JUDGMENT
Narendra Kumar Jain, J.
1. The claimant-appellants have filed this appeal for enhancement of the amount of compensation in respect of death of late Shri Kapoor Chand Nuwal, Advocate, Bundi who died in an accident arising out of a motor vehicle on 12th April, 1989.
2. The claimant-appellants filed an application for compensation of Rs. 20,38,000/- against the non-claimant- respondents. It was pleaded that deceased Kapoor Chand Nuwal was going on his scooter from Bundi to Keshoraipatan and when he had crossed pulia (narrow bridge) then a bus belonging to RSRTC, Jaipur bearing No. RNE-8665 came in a very high speed and hit the scooter. The scooter driver sustained injuries, he was admitted in hospital where he died. It was also pleaded that deceased late Shri Kapoor Chand Nuwal was an. Advocate. He was earning Rs. 75,000/-per year. It was also pleaded that he was 56 years of age, he would have earned Rs. 1,50,000/- per year upto the age of 75 years. The respondents-non-claimants filed their written reply wherein contents of the application were denied. It was submitted that accident took place due to negligence on the part of the deceased. The learned tribunal framed as many as five issues. Both the parties led oral as well as documentary evidence. The learned tribunal vide its judgment/award dated 22.4.1994 allowed the application for compensation and passed an award of Rs. 1,93,750/- along with interest at the rate of 12% per annum from the date of filing of claim application till the date of realisation. Being aggrieved with the aforesaid award, the appellant has filed this appeal before this Court for enhancement of amount of compensation.
3. It has been contended on behalf of appellant-claimants that while deciding issue No. 4, the tribunal has committed illegality in recording the finding that it was a case of contributory negligence and the deceased himself was also liable for this accident. The tribunal has committed illegality in treating equal negligence of the deceased and by reducing the amount of 50% towards the total amount of compensation. The learned Counsel for the appellant-claimants has referred the statement of PW-4 Kaushal Kumar, a constable in police station, Sadar, Bundi who had stated that he had gone for investigation and for preparation of site plan near the place of accident. He was present at the time of present accident. He has stated that it was the bus who hit the scooter and due to negligence of the bus driver, the present accident took place. PW-5 Rohitash was also an eye witness to the accident as he was present at the place of occurrence because of official duty. He had gone for inspection and preparation of site plan in another case. He has stated that scooter was going from Bundi to Kota and bus was coming from Kota to Bundi. The accident took place because of negligent driving on the part of bus driver. The learned Counsel for the appellant has also referred the site plan Ex. P-24 which has been produced in the present case wherein the mark-A has been shown where the scooter was going, mark-B where the bus was going, the place Mark-F where one tractor’s was standing in burnt condition and due to it the scooter was going towards the place-A which was in left side. As per details given in the site plan Ex-24, it becomes clear that bus was at a wrong side and this accident took place because of negligence on the part of the bus driver belonging to RSRTC, Jaipur. The driver of the bus-Jai Singh was also examined as DW-1 who has admitted in his statement at page-4 that a challan was filed against him and he is facing trial for the offence under Section 304A IPC. The investigation agency came to the conclusion that bus driver was negligent in driving the bus and due to his negligence, accident took place and late Shri Kapoor Chand Nuwal died in the said accident. On the basis of above evidence, learned Counsel for the appellant-claimants contended that this evidence was sufficient so as to record a finding of total negligence on the part of driver of the bus. This case could not have been treated a case of contributory negligence. He submits that finding recorded by the learned tribunal about the equal negligence on the part of the deceased is absolutely perverse and the same should be set aside.
4. Learned Counsel for the respondents contended that finding recorded by the learned tribunal is absolutely correct and needs no interference of this Court.
5. 1 have considered the submissions of learned Counsel for both the parties and perused the record of the tribunal. AW-4 Kaushal Kumar and AW-5 Rohitash both are eye witnesses as they were present at the place of occurrence. They had gone there is connection with their official duty to inspect and to prepare a site plan of another case. The accident took place in their presence and they have stated that the bus came in a high speed and hit the scooter. Ex. P-24 site plan clearly reveals that scooter was driven at left side whereas the bus was driven at a wrong side. As per Ex.P-24, it becomes clear that accident took place because of negligent driving on the part of the bus driver- respondent No-2 Jai Singh. The learned tribunal in para-15 of its judgment although referred the site plan Ex.P-24 and appreciated it also but at the end learned tribunal recorded its finding about some negligence on the part of deceased purely on the basis of surmises and conjectures. The tribunal recorded a finding that there may be negligence on the part of scooter driver also on this Court, compensation to the extent of 50% was reduced. From the evidence available on record, statement of AW-4, AW-5 and Ex.P-24 site plan, I am satisfied that this is a case wherein there was no negligence on the part of deceased and the accident took place due to entire negligence on the part of bus driver-Jai Singh. Therefore, the finding recorded by the learned tribunal to that extent is liable set aside.
6. So far as the amount of compensation calculated by the learned tribunal is concerned, the learned Counsel for the appellants submits that income of the deceased was more than Rs. 51,000/- per annum as per income tax return and as such it could not have been reduced to Rs. 3,000/- per month for the purpose of calculating the amount of compensation. He also submits that multiplier of 10 was wrongly applied whereas in view of the age of 57, the multiplier of 13 ought to have been applied by taking into consideration the longevity of life as 70 years. Learned Counsel for the respondents contends that as per income tax return, the net income is not Rs. 51,000/-per year therefore Rs. 3,000/- per month has rightly been assessed. He submits that as per second schedule of the Motor Vehicles Act, 1988, the multiplier of 8 should have been applied. I have considered the submissions in respect of amount of compensation to be awarded in the present case. After considering income tax return of the deceased, it appears that monthly income assessed by the tribunal is correct. So far as multiplier adopted by the tribunal is concerned, the same is also correct as the tribunal treated the longevity of life as 66 years under the old Motor Vehicle Act. The multiplier of 10 was rightly applied in the present case. Therefore, I am satisfied that there is no illegality in calculating the amount of compensation awarded in favour of the claimant appellant.
7. Consequently, I allow the appeal and set aside the finding of the tribunal in respect of issue No. 1 holding that deceased was equally liable for the accident. I hold that there was no negligence on the part of deceased and as such no deduction on account of contributory negligence on the part of the deceased can be made. The claimant-appellants are entitled to receive the entire amount of compensation calculated as Rs. 3,67,500/-. Learned Counsel for the claimant-appellants does not dispute that a sum of Rs. 1,83,750/- awarded by the tribunal has already been paid to the claimant-appellants, therefore, respondents are directed to deposit the remaining amount of Rs. 1,83,750/- in the tribunal. This amount will carry interest at the rate of 12% per annum from the date of filing of the application till the date of passing of the award i.e., 22.4.1994 and at the rate of 6% per annum from the date of award i.e., 22.4.94 till the date of deposit of the amount in the tribunal. The learned Counsel for the respondents wants some time to deposit the amount of compensation with interest. Six weeks’ time is allowed to the respondents to deposit the same. As and when the amount is deposited as directed above, the tribunal will deposit the said amount in the monthly income scheme/fixed deposit in post office for a period of six years in the name of appellant No. 1 Smt. Suraj Kanwar who will be entitled to receive the interest amount on monthly/quarterly basis and remaining amount will be received by her at the time of maturity of the MIS/FDR. No order as to costs.
