MILAP CHANDRA JAIN, J. - (1.) THIS appeal has been filed under section 110-D, Motor Vehicles Act, 1939 against the judgment and award passed by the Motor Accident Claims Tribunal, Jodhpur dated August 6, 1988 by which Rs. 98,200/- has been awarded as compensation to this claimant-appellants. The facts of the case giving rise to this appeal may be summarised thus.
(2.) ON February 4, 1986 at about 7. 30 P. M. , the deceased Bachhu Khan alias Allabadhay was returning to his village on his cycle after selling milk in Phalodi. The respondent no. 1 Lakha Ram came driving his truck no. RNM 3654 from the opposite direction rashly and negligently and dashed against the deceased after coming to his wrong side of the road. As a result thereof, Bachhu-khan died on spot and his cycle was damaged. His heirs filed a claim petition claiming Rs. 7,60,400/- as compensation stating that the deceased Bachhukhan who was 40 years old at the time of the accident he was earning Rs. 50-60/- per day by selling milk, Rs. 7-8 thousand per annum by selling goats and sheeps and Rs. 10,000/- by cultivating his 60 bighas of land. The driver Lakha Ram (respondent no. 1) and owner Harchanda Ram (respondent no. 2) admitted in their joint reply that the deceased Bachhu Khan used to cultivate his field and sell cattle. The remaining allegations of the claim petition were denied. The Insurance Company admitted in its reply that the said truck no. RSM 3654 was insured with it on the date of the accident and the remaining allegations were denied. After framing necessary issues and holding trial, the learned Tribunal held that the accident took place due to rash and negligent driving on the part of the truck driver Lakha Ram and the claimant-appellants are entitled to get compensation to the tune of Rs. 98,200/-and accordingly passed the said award. It is contended by the learned counsel for the appellants that the learned Tribunal seriously erred in holding that the deceased was 40 years old at the time of the accident and he was simple contributing Rs. 450/- per month to the claimants. He also contended that the Tribunal also seriously erred in applying the multiple of 15. He relied upon Jyotsna Day vs. State of Assam (1), New India Assurance Co. Ltd. vs. Vidhya Devi (2) and Prem Kunwar vs. Rajasthan State Road Transport Corporation (3 ). The learned counsel for the respondents tried their best to support the impugned award. It may be mentioned here that no appeal has been filed against the said award by any of the respondents.
(3.) THE first question for consideration is whether the learned Tribunal committed an error in holding that the deceased Bachhu Khan was contributing Rs. 450/- per month to the claimant-appellants'? It is clear from the award that this amount of Rs. 450/- has been arrived at on the basis of the income of the deceased which he was getting by selling milk. THE owner and driver of the offending truck (respondents no. 1 and 2) had admitted in their joint reply that the deceased was cultivating some agricultural land and was carrying on the trade of sale and purchase of cattle. Despite this admission, the learned Tribunal has not taken into consideration any income of the deceased from these sources. It has simply observed that under the facts and circumstances of the case, it is difficult to hold that the deceased was earning Rs. 10,000/ per annum from the trade of sale and purchase of cattle and he had also good agricultural income. It is well proved from the statements of his widow Arba Khatoon P. W. 1 and Jamabandi Ex. 12 that the deceased was possessing over 60 bighas of agricultural land. Arba Khatoon has deposed that the deceased was earning Rs. 10,000/-by selling cattle. It is correct that no other witness of the claimants has said any thing on this point. As already observed above, the respondents no. 1 and 2 had admitted in their joint reply that the deceased was doing the trade of selling and purchasing cattle besides cultivating his agricultural land. In view of these facts and circumstances, it cannot be said that the deceased was not having any income from his trade of cattle and agriculture. It is correct that the claimants still possess the agricultural land. THE deceased must be devoting some time in the agriculture by which the claimants have been deprived after his death in the accident. THE cattle-trade 1 as completely stopped. It can safely be said that the deceased must be contributing to the claimants atleast Rs. 150/ per month from his income of cattle-trade and agriculture. THE learned Tribunal should have held the contribution to be Rs. 600/- and not Rs. 450 per month. The next question is about the age of deceased at the time of his death. It is mentioned in the post-mortem report Ex, P/10 that the age of the deceased on the date of post-mortem is 45 years. On its basis, the Tribunal held his age to be 45 years. His widow Abra Khatoon P. W. 1 has deposed that the age of her husband Bachhu Khan at the time of his death was 40 years. No other witness has supported her on this point. Admittedly, no other evidence was produced by the claimants. It cannot, therefore, be said that the learned Tribunal committed an error in holding that the age of the deceased at the time of the accident was 45 years. The Tribunal has observed that keeping in view the age of the claimants, they would have been dependent on the deceased for atleast 15 years and on its basis multiple of 15 was applied. The Tribunal did not consider the average span of life. The Tribunal has observed in its judgment that the mother of the deceased is alive and her age is 63 years. In Jyotsna Day vs. State of Assam para 5 (supra) it has been observed as follows :- "the victim's age at the time of death has been fixed at 45 as against the case made out by the claimants that it was 40. We do not propose to disturb this finding. The span of life should have been taken to be 70 in view of high rise in life expectancy. " In Prem Kanwar vs. Rajasthan State Road Transport Corporation, (supra) life expectancy was taken to be 70 years. As such the multiple of 25 should have been applied by the learned Tribunal. In view of the aforesaid discussion, the claimants are entiled to get Rs. 600 x 12 x 25 = Rs. 1,80,000/ -. ;