1. This appeal filed by the New India Assurance Co. Ltd. under Section 110 D of the Motor Vehicles Act, 1939, is directed against an award dated July 10, 1978, passed by the Member, Motor Accidents Claims Tribunal, Jhabua, in Claim Case No. 2 of 1977, whereby he has awarded a total compensation of Rs. 26,667 plus costs and interest, in favour of claimant-respondents Nos. 1 to 5, as apportioned therein, though they had put up a claim for Rs. 1,35,000 by way of compensation on account of the death of Mathur Kumhar due to an accident that occurred on March 24, 1977, by truck No. MPI 4109.
2. The facts giving rise to this appeal may be stated, in brief, thus Claimant-respondent No. 1, Smt. Lakhibai, is the widow of the deceased, Mathur Kumhar, respondents Nos. 2, 3, 4 and 5, namely, Narayan, Kumari Savita, Kumari Kanti and Amrit, are the sons and daughters of the deceased. Truck No. MPI 4109 is owned by respondent No. 7, Mahendrasingh, of which respondent No. 6, Narayan, was the driver on the fateful day. The said truck was insured with the appellant, the New India Assurance Co. Ltd., at the relevant time. On March 24, 1977, when the deceased, Mathur Kumhar, was proceeding on foot on the Rambhapur road, truck No. MPI 4109, owned by respondent No. 7 and driven by respondent No. 6, came from behind in a rash and negligent manner, without blowing the horn and dashed against Muthur Kumhar, who, on account of the said accident, received serious injuries as a result of which he died instantaneously. The post-mortem report is exhibit P-2 in which the age of the deceased has been shown to be about 40 years. The occupation of the deceased at the time of the accidental death was that of a kumhar, earning about Rs. 400 per month. The respondent-claimants, therefore, put up a total claim of Rs. 1,35,000 by way of compensation under various heads.
3. Respondents Nos. 6 and 7, namely, the driver of the truck and the owner thereof, remained ex parte. The appellant assurance company contested the plaintiff's claim and also sought permission to contest the claim under Section 110C(2A) of the Motor Vehicles Act, on the grounds that were available to the owner as well as the driver of the truck, against whom the claim was made.
4. Learned Member on evidence found that the accident occurred on account of the rash and negligent driving of the truck driver in which the deceased, Mathtir Kumhar, sustained serious injuries, which resulted in his death. He also found that the deceased at the time of his death was aged 40 years, that the monthly income of the deceased was Rs. 250, out of which the dependency of the claimants was Rs. 200 per month. He, therefore, thought it just and proper to award a total compensation of Rs. 26,667 plus costs and interest, by apportioning the same amongst the claimants, as stated in the award.
5. In this court also, respondents Nos. 6 and 7 did not put in their appearance to contest the claim. It is also not in dispute that neither respondent No. 6, Narayan, the driver, nor respondent No. 7, Mahendra-singh, the owner, has been examined in this case. Further, it is also not in dispute that the appellant, the assurance company, did not lead any evidence in rebuttal.
6. Learned counsel for the appellant after taking me through the evidence of the eye witnesses, AW-1, Amarsingh, AW-2, Hukma, and AW-3, Bandiya, contended that the negligence of the truck driver in the present case has not been established. He further submitted that in exhibit P-l, which is the roznamcha of Police Station Meghanagar, it has been mentioned that one person, who fell down from the truck, was crushed by the rear wheels of the truck. He, therefore, submitted that from the evidence of these eye witnesses, who have deposed that the dead body of Mathur Kumhar was lying on the middle of the road, clearly indicates that the accident did not occur as pleaded by the claimants, according to whom, while the deceased was going by the left side of the road, that the truck came from behind and dashed against him. He, therefore, submitted that in such a situation, the body would not have been found on the middle of the road ; he, therefore, submitted that it is more probable that the deceased while trying to climb the truck from behind fell down and came under the wheels of the truck, which was being taken in a reverse direction to give side to the truck coming from the opposite direction, the road at that spot being quite narrow. However, it may be noted that the person, Gordhan, who is said to have lodged the report, exhibit P-l, has not been examined nor the driver of the truck, Narayan, who is said to have informed that person to lodge the report, exhibit P-l. Therefore, the said report, having not been proved, cannot be implicitly relied upon. In fact, the truck driver was the best person to explain as to how and in what circumstances the accident occurred as the factum of accident and the death of Mathur Kumhar on that account is not disputed. Therefore, there appears no reason to disbelieve the testimony of the eye witnesses, who are rustic villagers, who have deposed in their own way as to how the accident occurred. Therefore, the further submission of learned counsel for the appellant that the deceased has also contributed and thus there was contributory negligence on his part also, cannot be accepted and I see no valid grounds to discard the testimony of the eye witnesses.
7. So far as the quantun of compensation is concerned, learned counsel for the appellant further contended that the widow of the deceased, AW-7, Lakhibai, has herself admitted that the income of the deceased was Rs. 50 per week though other witnesses examined on this point, namely, AW-4, Jagannath, AW-5, Nandkishore, and AW-6, Khushal, who knew the deceased well, have deposed that the average monthly income of the deceased was to the tune of Rs. 400-500 per month, that the deceased at the time of his death was aged 40 years old, which also finds corroboration from the post-mortem report, exhibit P-2, though learned counsel for the appellant contended that AW-7, Lakhibai, has not given the correct age of her husband, which, according to learned counsel, must be at least 45 years at the time of his death and that as Lakhibai herself was helping her husband in the kumhar business, it cannot be said that the deceased, Mathur Kumhar, was the sole earning member in their family. Relying on a number of decisions on the question of compensation, learned counsel for the appellant contended that considering the age of the deceased at the time of his death as also the number of dependents in his family, the reasonable compensation which should have been awarded to the claimants would come to about Rs. 15,000 only and thus the compensation which has been awarded by learned Member being excessive, deserves to be reduced. It is further submitted that when learned Member thought of giving lump sum compensation by applying the multiple of 12 years, he should have deducted 15% therefrom. However, in view of the Division Bench decision of this court in Anand Insurance Co. Ltd. v. Hasanali  ACJ 471, I am of the opinion that the owner as well as the driver of the truck, having not filed any appeal against the award, the appellant assurance company is not entitled to challenge the award on quantum as also on negligence by taking resort to Section 110C(2A) of the Motor Vehicles Act, which does not strictly apply in the present case considering the facts thereof as, firstly, there is no case of collusion and, secondly, the assurance company has been made a party right from the beginning.
8. However, as learned Member thought it properto award a lump sum compensation, I am of opinion, that though ordinarily learned Member should have deducted 15% from the total compensation, which it felt to be just and reasonable, still considering the fact that the value of money has gone down these days considerably, in the interest of justice, it is not proper nor desirable to put a further cut to the amount of compensation, which in the present circumstances appears to be just and reasonable.
9. In the result, for all these reasons, the appeal fails and is dismissed with costs. Counsel's fee Rs. 100.