1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR J U D G M E N T S.B. Civil Miscellaneous Appeal No.1331 of 2000. Smt. Chambal wife of late Shri Kaluwa Khan and Others VERSUS Kishan Lal son of Shri Narayan Lal Prajapati & Others Date of Judgment :::: 01/05/2009. Hon'ble Mr. Justice Bhanwaroo Khan Mr. K.N. Tiwari, Counsel for Claimant/Appellants. None present for the Respondents . By the Court : Claimant-appellants have preferred this miscellaneous appeal, under Section 173 of the Motor Vehicles Act, 1988 for enhancement of the award dated 21.06.2000 passed by the Motor Accident Claims Tribunal, Jaipur and the Rajasthan State Co-operative Tribunal, Jaipur in M.A.C.T. Case No.1426/1995, wherein the compensation in a sum of Rs.2,67,440/- was awarded in favour of the claimant-appellants. 2 Brief facts of the case are that on 24.09.1995 at about 6.00A.M. when deceased Kaluwa Khan was sitting on cot in front of his house, Truck bearing No.RJ- 10-G-0108 being driven rashly and negligently by the respondent No.1, struck Kaluwa Khan, who died on the spot. In the claim petition, two witnesses were examined on behalf of the claimant-appellants and documentary evidence from Exhibit 1 to Exhibit 10 were produced. No defence was led on behalf of the respondents. The learned Tribunal after going through the oral as well as documentary evidence decided the compensation award in favour of the claimant-appellants, as above mentioned. Heard learned counsel for the claimant- appellants and perused the impugned award as well as record of the learned Tribunal. The learned counsel for the claimant- appellants pleaded that the monthly income of the deceased decided by the learned Tribunal was contrary to the oral evidence produced by the claimant-appellants and whimsically has fixed the monthly income as Rs.2000/-, whereas the evidence led clearly stated that 3 the deceased was engaged in the business of selling of vegetables and use to earn Rs.100/- per day, as per statement given by the wife of the deceased; and Babu Khan has also stated that the deceased from his business of selling of vegetables use to earn Rs.80-100/- per day, therefore, the minimum monthly income should have been not less than Rs.2,400/-, whereas the learned Tribunal has fixed Rs.2000/- only. The learned counsel for the claimant- appellants also pleaded that the dependent of the deceased were his wife and three sons, out of which one was minor at the time of death. This aspect should have also been considered by the learned Tribunal, which failed to do so. A perusal of the evidence tendered reveals that the wife of the deceased has stated about the income of the deceased as Rs.100/- per day by selling vegetables in which business the deceased was engaged. Similarly, the other witnesses also referred the income of the deceased as Rs.80-100/- per day. There is no rebuttal of this statement from the side of the respondents. Of course, the statement is only an oral and no other documentary evidence about this fact was 4 produced by the claimant-appellants, but the oral evidence about the income, if not exaggerated or in higher side, but modest estimation, if given should be relied on and the learned Tribunal should have without discarding this evidence, if has fixed Rs.2000/- only as monthly income has gone contrary to the record and the evidence available. In these circumstances, if the income of the deceased is ascertained as Rs.80/- per day, then monthly income comes out to be Rs.2400/- and the one-third of as personal expenses of the deceased is deducted from this, then monthly income comes out to be Rs.1600/-, looking to the age of the deceased, if multiplier of 16 is applied, the total income (Rs.1600x16x12), total compensation comes out to be Rs.3,07,200/-. In addition to this, the claimant-appellants are also entitled for loss of consortium, loss of love and affection to the children, which is fixed as Rs.15,000/-10,000/- respectively and for medical expenses Rs.10,000/-. The claimant- appellants are also entitled for this, therefore, the total compensation amount comes out to Rs.3,42,200/-, whereas the learned Tribunal has only decided the total compensation as Rs.2,87,440/-, therefore, in all the 5 claimant-appellants are entitled the enhanced compensation of Rs.54,760/- from the respondents. To this extent, this miscellaneous appeal deserves to be allowed. Consequently, the appeal of the claimant- appellants is partly allowed. The compensation of Rs.54,760/- is awarded in favour of the claimant- appellants, in addition to what the learned Tribunal has awarded in their favour. The claimant-appellants are also entitled to get interest on this enhanced amount at the rate, as prescribed by the learned Tribunal in the judgment from 11.10.1995. The said amount, if paid by the respondents would be deposited in the Bank account of the claimant-appellant No.1 for a period of two-years. (Bhanwaroo Khan) J. ashok/ 6