GUMAN SINGH, J. - (1.) THIS appeal has been preferred on behalf of appellant-injured Mahesh Chand Garg for enhancement of compensation awarded by the learned Motor Accident Claims Tribunal, Baran vide judgment dated 23.3.1999 whereby a sum of Rs.1,00,500/- was awarded for amputation of right hand from elbow joint caused in the accident. The said amount was awarded after deducting 50% for contributory negligence at the part of the injured and hence the finding of contributory negligence has also been challenged.
(2.) ACCORDING to the facts of the case, accident took place on 5.6.97. The appellant was traveling as passenger in the bus which came in contact with the tractor coming from opposite direction resulting into severing of right hand at the spot. The police registered a case and after completion of investigation, offending vehicle-tractor was charge-sheeted for the offence of rash & negligent driving. The Tribunal after enquiry, has given a finding that tractor came from opposite direction having iron angles in its trolley and due to rash & negligent driving of tractor driver, the appellant who was sitting near a window in the bus got hurt and lost his right hand at the spot. The learned counsel for the appellant submits that the Tribunal has failed to appreciate the point of contributory negligence in right perspective as at the time of accident, the injured was traveling as passenger in the bus and was sitting near a window and was hurt with iron angles carried in trolley of the tractor which came from opposite direction. There was no fault at the part of injured as he was not having his hand out of the window and as such no contributory negligence can be attributed to him. It was further contended that when two vehicles coming from opposite direction grazed in, the negligence can be found at their part and not at the part of the passenger as it was the duty of the respective drivers to keep distance and avoid accident. He has placed reliance upon the judgment of this court reported in 1985 ACJ 594-Abdul Zabbar Vs. Ram Swaroop and others and also judgment of Division Bench of Gujarat High Court in Chaturji Amarji and ors. Vs. Ahmad Rahimbux and ors.-1980 ACJ 368. It is further submitted that the Tribunal has awarded compensation by way of lump sum for loss of future income and that deserves to be computed by taking second schedule to the M.V.Act to be the guidelines and by adopting appropriate multiplier commensurating with the percentage of loss of earning. It is urged that though there is no specific evidence on the point of monthly earning of appellant, and as such, minimum amount of daily earning of Rs.71/- equivalent to that of minimum wages may be considered for computation of loss of earning. Per contra, learned counsel for the respondents supported the judgment of the Tribunal and submitted that the learned Tribunal has taken into consideration evidence adduced during inquiry and has awarded adequate compensation and that the finding of Tribunal by which appellant himself was found negligent to the extent of 50% also call for no interference. On hearing rival contentions,and going through the award as also record of the case,it is revealed that the appellant-injured was traveling as passenger in the bus and was sitting near a window and the accident took place when the tractor came from opposite direction having iron angles in the trolley grazed in causing hurt to the appellant and thereby severing his right hand at the spot.The learned Tribunal has given finding that out of two offending vehicles,tractor carrying iron angles in the trolley was solely responsible for the accident and as such no negligence could be found at the part of the bus.No appeal has been preferred against this finding and,as such,finding on the point has become final on the point of liability for rash and negligent driving. However, as regards the finding of Tribunal on the point that appellant had contributed to the accident, it may be noted that it was night time and the tractor came from opposite direction having angles in trolley and, as such, it was essential for the driver to ascertain that he should keep sufficient distance to avoid any accident with the bus. In the case like the present, accident took place between two vehicles coming from opposite direction and as such no contributory negligence can be apportioned at the part of passenger because it is the duty of the colliding vehicles to keep sufficient distance and in no way passengers traveling in it can be held responsible. The two judicial pronouncement relied by the learned counsel are pertinent on the point. In this case the Tribunal has given a categorical finding that accident took place entirely on account of negligence on the part of tractor driver who did not keep sufficient distance though he was having iron angle protruding out of trolley and as such the injured passenger can in no way be held liable for contributing the accident. Thus the finding on issue nos.1 & 4 by the Tribunal that passenger himself was negligent appears to be unjustified and same deserves to be set aside. Thus the finding of 50% liability on the part of appellant is not sustainable and the same is set aside. As regards the quantum of compensation, it may be noted that the Tribunal has assessed the compensation in lump sum of Rs.2,01,000/- for loss of future income and thus loss of future income deserves to be computed by adopting a multiplier of 13 as per the decision of the Apex Court in Sarla Verma (Smt.) and ors. Vs. Delhi Transport Corporation and anr.-2009(6) Scc,121 commensurating with the percentage of loss of earning. In this matter, as submitted by learned counsel for the appellant, sum of Rs.71/- equivalent to minimum wages deserves to be taken as daily earning of the appellant. That apart, 70% of loss of earning on account of amputation of right hand deserves to be taken into consideration as per the Schedule under Workman Compensation Act. Thus the amount of compensation may be computed as under:Rs.71x30x12x13(multiplier)x70%(disability)=Rs.2,32,596+Rs.1,01,000(for pain, suffering & medical expenses)=Rs.3,33,596-(minus)Rs.1,00,500=Rs.2,33,096/-(to be additionally awarded) Accordingly, appeal of the appellant is partly allowed and the Award passed by the learned Tribunal is modified to the extent that the appellant shall get a sum of Rs.2,33,096.00 by way of additional enhanced compensation from the date of appeal i.e. 28.6.99, with 6% interest to be paid within three months. Thereafter interest shall be paid @9% per annum. The rest of the terms of award shall remain unchanged. Record be sent forthwith. ;