JAIN, J. - (1.) HEARD the learned counsel for the parties.
(2.) THE claimant-appellants have filed this appeal under Section 173 of the Motor Vehicles Act against the judgment of Motor Accident Claims Tribunal, Neem-ka-Thana, Sikar in MAC No. 43/89, whereby the learned Tribunal allowed the compensation of Rs. 80,000/- in favour of the appellants and deducted 40 out of which towards negligence on the part of the deceased, therefore, total compensation of Rs. 48,000/- was allowed. The appellants are parents of the d Upendra Kumar who was admittedly travelling in a bus by sitting on the roof top of it. The appellants filed an application for compensation in respect of death of Upendra Kumar who died while travelling on the top roof of the bus. The non-claimants No. 1 and 2 owner and driver filed their written reply wherein contents of the application were denied. The Insurance Company filed a separate reply to the claim petition and denied he contents of the application and submitted that their liability to the compensation is limited only upto 50,000/ -. The learned Tribunal framed 8 issues and also heard learned counsel for the both the parties. The claimants examined AW1 to AW4 and produced documentary evidence Ex. 1 to Ex. P. 6. The non- claimants examined NAW-1 to NAW-4 and produced documents Ex. NA-1 to Ex. NA-4. The learned Tribunal after considering the evidence on record decided issue No. 1 and 5 holding that bus driver was negligent upto 60% and deceased was negligent upto 40%. So far as quantum of compensation is concerned, the learned Tribunal while considering issue No. 2 held that as per contents of application for compensation itself, the d was earning Rs. 364/- per month as salary as he was working on temporary basis in Water Works Department. The deceased was unmarried. The age of the father of he deceased was 48 years. The Tribunal on the basis of the salary certificate assessed Rs. 4,368/- as salary for one year which was rounded off to Rs. 4500/ -. On third amount was deducted for personal expenses and Rs. 3,000/- per year was assessed for the purpose of compensation. The span of life of father was treated as 68 years and as such awarded compensation for 20 years. Rs. 3,000/- per month was multiple by 20 and awarded Rs. 60,000/ -. The Tribunal further awarded Rs. 20,000/- under all other heads and as such total compensation of Rs. 80,000/- was assessed and because of 60% negligence on the part of bus driver, a amount of Rs. 48,000/- was awarded in favour of the claimants-appellants. The Tribunal also awarded 12% interest from the date of application i. e. 18. 10. 1989 with a condition that case payment is not made within 2 months then the rate of interest will be 15% per annum. The learned counsel for the appellant contended that deceased was travelling in the bus by sitting on the roof-top of it was in the knowledge of the driver and as such, the Tribunal has committed illegality in deducting 40% of the amount of compensation for the negligence of the deceased. He cited Managing Director, Andhra Pradesh, S. R. T. C. Bangalore & Anr. vs. Smt. Sunanda & Anr. (2004 (1) T. A. C. 826 (Kant. ). wherein the Division Bench of the Karnataka High Court held as under:- " It is not in dispute that the deceased was travelling on the top of the bus in question. It is also not in dispute that the deceased has loaded tin sheets on roof-top of the bus. For the purpose of loading these tin sheets on roof-top, the deceased must have taken sufficient time and the same cannot be done without the knowledge of the driver and conductor of the bus. Such loading of the goods on the top of the bus will not be allowed without the conductor having collected the requisite fair from the passenger. it was the duty of the conductor and the driver of the bus to have noticed if there were any passengers on the roof-top and to ask them to alight from the roof-top and to board the bus. Boarding of the bus necessarily pre-supposes that the passenger will have to get inside the bus, either sit in the seat or stand in the place reserved for standing. The conductor of the bus has to comply with this statutory duty. In case, the passenger is on the roof-top of the bus itself, the conduct ought to have asked the passenger to get down and thereafter ought to have signalled to the driver of the bus to proceed. The driver of the bus was also enjoined with the duty to ensure that the bus move only after there was safe travelling conditions for the passengers. The deceased, who loaded his goods on to the roof of the bus and sat on the roof-top of the bus could not have done so stealthily. Neither the driver nor the conduct cautioned the said deceased not to travel on the roof-top of the bus, the deceased having fallen off the roof of the bus and denied cannot be held to have contributed to the negligence. There is neither pleading nor proof of contributory negligence. There is no evidence on record to show that the deceased had refused to alight from the roof-top inspite of the directions from the driver or the conductor or he was cautioned about the risk, he was undertaking by travelling on the roof of the bus. The MACT having arrived at a positive conclusion that there was no negligence on the part of the deceased in travelling on the roof of the bus no exception can be taken to the said finding. "
(3.) THE next contention of the learned counsel for the appellants is that deceased was 19 years of age, therefore, amount of Rs. 80,000/- awarded in the present case was a meager amount and the same should be enhanced. He referred Hazi Zainullan Khan (Dead) by L. Rs. vs. Nagar Mahapalika, Allahabad (T. A. C. (1950-95) S. C. 13) and submitted that in similar circumstances where deceased was 20 years of age, the Hon'ble Supreme Court enhanced amount of Rs. 1,46,900/- to Rs. 1,50,000/-, therefore, his contention is that the amount Rs. 48,000/- should be enhanced to Rs. 1,50,000/ -. The learned counsel for the Insurance Company respondent No. 4 contended that finding of the learned Tribunal in respect of contributory negligence as well as quantum both are correct and based on evidence and the record and as such this is not a case for interference on any issue by this Court. I have considered the submissions of the learned counsel for both the parties and examined he impugned judgment as well as the record of the trial court. ;