PANWAR, J. - (1.) THESE two appeal raise common question of law and facts are directed against the judgment and award dt. 21. 10. 1995 passed by learned Motor Accident Claims Tribunal, Bali (hereinafter referred to as `the Tribunal'), whereby the Tribunal awarded compensation of Rs. 7,75000/- in favour of the appellants in S. B. Civil Misc. Appeal No. 31/96 who were claimants before the Tribunal (hereinafter referred to as "the claimants' ).
(2.) AGGRIEVED by the judgment and award impugned, the insurance company as well as claimants preferred the aforesaid two appeals. I have heard learned counsel for the parties. Perused the judgment and award impugned as also the record of the Tribunal. It is contended by the learned counsel the insurance company that the deceased Ugam Singh himself was contributory negligent for the accident in question. He contended that on 10. 4. 1990 at about 2. 00 P. M. while deceased Ugam Singh and Parbat Singh were proceeding from Sanderao to Sumerpur on a motorcycle, they collided with the truck No. HYK-2421, at the relevant time, the deceased Ugam Singh, who was riding the motorcycle, had no driving licence and, therefore, it is to be assumed that he was driving the motorcycle rashly and was contributory negligent for the said accident. He contended that this plea was taken by the insurance company in the written statement before the Tribunal on which the Tribunal framed the issue No. 3. It was further contended by learned counsel for the insurance company that the compensation awarded by the Tribunal is too excessive as in the instant case, while computing the compensation, the Tribunal applied the multiplier of 20 years purchase factor, which is on higher side. Learned counsel, Shri D. Maheshwari appearing for the claimants contended that claimants have pleaded and proved the negligence of driver of the offending truck respondent Mahendra Singh. Before the Tribunal, eye-witness of occurrence AW. 3 Sher Singh was examined, who stated on oath before the Tribunal that on 10. 4. 1990, he was going from his village Khiwandra to Sumerpur along with one Jabar Singh, who was pillion rider on the motorcycle, when they were near to Sindru, at that relevant time, Ugam Singh and Parbat Singh were also going 50 feet ahead of them on a motorcycle. They were proceeding towards Sumerpur, at that relevant time, truck No. HYX-2421 came from opposite direction, which was driven at a great speed rashly and negligently by its driver, Mahendra Singh suddenly come to its wrong side of the road and hit the motorcycle driven by Ugam Singh. Due to this accident, Ugam Singh and pillion rider Parbat Singh both succumbed to injuries instantaneously. On being asked, the driver of the truck disclosed him name to be Mahendra accident, he went to Sanderao Police Station and lodged the first information report Ex. 3. In cross-examination, testimony of this witness remained unshaken. I have carefully gone through the pleadings of the parties and the statement of AW. 3, an eye-witness of the occurrence as also the author of first information report Ex. 3. Accident took place at 2. 00 P. M. and AW. 3. Accident took place at 2. 00 P. M. and AW. 3 Sher Singh lodged a first information report with Police Station, Sanderao at 2. 40 P. M. Thus, a prompt FIR was lodged of this accident giving the details of the accident. After investigation of the criminal case, police found the driver negligent of the said accident and accordingly filed the charge- sheet Ex. 1 against respondent truck driver. Thus, matter was investigated by the police promptly and soon after the accident, site map Ex. 4 and site inspection note was prepared, wherein the said truck is shown to be on extreme wrong side of the road and the motorcycle lying under the wheel of the truck, which was on its correct side. Presence of AW. 3 Sher Singh at the site of accident has not been doubted. The Tribunal on appreciation of the evidence, reached to the conclusion that the driver of the offending truck was solely negligent for the said accident and accordingly, the Tribunal held the respondent Mahendra Singh negligent for causing the said accident.
(3.) HAVING considered the entire material and the evidence produced by the claimants, I am of the considered opinion that the finding recorded by the Tribunal is based on legal evidence and on sound reasoning holding the truck driver negligent for the said accident. Hence, I find no error in the finding recorded by the Tribunal in this regard. The Tribunal has framed issue No. 3 on the point of contribute negligence. This issue was framed at the instance of insurance company. Indisputably, the burden to prove the issue No. 3 was on insurance company who led no evidence and, therefore, the Tribunal decided the issue No. 3 against the insurance company and in my considered opinion rightly so. Learned counsel for the insurance company contended that compensation awarded by the Tribunal is too excessive. I have scanned and evaluated the evidence on record. In the claim petition, it was pleaded by the claimants that deceased Ugam Singh was earning Rs. 10,000/- per month by running a small diamond polishing factory at Dhanera, District Banas Kanta, Gujarat. In the said factory about 15-16 workers were engaged and overall monthly income of the deceased was Rs. 10,000/ -. In the written statement filed by the insurance company, the facts pleaded by the claimants in Para No. 4 showing the monthly income of the deceased were not specifically denied. AW. 1 Hands Kanwar wife of deceased deposed before the Tribunal on oath that her husband was running a diamond polishing factory at Dhanera, District Banas Kanta, Gujarat and in the said factory, 15-20 other persons were working under him and after incurring all expenses, deceased used to save Rs. 6000-7000/- per month. AW. 2 Lakh Singh, father of the deceased also made the similar statement. AW. 4 Babu, one of the workers of the said factory, deposed on oath before the Tribunal that deceased Ugam Singh had a diamond polishing factory at Dhanera in which he was working since June, 1990. In addition to him, 15-16 workers were also working in the said factory. Deceased used to bring raw material of the diamond for polishing in his factory. He has produced his own account, which was maintained while he was working in the factory owned by the deceased. Evidence produced by the claimants remained uncontroverted. Admittedly, insurance company, driver and owner of the offending truck did not lead any evidence in rebuttal. The Tribunal relying on unrebutted evidence of the claimants conservatively, determined the monthly income of the deceased at Rs. 5,000/ -. While computing the compensation, the Tribunal also held that out of the earning, the deceased used to contribute Rs. 4000/- per month to the claimants, as such the annual dependency comes to rs. 48,000/-, this amount was multiplied by 20 years purchase factor. Thus, under the head of loss of income, the Tribunal computed Rs. 9,60,000/-, out of this amount, the Tribunal deducted Rs. 1,92,00/- on account of lump sum payment, to this added Rs. 8000/- for the loss of company consortium etc. and awarded total amount of Rs. 7,75000/ -. So far as multiplier of 20 years purchase factor in concerned, it is slightly on higher side. ;