loss of consortium, Rs. 2,500 for loss to estate and Rs. 2,000 for funeral expenses), totalling compensation to Rs. 3,10,100 (rupees three lakh ten thousand one hundred only) with interest at the rate of 9 per cent per annum, on the enhanced compensation.
10. The appeal is allowed in the terms aforesaid. The claimants are entitled to enhanced compensation from the date of application till payment, payable by National Insurance Co. Ltd. Costs on parties.