JUDGMENT
S.S. Jha, J.
1. This appeal is filed by the appellants-claimants for enhancement of the compensation. Respondent No. 1 has filed cross-objection challenging the quantum of compensation.
2. Brief facts of the case are that on 2.12.1991 about 8 in the morning, while the deceased Lithru was crossing Agra-Bombay Road to reach agricultural field near Rairu Farm, bus driven by respondent No. 2 dashed against him which caused his death. The claim petition was filed by the mother appellant No. 1 and elder brother appellant No. 2. Claims Tribunal after hearing parties held that it is a case of contributory negligence of the deceased and the bus driver. Claims Tribunal found that the income of the deceased was Rs. 600 per month and determined the dependency at Rs. 400 per month, i.e., Rs. 4,800 per annum and awarded compensation by applying the multiplier of 15. In addition, compensation towards mental agony and loss of love and affection has also been awarded.
3. Counsel for the appellants submitted that it is not a case of contributory negligence. He submitted that when claimants have come forward with a case that the deceased was earning Rs. 40 per day, his monthly income has wrongly been assessed at Rs. 600 by the Tribunal. Counsel for the appellants further submitted that today income of a daily wager is much higher and compensation ought to be determined on the basis of the income as exists on the date of arguments of the appeal. He submitted that dependency of the parents of the deceased should be 2/3rd and not 1/3rd of the income of the deceased. Counsel for the appellants submitted that the Apex Court has not laid down the correct law in the case of Donat Louis Machado v. L. Ravindra, 1999 ACJ 1400 (SC). He submitted that various High Courts have taken a different view and referred number of judgments of the High Courts of Rajasthan, Allahabad and Madras in support of his contention. Counsel for the appellants further submitted that appellant No. 2, who is elder brother of the deceased, is a legal representative of the deceased and is entitled for compensation. Appellant No. 2 was dependent upon the deceased. It is further contended by the learned counsel for the appellants that the judgment in the case of Donat Louis Machado (supra), is an isolated case which has not been followed by any of the courts. The counsel for the appellants submitted that minimum income of the deceased should be determined at Rs. 10,000 per annum and multiplier of 15 should be applied to this figure and a further sum of Rs. 20,000 should be awarded under various heads.
4. Counsel for respondents submitted that once the Claims Tribunal has found that the monthly income of the deceased was Rs. 600, dependency should have been determined at Rs. 200 per month and the multiplier should be applied considering the age of the mother of the deceased at the time of accident. Since the claimants have come forward with a case that age of the mother of the deceased appellant No. 1 was 50 years at the time of the accident, therefore, multiplier of 11 will be applicable in the case and the Claims Tribunal has determined the compensation at much higher rate. He submitted that the compensation should not be more than Rs. 26,400. The counsel for the respondents then submitted that the Claims Tribunal has deducted Rs. 10,000 towards contributory negligence, whereas negligence of the deceased was more than fifty per cent and, therefore, at least fifty per cent amount should have been deducted from the quantum of compensation.
5. We have heard learned counsel for the parties.
6. As regards the question whether appellant No. 2 is a legal representative of the deceased, he is the elder brother of the deceased. He has admitted in his deposition that he along with the deceased was going for labour and he has daily wage income. Even otherwise, since class I heir, i.e., mother of the deceased is available, therefore, appellant No. 2 being class II heir will not be a legal representative of the deceased so long as mother is alive.
7. As regards determining dependency of the mother of the deceased is concerned, this question has already been settled by the Apex Court in the case of Donat Louis Machado, 1999 ACJ 1400 (SC). This judgment was considered by this court in a recent decision in the case of Parathsingh v. Sanjay Sharma, 2003 (1) TAC 103 (MP) and in Rajesh v. Rajesh alias Pappu, M.A. No. 291 of 2003; decided on 18.8.2003 and ratio has been laid down that in the case of parents of the deceased, dependency will be 1/3rd of the income of the deceased at the time of his death. The judgment of Supreme Court is binding upon this court and there is no reason to differ from the said judgment. Therefore, we hold that the dependency of the parents of the deceased shall be 1/3rd of income of the deceased. This view has been taken by various Division Benches and this being consistent view, we do not wish to differ from it.
8. Claimants have referred to judgment of the Apex Court in the case of Ashar Hussain Khan v. New India Assurance Co, Ltd., JT 2001 (Supp 2) SC 129 and submitted that at the time of death, deceased was unmarried and the Apex Court has held that the Tribunal ought not to have considered as if he was married and it ought to have determined his contribution towards family would be at least Rs. 16,000 per annum whereas income of the deceased was Rs. 2,000 per month, i.e., Rs. 24,000 per annum. But in this judgment, earlier judgment of the Apex Court in the case of Donat Louis Machado, 1999 ACJ 1400 (SC), was not considered. Therefore, the law laid down earlier will prevail.
9. As regards income of the deceased is concerned, Cheli AW 1, has deposed that income of the deceased was Rs. 40 per day. Considering this evidence, we accept the deposition of this witness that income of the deceased was Rs. 40 per day. It is also admitted that the deceased was a daily wager. Therefore, it may be safely presumed that he was getting work on daily wages for 25 days in a month. Thus his monthly income is determined at Rs. 1,000 and yearly income comes to Rs. 12,000. Therefore, dependency of the parents of the deceased is 1/3rd of the income, i.e., Rs. 4,000 per annum.
10. As regards application of the multiplier, it has been held in case of U.P. State Road Trans. Corporation v. Trilok Chandra, 1996 ACJ 831 (SC), that in a case where claim petition is filed by the parents of the deceased, multiplier should be determined on the basis of the age of the parents. Admittedly, in the present case, age of the mother of the deceased is 50 years. Therefore, it will be safe to apply the multiplier of 11 to Rs. 4,000 figure and compensation is determined at Rs. 44,000. To this, a further sum of Rs. 10,000 is added under various heads such as loss to estate, funeral expenses, loss of love and affection, etc. Thus, the total compensation is determined at Rs. 54,000.
11. As regards contributory negligence is concerned, in the application itself it is mentioned that accident occurred while the deceased was crossing the National Highway–Agra-Bombay Road near the Rairu Farm. Roopa AW 2, has categorically deposed in his cross-objection that while the deceased hardly moved two steps to cross the road, bus dashed against him which shows that the deceased had not taken sufficient precaution before crossing the road. He had not even looked either side of the road to see if any vehicle is coming and he attempted to cross the road without looking at nearby vehicles. Therefore, we hold that it is a case of contributory negligence. However, since quantum of minimum compensation for no fault liability is fixed at Rs. 50,000, therefore, it will not be appropriate to reduce the amount of compensation in this case. The amount so determined shall carry interest at the rate of seven per cent per annum from the date of application till payment. However, if any amount is deposited by the respondents towards the amount of compensation awarded, that shall be adjusted and the interest shall be calculated accordingly.
12. In the result, appeal fails and is dismissed and the cross-objection is allowed with the above modification.