1 S.B. Civil Misc. Appeal No.135/2008 Marta Ram & Ors. vs. Bheru Singh & Ors. S.B. Civil Misc. Appeal No.135/2008 Marta Ram & Ors. vs. Bheru Singh & Ors. Date : 10.9.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.Manish Pitaliya, for the appellant. Mr.S Saruparia ) for the respondents. Mr.S Johari ) - - - - - Heard learned counsel for the parties. This appeal has been preferred by the appellants for enhancement of the compensation awarded by the Motor Accident Claims Tribunal, Salumbar (Additional District Judge No.2), Udaipur in MACT Case No.41/2007 vide judgment and award dated 12.9.2007. Brief facts of the case are that victim Suresh died on account of injuries suffered in accident which occurred on 15.12.2006 because of rash and negligent driving of vehicle by respondent Bheru Singh. Victim Suresh was of the age of 26 years when he died. In the claim petition, it has been stated that victim Suresh 2 S.B. Civil Misc. Appeal No.135/2008 Marta Ram & Ors. vs. Bheru Singh & Ors. was serving as Machine Operator with M/s. SMT Marble on a salary of Rs.4500/-. For this accident, FIR was lodged and criminal case no.275/2006 was registered. The appellants claimed in all a compensation of Rs.54,35,000/-. The Tribunal granted permission to the insurance company under Section 170 of the Motor Vehicles Act by order dated 26.8.2007. The Tribunal after giving opportunity to the parties and after careful consideration of evidence held that the victim Suresh died in the accident which was caused by the respondent Bheru Singh by driving rashly and negligently the vehicle no.RJ 27-G-7423. According to the learned counsel for the claimants/appellants, the appellants produced documentary evidence Ex.16 – a certificate obtained from the employer to prove the salary of the deceased which has been certified by the employer to be Rs.4500/- per month. It is submitted that the Tribunal without any lawful reason rejected this documentary evidence as well as oral evidence of the claimants about the income of the deceased and assessed the income of the deceased at the rate of Rs.3,000/- per month only. According to the appellants, the 3 S.B. Civil Misc. Appeal No.135/2008 Marta Ram & Ors. vs. Bheru Singh & Ors. compensation should have been calculated on the basis of salary of Rs.4500/- in place of Rs.3000/-. Learned counsel Mr.Johari for the respondent insurance company submitted that firstly it was the burden upon the claimants to prove the income of the deceased for which they miserably failed. Only after initial discharge of burden, the burden to rebut the evidence of claimant would come. Since there is no trustworthy evidence to support the income of the deceased, therefore, the Tribunal rightly assessed the income of the deceased as unemployed person at the rate of Rs.3000/- per month. I considered the submissions of learned counsel for the parties and perused the reasons given in the impugned award as well as the record. The claimants' case from the beginning was that the deceased was getting Rs.4500/- and disclosed in the claim petition that deceased is employed with M/s. SMT Marbles. The claimants pleaded that the deceased was working as Machine Operator and produced certificate Ex.16 from the employer. The claimants' witness AW1 Bharta Ram, father of deceased, stated on oath that the 4 S.B. Civil Misc. Appeal No.135/2008 Marta Ram & Ors. vs. Bheru Singh & Ors. deceased was working as Machine Operator with M/s. SMT Marbles. In cross examination, this part of the statement has not been challenged. Not only this but when in cross examination, a question was put to the deceased's father, he clearly stated that on the certificate, there is signature of the owner of the firm and he was Nanalal Ahari. There is no evidence in rebuttal to rebut the evidence produced by the appellant. The Tribunal, therefore, committed serious error in reading the evidence which is available on the record and which is not in dispute. In view of the above reasons, it is held that the deceased had income of Rs.4500/- per month at the time of his death and, therefore, the claimants are entitled to compensation after deduction of 1/3rd of the income of deceased and the net income comes to Rs.3,000/- in place of Rs.2,000/- as assessed by the Tribunal. The compensation on account of loss of income comes to be 3000 x 12 x 17 = Rs.6,12,000/- in place of Rs.4,08,000/- as awarded by the tribunal. Rest amount awarded is maintained. Consequently, this appeal is allowed and the amount of claim is enhanced from Rs.4,25,000/- to 5 S.B. Civil Misc. Appeal No.135/2008 Marta Ram & Ors. vs. Bheru Singh & Ors. Rs.6,29,000/-. The claimant will be entitled to interest at the rate of 9% per annum from the date of 8.2.2007. (PRAKASH TATIA), J. S.Phophaliya