K. Kannan J. - (1.) THE appeal is against an award of dismissal of the claim in a case where the deceased, who was a Mason aged 39 years, was run over by the Respondent's bus. The fact of accident was admitted by the driver and the owner but contended that the accident had taken place only by the negligence of the cyclist. As regards the evidence by the Sarpanch Harjeet Singh, who spoke about the accident, the Court found that the negligence was established since the evidence of the eye -witness was unreliable. The further reasoning was that Harjeet Singh himself was not stated to be an eye -witness in the petition and therefore, the evidence could not be relied on. In the case of a collision between the motor cyclist and the cyclist, who were travelling on the road, I would place the issue of negligence to be established by the fact of death of the cyclist himself, for there ought to be a greater degree of care by the driver of the motor cycle. I will, therefore, set aside the finding of the Tribunal that the claimants had not established the issue of negligence. I would hold on the other hand that the driver of the motor cycle was responsible for the accident.
(2.) THE deceased was a Mason and the evidence through AW -2, who was also a Mason, was that the deceased used to be earning Rs. 100/ -per day. The Tribunal took the average income at Rs. 2800/ -, made a deduction of 1/3rd and adopted a multiplier of 16 but chose to dismiss the claim petition on the ground that the negligence was not established. The counsel seeks for appraisal of compensation in the manner laid down by the Hon'ble Supreme Court in Sarla Verma v. DTC : 2009(6) SCC 121. I will take the income as taken by the Tribunal and re -work the compensation as per the formula given in the said decision. The total compensation is tabulated as under: Age 39 years Occupation Mason Claimants Widow, 3 minor daughters and two minor sons Heads of claim Tribunal High Court Sl. No. Amount (Rs.) Amount (Rs.) 1 Income 2800 2800 2 Add, % of increase 30% / 50% 3 Average monthly income x 12 4 Deduction (1/2 , 1/3, 1/4, 1/5) 1/3rd 1/4th 5 Multiplicand 2100 6 Multiplier 16 15 7 Loss of dependence 1,24,800 378000 8 Medical Expenses & Transportation 9 Loss of Consortium 17500 10 Loss to estate 5200 2500 11 Funeral expenses 2000 Total 1,30,000 4,00,000 The amount determined now shall also bear interest @7.5% from the date of the petition till the date of payment. The liability shall be against the Respondents jointly and severally and the insurance company shall be liable to indemnify the insured. The amount shall be distributed equally amongst the widow and the children.
(3.) THE appeal is allowed to the above extent.;