Hon. Anil Kumar Sharma, J.
Heard counsel for the appellant and perused the record.
Claimant appellant has filed this appeal challenging the award dated 29.11.2004 passed by the Motor Accident Claims Tribunal, court no. 1, Firozabad, in M.A.C.P. No. 294 of 2003, Smt. Guddi and others Vs. The New India Insurance Company Ltd. and others, by which the Tribunal has awarded a sum of Rs. 2,38,000/- against respondent no. 1- the New India Insurance Company Ltd., Branch Divisional Manager, Dayalbagh road, Agra, alongwith interest at the rate of 6 % per annum from the date of filing of claim petition till the date of its payment.
The award has been assailed by the counsel for appellant on the ground that compensation for the loss of consortium to the appellant is very less and the method of calculation of monthly income of the deceased is arbitrary and illegal. According to the counsel, income of the deceased was proved by documentary evidence but it has been ignored by the Tribunal and as such the compensation awarded deserves to be enhanced.
The case of the appellant is that the deceased at the time of the accident was sitting in a "JUGAR" which was loaded with 30 bags of vegetables. Its driver had gone to take tea and the eye witness had also gone to relieve himself of the nature's call.
"JUGAR" is an open four wheel cart made indigenously by the villagers assembling wooden planks, lots, iron angles, wheels and steering either of a jeep or mini truck. It runs from the energy supplied to it by a diesel engine which is generally used for irrigation purposes. Its shape is like a trolley of tractor and is used in remote areas as a goods carrier as well as for transportation of local passengers. "JUGAR" has neither doors or roof nor it is registered with the concerned Transport Authority.
Though reduction of compensation on the ground of contributory negligence has not been challenged by the appellant in the grounds taken but on consideration of the facts, we find that the accident had taken place on 16.6.2003 at about 5 A.M. on Mainpuri - Shikohabad road near Krishna Hotel, falling under Sirsaganj Police Station. The accident was caused by Tata 709 mini truck, bearing registration number UP84-9280 with the "JUGAR" on which the deceased was sitting for taking his agricultural produce to the market. In the claim, it has been alleged that driver of the aforesaid mini truck had caused the accident by coming from wrong side of the road. In his evidence, P.W.-2 Kameshwar Dayal has admitted that there was darkness at about 5 A.M. and that there was no indicator in the "JUGAR" which could show that some vehicle was standing by side of the road. The Tribunal however noting that"JUGAR" does not come within the meaning of vehicle as defined in the Motor Vehicle Act, yet in view of the facts and circumstances, considering that driver of the "JUGAR" is also liable for contributory negligence, has held him responsible for 50 % contributory negligence.
So far as monthly income of the deceased is concerned, no documentary evidence was filed before the Tribunal. However, from the oral evidence, it has come that the deceased was engaged in agriculture, animal husbandry and sale of vegetables and was earning about Rs. 5000/- per month from the aforesaid activities though there was no definite proof of it. The claimant has failed to establish that how much land was owned by her deceased husband from which agricultural income is said to have been earned by him and what was the income from animal husbandry.
In the facts and circumstances, we find that the Tribunal has not committed any error in applying the multiplier of 17 as age of the deceased was 32 years in the age group 30 - 35years. As the deceased was earning Rs. 3500/- per month, his annual income comes to Rs. 42000/-. After deducting one third of his income i.e. Rs. 14000/- towards his personal needs, the balance comes to Rs. 28000/-. Applying multiplier of 17, amount of compensation comes to Rs. 4,76,000/- . Since the Tribunal has held that driver of the "JUGAR" was liable for 50 % contributory negligence, it has rightly awarded Rs. 2,38,000/- as compensation to the appellant.
We have perused the impugned award and find that Tribunal has rightly reduced the compensation by 50 % on the ground of contributory negligence of drivers of both the vehicles.
As regards consortium etc., since the appellant has not brought on record before us copy of the claim petition filed before the Tribunal, it is not certain whether she had taken this plea before Tribunal or not, hence we refrain ourselves from entering into that aspect of the matter.
After hearing the submissions and perusing the impugned award, in our considered view no ground for enhancement of the compensation is made out. The Tribunal in the facts and circumstances of the case, has awarded just and reasonable compensation.
For all the reasons stated above, the appeal has no substance and is accordingly dismissed.
Dt/-26.7.2012 SNT/