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2005 DIGILAW 1717 (RAJ)

Chandra Kala v. Balvinder Singh

2005-07-06

S.K.KESHOTE

body2005
Judgment S.K. Keshote, J.- Having heard learned Counsel for the parties and on perusal of the entire record of the appeal I am satisfied that the non-claimant respondent Nos.1 and 2 are neither necessary nor proper parties to the appeal, hence the service of summons of the appeal on these two non-claimant respondents is dispensed with. 2. Under the impugned award, dated 05.03.2003, the learned Motor Accidents Claims Tribunal, Sikar (for Short, the Tribunal), in Claim Case No. 324/1999, has awarded a sum of Rs. 2,87,280/-in favour of the claimant appellants for the death of Rajendra Kumar died in the motor vehicle accident took place on 15.09.1999 on account of the rash and negligent driving of the truck bearing No. DL-1 GA 2505. 3. The claimant appellants for enhancement of the amount of compensation have filed the appeal. It is barred by 261 days. They have also filed an application under Section 5 of the Limitation Act for condonation of the delay occurred in filing the appeal 4. Having heard learned Counsel for the parties I am satisfied that the delay occurred in filing of the appeal has satisfactorily been explained by the claimant appellant and it deserves condonation. 5. Accordingly the application under Section 5 of the Limitation Act succeeds and the same is allowed. The delay of 261 days occurred in filing of the appeal is condoned. 6. Admit. Since Shri N.L Verma has put appearance on behalf of the contesting respondent, the matter is complete. With the consent of the learned Counsel for the parties and looking to the short point involved for adjudication of the Court, the appeal itself is taken up for final hearing. 7. The learned Counsel for the claimant appellants contended that the learned Tribunal has committed an error in taking the monthly income of the deceased only at Rs. 2000/-, in his submission the claimant appellants had produced on the record the document Exhibit-13, which is the salary certificate of the deceased, in order to establish that the deceased was getting Rs. 3500/-per month of salary from Shri Vinod Kumar (AW-3). The deceased was driving the vehicle of Shri Vinod Kumar (AW-3). 8. 2000/-, in his submission the claimant appellants had produced on the record the document Exhibit-13, which is the salary certificate of the deceased, in order to establish that the deceased was getting Rs. 3500/-per month of salary from Shri Vinod Kumar (AW-3). The deceased was driving the vehicle of Shri Vinod Kumar (AW-3). 8. It is next contended that the deceased was also having the income from the agriculture work and the learned Tribunal has not taken into consideration that income while awarding the amount of compensation under the head of loss of economic dependency. 9. Lastly it is contended that the learned Tribunal has not awarded any compensation under the head of loss of consortium, loss of love and affection and under the head of funeral expenses. 10. On the other hand the learned Counsel for the non-claimant respondent supported the impugned award of the learned Tribunal and contended that no interference therein is called for of this Court in the appeal. 10.11. I have given my anxious and thoughtful consideration to the rival contentions raised by the learned Counsel for the parties and perused the entire record of the appeal. 112. Undisputedly there is no evidence come on the record to show and establish that the deceased was having income from agriculture, thus the claim made by the claimant appellants of his income from the agriculture has rightly been not accepted by the learned Tribunal. 113. Vinod Kumar (AW-3) has admitted in his cross-examination that he was not maintaining any record of the salary allegedly being paid to the deceased; he has further accepted in his cross-examination that he was not keeping any account of income, which he was earning from the Jeep. In the absence of these material documents the learned Tribunal has rightly held that possibility cannot be ruled out that the salary certificate given by Vinod Kumar (AW-3) is only to favour the claimant appellants. 14. The learned Tribunal, on the basis of the oral evidence, was not expected to take the income of the deceased what it has been stated by the claimant appellants. The deceased was driver on the Jeep of Vinod Kumar (AW-3) and it cannot be believed that he would have been earning the income as claimed by the claimant appellants, moreover when there is no documentary evidence produced in this respect on their behalf . The deceased was driver on the Jeep of Vinod Kumar (AW-3) and it cannot be believed that he would have been earning the income as claimed by the claimant appellants, moreover when there is no documentary evidence produced in this respect on their behalf . In these circumstances best Judgment assessment was to be made by the learned Tribunal and the leaned Tribunal has taken a just and reasonable amount Rs. 2000/-of the monthly income of the deceased, therein I do not find any scope of enhancement. Thus, the compensation awarded in favour of the claimant appellants under the head of loss of economic dependency is just and reasonable in which no increase is called for. 15. As regards to the compensation claimed under the head of loss of consortium to the wife, loss of love and affection to the children and loss of care in the old age to the mother as well as under the head of funeral expenses, I find sufficient merit in the contention raised by the learned Counsel for the claimant appellants. The learned Tribunal has not awarded single penny towards compensation under the aforesaid heads nor it has given any reason, good, best or different, not to award the compensation under those heads. 16. Taking into consideration the age of the widow, minor children and the mother, I am satisfied that under the aforesaid heads the claimant appellants are entitled for compensation as under, 1.Loss of consortium to the wife 15000 . Rs 2.Loss of love and affection to the respondent No. 2 Rs. 10000 3.Loss of love and affection to the respondent No. 3 Rs. 10000 4.Under the head of funeral expenses Rs, 02000 Total Rs. 37000 17. Thus, in addition to what the learned Tribunal has awarded compensation in favour of the claimant appellants, they are entitled to get a sum of Rs. 37000/-as additional compensation under the aforesaid heads. On this amount of compensation the claimant appellants shall be entitled for interest at the rate of 9% per annum from 110.1999, the date of filing of the claim petition till the actual payment thereof . 18. Accordingly the appeal stands disposed of .