R.K. Varma, J.
1. This is an appeal by the motor-cyclist Ashok Kumar against the Award dated 24-2-1981 passed by the Member Motor Accident Claims Tribunal, Indore whereby the Tribunal awarded compensation amount of Rs. 14,4000/- to the widow and son of the deceased Hernia who died on being knocked down by the motor-cycle of the appellant while the deceased was crossing the road in front of the High Court Building at Indore.
2. It has been found by the Tribunal that the accident occurred on 5.7.1979 on account of the rash and negligent driving of the motor-cycle by the appellant and the deceased who was going on foot, was seriously injured and he succumbed to the injuries on 7.7.1979 in M.Y. Hospital, Indore. The age of the deceased at the time of accident was 50 years as held by the Tribunal. The Tribunal found that the deceased was earning Rs. 6000/- per annum as agricultural income and on account of his death the claimants had been deprived of the dependency of Rs. 2000/- per month. Taking a multiplier of eight years the Tribunal assessed the pecuniary loss as Rs. 16000/- and deducting 10% therefrom on account of lump sum payment, the Tribunal awarded a total sum of Rs. 14,400/- as compensation payable to the claimants, by the appellant owner of the motorcycle. It appears that the motorcycle was not insured and the Insurance Company is, therefore, not a party in this appeal.
3. Learned Counsel for the appellant contended that it was a case of contributory negligence and the appellant is not wholly responsible for the accident. The deceased suddenly crossed the road and dashed against the appellant who was on a motorcycle and as a result the deceased as well as the motor-cyclist were injured and both fell down unconscious on the spot. The contention of the learned Counsel has no substance. From the evidence on record it is clear that the deceased had almost crossed the road and the accident occurred when only 10-15 feet out of 50 feet width had remained to be crossed towards the High Court building. The motor-cyclist was going from Regal Talkies towards Palasia side. It appears that the motor-cyclist was not keeping to his left and was going with high speed and could not control the vehicle so as to avoid the accident. There is no medical evidence adduced in the case about the alleged injuries to the appellant motor-cyclist. As such the finding of negligence given by the Tribunal does not call for any interference.
4. Learned Counsel for the appellant next contended that the amount of compensation awarded is on the higher side looking to the fact that the income from agriculture earned by the family is not only because of the individual efforts of the deceased. The deceased owned 15 Bighas of agricultural lands which have devolved on his heirs as a result of his death. Learned Counsel pointed out that P. W. 1 Meera widow of the deceased in paragraph 5 of her statement has stated that while Hemla was alive all family members jointly used to cultivate the lands. In paragraph 7 of her statement she stated to the effect that the deceased was accustomed to wearing good quality clothes and he was found of going out on tour. This shows that Hemla was spending the major amount of income on himself personally. The agricultural lands which have devolved on the claimants are bound to yield good income if the claimants who have been jointly cultivating the land alongwith the deceased prior to his death, continue to do agricultural work as before. In such circumstances the assessment by the Tribunal of loss of dependency to the extent of Rs. 2000/- per month is an over estimation. This contention of the learned Counsel deserves consideration. The learned Tribunal has not taken into account the fact that the agricultural lands have devolved on the claimants to be enjoyed by them. The loss of dependency is, therefore, referable to the factor of personal exertions of the deceased in cultivating the land and not to the factor of the land which is still in the hands of the claimants. In the circumstances, I deem it just and proper to reduce the amount of dependency from Rs. 2000/- to Rs. 1500/- per annum and consequently the amount of Award is liable to be reduced by 25%.
5. Learned Counsel for the appellant further contended that the age of the deceased at the time of the accident has wrongly been held to be 50 years by the Tribunal. Learned Counsel points out that P.W. 3 who is the nephew of the deceased Hernia has stated that Hemla was 65 years of age and that his widow was 50-55 years, of age. He, therefore, argues for adopting a lower figure as a multiplier than what has been adopted by the Tribunal. This contention of the learned Counsel has to be repelled in view of the fact that P.W. 3 has stated that he was illiterate and had no idea of numbers and that he did not know the definite age of deceased Hemla. On the contrary P.W. 4 Dr. R.S. Mehta, Casualty Officer, M.Y. Hospital, Indore, who had performed the post-mortem examination of the deceased Hemla has estimated his age to be 45-50 years and has in his cross-examination stated that his estimate was liable to error to the extent of 4 to 5 years on either side. On this medical evidence it cannot be said that the estimate of 50 years as accepted by the Tribunal was erroneous.
6. In view of the discussion aforesaid this appeal is partly allowed. The Award is modified by reducing the amount of compensation by 25% i.e. to say the claimants shall be entitled to receive from the appellant motor-cyclist the compensation amounting to Rs. 10,800/- together with interest at the rate of 6% from 10-10-1979 till realisation. There shall, however, be no order as to the costs of this appeal.