Compensation under the Motor Vehicle Act should not be reduced by deducting the share of a family member who was not receiving any income from the deceased's business and the realization from the sale of the shop due to closure after the deceased's death.

Rajindar Sachar, J.

( 1 ) THIS is an appeal against the order of the learned single Judge by which he has awarded under the Motor Vehicle Act an amount of Rs. 38,522. 00 by way of compensation with interest at 6 per cent till realisation with costs to the appellants for the death of their son Ramesh Ghander.

( 2 ) THE accident took place on 25-8-1970. The bus was being driven by Ajit Singh, Driver. The bus belonged to the D. T. G, respondent No. 2. It was stated that the Driver was driving the bus rashly and negligently and the accident took place because of the fault of the Driver. The Trial Court as well as the learned single Judge have held that the accident occurred due to rash and negligent driving of respondent No. 3, Driver, which resulted in the death of Ramesh Ghand. This being a finding of fact there is no occasion to interfere with it in this appeal and the same is affirmed.

( 3 ) THE deceased was 24 years of age at the time of his accident. The claim was put in by his father and mother. At the time of accident the age of father was 53 years and that of mother 49 years. The learned single Judge has calculated dependency at 16 years. This period is not seriously challenged by the learned counsel for the appellant. We are of the view that this was a reasonable period and we uphold the same.

( 4 ) RAMESH Chand the deceased wag running a Commission Agent s shop. It was admitted to be a family business and wai being assessed as a Joint Hindu Family business. The learned Single Judge has held that income from the shop should be taken to be Rs. 7,000. 00. This he has done because the father of the deceased had stated in his evidence that the income from the shop was between Rs. 7,000. 00 to Rs. 9,000. 00 per year and the learned Judge, therefore, thought that Rs. 7,000. 00 would be a safe figure. The counsel for the appellant, Mr. Goel, however, protests and says that there is on record an income tax assessment order assessing the income from the shop at Rs. 8670. 00 per annum. Mr. Malhotra, counsel for the reapondents does not dispute this. In view of the fact that the assesgment has been made of the shop at Rs. 8670. 00 per annum that being within the range of Rs. 7,000. 00 to Rs. 9,000. 00 per year there is no justification not to accept that figure. The father had also given the upper limits of the income at R. 9,000. 00 and, therefore, accepting the lowest figure of Rs. 7,000. 00 is not justified in view of the documentary record of the assessment order being for at Rs, 8670. 00 per annum as the income. We would, therefore, modify this figure of income as found by the learned single Judge and hold that the income from the shop was Rs. 8670. 00 per annum instead of Rs. 7,000. 00 per annum.

( 5 ) THE trial court had held that an amount of Rs. 66. 00 must have been spent by the deceased on himself out of the income of the shop and the rest was given to the family. The learned single Judge however, has raised this amount to Rs. 100. 00 per mensem. There is no evidence to say that it was otherwise. The evidence of father was also that the deceased was only keeping Rs. 100. 00 per month for himself. We see no reason to differ from the view ofthe learned single Judge. This would mean that accepting the income at Rs. 8670. 00 per annum and deducting therefrom Rs. 1200. 00 on account of personal expenses of the deceased the balance which was available to the family would come to Rs. 7470. 00 per annum. Taking the dependency for 16 years the amount of loss would come to Rs. l,19,520. 00.

( 6 ) THE learned single Judge however, had deducted Rs. 1200. 00 out of the income of Rs. 7000. 00 per annum in order to work out the income that would be available to the appellants, which comes to Rs. 5800. 00 per annum. But the learned single Judge held that this whole amount could not be said to be available to the family. He said so because, according to him, the business being a Joint family one, 1/3rd of the income must be deducted on a

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