JUDGMENT
V.P. Mathur, J.
1. This appeal is directed against the judgment and order passed by Mr. V.S. Kulshrestha, the then Vth Additional District Judge, Moradabad on 11-2-78 in connection with Claim Compensation Application No. 12 of 1976. Mr. Kulshrestha was acting as Claims Tribunal under the Motor Vehicles Act.
Originally the claim was putforth by Narayan son of Likhan Kumhar and his wife Smt. Rampia alias Ramtia. They are the father and mother of the deceased Ghan Shiam who was a minor. It appears that during the course of the hearing of the claim, Narayan died and his married daughters-1/1 and 1/2 Smt. Lilawati and Smt. Tarawati and his minor children Pooran, Jilal and Km. Hansmukhi were brought on the record as bis heirs.
The brief facts of the matter were that Ghan Shiam who was a minor aged about 15 years, was killed on 10-3-1976 near the shop of Gauri Shankar on the road side which runs between Chaufaha Budh Ka Bazar and Dharamshala Gulzarimal in Moradabad. Truck No. USN 3059 owned by Smt. Rukmani Devi and driven by her driver Sri Prem, came at a great speed driven in a very careless manner and struck against Ghan Shiam, as a result of which the body fell down on the spot, was crushed and died. Opposite party No. 3 M/s Hindustan Insurance Company Calcutta were the Insurers of the Truck. The claim was made for a sum of Rs. 50,000/- on the ground that the deceased was earning Rs. 300/- per month as a Potter (Kumhar).
2. A contest was putforth by the owner of the truck and the driver, but not by the Insurance Company. Issues were struck and it was found that the accident took place as a result of careless driving of truck No. USN-3059 owned by Smt. Rukmani Devi and driven by Sri Prem. It was further held that the deceased was earning a sum of Rs. 90/-per month. Applicants 1/1, 1/2 and 1/3 were not found entitled to any compensation but the other applicants were found entitled to a total amount of Rs. 9600/-. The petitioners Nos. 1/4, 1/5 and the petitioner No. 2 were found entitled to a sum of Rs. 9600/- with pendentelite and future interest at the rate of 6 percent per annum against the respondent No. 3 in view of the finding that the respondent No. 3 namely the Insurance Company was liable to pay upto a sum up to Rs. 50,000/-.
All the three respondents were served in this appeal also. All of them were represented. But on the date of hearing of the appeal, no body appeared on behalf of Rukmani Devi and Sri Prem Driver. The learned Counsel who appeared for the Insurance Company also did not putforth any argument on merits and merely said that against his client, the case had been disposed of ex-parte in the Court below and there was no evidence on the record in their support.
3. I have very carefully gone through the entire record including the statements recorded. The learned Judge appears to have come to the conclusion that the deceased was earning a sum of Rs. 90/- per month on the basis of suggestion given to P.W. 1 Pooran on behalf of opposite parties Nos. 2 and 3. It was contended through the suggestion that the deceased was in service at the shop of Gauri Shankar at a monthly salary of Rs. 90/-Gauri Shankar was never examined. The suggestion given to Pooran was refuted. Pooran is the real brother of the deceased. His testimony that the deceased was earning a sum of Rs. 300/- per month, while he was working as a Potter-preparing earthen pots, has gone unrefuted and there is absolutely nothing on the record to come to a conclusion that the deceased was not earning Rs. 300/- per month. This statement of Pooran has got to be accepted and the learned Court balow was not justified in discarding it, even though it was the only assertive evidence on the record and there was nothing to controvert it. I will, therefore, hold that the deceased was earning Rs. 300/- per month and not Rs. 90/- per month.
So far as the fact of the accident is concerned, it has been established on the record satisfactorily and beyond doubt. The first information report in this case was lodged by one Om Prakash. He is not connected with the deceased or with the Claimants. He was sitting on the Tea shop of Gauri Shankar, when this accident took place and he saw what happened. He has been examined as P.W. 2 and inspite of a lengthy cross examination, he has been unshaken. Even now before me, it is not argued that the accident did not take place with this truck. The learned Court below’s finding that the accident took place on account of a rash and negligent driving by Prem Driver of truck No. USN-3059 owned by Smt. Rukmani Devi, therefore, stands confirmed.
The next question for determination is as to how much amount by way of compensation shall be available and against whom. So far as the opposite-parties are concerned, I have already made a mention that Smt. Rukmani Devi is the owner of the Truck and Sri Prem was the driver of the truck. These facts are not disputed. Therefore, these two persons will also be liable for the payment of compensation just like the Insurance M/s Hindustan Insurance Company, Calcutta. It is a different matter that as the learned Additional Judge has written, the Insurance Company’s liability extends upto a sum of Rs. 50,000/-. It will be open for the persons in whose favour the claim is decreed to realise this amount from any of the three opposite parties including the Insurance Company, which will be liable to pay an amount up to Rs. 50,000/-, but this does not mean that the claim should be decreed only against the Insurance Company and the remaining two opposite parties should be completely exonerated. After all the truck was being driven with recklessness and in a careless manner and at a high speed by Opp. party. No. 2. Prem. He can not escape his liability. The occurrence took place while driver of the truck was in employment of his Master and since Smt. Rukmani Devi Opp. party No. 1 is the owner of the truck, she also will be liable. In my opinion, therefore, there was no justification for the learned Court below to direct the claim to be decreed against the respondent No. 3 alone. It should be decreed against all the three respondents.
Coming to the total amount of the claim to which there can be entitlement, the learned Court below has fixed ten years’ period for considering the compensation to be paid. The deceased was 15 years of the age when the occurrence took place. Within this ten years’ period, he would have become of the age of 25 years. It is normally expected that till then he would have married and settled with his own family. In my opinion, the ten years’ period has been rightly fixed. At the rate of Rs. 300/- per month, rightly fixed. At the rate of Rs. 300/-per month, he was earning. There is some law to lay down that l/3rd of the total emolument should be deemed to have been spent by the deceased in maintaining himself and the balance should be left for support of his dependents, A reference may be made to the case of Smt. Neelima Arora v. Union of India and Ors. decided by a Division Bench of this Court reported in 1977, A.W.C. page-585. Subsequently in the case of Smt. Dekoi Devi Tiwari and Ors. v. Raghunath Sahai Chathrath and Ors. another Division Bench of this Court, vide, report in 1977 A.W.C. 629 was of the view that half of the amount of the earning should be deemed to have been spent by him on maintaining himself. I am taking the view that l/3rd should be set apart out of the amount of Rs. 300/ i.e. Rs. 100/-per month should be deducted from the total amount of Rs. 300/- leaving a sum of Rs. 200/- per month, which can be available for the benefit of the dependents of the deceased. This will mean a sum of Rs. 2400/- for a year and for ten years’ period, the amount will come to Rs. 24000/-T hold that the compensation to be allowed to applicants 1/3, 1/4, 1/5 and 2 namely Pooran, Jilal, Km. Hansmukhi and Smt. Ramtia alias Rampia should be a sum of Rs. 24,000/- with pendentelite and future interest at the rate of 6 percent per annum from the date of the claim petition i.e. 19-7-76 till the date on which the amount is realised. The decree should be against all the opposite parties. Pooran may himself be earning, but here he comes as heir and legal representative of his father and will have a right in the share of his father’s compensation amount.
4. In the result, the appeal is allowed in part. The claim is decreed for a sum of Rs. 24,000/- with pendentelite and future interest at the rate of 6 percent per annum to be calculated from 19-7-76 till the date of realization. The amount is decreed in favour of Smt. Ramtia alias Rampia, Km. Hansmuktii, Jilal and Pooran and against all the defendants namely opposite parties Smt. Rukmani Devi, Prem and Hindustan Insurance Company, Calcutta.
Since no contest has been putforth in this appeal, parties shall bear their own costs throughout.