( 1 )

( 2 ) DESPITE the case having been passed over once no one has appeared on behalf of the respondents. From the record I find that even on the earlier hearings no one had appeared on behalf of the respondents. I have, therefore, proceeded to decide this appeal in the absence of the respondents.

( 3 ) THE appellant has filed this appeal for enhancement of compensation awarded by the Motor Accidents Claims Tribunal for the death of her son who had died in a road accident alleged to have been caused by rash and negligent driving of the DTC bus by its driver,respondents no. 1. The facts giving rise to this appeal are :-

( 4 ) ON December 28, 1990 the deceased was walking on the road at Azad Pur when a DTC bus bearing registration no. DET 9874 alleged to be driven in a rash and negligent manner by respondents no. 1 hit the deceased from behind as a result of which the deceased sustained injuries which proved to be fatal and he died at the spot. Alleging that the accident was caused due to the rash and negligent driving of the driver of the bus and the appellant was entitled to compensation for the death of her son in that accident, appellant filed a petition before the Motor Accidents Claims Tribunal claiming compensation for such death of her son. At the time of his death the deceased was about 35 years of age. His wife is stated to have died the next day of the accident because of shock and the petition for compensation was, therefore, filed by his mother. It was alleged that the deceased was earning a sum of Rs. 2000. 00 per month from his business and there being longivity in the family of the deceased the deceased would have lived up to the age of 70 years. Compensation of Rs. 10 lakh was, therefore, claimed by the appellant.

( 5 ) IN the written statement filed by the respondents it is denied that the accident was caused because of the rash and negligent driving of the bus by its driver. It was stated that on the fateful day the bus was going from Central Secretariat to Narela and when it reached the Azadpur Terminal at about 735 hrs the driver stopped the bus for passengers to alight and for boarding of some passengers who were standing at the bus stop. It is stated that after the passengers had boarded the bus the driver moved the bus and when the bus reached the traffic signal and was going to stop because of red light it was noticed that the deceased was hit by some other vehicle and was thrown away and had an impact with the DTC bus as a result of which he received accidental injuries. The other vehicle which is alleged to have hit the deceased was stated to have sped away from the spot. On the pleadings of the parties the Tribunal framed the following issues :-

1. WHETHER Gandharv Singh died in accident as alleged ?

2. WHETHER accident took place due to rash and negligent driving of vehicle as alleged?

3. WHETHER claimant is legal heir of the deceased?

4. TO what amount of compensation the claimant is entitled and from whom?

5. WHETHER respondents are not liable to pay the amount of compensation for the reasons mentioned in the written statement.

( 6 ) AFTER the evidence was led the Tribunal while deciding issues no. 1and 2 held that the accident was caused because of the contributory negligence of the deceased. It was held that as the deceased himself had contributed to the accident the appellant would not be entitled to more than 50% of the compensation to be awarded to her for the death of her son. The income of the deceased from the dhaba which he was allegedly receiving could not be proved before the Tribunal. On taking the minimum wages payable under the Minimum Wages Act to be the income of the deceased at the time of the accident and applying the principles laid down in Sarla Dixit versus Balwant Yadav and another 1996 ACJ 581 the Tribunal took the average income of the deceased at Rs. 1200. 00 per month. Assuming that the deceased was spending 50 per cent of such income on himself, the balance