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2011 DIGILAW 2685 (RAJ)

Sohani Devi v. Vijay Kumar Sharma

2011-12-07

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—Shri Prashant Joshi, learned counsel for the appellants is assailing the award on two grounds. Firstly, he has argued that as per Ex.15, the LIC policy, the date of birth of the deceased was 11.10.1966 and as on the date of accident i.e. 12.7.2006, his age was 39 years and 9 months. In ration card, Ex.14, which was prepared on 2.9.2007, his age was indicated as 35 years. According to all these documents, almost same age comes. The learned Tribunal has however relied on the Ex.12, postmortem report wherein the age has been indicated to be 45 years ignoring the relevant documentary proof. Second contention is that the evidence of the wife has clearly proved that not only deceased was a Potter and preparing the pots and toys of the children and used to earn Rs.6000-8000 per month, apart from that, he used to go to Bal Bhawan school to teach the children the art of pottery and was being paid Rs.2,000 per month for that. However, his income has been accepted on rather lower side by the Tribunal. The Tribunal has accepted the income at Rs.2,400, whereas according to learned counsel it should be accepted at Rs.5,000 per month. It is also argued that deduction of 1/3rd towards self expenses is not justified and in view of judgment of Supreme Court in Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 = 2009(1) CCR 276 (SC) = 2009(4) RLW 2785 (SC) a, it should be 1/4th. 2. Learned counsel for the respondents opposed the appeal and submitted that the income of the deceased could not have been accepted at Rs.5,000 because no proof of income has been given and therefore the Tribunal has rightly accepted the income at Rs.2400 per month. 3. Having heard the learned counsel for the parties, I find that the widow in her statement had clearly proved the fact that the deceased used to prepare the pots and toys and he also used to go to a school Bal Bhawan to train the children in the art of pottery and receiving a sum of Rs.2,000 per month therefrom. This evidence could not have been ignored by the learned Tribunal solely on the basis of the fact that no documentary proof from the school has been produced. This evidence could not have been ignored by the learned Tribunal solely on the basis of the fact that no documentary proof from the school has been produced. AW-2 Bhanwar Lal Prajapat son of deceased has also made a similar statement. Both of them have been subjected to cross examination, but their testimony had remained unshaken. However, on safer side, the income is accepted at Rs.3,000 per month and after deducting 1/4th towards self expenses as the number of claimants are four, the total compensation comes to Rs.4,05,000 (2250x12x15). The award of compensation under other non-pecuniary heads is however maintained. Thus the amount of compensation is enhanced from Rs.3,10,000 To Rs.4,27,000 (4,05,000+20,000+2,000) The claimants are also entitled to interest @ 7.5% on the enhanced amount of compensation from the date of filing of claim petition. 4. The appeal is accordingly allowed in part.