1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. J U D G M E N T S.B.CIVIL MISC. APPEAL NO.1539/2000 SMT.VIMLA DEVI SETHI VS. MAHESH PAREEKH & OHERS. S.B.Civil Misc. Appeals under Section 173 of the M.A.C.T Act, 1988 against the Award dated 1.7.2000 passed by the Judge, M.A.C.T. Jaipur City, Jaipur, in MAC No. 1165/97 (Smt. Vimla Devi Sethi vs. Mahesh Pareekh & others) by which a sum of Rs.2,16,450/- has been awarded to the claimant. DATE OF JUDGMENT :- 31st MARCH, 2009. PRESENT HON'BLE MR.JUSTICE K.S. CHAUDHARI. Mr.Sandeep Mathur,counsel for the appellant. Mr.Tripurari Sharma for the respondentNo.3. None present for non-petitioner No.1 and 2. BY THE COURT : This appeal has been filed by the appellant against the award dated 1.7.2000 passed by the Judge, MACT, Jaipur City, Jaipur, in MAC No. 1165/97 (Smt. Vimla Devi Sethi vs. Mahesh Pareekh & others) by which learned Tribunal awarded a claim of Rs.2,16,450/-. 2 Brief facts of the case are that on 1.12.96 at 9 A.M. appellant was going on scooter with her husband, Kailash Chand, near Kanak Ghati, respondent No.1 while driving bus RJ-14-P-4629 rashly and negligently, hit the scooter and caused injuries to the appellant and her husband. This bus is owned by respondent No.2 and insured by Respondent No.3, hence, appellant claimed compensation. Respondent No.1 and 2 did not appear before Tribunal and respondent No.3 filed reply and raised many objections and prayed for dismissal of the claim petition. None appeared for respondent No.1 and 2. Heard learned counsel for the appellant and respondent No.3 and perused the record. Learned counsel for the appellant submitted that looking to the injuries and disability, learned Tribunal has committed error in awarding lesser amount,hence, appeal may be accepted and awarded amount may be enhanced whereas learned counsel for the respondent submitted that amount awarded by the 3 Tribunal is is already excessive, hence, appeal may be dismissed. A.W.1 Smt.Vimla Devi has stated in her statement that on account of injuries,she had to remain hospitalised for 8- 10 days and nails were inserted in her left leg. She was also hospitalised in Santokba Hospital and her treatment continued for three years. On account of injuries, she cannot move freely and cannot sit cross leg and cannot do squatting. She exhibited Injury Report, Discharge Tickets and Disability Certificate. She has also sated that she used to do share business but she could not do on account of injuries. A.W.3 Dr.Goyal , who was member of Medical Board, has stated that Medical Board assessed disability and found 46.96% permanent disability in the lower limb of appellant and Certificate Ex-11 bears his signatures. He has stated in his cross examination that appellant will face difficulty in house hold work. As far income of the appellant is concerned, 4 appellant has stated in her claim petition that she was doing Readymade Garment business whereas in her statement she stated that she could not do share business on account of injuries. She has not produced any document pertaining to her business. In such circumstances, it cannot be presumed that appellant was doing any type of business, though, learned Tribunal has awarded Rs.20,000/- on account of loss of earning during hospitalisation,which should not have been awarded. Learned counsel for the appellant submitted that in case of non earning person Rs.15,000/- per annum income should be presumed as per Second Schedule of Motor Vehicles Act and looking to the age of the appellant, multiplier of 13 should have been applied ,and looking to her disability Rs.88,000/- should have been awarded as compensation. This schedule provides that spouse's notional income should be presumed 1/3rd income of the earning surviving spouse. In this accident, appellant's husband, Kailsh Chand, also suffered injuries and he preferred claim and he was 5 examined as A.W.2. He has not stated about his income in his statement. Even if his income is presumed to be Rs.30,000/- per annum, then appellant's income works out to be Rs.10,000/- per annum and even after applying multiplier of 13 and presuming awarded disability,as shown in Disability Certificate, the appellant is entitled to Rs.70,400/- on account of disability whereas learned Tribunal has already awarded Rs.50,000/- on account of disability. Learned Tribunal has awarded Rs.10,000/- on account of money spent for Attendant or as compensation to the member of the family who looked after appellant. Appellant, herself has not stated in her statement that any Attendant was deputed for this purpose. In such circumstances, this amount was not required to be awarded to the appellant. Learned Tribunal has also awarded Rs.15,000/- on account of two grievous injuries and 5 simple injuries as per Injury Report Ex-7 and X-Ray Report Ex-8. On account of two grievous injuries she sustained disability and in such circumstances, Rs.10,000/- on account of two grievous injuries should not have been awarded as amount already awarded on account of disability. Thus, it 6 becomes clear that the Tribunal has already awarded excessive Rs.10,000/- in the head of injuries, Rs.20,000/- in the head of loss of earnings and Rs.10,000/- in the head of expenses incurred on attendant whereas appellant could have been award maximum of Rs.20,400/- more in the head of compensation for disability. Even if, appellant's notional income may be presumed to be Rs.15,000/- per annum even then looking to disability shown, she is not entitled to more than Rs.88,000/- in the head of loss of future earnings, instead of Rs.50,000/- as warded by the Tribunal. On the other hand, as discussed above, learned Tribunal awarded Rs.40,000/- excessive amount in other heads. In the light of above discussions, appellant is not entitled to get compensation enhanced and amount awarded by the Tribunal does not require any interference. Consequently, appeal of the appellant is dismissed. (K.S.CHAUDHARI)J. CKThanvi