JUDGMENT :

KAUSHAL JAYENDRA THAKER, J.

1. Heard Sri Madhav Jain, learned counsel for the appellant and Sri Subhash Chandra Srivastava, learned counsel for the Insurance Company.

2. This appeal, at the behest of the claimants, challenges the judgment and order dated 29.04.1997 passed by MACT/XVth-Additional District Judge, Agra (hereinafter referred to as “Tribunal”) in M.A.C.P. No. 185 of 1987 awarding a sum of Rs. 98,000/- as compensation with interest at therate of 10%.

3. The deceased is survived by his father, wife, son and daughter. Deceased being 25 years of age is not in dispute. He was a labourer doing labour work is not in dispute. The accident is not in dispute. The issue of negligence decided by the Tribunal is not in dispute. The respondent-Insurance Company has not challenged the liability imposed on them. The only issue to be decided is, the quantum of compensation awarded.

4. Brief facts as culled out from the record are that on 14.05.1985 at about 6:30 hrs, deceased Mohar Singh was going Agra from his by-cycle and when he reached near village Digner a bus bearing no. USY-9555 driven by its driver rashly and negligently dashed into the by-cycle of the Mohar Singh and as a result of which Mohar Singh died on the spot.

5. The accident occurred on 14.05.1985. The deceased was 25 year old labour (rajmistri) and was earning Rs. 1,050/- p.m. He was survived by his father, widow and two minor children a son and a daughter. The tribunal has considered his income to be Rs. 750/- granted multiplier of 16 and Rs. 2,000/- to his widow under non pecuniary damages and ultimately assessed the total compensation to be Rs. 98,000/- with 10% interest from 22.02.1993 till payment was made.

6. It is contended by Sri Madhav Jain, learned counsel for the appellant that income should be considered at Rs. 1,000/- plus 40% to be added under future loss of income even under the old act under the judgment of Gobald Motor Services Ltd. and Another vs. R.M.K. Velusamy, 1962 (1) SCR 929 the should be added for future loss of income and/3rd may to be deducted for personal expenses and the multiplier of 18 would be admissible, Rs. 70,000/- may be given under non pecuniary damages.

7. As against this, Sri Subhash Chandra Srivastava, learned counsel for the Insurance Company vehemently submits that in absence of any evidence on record the income considered by the tribunal is just and proper, however, he could not point that addition of future loss of income which has not been given is just and proper, multiplier granted is just and proper.

8. While considering the facts and circumstances of the case, this Court accepts the the submission of Sri Subhash Chandra Srivastava, learned counsel for the Insurance Company that father, brother and sister cannot be granted non pecuniary damages when the wife is falling under class-1 and is the recipient of the benefits. This Court feels that income of the deceased can be considered to be Rs. 750/- p.m. to which as he was 35 years of age and as to the thumb rule and in view of the decisions in Gobald Motor Services (supra) and Susamma Thomas (supra) 40% should be added towards future loss of income, 1/3rd will have to be deducted and multiplier of 18 looking to the age of the deceased will have to be granted and Rs. 50,000/- for non pecuniary damages will have to be granted.

9. Hence, the total compensation payable to the appellant is computed herein-below: