IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR, BENCH AT JAIPUR JUDGMENT SB Civil Misc. Appeal No.4864/2008 Smt. Kaushalya & Ors. V/s Sita Ram & Ors. Date of Judgment ::: 11th December, 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Shri Vinay Mathur, for the appellants. By the Court: Heard learned counsel for the appellants on the application u/s 5 of the Limitation Act, for condonation of delay of 71 days in filing the appeal as well as on merits of the appeal also. The appellant has explained the delay of 71 days in paras No. 1 and 2 of her application which are reproduced as under :- “1. That the above named appeal has been filed against the impugned award dated 08th February 2006 passed by MACT Tonk, in MAC no.372/2004. 2. That the last date of filing the appeal after adjusting the period of obtaining the certified copy of the award was 09th May 2006. The claimant while receiving the knowledge of award requested his counsel that he want to file the appeal of the same before higher court and also asked the counsel to arrange a lawyer for the same. The counsel for the appellant assured him that he will send the relevant papers to Jaipur so that his appeal be filed. Due to some miscalculation of period of limitation the file of the claimant was tagged along with other connected matters. When on 22nd July 2006 the appellant contacted the counsel at trial court to find the status of his appeal then this mistake came into the knowledge of the appellant. He immediately collected the file from his counsel at trial court and came to Jaipur. Now the appeal is filed without any further delay. The appellant is required to explain the delay of each day whereas the aforesaid facts mentioned in the application have not explained the delay satisfactorily. In these circumstances, I am not inclined to condone the delay of 71 days in filing the appeal. So far as the merits of the appeal are concerned, the appellants have preferred this appeal for enhancement of the amount of compensation in respect of death of Sohan Lal who died in motor accident took place on 7.11.1998 and being aggrieved with the impugned award dated 8.2.2006 passed by the Additional District Judge (Fast Track) No.2, Tonk and Motor Accident Claims Tribunal, in Claim Case No. 372/04 whereby the learned Tribunal awarded a total compensation of Rs.2,63,400/- with interest @ 6% p.a. from the date of claim application i.e. 20.3.1999 upto the date of payment, in their favour as under :- Rs.2,30,000/- for loss of income, Rs.30,000/- for loss of consortium and deprivation of love & affection, Rs.3,000/- for funeral expenses. The only submission of the learned counsel for the appellants is about the assessment of the income of the deceased by the Tribunal. He contended that the Tribunal committed an illegality in assessing the monthly income of the deceased as Rs.1800/- per month only. Therefore, the same may be suitably assessed and the amount of compensation may be enhanced. I have considered the submissions of the learned counsel for the appellants in the light of finding of the Tribunal with regard to the quantum of compensation. So far as the age of the deceased and multiplier adopted for calculating the amount of award are concerned, both have not been challenged by the learned counsel for the appellants. His only grievance is about the assessment of the income of the deceased. The Tribunal has considered the statement of AW 1 Smt. Kaushalya who stated that the deceased Sohan Lal was doing the agricultural work. However, no documentary record or certificate to that effect that he was having any agricultural land in his favour, was placed on record. No documentary evidence proving his income or any certificate in this regard, was placed on record before the Tribunal. The incident relates to the year 1998, the Tribunal observed that in the year 1998, the minimum wage of labourer connecting with the agricultural was Rs.40/- per day. However, the Tribunal increased it to Rs.60/- per day, assessed the monthly income of the deceased as Rs.1800/- and after deducting 1/3rd amount out of it for personal expenses of the deceased, assessed the dependency amount as Rs.1200/- per month and applied the multiplier of 16 as per the age of the deceased and awarded a sum of Rs.2,30,400/- under the head of loss of income. Rs.33,000/- has further been awarded under other heads. Thus, total amount of compensation of Rs.2,63,400/- with interest is awarded in the present case. During the course of arguments, the learned counsel for the appellants did not dispute that no documentary evidence showing any agricultural land of the deceased was placed on record before the Tribunal nor any certificate or document with regard to the income of the deceased was placed on record. The Tribunal has observed that in the relevant year i.e. 1998 the minimum wage of labourer connected with the agricultural work was Rs.40/- but the same was increased of Rs.60/- and thereafter the monthly income of the deceased was assessed. In these circumstances, I am satisfied that in the absence of any documentary evidence, the learned Tribunal was fully justified in assessing the monthly income of the deceased and rightly awarded the compensation under the different heads as mentioned above. The Tribunal is required to pass an award u/s 168 of the Motor Vehicles Act, 1988, which appears to be just, fair and reasonable. The Hon'ble Supreme Court in Divisional Controller, KSRTC v/s Mahadeo Shetty reported in (2003)(7) SCC 197 has held that every mode or method adopted for assessment of compensation has to be considered in the back ground of “just” compensation which is pivotal consideration. After considering all the facts and circumstances of the case, I am of the view that the amount of compensation awarded in the present case, is just, fair and reasonable and no interference in it is called for. In view of the above discussions, the application u/s 5 of the Limitation Act is dismissed and the appeal is also dismissed being barred by limitation as well as on merits also. (NARENDRA KUMAR JAIN),J. Chauhan/