IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Smt. Savita & Ors. Vs. The New India Assurance Co.& Ors. (S. B. Civil Misc. Appeal No.2670/2006) S.B. Civil Misc. Appeal under Section 173 of the Motor Vehicles Act, 1988. Date of Judgment: August 18, 2008 PRESENT Hon'ble Mr. Justice R. S. Chauhan Mr. Dinesh Kumar Garg, for the appellants. Mr. R.K. Salecha, for respondent No.1. Mr. Vinay Mathur, for respondents No.2&3. BY THE COURT: The appellants have challenged the award dated 19-4- 2006 passed by the Motor Accident Claims Tribunal and Special Judge (Dacoity Affected Area) Dholpur (`the learned Tribunal' for short) whereby the learned Tribunal has granted a compensation of Rs.2,23,000/- for the death of Pushpendra Singh. Since the widowed wife, the children and the parents are dissatisfied by the meager amount of compensation, they have filed the present appeal for enhancement of compensation. 2. In a nutshell, on 3-3-2004, Pushpendra Singh was riding on the bus, bearing No.RJ-05/P-0325, and returning to his village. Since, the bus driver was rashly and negligently driving the bus, when the bus driver suddenly applied the brakes, Pushpendra Singh fell. Subsequently, he died during the course of his treatment. Since, the appellants were financially dependant on him, they filed a claim petition before the learned Tribunal. In order to prove their case, they examined two witnesses and exhibited seven documents. The Insurance company examined two witnesses and exhibited three documents. After going through the oral and documentary evidence, the learned Tribunal has granted the compensation as afore mentioned. 3. Mr. Dinesh Kumar Garg, the learned counsel for the appellants, has contended that although the claimants had pleaded that Pushpendra Singh was earning Rs.5,000/- as a shopkeeper, but the learned Tribunal has assessed his income as merely Rs.15,000/- per annum. Moreover, the learned Tribunal has not taken into account that in future his income was bound to increase. Therefore, the vary basis for calculating the loss of dependency is unjustified. Further, the learned Tribunal has not awarded any compensation to the appellants No.2, 3 and 4 for loss of love and affection due to death of their father. 4. On the other hand, Mr. R.K. Salecha, the learned counsel for the Insurance Company, respondent No.1, has contended that no documentary proof was submitted by the claimants to prove the factum of the income as pleaded by them. Hence, the learned Tribunal was justified in concluding that the deceased was earning merely Rs.15,000/- per annum. 5. Mr. Vinay Mathur, appearing for respondents No.2 & 3, had echoed the contentions raised by Mr.Salecha. 6. Heard learned counsel for the parties, examined the material available on record and perused the impugned award. 7. Smt. Savita, appellant No.1, in her examination-in- chief, has stated that her husband was earning Rs.5,000/- per month as a shopkeeper. Although, suggestions were made to her in the cross- examination that, in fact, no shop existed, but she denied the said fact. Surprisingly, not a single question was asked with regard to the income earned by the deceased Pushpendra Singh. Of course, it is true that claimants have not submitted any documentary proof to establish the fact that Pushpendra was running a shop. But, considering the fact that the claimants are resident of a small village, it may be difficult for them to produce documentary evidence with regard to existence of shop. Moreover, as Savita's testimony has not been demolished in the cross-examination, there is no reason for disbelieving her testimony. Furthermore, a bare perusal of the impugned award reveals that learned Tribunal has not given a single reason for concluding that Pushpendra Singh was earning merely Rs.15,000/- per annum. Since, it was claimed that Pushpendra was employed and was running a shop, therefore, the learned Tribunal is not justified in applying the notional income to him. Therefore, the approach of learned Tribunal is unjustified. 8. Considering the fact that Pushpendra Singh was running a shop, obviously, in future his income would have increased. Thus, the learned Tribunal should have calculated the income while taking future prospect into account. Keeping in mind that Pushpendra Singh was earning Rs.5,000/- per month at the time of his death and keeping in view the future prospect in mind, it is safe to consider that in future he would have earned atleast Rs.6,000/- per month. Out of Rs.6,000/- he would have spent 1/3 amount on himself and he would have spent Rs.4,000/- upon the claimants. Hence, for calculating the loss of dependency applying the same multiplier 18, as applied by the learned Tribunal, the amount comes as under:- 4000x12x18= 8,64,000/-. 9. It has also been pointed out by learned counsel for the claimants that the appellants No.2to4 have suddenly lost their father, but no compensation in the category of loss of love and affection has been awarded to them. A sudden demise of father is a traumatic experience for a child for the rest of his life. The child neither knows the love and affection, nor the protection of father. Although a vacuum of love of father cannot be filled, but a monetary compensation for loss of love and affection should have been granted to appellants No.2 to 4. Therefore, this Court directs that Rs.2,000/- should be paid to each appellants No.2, 3 and 4. 10. In the result the appellants are entitled to receive the compensation as under:- Loss of dependency 4000x12x18= 8,64,000/- Loss of love and affection 6,000/- to appellants No.2, 3 & 4 (2,000/- each) ----------------------- 8,70,000/- 11. The rest part of the award is confirmed. The Insurance Company is directed to release the enhanced amount of compensation along with the interest @ 6% per annum from the date of filing the application, as awarded by the learned Tribunal, within a period of one month from the date of receipt of certified copy of this judgment. 12. The impugned award is modified as indicated above. The learned Tribunal is directed to ensure the compliance of the order of this court within a period of two months from the date of receipt of certified copy of this order. 13. For the reasons mentioned above, the appeal is partly allowed. There shall be no order as to costs. ( R.S. CHAUHAN ) J. arn