N.D.OJHA, J. - (1.) THE appellants are the father and mother of one Rajiv Nandan Srivastava. According to the appellants on 6th August, 1981, at about 4.15 PM bus No. UPF 7062 of the respondent U.P. State Road Transport Corporation dashed against Rajiv Nandan Srivastava at Dohariaghat in the district of Azamgarh causing injuries to him to which he ultimately succumbed on the next day. A claim was made by the appellants for compensation in the sum of Rs. 1,47,000/- before the Motor Accident Claims Tribunal, Azamgarh. It was contested by the respondent inter alia on the ground that no accident took place by the respondent's bus as alleged by the appellants and that at all events the bus was not being driven either rashly or negligently at the time of the alleged accident and consequently the appellants were not entitled to any compensation. The amount of compensation claimed was also challenged. After taking into consideration the evidence produced by the parties the Tribunal recorded findings in favour of the appellants that the accident as alleged by them had taken place and that it was established that the driver of the bus was rash and negligent in driving the bus which resulted in the accident and ultimate death of Rajiv Nandan Srivastava. In regard to the quantum of compensation the case of the appellants was that at the time of the accident Rajiv Nandan Srivastava was employed in Sahara Saving Corporation, Golghar, Gorakhpur, and was earning Rs. 500/- per month as commission. The Tribunal came to the conclusion that the appellants had failed to prove that Rajiv Nandan Srivastava was employed and earning Rs. 500/- per month at the time of the accident. It however held that since the deceased was about 24 years of age at the time of the accident he could not sit idle and would have done something to earn his livlihood and help his parents in their old age by providing them some, money, a solatium in the sum of Rs. 10,000/-deserved to be allowed to the appellants. The Tribunal further allowed a sum of Rs. 6000/- for loss of love and affection, Rs. 5000/- for mental agony and Rs. 2000/- for treatment of the deceased and funeral expenses. The total amount thus came to Rs. 23000/- out of which after deducting Rs. 3000/- in lieu of lump sum payment a decree for recovery of Rs. 20000/- as compensation was passed on 7th September, 1983. The present appeal has been filed against this award of the Tribunal with the prayer that the claim of the appellant for the sum of Rs. 1,47,000/- may be allowed in its entirety. No cross-objection has been filed on behalf of the respondent.
(2.) COUNSEL for the appellants has urged that on the evidence on record it has been established that the deceased was earning Rs. 500/- per month at the time of the accident and the Tribunal committed an error in taking a view to the contrary. Reliance in support of this submission has been placed on paper No. 20 Ka, a certificate issued by Akhilesh Tripathi as Secretary of Sahara Saving and Finance P. Ltd. and the deposition of Ajai Singh, a witness produced by the appellants who stated that the aforesaid certificate had been signed by Akhilesh Tripathi, the Secretary of the company, in his presence and that he recognised the said signature. According to counsel for the appellants the Tribunal was wrong in marking the signature only as Ex 8 and not the document itself. It was urged that the certificate having been filed in original and the signature on the certificate having been proved as aforesaid the said document stood duly proved as contemplated by Sections 61 and 47 of the Evidence Act. Reliance was also placed on the deposition of appellant No. 1, father of deceased who stated that in the first month of his employment the deceased had earned a commission of Rs. 500/-. In this connection it may be pointed out that even if the appellant's case is accepted the deceased had worked with Sahara Saving and Finance P. Ltd. only for about a month and the sum of Rs. 500/-said to have been received by him represents the entire income which the deceased had from his employment with Sahara Savings and Finance Ltd. For the respondent it has on the other hand been urged by its counsel that even if it may be accepted that from the certificate referred to above and the deposition of appellant No. 1 it was established that the deceased had earned a commission of Rs. 500/- during the course of his employment of about one month with Sahara Savings and Finance P. Ltd. it could not be said that the deceased was employed on a monthly salary of Rs. 500/- per month which he was entitled to get every month. According to counsel for the respondent on the appellant's own case the deceased was working only on contract basis and was entitled to the commission for the work done by him. It was urged that the possibility that the deceased, even if the contract with Sahara Savings and Finance P. Ltd. continued, may not have been able to earn any commission during the subsistance of the contract and consequently Rs. 500/- per month could not be treated as the regular income of the deceased at the time of the accident.
(3.) HAVING heard counsel for the parties we are of opinion that even accepting the evidence produced by the appellants it is not possible to hold that the deceased was in the regular employment of Sahara Saving and Finance P. Ltd. on a monthly salary of Rs. 500/-. Appellant No. 1 who is the father of the deceased has stated in his deposition that the deceased had started working with Sahara Saving and Finance P. Ltd. from a month before his death and was working on commission. He had not been given any appointment letter and used to enrol members for Sahara Saving and Finance P. Ltd. and that he was not in a position to tell as to what was the criteria of computing his commission. Even on the appellants' own case the duration of this contract had been for a period of about one month only at the time of the accident. Keeping in view the nature of the work done by the deceased it is apparent that the commission which he would earned would have been of a fluctuating amount with the result that in some months he may have earned Rs. 500/- per month or even more but the possibility that in other months he may not have earned any commission at all or earned a commission less than Rs. 500/- was not ruled out is such it would not be expedient to determine the amount of compensation on the basis that the deceased was earning Rs. 500/- per month. In our opinion, however, it does not present any insurmountable difficulty in awarding just compensation to the appellants.;