1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL MISC. APPEAL No.1225/08 (Pushpa Kulshreshth V/s. The Oriental Ins. Co.Ltd. & anr.) Date of Judgment :: 20.08.2008 HON'BLE MR.JUSTICE R.S. CHAUHAN Mr. D.K. Garg for the appellant. Mr. P.S. Arya for respondent No.1. Mr. Anil Jain for respondent No.2. Having been granted a compensation of Rs.2,66,000/-, for the death of Mr. Avdesh Kumar, his widowed wife and his daughter have challenged the award dated 03.12.2007 passed by Motor Accident Claims Tribunal, Dholpur ('the learned tribunal', for short). In a nutshell, the facts of the case are that on 25.06.2006, while Mr. Avdhesh and Mr. Guljari were coming from Murraina and were passing in front of Sareen Petrol Pump, a truck, bearing registration No. MP-07-G-267, being driven rashly and negligently hit Mr. Avdhesh Kumar. Mr. Avdhesh Kumar expired on the spot. The claimants filed a claim petition before the learned Tribunal. The learned Tribunal has granted the compensation as aforementioned. Being aggrieved from the said award, the claimants have filed this appeal for enhancement. 2 Mr. D.K. Garg, the learned counsel for the appellants, has raised two contentions before this Court : firstly, despite the fact that the salary certificate, produced as Exhibit-10, clearly shows that Mr. Avdesh Kumar was earning Rs.260/- per day, despite Mr. Anurag Bhatnagar (A.W.2) who has proved the said salary certificate, the learned Tribunal has erroneously concluded that Mr. Kumar was merely earning Rs.2,000/- per month. Secondly, no compensation under the category of “loss of love and affection” has been awarded to the appellant No.2, who happens to be Mr. Kumar's minor daughter. On the other hand, Mr. P.S. Arya, the learned counsel for respondent No.1, has contended that in his cross-examination, Mr. Anurag Bhatnagar (A.W.2) had clearly stated that although the company had filed its income-tax returns, but it did not maintain any documents showing the fact that Mr. Avdhesh Kumar was, in fact, earning Rs.260/- per day. Therefore, the learned Tribunal had correctly concluded that Mr. Kumar was earning Rs.2,000/- per month. Thus, he has supported the impugned award. 3 Mr. Anil Jain, the learned counsel for respondent No.2 has echoed the arguments raised by Mr. P.S. Arya. We have heard the learned counsel for the parties, have perused the impugned award and have examined the testimony of Mr. Anurag Bhatnagar (A.W.2). In the case of Union of India V/s. T.R. Varma - AIR 1957 SC 882, the Hon'ble Supreme Court has held that “The Evidence Act has no application to enquiries conducted by the tribunals, even though they may be judicial in character. The law requires that such tribunals should observe rules of natural justice in the conduct of the enquiry and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a Court of law. Stating it broadly and without intending it to be exhaustive it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an 4 opportunity of explaining them. If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed.” Thus, in a proceeding before the learned Tribunal, the rigors of Evidence Act should not to be applied while, keeping in mind the provisions of Motor Vehicles Act which are beneficial piece of legislation. Although it is true that the claimant has to establish her case, but in a civil proceeding, the case need not be established beyond a reasonable doubt. It is more than sufficient if the case is established on the basis of high degree of probability. The testimony of Mrs. Pushpa Kulshreshth has not been demolished in the cross- examination. Moreover, her testimony finds corroboration from Mr. Anurag's testimony where he has stated that Mr. Kumar was being paid Rs.260/- to Rs.280/- per day. He has also stated that the salary certificate (Ex.10) was issued by firm's accountant. Therefore, he has proven the said document. A bare perusal of cross-examination clearly reveals that the income-tax returns have been filed by the firm. He has also admitted that no separate books of accounts has been maintained for showing the payment of salary to the workers. In fact, it is shown as a consolidated amount. As stated in the examination-in-chief that the 5 deceased was earning Rs.260/- to Rs.280/- per day, this assertion has not been demolished in the cross- examination. However, despite the fact that two witnesses have clearly stated the income of Mr. Kumar, despite the fact that the salary certificate did exist on record, the learned Tribunal has disbelieved the testimonies and the documentary evidence. The learned Tribunal has not assigned any reason for disbelieving the evidence which was readily available on record. Moreover, the learned Tribunal has not given any cogent reason for coming up with a figure of Rs.2,000/- as the income earned by the deceased. It seems to be a magical number. Thus, the impugned award suffers from the virus of non-application of mind. Therefore, the said impugned award is unsustainable on the point of income. Considering the fact that both Pushpa Kulshreshth (A.W.1) and Anurag Bhatnagar (A.W.2) had stated the income of the deceased was Rs.260/- per day, considering the fact that the salary certificate (Ex.10) issued by the firm and same has been proven by Anurag Bhatnagar (A.W.2), this Court has no hesitation in holding that the Avdhesh Kumar was earning Rs.260/- per day. Therefore, he was earning Rs.7,800/- per month. Since the claimant 6 would have spent one-third upon himself i.e. Rs.2,600/-, he would have spent two-third upon his family i.e. Rs.5,200/-. Therefore, the “loss of dependency” should be calculated as Rs.5,200 X16 X12=Rs.9,98,400/-. Undoubtedly, the death of their father leaves a void in the life of a child, which cannot be filled. But, some compensatory amount should be paid for the loss of paternal love and affection. Therefore, this Court grants Rs.10,000/- to be paid to the appellant No. 2 for “loss of love and affection”. In the result, this appeal is allowed and the award dated 03.12.2007 is modified as under : Rs. (i)Loss of Dependency 5,200 X16 X12= 9,98,400/- (ii) Loss of Love and affection. 10,000/- Total Rs. 10,08,400/- The Insurance Company is directed to pay the enhanced compensation amount after deducting the amount already disbursed to the appellants. It is, further, directed to pay remaining enhanced amount within a period of two months along with interest of 6% per annum from the date of 7 filing of the claim petition i.e., 26.07.2007 till the date of realization. The learned tribunal is directed to ensure that the appellants are granted the enhanced compensation amount within a period of one month from the date of receipt of certified copy of this judgment. (R.C. CHAUHAN),J A.Asopa/-