CHAUHAN, J. - (1.) ON 10. 9. 1989, while returning with three friends on his Motorcycle, Kesar Dev met with an accident with a Bus driven by respondent No. 1. Consequently, Kesar Dev alongwith two other riders expired on the spot. The fourth person, namely Vijay Kumar sustained grievous injuries. Kesar Dev's parents and brother and sisters filed a claim petition before the Motor Accident Claims Tribunal, Jhunjhunu, wherein they sought a compensation for Rs. 21,23,000/ -. Since the Bus was owned by the Delhi Transportation Corporation, therefore the Bus driver and the Corporation were arrayed as respondents in the said claim petition.
(2.) IN its written statement, the Corporation contended that the deceased was riding the Motorcycle alongwith three other persons. According to them, the accident occurred because suddenly a goat kid ran across the road, which the deceased tried to avoid. While trying to avoid the kid, the deceased dashed against the coming Bus. Therefore, according to them it was clearly a case of contributory negligence. They further contended that the income of the deceased as claimed by the claimants is on the higher side. They further claimed that the compensation asked for is imaginary and baseless. In order to prove its case, the claimants examined six witnesses and submitted three documents. The respondent Corporation examined the driver of the Bus as a witness, but did not submit any document. The learned Tribunal framed five issues. Vide award dated 5. 3. 1994, the learned Tribunal awarded a compensation of Rs. 65,600/ -. Since the claimants are aggrieved by the said award, they have filed the present appeal before us for enhancement. Mr. K. N. Khan, the learned counsel for the appellant, has raised give contentions before us. Firstly, despite the fact that there was no rebuttal from the side of the respondents, still the learned Tribunal has not accepted the income of the deceased as Rs. 3500/- per month. On the basis of conjectures and surmises, it has taken the income to be merely Rs. 800/- per month. According to him, the deceased was a young man of 22 who was working as a goldsmith in Jaipur. He was not only doing his own work, but was also working in the shop of one Khemraj Hasalsar. According to the testimony of the mother, Chandrakala (PW. 1), her son was earning Rs. 3500/- per month, out of which he was spending Rs. 500/- on himself. Similar is the testimony of the father, Shri Sita Ram (PW. 2 ). Despite these testimonies, the learned Tribunal has taken the income of the deceased to be merely Rs. 800/- per month. Secondly, Mr. Khan has contended that the learned Tribunal has erred in denying any compensation to the brother and the sisters. According to him, the entire family was dependent on the deceased for their financial support. Therefore, the sudden demise of the deceased also adversely affected the financial dependency of the brother and sisters. Thirdly, according to him a wrong multiplier of 20 has been applied in the present case. Fourthly, according to him the learned Tribunal has erred in deducting 20% of the compensation award ostensibly on the ground that a lump sum amount is being paid. Lastly, he has contended that no compensation has been awarded for the loss of Motorcycle by the learned Tribunal.
(3.) ON the other hand, Mr. Hawa Singh, the learned counsel for the respondents, has argued that no documentary evidence was produced by the claimants to prove the fact that the deceased was earning Rs. 3500/- per month. Hence, the Tribunal was justified in calculating the income to be Rs. 800/- per month. According to him, the learned Tribunal has applied the correct multiplier. Thus, he has supported the impugned award. Having heard the learned counsels, we have examined the evidence and analyzed the impugned award. According to PW. 1 Smt. Chandrakala, the mother of the deceased. Kesar Dev was the only one who was supporting the parents and the younger brother and sisters. Since Kesar Dev's elder brothers were living separately, therefore they were not financially supporting the parents and the other brothers and sisters. Thus, the claimants were financially dependent on the deceased. According to PW. 2 Sita Ram, the father of the deceased, while he was working as Goldsmith in the village, he could earn Rs. 2000-3000 per month. Kesar Dev was working as a freelance Goldsmith in Jaipur. Therefore, naturally, his income would be more than Rs. 3000/- per month. Even if a conservative estimate is made, even then, it could not be less than Rs. 2100/- per month. After all, he must have left the village with the hopes of earning more than what his father was earning in the village as a Goldsmith. Moreover, the testimony of PW. 1 and PW. 2 has not been shaken in the cross-examination. Therefore, there is no reason for rejecting their testimony on the point of the income of the deceased. Hence, the presumption made by the learned Tribunal that the deceased was earning merely Rs. 800/- per month is not based on any evidence. Therefore, the first contention raised by Mr. Khan is a sound one. The learned Tribunal should have taken the income of the deceased as a minimum of Rs. 2100/- per month. Since the deceased is presumed to have spent 1/3rd on himself he would have contributed Rs. 1400/- per month to the claimants. ;