1. This order shall also dispose of Misc. Appeal No. 181 of 1979 (Kashibai v. Isa).
2. These appeals are directed against the award dated 8-5-1979 passed by the learned Member, Motor Accidents Claims Tribunal, Mandleshwar, in Claim Case No. 9 of 1978.
3. The facts giving rise to these appeals briefly stated are as follows: On 14-8-1977 the deceased Rohidas was going from village Oon to Khargone on his motor-cycle No. M. T. W. 5610. Passenger Bus No. M. P. F. 8127 owned and driven by the appellant No. 1 in Misc. Appeal No. 173 of 1979 and insured with the appellant No. 2 came from the opposite direction and dashed against the motor-cycle of the deceased with the result that the deceased Rohidas sustained severe injuries and eventually succumbed to the injuries caused to him in the accident. The claimant who are respondents in Misc. Appeal No. 173 of 1979 and appellants in Misc. Appeal No. 181 of 1979 submitted an application under Section 110-A of the Motor Vehicles Act before the tribunal claiming compensation from the non-applicants for the death of the deceased caused on account of the rash and negligent driving of the motor-bus by the non-applicant No. 1. The claimants are the parents, widow, minor son and daughter of the deceased. They claimed Rs. 1,32,000/- as compensation from the non-applicants. The non-applicants denied the claim of the claimants. They denied that the accident was caused on account of the rash and negligent driving of the motor-bus by the non-applicant No. 1. According to them Rohidas was drunk and he had no control over the motor-cycle which was proceeding in a zig-zag manner and on the wrong side of the road. The non-applicant No. 1 with a view to avoid the accident swerved the motor-bus on the extreme right side but still he could not avoid the accident. The motorcycle came from the opposite direction and dashed against the Bus. According to the non-applicants therefore the accident was caused on account of the rashness and negligence of the deceased in driving the motor-cycle and they were not liable to pay any compensation to the claimants.
4. The Tribunal held that the accident was caused on account of the rash and negligent driving of the motor-bus by the non-applicant No. 1 and therefore the non-applicants were liable to pay compensation to the claimants. The Tribunal awarded a sum of Rs. 4,000/- to the claimant Shivdas father of the deceased, a sum of Rs. 5,500/- to the claimant Sitabai mother of the deceased, a sum of Rs. 4,000/- to claimant Rajendra minor son of the deceased, a sum of Rupees 4,000/- to claimant Rekha minor daughter of the deceased and a sum of Rs. 9,500/- to claimant Kashibai widow of the deceased as compensation for the death of the deceased with interest at 6% p. a. on the amount awarded from 1-9-1977 till realisation. Aggrieved by the award of the Tribunal the non-applicants have preferred Misc. Appeal No. 173 of 1979. The claimants have also preferred appeal against the award of the Tribunal which is registered as Misc. Appeal No. 181 of 1979 seeking enhancement of the amount awarded by the Tribunal on the ground that the amount awarded is to inadequate. As both these appeals arise out of a common award they are being disposed of by this order.
5. The learned counsel for the non-applicants contended that the Tribunal was not justified in holding that the accident was caused on acount of the rashness and negligence in driving of the motor-bus by the non-applicant No. 1. He contended ihat on the evidence on record it is proved that the accident was caused on account of the negligence and rashness in driving of the motor-cycle by the deceased Rohidas. The learned counsel for the claimants supported the finding of the Tribunal that the accident was caused on account of the rashness and negligence of the non-applicant No. 1 in driving the motor-bus and contended that the amount awarded by the Tribunal is too low and requires to be suitably enhanced.
6. Having heard learned counsel for the parties we are of the opinion that there is no substance in Appeal No. 173 of 1979 preferred by the non-applicants which deserves to be dismissed and Appeal No. 181/79 preferred by the claimants deserves to be allowed and the compensation awarded to the claimants deserves to be enhanced as hereinafter stated.
7. There is no force in the contention of the learned counsel for the non-applicants that the Tribunal committed an error in holding that the accident was caused on account of the rashness and negligence in driving of the motor-bus by the non-applicant No. 1. The claimants examined Madanshah (AW. 5) who was travelling in the Bus which was being driven by the non-applicant No. 1. Madanshah deposed that he had occupied the seat behind the driver's seat. A motor cycle came from Oon side. The motorcyclist stopped the motor-cycle on seeing the Bus. The motor-bus ran over the motorcycle and then went on the kachcha path. The Bus travelled 15-20 cubits on the kachcha path before stopping. The Bus was being driven by the non-applicant No. 1 at an excessive speed. In the cross examination Madanshah deposed that he boarded the Bus at Khargone and he had purchased ticket for Oon. He further stated that he saw the motor-cycle from a distance of 25-30 paces and at that distance the motor-cycle stopped the motor-cycle, and that it was coming on the side of his right hand i. e. on the left side of the road.
8. It was suggested to the witness Madanshah in cross examination that he was not a passenger in the Bus. This sugestion was denied by him. However, Isa the non-applicant No. 1 (N. AW. 1) did not deny the fact that Madanshah was a passenger in the Bus. Abdul Razaque (N. AW. 4) the conductor of the Bus also did not state that Madanshah was not a passenger in the Bus. He only vaguely stated that he did not issue any ticket for Oon.
9. The non-applicants examined Isa (NAW. 1) Bapulal (NAW. 2), Mangilal (NAW. 3) and Abdul Razzaque (NAW. 4), on the question of negligence and rashness of the deceased Rohidas in driving the motorcycle. The non-applicant No. 1 Isa stated that he saw the motor-cyclist from a distance of 100 paces and the motor-cycle was coming at an excessive speed and was being driven on the wrong side of the road and in a zig-zag manner. Now in spite of this fact the non-appiicant No. 1 Isa did not apply brakes of his motor-Bus and stopped it. He admitted in cross examination that the motor-bus went down the kachcha patrai and thereafter it was stopped. Thus, from his testimony it is clear that the non-applicant No. 1 Isa although saw the motor-cyclist coming from the opposite direction at an excessive speed and in zig-zag manner did not take precaution to avoid accident. However, his testimony that the motor-cycle was being driven in a zig-zag manner and at an excessive speed cannot be believed.
10. Similarly Babulal (NAW 2) and Mangilal (NAW 3) admitted that they saw the motor-cycle coming from the opposite direction being driven in a zig-zag manner from a distance of 300 yards. They also admitted that the Motor-Bus had moved down the road before it was stopped. Mangilal admitted in cross examination that after the motor-cycle was dashed against the Bus it was dragged for about 10-15 paces along with the Motor-Bus. Thus, from the testimony of these witnesses it is clear that the non-applicant No. 1 could not control the Motor-Bus and had he taken necessary care and caution the accident could have been avoided. Thus, in our opinion the learned Tribunal was fully justified in holding that the accident was caused on account of the rash and negligent driving of the Motor-Bus by the non-applicant No, 1 Isa and it was not caused on account of the rash and negligent driving of the motor-cycle by the deceased. There is therefore no reason to interfere with the said finding of the Tribunal. In view of this the appeal preferred by the non-applicants (M. A. No. 173 of 1979) has no force and is dismissed.
11. Now the question that arises for determination is whether the compensation awarded by the Tribunal is too low or too excessive requiring interference in appeal. The Tribunal has found that the deceased was 33 years of age at the time of the accident. The Tribunal has not given a clear finding regarding the income of the deceased. However, in this case the Tribunal concluded that the deceased was spending Rs. 300/-per month on the claimants and determined Rs. 300/- as the dependency. Now the age of the claimant Kashibai widow of the deceased was 28 years on the date of the occurrence. The age of the claimant Rajendra was 11 years and the age of the claimant Rekha was 7 years on that date. The age of Shivdas the father of the deceased was 55 years and that of Sitabai the mother of the deceased was 50 years on the date of the occurrence. Thus, taking into consideration the respective ages of the claimants and the different periods for which they would receive the benefit of the depenency we can reasonably take 15 as the multiplier. On the evidence on record we are of the opinion that the Tribunal did not commit any error in determining Rs. 300/- p. m. as the dependency because Kashibai has deposed that the deceased was carrying on the business of purchasing and selling of milk. He used to sell 100 litres of milk per day and the margin of profit was eight annas per litre. She stated that the net income of the deceased was Rs. 800/- p. m.
12. There is no evidence on record rebutting the evidence of Kashibai. Even assuming that Kashibai had made some exaggeration we are of the opinion that the learned trial Judge did not commit any error in holding that the deceased was spending Rs. 300/-p. m. on the claimants and in determining Rs. 300/- p. m. as the dependency. Thus, the dependency works out to Rs. 3,600/- p. a. Multiplying the said amount by 15 the amount comes to Rs. 54,000/-. After deducting 15% from the amount so arrived on account of lump sum payment and uncertainties of life the compensation awardable to the claimants comes to Rs. 45,900/-. We are therefore of the opinion that the amount determined by the Tribunal as compensation is too low and requires to be enhanced. The Tribunal of course was not right in holding that the claimants were entitled to receive a sum of Rs. 6,000/- on account of mental agony to them. Thus, considering the facts and circumstances of the case we are of the opinion that the amount awardable by the Tribunal deserves to be enhanced and the claimants are entitled to receive Rs. 45,900/-(Rs. forty five thousand and nine hundred) as compensation from the non-applicants. Out of the amount so assessed the claimants Shivdas and Sitabai the father and the mother of the deceased respectively shall get Rupees 6,000/- and Rs. 9,000/- respectively. The claimants Rajendra and Rekha the minor son and daughter of the deceased shall get Rs. 7,500/- each. The remaining amount of compensation i.e. Rs. 15,900/- (Rs. Fifteen thousand and nine hundred) shall be paid to the claimant Kashibai the widow of the deceased. The claimants shall also be entitled to get interest on the amount awarded at 6% p. a. from the date of the application i. e, 13-2-1978 and not from 1-9-1977 as ordered by the Tribunal.
13. It is also directed that the amount of compensation payable to the minors Rajendra and Rekha shall be deposited in a scheduled Bank in fixed deposit for a period of 37 months under the guardianship of their mother the claimant Kashibai and the interest that may become due on the said amount shall be paid to Kashibai. The fixed deposits shall be renewed from time to time till the claimants Rajendra and Rekha become major in which event the amount shall he paid to them. The amount of compensation payable to the claimants Kashibai, Shivdas and Sitabai along with interest shall be paid to them.
14. As a result of the discussion aforesaid Misc. Appeal No. 173 of 1979 (Isa v. Kashibai) Hied by the non-applicants fails and is dismissed. Misc. Appeal No. 181 of 1979 filed by the claimants is allowed. The award of the Tribunal is modified to the extent and in the manner indicated above. In the circumstances of the case we leave the parties to bear their own costs of these appeals.