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Rajasthan High Court · body

2011 DIGILAW 2339 (RAJ)

Ganga v. Rama

2011-11-03

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This appeal has been preferred by the claimant-appellant aggrieved by the award of the Motor Accident Claims Tribunal, Kekri, Ajmer on quantum of compensation. 2. Contention of the learned counsel for the appellant is that the deceased was in fact aged 50 years, but in the claim petition his age was mentioned as 52 years, yet the learned Tribunal has mechanically accepted his age to be 56 years merely because this age was mentioned in the postmortem report. Learned counsel submits that postmortem was carried out when his dead body was brought by someone else. The age of the deceased at the maximum is taken as 52 years and accordingly multiplier of 11 be applied and amount of compensation be calculated accordingly. 3. Shri Kamal Paraswal, learned counsel for the appellant has argued that AW-1 Ganga Devi has stated that her husband was a contractor in the field of construction and that he was earing Rs.5,000 t0 Rs.7,000 per month. Another witness AW-2 Mahaveer also has stated that deceased was a contractor in civil works and that he was earning at least Rs.6,000-7,000 per month, but the Tribunal has accepted the income of the deceased to be Rs.1,500/- per month only and on that basis by making 1/3rd deduction calculated the compensation at Rs.1,26,000. It is therefore prayed that the appeal be allowed and the amount of compensation be enhanced. 4. Shri O.P. Sharma and Shri J.P. Gupta, learned counsel for the respondents opposed the appeal and submitted that there was no definite proof of income of the deceased and that merely because two witnesses have stated so, the income of the deceased could not have been straightaway accepted at Rs.5,000 to Rs.7,000. It was argued that there was no other document produced in evidence to rebut the proof about the age of deceased, which was mentioned as 56 years in postmortem report, except that wife of the deceased stated in her statement that he was 50 years of age. In the claim petition, his age was mentioned as 52 years. It is therefore prayed that the appeal be dismissed. 5. In the claim petition, his age was mentioned as 52 years. It is therefore prayed that the appeal be dismissed. 5. On hearing learned counsel for the parties, I find that in so far as the age of deceased is concerned, the postmortem report, which is a document produced in evidence has indicated his age to be 56 years and as against that no other document in rebuttal was produced by the claimants, therefore, that proof cannot be disapproved. However, on the question of income, it is evident that deceased when he was accepted to be a person of 56 years of age and working in the field of construction as Contractor, as per the evidence of not only the wife claimant AW-1 Ganga Devi and also independent witness AW-2 Mahaveer, who say that deceased was earning a sum of Rs.5,000-7,000 per month, the learned Tribunal could not be justified in accepting his income only at Rs.1,500 per month. The incident is of the year 2000 and deceased was matured enough, it cannot be accepted that he was contributing only Rs.1,000 to the family while working as a contractor in the construction line. His income on the basis of evidence has to be therefore accepted at least Rs.2,500 per month. On that basis while deducting 1/3rd towards self expenses, the income comes to Rs.1670 per month (2500 – 1/3rd of 2500). The amount of compensation by applying the multiplier of 8 comes to (Rs.1670x12x8) Rs.160,320/-. When the amount of Rs.30,000/- granted by the Tribunal under other heads is added thereto, the total amount of compensation comes to Rs.1,90,320/-. The appellant would be entitled to interest @ 7.5% per annum in so far as enhanced amount of compensation is concerned from the date of claim petition. The appeal is accordingly allowed in part.