1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL MISC. APPEAL No. 496 of 1997 SMT.SUNITA SONI V/S PRABHU LAL Mr. BN KALLA, for the appellant / petitioner Mr. SANJEEV JOHARI, for the respondent Date of Order : 6.11.2008 HON'BLE SHRI N P GUPTA,J. ORDER ----- Heard learned counsel for the parties. This appeal has been filed by two of the four claimants for enhancement of the compensation. 2 The necessary facts are that on 28.12.1993 the deceased along with his companion were going on the motor cycle as pillion rider which motor cycle was hit by the delinquent jeep, as a result of which he sustained injuries, then he was taken to Banswara for treatment then he was taken to Ahmedabad where he died after 7 days on account of the injury. The deceased was alleged to be 25 years of age, and was claimed to be earning Rs. 3000/- per month by business, and service. The claimants were mother, father, wife and daughter. Since the aspect of accident, negligence etc. are not under challenge, I need not dilate on that. On the question of quantum the learned Tribunal has considered the evidence of A.W. 1 Manoharlal, father of the deceased who has deposed that the deceased was selling some small ornaments in the local markets “Haat” (rural temporary markets), and was paying Rs. 3,000/- per month to the claimants. In cross examination he has admitted that he has the job for manufacturing ornaments, and the deceased was not having any other independent shop. He has also admitted that the village population comprised of 200 houses, and is inhabited by tribals, and that both father and son were preparing silver ornaments, and were selling in the villages. The learned Tribunal has considered that in the claim petition the occupation of the deceased was shown to be business, and service but the name of the 3 employer has not been disclosed. Then, books of accounts of the business of preparing ornaments has also not been produced, nor any account of sales tax has been produced. Then, it has been considered that Manoharlal has deposed his own income to be Rs. 3000/- per month while has deposed the income of the deceased to be Rs. 2000/- which obviously was not found to be believable. Then, the totality of circumstances was considered viz. that the deceased was only a hawker selling some silver ornaments to the tribals. Then, the other evidence produced by the claimant has also been considered, inasmuch as A.W.5 Sajjan Singh has gone to the extent of deposing the deceased to be preparing golden ornaments also, which is not deposed even by his father. Thus, it was found that there was no reliable evidence produced on the side of the claimants about income of the deceased, and therefore, the minimum income has been assessed at Rs. 25/- per day. Then, deducting personal expenditure to the extent of 1/3rd dependency has been assessed at Rs. 500/- per month, and employing multiplier of 14 compensation has been assessed. Then, Rs. 5000/- has been awarded for expenditure for cremation, amount spent in the treatment as appearing from bills No. 10 to 71 totalling to Rs. 23,952/- has been awarded, and another sum of Rs. 20,000/- has been awarded for mental shock. Thus, a total award of Rs. 1,32,952/- has been passed. Learned counsel for the appellant stressed much to 4 the effect that it is clearly established on record that the deceased was earning Rs. 3,000/- per month still the learned Tribunal has assessed income at Rs. 25/- per day only which is out come of conjectures of the learned Judge, and cannot be sustained. I have considered the submissions, and even after going through the statements of A.W.1 and A.W.5, I am at one with the finding of the learned Tribunal. Even from reading, and re-reading of the evidence of A.W.1 and 5, it cannot be said that the claimants have proved, or that they had led any reliable evidence to persuade the Court to believe, that the deceased was earning Rs.3000/- per month, at the time of accident. Then, in absence of any reliable evidence about income, may be that the conclusions of the learned Tribunal about income being Rs. 25/- per day is out come of conjecture, but then, in absence of any evidence, or any material, it cannot be said that the learned Tribunal was in error in assessing this income. It is not shown to me by the learned counsel for the appellant, that the minimum wages rates at that time was more than the amount assessed by the learned Tribunal. That being the position, I do not find any error in the assessment of compensation made by the learned Tribunal. 5 The appeal thus has no force, and the same is therefore dismissed. ( N P GUPTA ),J. /Sushil/