JUDGMENT

N.N. Mithal, J. - In an accident which occurred at about 11-30 A.M. on 12-7-1973 on the Agra-Kanpur National Highway near Chhalesar Nursery, the claimant-respondent was severely injured resulting in ultimate amputation of his right leg and severe fracture injuries to his other leg apart from other injuries. The accident took place when Roshan Lal injured, who is an ice candy hawker, was going with historically on the road when he was hit from behind by Car No. UPU 9932. It is alleged that the driver of the car did not blow the horn and even after hitting the injured the car could be stopped only several paces ahead and immediately thereafter the driver escaped along with the car. The occurrence was witnessed by one M.S. Kapoor who was coming on the scooter and he also informed the relations of the injured. Thereafter the injured was taken to the Hospital where be remained hospitalised for one and half months. A F.I.R. was also lodged. He remained under the treatment of Dr. Vyas from 12-7-1973 to 25-8-1973 incurring an expenditure of Rs. 1200/-. Against a claim of Rs. 50,000/-, Rs. 23,000/- has been awarded including the medical expenses and compensation for pain and suffering.

2. Dhani Ram is the driver and his wife Smt. Kalawati is the owner of the car. They have filed a joint written statement contesting the claim and according to them the Car was not being driven rashly and negligently but the accident occurred as the claimant suddenly came in the middle of the road and despite honking the horn, he did not move away. When the brakes were applied, they failed and despite best efforts the accident took place.

3. The Insurance Company also filed a written statement and admitted that the vehicle was insured with it.

4. On the evidence led by the parties, the Claims Tribunal came to the conclusion that the accident was caused on account of rash and negligent driving by Dhani Ram and that all the three the owner, the driver and the insurer were liable for payment of compensation. On the question of compensation, the Tribunal was of the opinion that the Claimant was earning Rs. 300/- per month from his ice candy business which was a seasonal one and, therefore, on an average his earning capacity was determined at Rs. 150/- p.m. Since he was aged 35 years at the time of the accident, the Tribunal fixed the compensation amount at Rs. 20,000/- for loss of earnings. He was also awarded Rs. 1200/- spent over his medical treatment and a sum of Rs. 1800/- was awarded for mental agony. Thus a total sum of Rs. 23,000/- has been awarded by way of compensation.

5. After bearing the learned Counsel for the parties and on the perusal of the award of the Tribunal, it is quite evident that all the materials and facts have been properly considered by it in arriving at the conclusion that the accident had taken place due to negligent and rash driving by driver Dhani Ram. The Court has rightly pointed out that there was no contributory negligence on the part of the claimant. Despite vigorous efforts by the learned Counsel for the appellant, I do not find any material that may persuade me to take a different view than the view taken by the Tribunal. It is accordingly held that the accident took place on account of the negligence and rashness on the part of the driver.

6. On the question of quantum also, I do not find that there is any merit in so far as the appeal of the Insurance Company is concerned. There is cross objection by the claimant and he has prayed that full amount of Rs 50,000/- ought to have been awarded to him. It has been urged on behalf of the claimant that at the young age of 35 years he has been deprived of his one leg and his other leg was also badly impaired In view of the nature of the injuries sustained by him, he can not undertaken any work and can not do hawking of ice candies or any similar work. At the time of the accident he had two minor daughters and one minor son The daughters had now come of age and have to be marr