RAFIQ, J. - (1.) HEARD learned counsel for the parties.
(2.) THIS appeal is directed against the judgment of the Motor Accident Claims Tribunal, Jaipur District, Jaipur dated 6. 7. 2007 questioning the correctness of the quantum of compensation awarded to the appellant in the sum of Rs. 4,76,000 and seeking its enhancement. Appellants filed claim petition before the Tribunal for award of compensation on account of accidental death of Ram Gopal, who was husband of appellant no. 1 Gita Devi, father of appellants no. 2 to 7 and son of appellants no. 8 and 9. He was riding a motor cycle with one Gajanand when a jeep no. RJ-14-T- 5584 driven by respondent no. 1 Raju Lal hit the motorcycle leading to his death. Learned counsel for the appellant-claimants has argued that the deceased was working with M/s. New Sharma Furnitures and Interior Decorator and was doing the work of sofa making and cushion and capestry. His monthly income was Rs. 7,000/- and this fact was supported by his widow who was examined as AW-1, Gita Devi. The claimants also produced the salary certificate of the deceased at Ex. 25 on the letter head of M/s. New Sharma Furnitures and Interior Decorator issued by its proprietor Shri Choth Mal who also appeared it in witness box as AW-3 and proved the fact that he used to pay a sum of Rs. 6,000/- besides other allowances every month to Shri Ram Gopal. Learned counsel submitted that even if no account book or other registers were produced by the proprietor of the firm in which the deceased was working, that cannot be taken as the basis for disbelieving the version of the wife of the deceased which was duly corroborated by the proprietor of the firm. It was argued that a person engaged in the work of sofa making and cushion and capestry has to have at least the minimum income of Rs. 6000-7000 a month. The Tribunal ought to have taken judicial cognizance of this fact, particularly when whatever evidence was produced on this aspect was from the side of the claimants and no evidence to the contrary was produced by the non-claimants including the insurance company to rebut the evidence so produced. The learned Tribunal has seriously erred in disbelieving such unrebutted evidence produced by the claimants. Learned counsel cited the judgment of Supreme Court in Smt. Kaushnuma Begum & Ors. vs. the New India Assurance Co. Ltd. & Ors.-2001 WLC (SC) 116 = (RLW 2001 (2) SC 308) and argued that the Supreme Court in that case accepted the unrebutted and uncontroverted version of the widow of the deceased that income of her late husband was Rs. 1,500/- in the year 1986 which was supported by the brother of the deceased and no contra evidence was adduced from the side of the non- claimants. Learned counsel argued that applying the principles of law enunciated by the Supreme Court in that case, monthly income of the deceased in the present case ought to be accepted at Rs. 6,000/- and accordingly, the quantum of compensation in the sum of Rs. 4,08,000/- should be arrived at and paid to the appellants. Shri Pratap Singh Arya, learned counsel appearing for the respondent insurance company opposed the appeal and submitted that the version of the claimants and even that of the wife of the deceased, on the question of his income, cannot be accepted in the absence of any proof of such income. It is argued that what is required to be rebutted is the fact which is asserted and proved by the claimants and such a fact can be taken to have been proved only when a definite evidence is produced in support thereof. Learned counsel argued that the Tribunal has appreciated the statement of not only AW-1, Gita Devi, wife of the deceased but also AW-3 Choth Mal, the proprietor of M/s. New Sharma Furnitures and Interior Decorator. AW-3 Choth Mal in his cross examination stated that he was proprietor of M/s. New Sharma Furnitures and Interior Decorator but did not produce any proof of that fact. He asserted that he had engaged 7-8 persons and number of persons engaged by him would sometimes vary also. He however stated that he did not maintain any attendance register but only maintained cards, but he did not produce copy of any such card. He also did not produce any account book, nor did he produce RST and CST registration certificates. Even Ex. P- 25, the salary certificate, which was issued on the letter head of the said proprietorship firm did not contain such registration number. Learned counsel therefore argued that a fact which could not be proved did not require rebuttal by the non-claimants. Having heard the learned counsel for the parties and perused the impugned award, it is evident that the Tribunal on issue no. 4 has made discussion on this aspect of the matter in fairly greater details. The Tribunal has concluded that AW-3 Choth Mal could not prove that he was maintaining any attendance register on regular basis, nor did he mention about the existence of any such register. The Tribunal therefore observed that it could not be taken as proved that the deceased was a permanent employee of the said firm. The Tribunal also observed that though AW-3 Choth Mal stated that he was maintaining the card in place of attendance register, but copy of no such card was produced, not even the account books were produced. The Tribunal also observed that RST and CST numbers of the firm were not produced, nor even such RST and CST numbers were mentioned in the letter head of the firm on which salary certificate was issued. The insistence of the appellant therefore that since their assertion was that deceased was working for sofa making, cushion and capestry, could have not been considered as the sufficient basis for the Tribunal to hold that the deceased was earning a sum of Rs. 6,000 every month. Their version cannot be upheld because in my considered view, the satisfactory proof of the fact of his monthly income in the sum of Rs. 6,000 every month on regular basis was not produced before the Tribunal. Once the Tribunal has come to hold a particular view on analysis of the evidence produced before it, this Court cannot dislodge that finding unless it is shown that consideration of the matter suffered from any apparent infirmity. View taken by the Tribunal cannot be faulted because it was not proved that the deceased was working for the kind of work referred to above on regular basis with the said firm. Further argument that such an evidence should taken as unrebutted evidence to form the basis for calculation of the compensation cannot be accepted. Unless the factum of regular employment and the fixed income on fairly regular basis was satisfactorily proved by cogent and reliable evidence, the non-claimants could not be accepted to disprove such fact which even otherwise was within the exclusive knowledge of the claimants or the alleged employer of the deceased. Such shaky evidence, which did not prove the monthly income of the deceased at Rs. 6,000/-, could not be raised to the level of a proved fact requiring rebuttal thereof by the respondents. Even in the face of such evidence, the Tribunal has accepted the income of the deceased at a sum of Rs. 3,000/- and on that basis applied the multiplier of 17 and made calculations of the compensation after deducting 1/3rd of that income and then arrived at the sum of Rs. 4,08,000/- as the payable compensation. The Tribunal has awarded a sum of Rs. 25,000/- for the loss of consortium and another sum of Rs. 30,000/- for the loss of love and affection to the children and Rs. 10,000/- for the loss of care to the parents and Rs. 3,000/- under other heads. Thus a total sum of Rs. 4,76,000/- was awarded. The judgment of Supreme Court in Smt. Kaushnuma Begum, supra, cited by learned counsel for the appellant was a case in which income of the deceased was asserted to be Rs. 1,500/- per month. The Supreme Court observed that since the accident took place more than 13 years ago, it was not appropriate to remit the matter to the Tribunal for fixation of quantum of compensation and in those facts, their Lordships accepted the version of the wife and the brother of the deceased. There the income that was asserted was only Rs. 1,500/- and conscious of those facts, the Supreme Court accepted the same and ultimately calculated the amount of compensation as per the structured formula contained in Second Schedule of the Motor Vehicles Act, 1988 taking the age of deceased, which in that case also was identical to the one in the present case i. e. 35 years and then arrived at a sum of Rs. 1,80,000/ -. The learned counsel for the appellants sought to explain that the income of Rs. 1,500/- per month in relation to the year 1986 when the accident in that case took place according to wages then prevalent was also relatively on higher side, yet it was accepted. But even if that argument is accepted, the total amount of compensation that was awarded at the same age to the claimants in relation to the accident of a person who too was aged 35 years in that case in 1986 was only Rs. 1,80,000/ -. Here in the present case, if the element of lapse of time is also taken into consideration, the awarded amount of Rs. 4,76,000/- cannot be said to be unjustified or otherwise on lower side.
(3.) I, therefore, do not find any merit in this appeal, which is accordingly dismissed. .;