- (1.) These two appeals which have been filed against the common award dated 5/7/2004 passed by the Motor Accident Claims Tribunal, Jaipur. Tribunal under the aforesaid award granted compensation in the sum of Rs.13,55,200/- however it held the deceased to be responsible for contributory negligence to the extent of 50% and therefore reduced the amount of compensation to Rs.6,77,600/-.
(2.) Learned counsel for the appellant insurance company has argued that there was no definite proof of income of the deceased, who was only 25 years old. Tribunal has relied on the oral submission of the widow of deceased AW2 Santosh and father AW3 Hukumchand, who have stated that deceased used to earn Rs.7000-8000/- per month. He was trading in livestock and used to collect goats and sheeps from the rural areas and sell them in the livestock market at Jaipur to Ajmer Road Pulisiya. Kind of the business the deceased was doing in the year 2000 could not have fetched the income of Rs.7000-8000/- per month. In cross-appeal, learned counsel for the appellant insurance company has argued that the evidence also proved that the deceased was sitting in the 'dola' (back portion of the truck) and when the accident took place, due to sudden jerk, he fell down on the road and as a result of sudden fall, he died therefore learned Tribunal rightly held him responsible for contributory negligence of 50% and therefore award of the Tribunal does not require any interference by this court on the aspect of income and the finding of the Tribunal that the deceased was earning Rs.7000-8000/- per month be set-aside and at the maximum the deceased can be held to be earning Rs.3,000/- per month and not more than that.
(3.) Learned counsel for the claimants has argued that when all the three witnesses have proved in their statements that the monthly income of the deceased was Rs.7000-8000/- per month and they have not been subjected to any cross-examination, therefore their testimony has to be accepted as the income of the deceased having been proved by their testimony and thus the finding of the Tribunal can be held justified, which is based on evidence and where there is no evidence in rebuttal by the insurance company, which would justify interference by this court. It was argued that merely because the deceased was sitting in the back portion of the truck, which has been referred to as "dola' as stated by AW3 Hukumchand in his statement before the court does not mean that the deceased was responsible for the contributory negligence to the extent of 50%.;