RAFIQ, J. - (1.) HEARD learned counsel for the parties.
(2.) THIS appeal has been preferred by the claimants being dis- satisfied with the quantum of compensation and seeking enhancement thereof. Learned counsel for the appellants has argued that learned Tribunal has recorded an incorrect finding as to the contributory negligence of the deceased who was riding a bicycle. Learned counsel argued that the learned Tribunal recorded a wrong finding on Issue No. 2 that deceased Ramjilal was riding the bicycle in rash and negligent manner. While there was no proof of the fact, learned Tribunal misread and misconstrued the statement of AW-1 Nathu who is father of the deceased and AW-2 Sheoji, eye-witness to the incident. Learned counsel submitted that even though the income of the deceased was asserted to be sum of Rs. 1,500/- per month, learned Tribunal did not accept that income and treated the notional income of the deceased to be Rs. 15,000/- per annum as per Schedule-II to the Motor Vehicles Act, 1988 and on the basis of his age of 20 years, applied the multiplier of 17 and deducted 1/3rd of the income towards his own expenses. Learned counsel for the appellants cited two judgments of this Court in Smt. Kalli @ Kalyani & Ors. vs. Indra Raj Bairwa & Ors. : 2004 WLC (Raj.) UC 789 and Smt. Chander Kanta & 5 Ors. vs. Ashfak Ahmad & Ors. : 2004 WLC (Raj.) UC 791 and has argued that this Court in the aforesaid cases while doubling the income on account of future prospects, yet applied the multiplier as per Schedule appended to the Act of 1988. In the said case, Division Bench of this Court has held that where minimal income is taken per annum, deduction of 1/3rd for self expenses of the deceased cannot be made. Learned counsel therefore submitted that the award passed by the Tribunal may be set-aside. Miss Lalima Purohit, learned counsel appearing for the respondents has opposed the appeal and argued that Tribunal has correctly recorded the finding on Issue No. 2 that deceased met with an accident due to his own negligence. A suggestion was put to his father that deceased-Ramjilal was driving the bicycle in rash and negligent manner and got hit from the truck due to his own negligence. Tribunal therefore rightly accepted it to be a case of contributory negligence and thus held the Insurance Company liable to the extent of 50% of compensation only. Learned counsel submitted that the claimant appellants were required to prove the income of the deceased and since they did not prove any income, it was therefore that Tribunal had to adopt the notional income of Rs. 15,000/- per annum for counting the quantum of compensation. Any income of the deceased would have definitely been required to be sent to certain extent on his own self if he had lived. Having heard learned counsel for the parties and perused the impugned-order, I find that the Tribunal has decided Issue No. 2 in a lopsided manner observing that a suggestion was put to the father of the deceased that Ramjilal was riding bicycle in a rash and negligent manner and due to his own mistake, hit the truck. Tribunal on that basis concluded that there appears to be mistake of both sides. Tribunal has clearly overlooked that that suggestion was denied by AW-1 Nathu and denial of a suggestion by an eye-witness cannot certainly give rise to proof in favour of a party who put such suggestion. Tribunal has proceeded on surmises and conjectures holding that there appears to be a mistake of both sides. Statement of AW-2 Sheoji has also been misread and misconstrued by the Tribunal when it observed that such suggestion was given to him also that the accident took place due to mistake of the deceased. In fact, perusal of his statement as also the part of cross-examination, clearly reveals that no such suggestion was put to AW-2 Sheoji. Infact, this witness in his cross-examination-in-chief has clearly stated that Ramjilal was very much on his side while riding the bicycle and that the accident took place due to the mistake of the truck driver, who while rashly and negligently driving the truck, hit Ramjilal from behind. There was no case for contributory negligence and on that basis, reduction of the quantum of compensation is too harsh.
(3.) COMING now to the question of correctness of reduction of 1/3rd of the amount of income which would have been spent by the deceased on himself, had he been alive, out of the amount of compensation calculated on the basis of the notional income of Rs. 15,000/- per annum. In the circumstances, the appeal is allowed and it is held that appellant shall be entitled to full amount of compensation with no deduction of 1/3rd amount. Since multiplier of 17 has been adopted by the Tribunal therefore, notional income of the deceased of Rs. 15,000/- per annum assessed on that basis by the Tribunal, would be Rs. 2,55,000/- whereas amount of Rs. 25,000/- awarded on other heads is maintained. Thus, appellants would now be entitled to total compensation of Rs. 2,80,000/- (2,55,000 + 25,000 ). The truck owner and non-claimants shall jointly and severally be liable to pay the enhanced compensation. However, it is made clear that appellants would be entitled to interest @ 7. 5% only to the extent of enhanced amount of compensation from the date of filing of the claim petition and for earlier period, on the amount originally awarded, at the rate of 12% already awarded by the Tribunal. .;