S.B. Sakrikar, J.
1. Appellant/NAs have directed this Misc. Appeal against the award dated 11th April, 1991, rendered by Additional M.A.C.T. Jhabua in Claim Petition No. 15/88, thereby learned Tribunal has partly allowed the Claim Petition of the respondents and awarded the compensation of Rs. 1,96,000/- with interest at the rate of 12% per annum from the date of filing of the application till realisation of the amount, against the appellants.
2. The facts of the case, in brief, are that on 17.4.1987,deceasedAshok Kumar Chourasia, husband of respondent No. 1, Smt. Radhabai, was going from Indore to Jhabua, on his bullet motor-cycle bearing Registration No. MBM 5895. When he reached near village Bhura Dabra, passenger bus bearing Registration No. MBH 6901 (Bhopal-Thandla) owned by appellant No. 1, coming from Indore, driven by appellant No. 2 (Nazar Mohammed) rashly and negligently, suddenly hit the motor-cycle of Ashok Kumar Chourasia resulting in accident and ultimately death of Ashok Kumar. Motor-cycle of the deceased was also damaged. The respondents have filed Claim Petition for the award of compensation because of death of Ashok Kumar Chourasia and also claimed for the compensation for total damage caused to the motor-cycle. The claim petition was resisted by the appellants. Learned Tribunal, after considering the evidence recorded in the case, awarded the compensation of Rs. 1,96,000/- in favour of the respondents, as above. Aggrieved by the Award, present appeal has been filed by the appellants.
3. The respondent/claimants have also filed cross-objection under Order XLI, Rule 22 of the Code of Civil Procedure, in which they have prayed for enhancement of the amount of compensation awarded by the Tribunal.
4. We have heard Mr. H.M. Zelawat learned Counsel for the appellants and Mr. Y.I. Mehta learned Counsel for the respondents.
5. Learned Counsel for the appellant has challenged the Award mainly on the ground that before the accident, deceased Ashok Kumar was driving his motor-cycle rashly and negligently and, therefore, deceased himself was I responsible for the accident. Learned Counsel also contended that if it is held that driver of the bus, was also negligent to some extent, even then it being a case of contributory negligence the Award of compensation, may be assessed accordingly.
6. In reply to the contention of the learned Counsel appearing for the f appellant, learned Counsel for the respondents, contended that the learned Tribunal has not properly assessed monthly income of deceased Ashok Kumar and committed an error in assessing the dependency only at Rs. 1200/- per month. According to the contentions of the learned Counsel for the respondents, the dependency assessed by the learned Tribunal is on lower side, which requires appropriate modification. Learned Counsel also contended that learned Tribunal has committed an error in deducting 20% amount from the calculated amount of compensation on the ground of unexpectancy of life on the ground of lump-,sum payment.
7. We have perused the record and considered the evidence recorded in the case. On evaluating of the evidence, we find that the finding recorded by the learned Tribunal on Issue No. 5-A is based on proper appreciation of the evidence and from the statements of the witnesses, no case of contributory negligence, is made out. From the statements of applicant/witness Bhunder Singh (AW 1) Mansingh (AW 2), who are witnesses of the alleged accident, it is amply proved that on the date of accident at about 4.00 p.m. when they were standing by the side of Indore-Ahmedabad Road, in village Bhuradabra, both the witnesses saw one bullet motors-cycle coming from the Indore and going towards Jhabua. At the same time, they saw Bhopal-Thandla passenger bus coming from behind the motor-cycle from the side of Indore. The motor-cycle was being driven with moderate speed by the side of the road, passenger bus was driven at high speed, which suddenly hit the motor-cycle and dragged it 20 to 25 paces ahead with the bus resulting in total damage of the motor-cycle and death of rider of motor-cycle. The statements of the aforesaid witnesses are corroborated from the facts stated in the FIR, Ex. A/8-c and from the spot map, Ex. A/1-c, prepared by Police Kalidevi, during investigation. Nothing is found in the cross-examination of the aforesaid eye witnesses to render their statements unreliable.
8. In rebuttal, the defendants have examined appellant No. 2, Nazar Mohammad, Driver of the bus and Harikaran Gurjar, NA No. 2, Conductor of the bus. Driver Nazar Mohammad, in his statement tried to state that on the date of accident, he was driving his bus with moderate speed of 30-40 Kms. per hours. When he was passing through Machhalia Ghat, at the same time, one motor cycle came from behind and wanted to overtake the bus from his right side, at that time motor cycle was being driven rashly and negligently. After overtaking the bus, motor-cycle suddenly came in front of his bus and driver of the motor-cycle suddenly applied the brakes due to which he struck with the front portion of the bus resulting in an accident. According to the bus driver, the accident occurred because of rash and negligent driving of the rider of motor-cycle. Learned Tribunal on the grounds mentioned in the Award, has rightly disbelieved the statement of defendant Nazar Mohammad, driver of the bus. Learned Tribunal also rightly disbelieved the statement of the conductor of the bus on the ground of his admission in the cross-examination in para 4, in which he specifically stated that when one vehicle overtakes the other it always overtakes from the side of the driver. At the time of accident, the motor-cycle overtook the bus from the side of the driver. Therefore, he could not see alleged accident. On evaluating the evidence, we do not find that the learned Tribunal has committed any error in recording the finding on Issue No. 5-A in favour of the respondents/ claimants.
9. From the evidence recorded in the case, we do not find that case of contributory negligence is made out. Accordingly, we are of the opinion, that the findings of the Tribunal on the point of negligence of the bus-driver, are based on proper appreciation of the evidence and require no interference in this appeal.
10. It is not in dispute in this appeal or cross-objection that at the time of the accident, deceased Ashok Kumar was aged about 32 years. The multiplier of 15 applied by the learned Tribunal is also not challenged. The only contention of the learned Counsel appearing for the respondents is that the learned Tribunal has not properly assessed the monthly income of the deceased and thereby assessed the dependency on the lower side.
11. Learned Counsel for the respondents contended that from the statements of Radhabai (AW 5), wife of the deceased; Shamsundar (AW 7) father of the deceased and Rajendrakumar (AW 8) brother of the deceased, it is sufficiently proved that at the time of accident, deceased Ashok Kumar was running four different shops at Indore and his total earnings in a month was Rs. 800/-. The learned Tribunal without giving proper reasons assessed the monthly income of the deceased only at Rs. 2400/-. He contended that considering the statements of the aforesaid witnesses, monthly income of the deceased may be properly assessed. Learned Counsel also submitted that it was not proper for the Tribunal to deduct 20% of the amount from calculated amount of compensation under the ground of lumpsum payment and unexpectancy of life, when the amount of compensation was assessed on applying multiplier method.
12. On considering the statement of Radhabai (AW 5), Shamsundar (AW 7) and Rajendra Kumar (AW 8), it is proved that at the time of accident, deceased Ashok Kumar alone was running two shops in Indore known as Naveen Pan Sadan and Naveen Cycle Service. It is also proved that other two shops 'known as Naveen Traders and Limka Centres, deceased Ashok Kumar was only one of the partners of the shops, under an agreement of partnership with his brothers Arvind Kumar and Rajendra Kumar. The applicants have not filed any accounts of the aforesaid shops to corroborate their statements that Ashok Kumar had income of Rs. 2000/- p.m. from each of the shops. From the statements of the applicant witnesses, the learned Tribunal while assessing the monthly income of the deceased, considered that the business of the aforesaid shops was started by the deceased and his brothers within a period of one year and four months from the date of the accident. Deceased Ashok Kumar had started his Pan Shop on 28.11.1985 and Naveen Cycle Service shop a year before his death. A shop known as Naveen Traders was started only three months prior to his death and the shop of Limka Centre was started only ten days prior to his death. On considering the aforesaid aspect of the matter, monthly income of the deceased assessed by the learned Tribunal appears to be just and proper. Learned Tribunal in assessing the dependency, deducted 50% from the monthly income which appears on higher side but at the same time, learned Tribunal by calculating the total amount of compensation awarded Rs. 15,000/- under head consortium and Rs. 10,000/- under the head mental sufferings. In our opinion, when the Tribunal has awarded Rs. 15,000/- under the head consortium then additional amount under the head mental sufferings' should not have been awarded. If we increase the amount of dependency to some extent and disallow the amount, awarded by the learned Tribunal under the head mental sufferings' then the total amount of compensation awarded by the Tribunal will nearly comes to the total amount of compensation of Rs. 2,45,000/- as assessed by the Tribunal. In the circumstances, we do not consider it proper at this stage of allow any modification in the amount of compensation of Rs. 2,45,000/- as assessed by the learned Tribunal.
13. The Apex Court in AIR 1994 SC 163; General Manager, Kerala State Road Transport Corpn.Trivandrum v. Mrs. Susamma Thomas and Ors. has held that when Tribunal applies the method of multiplier for calculating the amount of compensation then at the time of choosing the multiplier, the Tribunal takes into account the uncertainties of future, allowance for minimum lump-sum payment and the period for which the dependency is lost, so when the amount of compensation is assessed on applying the multiplier method then deduction of any amount on the ground of lumpsum payment or uncertainties of life, is not at all necessary. Learned Tribunal has calculated the amount of compensation on the basis of multiplier method therefore, deduction of 20% amount which comes to Rs. 49,000/- from the calculated amount of compensation is not proper and on this count the order of the Tribunal deserves to be set aside.
14. As a result, we set aside the order of the Tribunal deducting 20% of the amount i.e. Rs. 49,000/- on the ground of lumpsum payment and on uncertainties of life and modify the award for the payment of total compensation of Rs. 2,45,000/- as calculated by the Tribunal to the claimants/respondents.
15. Consequently, for the foregoing reasons/the appeal of the appellants is dismissed being devoid of substance and without merits whereas cross objection filed on behalf of respondents is partly allowed and it is ordered that appellant/ respondents shall pay to the claimant/respondents a total compensation of Rs. 2,45,000/- in place or is 1,96,000/-, as awarded by the Tribunal with interest at the rate of 12% p.a. from the date of filing of the petition till realisation of the amount. The appellants shall be entitled to set off for the amount, which they have already paid or deposited in compliance with the Award passed by the learned Tribunal.
16. In the facts and circumstances of the case, there shall be no order as to costs of the appeal as well as the cross-objection.