JUDGMENT 1. - Marigi Lal, son of Shri Lumba Ram of village and post Shivtalav, Tehsil-Bali, Distt. Pali, aged about 17 years, student of Class 10th, who was assisting his family in their agricultural production and in selling milk in the city and was said to have earning Rs. 600/- per month at that time, had been killed in the accident on 22.4.1992 at 5.30 a.m. when he was going from Mundara to Sadri on his cycle. The accident, had been caused by Jeep No. RJ-22T/0014, driven by one Nasir I Iussain, S/o Shri Mubarak Hussain of Sadri, Tehsil Desuri. The Jeep was owned by respondent no. 1 Jeewa Ram, son of Shri Roopaji Ghanchi, resident of Tehsil Bali, Nasir Hussain driver is respondent no. 2 in this case. 2. Being aggrieved, all the petitioners i.e. Lumba Ram son of Shri Gullaji, aged 50 years; Smt. Padki wife of Shri Lumba Ram, aged 45 years (father and mother of the deceased) and two minor brothers of the deceased aged 7 and 5 years, had filed the claim application under section 166 of the Motor Vehicles Act, 1988 r/w R. 10(2) of the Rajasthan Motor Vehicles Rules, 1990. The parents had claiming the amount of Rs. 2,93,000/- as compensation for the death of their son Mangi Lal. It was stated in the application that the deceased Mangi Lal was one of very intelligent student studying in 10th class. In addition to his continuing with the studies, at that time the deceased was helping the family with the income of Rs. 600/- per month by taking milk from his village to another town Sadri. He was hard-working boy, used to carry 20 litres milk daily and sell it with profit. In addition to above as is very common for the village people, he used to earn by doing some labour work. Not only this, the family had lost one earning hand in the agriculture production, but also had lost a promising boy who would have been and could have been asset to the family by helping his two minor brothers as well it is stated that he was the eldest son, very healthy, young and promising even at the age of 17 years, his actual help to the family was Rs. 6,000/- per year by selling the milk apart from his labour on the agriculture. 6,000/- per year by selling the milk apart from his labour on the agriculture. A very mathematical claim had been made in the petition by the petitioners, who are otherwise illiterate, to the fact that the deceased would have earned to help the family for about 48 years and if this 48 years is multiplied by Rs. 6,000/- per year, the loss would come to Rs. 2,88,000/-. In addition to above, the parents of the family had also claimed for love and affection on account of death of the eldest son of the family. The claim about love and affection has been assessed as Rs. 50,000/- only. The bifurcation of the claim made by the claimants actually comes to Rs. 3,38,000/-, but by mistake the total has been shown as Rs. 2,93,000/-. However; the calculation made by the appellant in the claim application is not relevant for the purpose of deciding the present case. 3. The trial Court vide its order dated 11.10.1993 had decided the claim of the claimants and had awarded Rs. 34,000/- as compensation to the mother and father of the deceased with interest @12% per annum from the date of application. The trial Court had further ordered that the amount awarded shall be payable by the respondents jointly and severally 4. The following issues were framed by the Trial Court : " 1- vk;k fnukad 22-4-1992 dks lqcg 5-30 ,0,e0 eqaMkjk ls lknM+h ds chp e`rd ekaxhyky ds vizkFkhZ la0 2 us thi la0 vkj0ts0 22 Vh0 8014 dks rst xfr o ykijokgh ls pyk dj lkeus ls vkdj VDdj ekjh ftlls e`rd ekaxhyky ds xaHkhj rFkk lk/kkj.k pksVsa vkbZ] ftlls mldh ekSds ij gh e`R;q gks xbZ ,oa mldh lkbZfdy iwjh rjg ls u"V gks xbZA 2- vk;k izkFkhZx.k Dyse n'kkZ;s vk/kkj ij vizkFkhZx.k ls eqvkots dh jkf'k :i;s 2]93]000@& ikus ds vf/kdkjh gSA 3- vk;k e`rd Lo;a dh vkaf'kd xyrh gksus ls chek dEiuh dk mRrjnkf;Ro lhfer gSA 4- ck;k izkFkhZx.k dk Dyse vUnj fe;kn ugha gSA 5- vuqrks"kA " 5. On Issue No. I & 3, the Trial Court had given a definite finding that the accident had been caused by the driver of the Jeep with his rash and negligent driving, resulting into the death of the deceased on the date of accident as alleged and, therefore, consequently the respondent no. 3 Insurance Company was also liable. 6. On Issue no. 3 Insurance Company was also liable. 6. On Issue no. 2, while assessing the compensation, evidence had come on record that at that time, the deceased was earning Rs 720/- per month by selling milk; out of which Rs. 600/- was being paid to his parents. The above said evidence produced by the claimants has been supported by AW 2 Ganesh Singh. 7. Lumba Ram, appellant (AW 1) has categorically stated that the deceased used to collected milk from Raghunath Singh and Ganesh Singh at both times i.e. in the morning and evening and used to sell it at Sadri i.e. 10 litres milks used to sell in the morning and same quantity in the evening. He has given the rate of purchase @ Rs. 4/-per litre and selling rate as Rs. 5/- per litre. He has further stated that the income from milk was Rs. 600/ -; out of which Rs. 500/- used to be given to family. The above statement of the claimant is corroborated by one Ganesh Singh (AW 2) who owns four cows and two buffalos. He has stated that he used to sell milk to the deceased in the morning as well as in the evening of the quantity about 10-12 litre @ Rs. 4/- per litre for the last 12-14 months from the date of accident. He has corroborated the evidence of claimant AW 1 to the effect that Mangi Lal after collecting the milk, used to sell it at Sadri. He has also stated that Mangilal used to collect milk from Raghunath as well. There is no suggestion whatsoever either to AW 1 & AW 2 to the fact that Mangilal was not purchasing any milk or selling any milk. There is no reason whatsoever on the record to disbelieve these two witnesses in regard to the income being made by Mangilal. There is no evidence produced whatsoever against the depositions of AW 1 & AW 2 nor the income of Mangilal has been disputed by any of the respondents appearing in the witness box. Even otherwise, it is common knowledge that village folk had taken up as a profession by collecting milk from the village and bringing it into the town. The Trial Court had no reason to disbelieve this part of the witnesses whose statements were un controverted. Even otherwise, it is common knowledge that village folk had taken up as a profession by collecting milk from the village and bringing it into the town. The Trial Court had no reason to disbelieve this part of the witnesses whose statements were un controverted. Even otherwise a man of aged 18 years wants to do any labour or unskilled work, average per day income during that period could not be less than Rs. 20 to 25 per day and in such circumstances, the finding of the trial Court on the part of the earning of deceased cannot be accepted and is to be reversed. When the legal evidence is brought on record, which evidence is not disputed or controverted by the party opposite, there are hardly any reason for the Trial Court to disregard the evidence produced by the appellant. The Trial Court in its order had assessed as Rs. 7/- or Rs. 8/- per day income of the deceased only which is not based on any legal evidence and is only a guess work income. Therefore, the findings in regard to the income at that time and the earning capacity of the deceased is to be reversed and it is held that as per the evidence brought on record which is even otherwise to the minimum, the deceased was earning about Rs. 600/- per month by selling the milk and out of which Rs. 500/- was being given to the family. 8. If the loss to the family at that time is assessed as Rs. 500/- per month, the yearly compensation would be Rs. 6,000/- per year. The Trial Court has also erred in assessing the age of the claimant-father Lumba Ram. In the evidence and in the application, the age of the father-claimant has been given as 50 years and as is normal in Hindu Society, the wife is usually 5-6 years younger in age to that of husband. In the application, the age of the mother has been mentioned as 45 years. But the Trial Court without there being any evidence on record, to the contrary has mentioned the age of father and mother in its order as 56 years and 50 years respectively. The Trial Court has further held that the deceased was ultimately to be married and, therefore, out of the assessed income of Rs. 200/- or Rs. But the Trial Court without there being any evidence on record, to the contrary has mentioned the age of father and mother in its order as 56 years and 50 years respectively. The Trial Court has further held that the deceased was ultimately to be married and, therefore, out of the assessed income of Rs. 200/- or Rs. 250/- by the Trial Court, the claimants are entitled to Rs. 150/- per month. Thus assessing the loss @ Rs. 1501-1200/- per month and multiplying by 10 years, the total compensation has been assessed as Rs. 21,000/- and adding therein for the loss of love and affection and mental torture another amount of Rs. 11,000/- the total has been made to Rs. 34,000/- including Rs. 2,000/- as has been awarded for the funeral expenses. Thus the total of Rs. 34,000/- has been awarded. The actual compensation for loss to family has been assessed only Rs. 21,000/- for both the claimants. Thus the reasoning of the Trial Court is not understandable and is only made on guess work without any basis and reasons etc. 9. The learned counsel for the appellants had relied on Delhi Transport Corp. v. O.P. Verma, 1994 ACJ 337 in which case the accident has occurred in Feb. 1973, of a young man of 18 years and a student of Class X and helping the family in dairy business of his father, the compensation of Rs. 90,000/- has been awarded. The dependency was assessed as Rs. 300/- per month even though there was any hardly evidence on record of actual earning. In the present case, Rs. 500/- per month earning has been brought on record. 10. In another similar case, reported in 1993(1) ACJ 591, a young man of 18 years who had died in the accident in the year 1977, compensation of Rs. 78,000/- was awarded. Income in that case was assessed as Rs. 150/- per month. It was held in the case that it was a common knowledge that even the ordinary labour is charging Rs. 30/-per day.as labourer. The father was allowed the compensation up to age of 65 years and so was the mother. In that case, younger brother of 9 years and 7 years were allowed the compensation up to the age of their attaining majority and it was held even the brothers have suffered love and affection of the elder brother. 30/-per day.as labourer. The father was allowed the compensation up to age of 65 years and so was the mother. In that case, younger brother of 9 years and 7 years were allowed the compensation up to the age of their attaining majority and it was held even the brothers have suffered love and affection of the elder brother. In another case, reported in 1994 ACJ 993 the Hon'ble Apex Court in Haji Zainullah Khan v. Nagar Mahapalika, Allahabad had awarded the compensation with regard to the death of student of 20 years to the extent of Rs. 1,50,000 / -. Yet in another case, the Division Bench of Allahabad Court Nand Kishore v. Union of India & Ors., 1993 ACJ 1287 had awarded an amount of Rs. 50,000/- for the death of a 9 years old girl. 11. The claimants have, therefore, asked for enhancement of the award of compensation. To my mind, the claim of the appellants is justified and a case of enhancement is made out. The Trial Court has taken a too narrow approach for assessing the compensation of loss of earning and actual love and affection. Now-a-days even the labour is charging Rs. 40/- to Rs. 60/- per day i.e. it comes to Rs. 1,500/- to Rs. 2,000/-per month. The Trial Court has not even considered the future hopes of the family who were pinning their hope on the eldest son. Who knows after passing the matriculation examination, the deceased would have improved his qualifications in some technical field or become a professional and by the time reaching 25 to 30 of age, he could have become something in life. Nothing can be ruled out these days. If a man is hard working and has dreams, giving the chance, the progress cannot be ruled out. The Trial Court has further taken a narrow approach by saying that the deceased would have earned Rs. 7/- or 8/- per day. It is not known as to from where the Trial Court had taken Rs. 7/- or Rs. 8/- per day and why not Rs. 20/- or 30/- per day. In the present case, the rural people these days who are not shy of doing labour work by selling milk or by working in the fields, are earning more than Rs. 50/- to 60/- per day. By no stretch of imagination, average income could be less than Rs. 8/- per day and why not Rs. 20/- or 30/- per day. In the present case, the rural people these days who are not shy of doing labour work by selling milk or by working in the fields, are earning more than Rs. 50/- to 60/- per day. By no stretch of imagination, average income could be less than Rs. 1,000/- per month, if the prospectus, developments and progress and future is to be taken into account and, thus if out of the said average income, even one third is spent by the individual on his own expenses, the parents would have been helped by eldest son to the minimum of Rs. 600/- per month for 15 years. Even though the younger brothers would have benefited in their independent claims, but according to my opinion, it is not necessary to go into the fact whether they can file any claim separately as well when their parents are alive. It is the duty of the parents to bring up the children and according to whatever parents would have got from their son, could have been shared by the younger brothers as well. The minimum compensation which could be awarded to the appellant no. 1, father and mother is assessed as Rs. 1,08,000/- @ calculation mentioned above. 12. The claimants are also entitled to estimated amount of Rs. 25,000/- because of mental torture, love and affection, deprivation of care from their eldest son and other expenses and that total amount which is awarded is Rs. 1,33,000/-. 13. The counsel for the Insurance Company was waited, but none has appeared even up to the end if the day. He is proceeded exparte and exparte order is being passed against him. If any amount has been paid to the claimants, that shall be deducted and remaining amount shall be paid with interest @12 per cent from the date of application till the date of actual payment. The appeal is allowed with costs and the cost is assessed as Rs. 1,)00/-. The remaining amount as awarded by this order shall be paid equally to the claimants within 3 months from date of the receipt of the order in the shape of Demand Drafts or by Account Payee cheques.Appeal allowed. *******