1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL MISC. APPEAL No. 297 of 1995 SMT. JAMANI & ORS. V/S RAM SINGH & ANR. Mr. DEELIP KAWADIA, for the appellant / petitioner Mr. BS BHATI, for the respondent Date of Order : 21.1.2008 HON'BLE SHRI N P GUPTA,J. ORDER ----- This is claimants' appeal seeking enhancement of compensation, awarded by the learned Motor Accident Claims Tribunal, Rajsamand, vide award dt. 20.4.1995, in Claim Petition No. 403/91. Since the question of negligence etc. is not in dispute, I need not go into that aspect of the matter. So far the question of quantum is concerned, the learned Tribunal, in para-8 of the judgment only has discussed the matter, and has disbelieved the theory of the deceased working as mason, having not been so deposed by Jamni, then regarding agricultural income also, it has been stated, that revenue record has not been produced, apart from the fact, that on death, the income may be somewhat reduced only. Then, regarding income from milk vending, all that 2 has been considered is, that Jamni had deposed the deceased to be earning Rs. 1/- per Kilo, and the deceased to be earning Rs. 50-60 per day, though A.W.3 has deposed the profit to be Rs. 2/- per kilo, which is not acceptable. Then, it has been observed, that in the claim the age of the deceased has been mentioned to be 50 years, while in post-mortem report it is mentioned to be 55 years. With narrating this, all that has been held is, that considering the age of the deceased, the amount to be spent by himself, and his source of income, the compensation is assessed at Rs. 60,000/-. Likewise regarding interest also, a consolidated amount of Rs. 15,000/- has been awarded, as interest pendente-lite. At the outset it may be observed, that the approach of the learned Tribunal cannot be appreciated, as the Tribunal was supposed to proceed on some logic, and basis, by giving some findings about the age of the deceased, income of the deceased, personal expenditure of the deceased, dependency of the family, then some appropriate multiplier was required to be selected. Likewise, the interest was also required to be awarded on some basis. Obviously, therefore, the determination of compensation, as made by the learned tribunal, cannot be sustained. Ordinarily I would have remitted the matter back 3 to the learned Tribunal, for determining appropriate compensation, However, in view of the fact, that the matter is already very old, and even this appeal has remained pending in this Court for more than a decade, I think it appropriate to attempt to undertake the exercise of determining compensation, myself. According to claim petition, the averment is, that the deceased was purchasing milk from his village, and was then selling it in village Bhim, wherefrom he used to return at 10-11 A.M., and then he used to go to work as mason, and was earning Rs. 50/- per day therefrom, and was earning Rs. 1/- per kilo from selling milk, and that he was taking 50 kilo of milk every day. Thus, he was earning Rs. 3000/- per month, apart from agricultural income. Then, it is claimed, that he would have earned this amount for another 10 years. In the claim petition the deceased is pleaded to be 50 years of age at the time of death. Then, coming to the evidence, A.W.1 Jamni has deposed, that the deceased was purchasing milk from village, and was carrying it on bicycle to Bhim, where he sold it, and was giving Rs. 50-60 per day, then, he was earning something from agricultural also. She has also deposed, that her age and the age of her husband, is the same. In cross-examination on the aspect of the income, and age, all that could be taken out in cross-examination is, that she does not remember as to in which year her husband was born, and that 4 he was purchasing milk in the village at the rate of Rs. 3/- per kilo, and was selling it at Rs. 4/- per kilo. Then, A.W.2 Dungar Singh is the brother of the deceased. He has also deposed, that deceased was collecting 40-50 kilo of milk, and was selling it in village Bhim, and was earning Rs. 40-50 every day. He was returning therefrom at 11 A.M. Then, he was working as manual labour, and was doing some agricultural work also. Then, A.W.3 Puran Singh is the person, who was purchasing milk from the deceased. He has also deposed, that deceased was selling 40-50 kilo milk every day, and he was purchasing milk from the deceased, @ Rs. 4/- per kilo, and it was yielding net profit of Rs. 2/- per kilo to the deceased. This is the entire evidence on the side of the claimants. Of course, there is no evidence in rebuttal, on the side of the defendants. So far the age of the deceased is concerned, of course Jamni has deposed her age and the age of the husband to be the same, and has also deposed to be not aware of the year of birth of her husband. However, a look at the statement of Dungar Singh, A.W.2, the other brother of the deceased shows, that he has deposed his own age to be 55 years, and in cross-examination has deposed himself to be the eldest brother, while the deceased was third brother, and that, they were in all four brothers. Of course, he has 5 denied the suggestion of his own age to be 70 years. Likewise, Jamni has also not been suggested in cross- examination her age to be much beyond what she is deposing to be. Obviously, the cumulative effect of these two statements of A.W.2 and A.W.1, does lend reasonable assurance to the Court, to believe, that the age of the deceased must be 50 years, at the time of accident. So far as the recital in the post mortem report is concerned, nothing has been shown as to on what basis it is mentioned, and in the totality of circumstances it clearly appears to be a casual mention, may be on the physical appearance of the corpus. Thus, I am inclined to take the age of the deceased, at the time of accident, to be 50 years. Then, so far income of the deceased is concerned, from the evidence discussed above, it is clear, that the evidence is consistent, to the effect, that the deceased was transacting 40-50 kilo milk every day, and was earning Rs. 1/- per kilo as profit, and that, he was also undertaking some agricultural operations. Thus, considering the totality, I am inclined to accept the dependency of the family, comprising of three minor children, and the widow, to be Rs. 1000/- per month, and looking to the age, and the pleading in the claim, in my view, the multiplier of 9 would be an appropriate multiplier. Thus, the pecuniary 6 loss to the family comes to Rs. 1,08,000/-. Thus, the figure of compensation under the head of dependency, assessed by the learned Tribunal, is enhanced from Rs. 60,000/- to Rs. 1,08,000/-. Then, coming to the award of interest, as observed above, there is no basis for awarding a lump sum consolidated interest. In the circumstances of the case, the claimants should be awarded interest @ 9% per annum, from the date of claim petition, till actual payment. Thus, this part of the award is also modified. The appeal is accordingly partly allowed, and the award of Rs. 60,000/-, is increased to Rs. 1,08,000/-, while the award of interest of Rs. 15,000/-, is substituted by award of interest @ 9% per annum, from the date of claim petition, till actual payment is made. Parties shall bear their own costs. ( N P GUPTA ),J. /sushil/