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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
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CIVIL MISC. APPEAL No. 496 of 1997
SMT.SUNITA SONI
V/S
PRABHU LAL
Mr. BN KALLA, for the appellant / petitioner
Mr. SANJEEV JOHARI, for the respondent
Date of Order : 6.11.2008
HON'BLE SHRI N P GUPTA,J.
ORDER
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Heard learned counsel for the parties.
This appeal has been filed by two of the four
claimants for enhancement of the compensation.
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The necessary facts are that on 28.12.1993 the
deceased along with his companion were going on the motor
cycle as pillion rider which motor cycle was hit by the
delinquent jeep, as a result of which he sustained
injuries, then he was taken to Banswara for treatment then
he was taken to Ahmedabad where he died after 7 days on
account of the injury. The deceased was alleged to be 25
years of age, and was claimed to be earning Rs. 3000/- per
month by business, and service. The claimants were mother,
father, wife and daughter. Since the aspect of accident,
negligence etc. are not under challenge, I need not dilate
on that.
On the question of quantum the learned Tribunal
has considered the evidence of A.W. 1 Manoharlal, father of
the deceased who has deposed that the deceased was selling
some small ornaments in the local markets “Haat” (rural
temporary markets), and was paying Rs. 3,000/- per month to
the claimants. In cross examination he has admitted that
he has the job for manufacturing ornaments, and the
deceased was not having any other independent shop. He has
also admitted that the village population comprised of 200
houses, and is inhabited by tribals, and that both father
and son were preparing silver ornaments, and were selling
in the villages. The learned Tribunal has considered that
in the claim petition the occupation of the deceased was
shown to be business, and service but the name of the
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employer has not been disclosed. Then, books of accounts of
the business of preparing ornaments has also not been
produced, nor any account of sales tax has been produced.
Then, it has been considered that Manoharlal has deposed
his own income to be Rs. 3000/- per month while has deposed
the income of the deceased to be Rs. 2000/- which obviously
was not found to be believable. Then, the totality of
circumstances was considered viz. that the deceased was
only a hawker selling some silver ornaments to the tribals.
Then, the other evidence produced by the claimant has also
been considered, inasmuch as A.W.5 Sajjan Singh has gone to
the extent of deposing the deceased to be preparing golden
ornaments also, which is not deposed even by his father.
Thus, it was found that there was no reliable evidence
produced on the side of the claimants about income of the
deceased, and therefore, the minimum income has been
assessed at Rs. 25/- per day. Then, deducting personal
expenditure to the extent of 1/3rd dependency has been
assessed at Rs. 500/- per month, and employing multiplier
of 14 compensation has been assessed. Then, Rs. 5000/- has
been awarded for expenditure for cremation, amount spent in
the treatment as appearing from bills No. 10 to 71
totalling to Rs. 23,952/- has been awarded, and another sum
of Rs. 20,000/- has been awarded for mental shock. Thus, a
total award of Rs. 1,32,952/- has been passed.
Learned counsel for the appellant stressed much to
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the effect that it is clearly established on record that
the deceased was earning Rs. 3,000/- per month still the
learned Tribunal has assessed income at Rs. 25/- per day
only which is out come of conjectures of the learned Judge,
and cannot be sustained.
I have considered the submissions, and even after
going through the statements of A.W.1 and A.W.5, I am at
one with the finding of the learned Tribunal. Even from
reading, and re-reading of the evidence of A.W.1 and 5, it
cannot be said that the claimants have proved, or that they
had led any reliable evidence to persuade the Court to
believe, that the deceased was earning Rs.3000/- per month,
at the time of accident. Then, in absence of any reliable
evidence about income, may be that the conclusions of the
learned Tribunal about income being Rs. 25/- per day is out
come of conjecture, but then, in absence of any evidence,
or any material, it cannot be said that the learned
Tribunal was in error in assessing this income. It is not
shown to me by the learned counsel for the appellant, that
the minimum wages rates at that time was more than the
amount assessed by the learned Tribunal.
That being the position, I do not find any error
in the assessment of compensation made by the learned
Tribunal.
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The appeal thus has no force, and the same is
therefore dismissed.
( N P GUPTA ),J.
/Sushil/