JUDGMENT 1. - The two appeals arise out of common judgment/ award dated 29.8.2008 passed by Judge, MACT (Additional District Judge- Fast Track No.8), Jaipur City, Jaipur in different claim cases and relates to same accident, hence are decided together by this common judgment. Cross-objections (39/2012) have also been filed with delay along with application (589/2012) under Section 5 of the Limitation Act and the contention of the respondents is that to arrive at a just and fair compensation, his cross-objections should be heard, he is an illiterate person hence delay is bona fide. 2. Brief facts of the case relevant for disposal of the appeal are that on 21.2.2006 at about 11.30- 12.00 PM, Radheshyam was going on his scooter and Kalu and Jeetu were with him as pillion rider, when they reached near Babaji Ki Chhaki, Jeep No. RJ- 14/4C-1859 came from opposite direction in a rash and negligent manner came on its wrong side and hit the scooter with the result Radheshyam and Kalu died and Jeetu sustained injuries. Claim petitions have been filed which was allowed. Hence, these appeals. 3. The contention of the appellant is that deceased was also negligent. Three persons were going on the vehicle which ipso facto shows the negligence of the deceased hence the deceased should also be held negligence. The Insurance Company has also assailed the compensation. 4. As regards Claim No. 725/2008, it has been submitted that the age of the deceased has not proved by best evidence, deceased was a Government Servant but no documentary evidence has been produced to establish his age and only on the basis of postmortem report age has been assessed on lower side. The deceased was working with RSRTC and the respondents have been awarded compassionate appointment and they have also received other pecuniary benefits to the tune of Rs. 2,75,000/- from the Department which should have not been considered by the Court below and as per salary certificate, the salary of the deceased has been assessed as 11,104/- whereas the allowance should not be included in the income and for Claim No. 724/2008, it has been stated that the deceased, as per claim petition, was child of 9 years and in view of the pronouncement of the Apex Court higher amount has been awarded.Per contra, the contention of the respondents is that the deceased was not negligent. The court below has categorically held that the driver of the involved vehicle has hit the scooter by coming on wrong side hence the sitting of three persons could not be a relevant fact to attribute negligence to the deceased. No compassionate appointment has been granted to the claimants. Ex-gretia and other pecuniary benefits which have been awarded by the Department are not deductible, house rent allowance and other allowances are also the part of the income hence the court below rightly assessed the income. In spite of the fact that deceased was a permanent employee, no future prospectus have been awarded and for consortium and funeral charges, a meager amount has been awarded and as regards claim No.724/2008 it has been stated that no interference needed, a just and fair compensation has been awarded. 5. Heard the learned counsel for the parties and perused the impugned award as well as the original record of the case. 6. The first contention of the appellant is that deceased has also contributed towards the accident. AW/3 Jeetu who is a pillion rider on the scooter and eye -witness to the accident has clearly stated that involved vehicle has hit the scooter by coming on wrong side. On the next day, the instant FIR has been lodged hence delay could not be attributed. After investigation charge-sheet has been filed against the involved vehicle and site plan also shows that while coming on wrong side the accident has been committed by the offending vehicle. The court below has rightly so held that only the driver of the offending vehicle is negligent and due to his negligence the accident has occurred. 7. The appellant has relied upon Andhra Pradesh State Road Transport Corporation & Anr. v. K. Hemalatha & ors., 2008 ACJ 2170 and New India Assurance Co. Ltd. v. Preeti & ors., 2014 ACJ 176 where looking to the facts of the case, contributory negligence has been attributed to the claimants but here in the present case there is no such evidence that deceased was negligent. 8. v. K. Hemalatha & ors., 2008 ACJ 2170 and New India Assurance Co. Ltd. v. Preeti & ors., 2014 ACJ 176 where looking to the facts of the case, contributory negligence has been attributed to the claimants but here in the present case there is no such evidence that deceased was negligent. 8. The other contention of the appellant is that the three persons were going on scooter which ipso facto suggests negligence of the deceased but there is no evidence on the part of the appellant that due to sitting of three persons on the scooter anything has been contributed to the accident and the respondents have relied upon United India Insurance Co. Ltd., Jodhpur v. Smt. Santosh Devi & ors., 2013 (4) WLC (Raj.) 431 where it has been held that the accident has not caused on account of violation of Section of 128 of the Motor Vehicles Act since driving with two pillion rider has no direct connection with the accident, no case of contributory negligence is made out. Here in the present case, the Insurance Company has not proved that driving with two pillion riders has in any way contributed the accident hence as regards the contributory negligence, the court below has rightly held that only the driver of the impugned vehicle was negligent and no interference is needed. 9. The contention of the appellant is that the age of the deceased has not rightly been assessed and it should be assessed as 51 years as best evidence has not been produced. It is true that the deceased was working with RSRTC and documentary evidence from the department could be produced to prove his age and the court below has relied upon the postmortem to assess his age. In postmortem report the age of the deceased has been stated as 48 years and to rebut this document nothing has been produced by the appellant hence the court below has rightly held that the age of the deceased was 48 years at the time of accident. 10. The income of the deceased has been calculated as 11104/- per month and salary certificate Ex.7 has rightly been relied upon. The contention of the appellant is that allowance could not be calculated in income but the respondents has relied upon Raghuvir Singh Matolya & ors. v. Hari Singh Malviya & ors., 2009 ACJ 1580 ; Sunil Sharma & ors. The income of the deceased has been calculated as 11104/- per month and salary certificate Ex.7 has rightly been relied upon. The contention of the appellant is that allowance could not be calculated in income but the respondents has relied upon Raghuvir Singh Matolya & ors. v. Hari Singh Malviya & ors., 2009 ACJ 1580 ; Sunil Sharma & ors. v. Bachitar Singh & ors., 2011 ACJ 1141 ; and National Insurance Company Ltd. v. Indira Srivastava, (2008) 2 SCC 763 where it has been held that HRA, CCA, Medical Allowance, Dearness Allowance would form part of the income while computing compensation to the claimants.In view of the above, the court below has rightly assessed the income of the deceased on the basis of Ex.7 and no interference is needed. 11. The other contention of the appellant is that the claimants of the deceased has received ex-gretia which should be deducted and reliance has been placed on Bhakra Beas Management Board v. Kanta Aggarwal & ors., 2008 ACJ 2372 .Per contra the respondents has relied upon Vimal Kanwar & ors. v. Kishore Dan & ors., MACD 2013 (SC) 169 where it has been held that provident fund, pension and Insurance etc. are pecuniary advantage receivable by the heirs on account of death but all these have no co-relation with the amount receivable under statute occasioned only on account of accidental death. 12. In view of the above, the court below has rightly not deducted the ex-gretia received by the claimants for calculation of the compensation. The court below has rightly assessed the income of the deceased as 11104/- per month and looking to the age of the deceased appropriate multiplier has been applied. 13. The contention of the respondents is that deceased was a permanent employee but no future prospectus has been added and reliance has been placed on Reshma Kumari & ors. v. Madan Mohan & Anr., MACD (SC) 2013 130 and Santosh Devi v. National Insurance Co. Ltd. & ors., MACD 2012 (SC) 97 . 14. In view of the above pronouncement, the deceased aged 48 years is entitled for 30% addition as future prospects to his income. 15. The contention of the appellant is that looking to the income of the deceased, the tax should be deducted and reliance has been placed on Ranjana Prakash & ors. 14. In view of the above pronouncement, the deceased aged 48 years is entitled for 30% addition as future prospects to his income. 15. The contention of the appellant is that looking to the income of the deceased, the tax should be deducted and reliance has been placed on Ranjana Prakash & ors. v. Divisional Manager & Anr., 2011 DNJ (SC) 1163 ; and Shyamwati Sharma & ors. v. Karam Singh & ors., (2010) 12 SCC 378 where it has been held that where the income is in taxable range, proper deductions should be made towards taxes and further it has been held in Ranjana Prakash (supra) that in absence of any evidence as to the actual income-tax paid, the expenses should be deducted 30% from the income.Hence in view of the above the income should be calculated after 30% deductions as income-tax and the future prospects be added as 30% would cancel each other resulting income would remain unchanged. 16. The other contention of the respondents is that for loss of consortium and loss of love and affection, a meager amount has been awarded and reliance has been placed on Rajesh & ors. v. Rajbir & ors., MACD 2013 (SC) 186 where on the facts of the case, a higher amount has been awarded. Here the present case relates to year 2006 and the age of deceased was 48 years hence no enhancement is needed in the above head. 17. The first contention in claim No.724/2008 is that looking to the age of the child, only Rs. 1,80,000/- should have been allowed as compensation and reliance has been placed on Malti (Smt.) & ors. v. M.K. Vasu & ors., 2008 RAR 386 (Raj.) where after relying on New India Assurance Co. Ltd. v. Satender & ors., 2007 (1) TAC 11 (SC) for the age group of 5-10 amount of 1,80,000/- has been found to be just and fair compensation. 18. In the present case, the father of the deceased Kajod Nath has himself stated that the age of his child was 9 years and he was studying in Vth class but no school record has been produced to show his actual date of birth. The court below has held the age of the deceased as 11 years on the basis of post mortem report. In postmortem report only an approximate age could have been narrated. The court below has held the age of the deceased as 11 years on the basis of post mortem report. In postmortem report only an approximate age could have been narrated. In view of the specific narration of the father of the deceased that the age of the deceased was 9 years in view of the law laid down in Malti (Smt.) and Satender (supra), the amount is reduced to Rs. 1,80,000/-. 19. Section 5 application has been filed along with the cross-objections and looking to the fact that the respondents are having debatable issues and Insurance Company has also filed appeals the application under Section 5 is allowed.In view of the above, the Appeal No. 4537/2008 filed by the Insurance Company is dismissed and cross objection filed in this appeal are also dismissed. Appeal No. 425/2009 filed by the Insurance Company is partly allowed and compensation is reduced as stated above. However, the Misc. Application (589/2012) is allowed.Appeal and cross-objection dismissed. *******