MOHAMMAD RAFIQ, J. - (1.) THIS appeal has been preferred by the claimants seeking enhancement of compensation of Rs.
(2.) ,38,000/ - for the death of deceased -Birji Singh and Rs.96,000/ - for the death of deceased - Mukesh, husband and son respectively of appellant No. 1 Chando, who both died in a road accident 2. Shri Imran Khan, learned Counsel for the claimant -appellants has argued that the Tribunal has erred in law in accepting income of the deceased -Birji Singh at Rs.1,800/ - per month. He was a trained Mechanic and evidence shows that his monthly income was Rs. 4,000/ -. In this connection, learned Counsel for the appellants has referred to the document Ext.10, the certificate of the Proprietor of the Workshop Prakash Tractor Repair in which deceased Birji Singh was employed. Proprietor of the said workshop is Ramkishore AW3, who has appeared in the witness box to prove that certificate. In cross -examination, he stated that he was paying Rs.140/ - per day to deceased Birji Singh and he was the best mechanic in his workshop. He was paying to him Rs. 4,000/ - per month but also stated that on certain days, deceased used to avail leave on certain days. He was Proprietor of the workshop therefore he issued certificate. Learned Counsel for the appellants also referred to the statement of appellant No. 1 AW1 Smt.Chando, wife of deceased Birji Singh and mother of deceased -Mukesh. She stated that deceased Birji Singh was a earning a sum of Rs.4,000 -4,500 per month from the workshop. Apart from this, he was also cultivating the agriculture field measuring 20 big has and was earning a sum of Rs.1.5 lacs p.a. after making deductions towards all expenditure incurred on agriculture. She further stated that there exists now only two daughters after the death of her husband -Birji Singh and son -Mukesh, who could have taken care of the agricultural field and also the responsibility of the family. Her son -Mukesh used to earn Rs.4,000/ - per month from the work of Radio/TV repair as a Mechanic in the shop of Mahendra situated at Neemdarwaja, Bharatpur. Learned Counsel referred to the statement of AW2 Saudan Singh, eye -witness, who stated that when deceased Birji Singh, Mukesh and Satish were going on motorcycle, Tanker No. RJ23 -G -179 coming from Bharatpur hit them, as a result of which, all the three died on the spot. He has also proved the fact that deceased -Birji Singh apart from working at the workshop, also doing the work of cultivation. He used to earn Rs.4,000/ - per month as a Mechanic and also Rs.1.5 -2 lacs from the agriculture fields. Mukesh was working as a Radio/TV Mechanic in the shop at Anah Gate and used to earn Rs. 4,000/ - per month. Learned Counsel submitted that when there is evidence of eye -witness to say that accident took place because of the total negligence on the part of the Tanker, there was no justification for deducting 50% for contributory negligence on the part of deceased -Mukesh out of the compensation payable to the claimants. However, this fact is not proved even otherwise from the site plan and the fact that the police filed challan as against the Tanker driver. Learned Counsel argued that the income of deceased -Mukesh son of appellant -Chando was wrongly accepted at Rs. 1500/ - per month when learned Tribunal made deduction of 50% of compensation. Multiplier of 15 has also wrongly been applied in his case even though his age was 21 years. The learned Tribunal ought to have applied the multiplier of 18 considering that father and son both died in a road accident and multiplier of 18 should have been applied upon the own age of deceased -Mukesh. Smt.Chitra Goyal, learned Counsel appearing for the respondent - Insurance Company has opposed the appeal and argued that mere production of the income certificate by the Proprietor of the Workshop, where deceased -Birji Singh was working as a Mechanic does not prove his income to be of Rs.4,000/ - per month. Learned Counsel submitted that even though Ram Kishore, the Proprietor of the said Workshop has appeared as a witness as AW3 but he was not able to show that he is actually paying Rs. 4000/ - per month to deceased -Birji Singh. He also stated that deceased -Birji Singh used to remain on leave on certain days. Learned Counsel submitted that multiplier of 15 has rightly been applied because deceased -Birji Singh was 40 years of age. It was argued that multiplier of 15 has also rightly been applied in the case of deceased -Mukesh taking the age of his mother to be of 39 years because at the relevant time, he was 21 years of age. 50% amount has rightly been deducted from the compensation attributing contributory negligence towards deceased -Mukesh considering the fact that three persons were riding on the motorcycle. Learned Counsel for the Insurance Company therefore submitted that the award is just and reasonable and it is not liable to be interfered with.
(3.) UPON hearing learned Counsel for the parties and perusing the impugned -award, I find that in the present case, not only the certificate of income has been produced on record by the claimants as Ext.10 by Shri Ram Kishore, Proprietor of the Workshop in which deceased -Birji Singh was working but also he has appeared as AW3 to say that Birji Singh was earning Rs. 4,000/ - per month. Although, this witness has stated that deceased -Birji Singh used to remain on leave on certain days therefore income of Rs. 4,000/ - may be somewhat reduced but to say that he was earning only Rs. 1800/ - per month, cannot be said to be just and reasonable conclusion at which the learned Tribunal arrived at. That apart, AW1 Chando wife of deceased -Birji Singh and AW2 Saudan Singh, eye -witness also stated that deceased Birji Singh was working as a Mechanic and was earning Rs. 4,000/ - per month. Considering however the fact that accident took place on 29th August, 2000, it must be accepted that his income in the light of the evidence available on record, should not less than to Rs.3,000/ - per month. There is also additional evidence to the effect that he was cultivating 20 bighas of agricultural land and now that not only Birji Singh has died but his younger son Mukesh has also died, widow and the two daughters possibly cannot cultivate the agriculture field on their own in absence of any male member being alive. Evidence of AW1 Smt. Chando has proved that they had 20 bighas of agricultural land and that deceased - Birji Singh was earning Rs. 2 lacs p.a. from the agriculture field and after deducting the expenditure, the amount comes to Rs.1.5 lacs p.a. AW2 Saudan Singh has also proved that deceased Birji Singh, apart from doing the work of Mechanic in the Workshop, was also cultivating the agriculture fields and was earning therefrom a sum of Rs. 1.5 -2 lacs p.a. Considering however the fact that agriculture land would still yield some income and certainly the agriculture land would require supervision of a male member of the family and Birji Singh was working as a Mechanic, his income can safely be accepted at Rs.3,500/ - per month. The multiplier of 15 has rightly been adopted and deduction of l/3rd has also rightly been made. The award under all non -pecuniary heads i.e. Rs. 10,000/ - for loss of consortium, each to two daughters (Rs.10,000/ -) and Rs. 2,000/ - towards the funeral expenses also does not require any interference of this Court.;