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GANGA BISHAN versus DHARMA RAM & ORS.

High Court of Rajasthan

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GANGA BISHAN v DHARMA RAM & ORS. - CMA Case No. 687 of 2006 [2007] RD-RJ 1321 (14 March 2007)

8 S.B. CIVIL MISC. APPEAL NO.687/2006.

Ganga Bishan Vs. Dharma Ram & Ors.

Date of Order : 14th March 2007.

HON'BLE MR. JUSTICE DINESH MAHESHWARI

Mr. Dinesh Kumar Sharma, for the appellant. ....

BY THE COURT:

Having heard learned counsel for the appellant and having perused the entire record, this Court is clearly of opinion that this appeal by the claimant-appellant seeking enhancement over the amount of Rs.3,30,800/- awarded by the Tribunal towards compensation for the loss suffered by him due to the injuries sustained in accident remains totally bereft of substance.

From the medical evidence available on record, it appears that the claimant-appellant has suffered fracture at and around vertebra, right pubic rami and trochanter, and dislocation of sacro-iliac joint. The Tribunal has taken note of the entire evidence including X-ray report and the certificate of permanent partial disablement at 20.18%; has also considered that the claimant alleged his earning as a kerosene dealer at Rs.10,000/- per month and another Rs.2,000/- per month from agriculture; but for want of cogent corroborative evidence, has taken his income from kerosene business at Rs.5,000/- per month and from agriculture at Rs.2,000/- per month. Thus taking his total income at

Rs.7,000/- per month and with reference to his age at 42 years, though shown at 50 years in discharge ticket (Ex.17) and disablement certificate (Ex.16), has applied multiplier of 13 to assess pecuniary loss at Rs.2,20,365.60 and rounded it up to

Rs.2,20,400/-. The Tribunal has further allowed Rs.26,000/- towards pains and sufferings; Rs.17,400/- towards hospitalisation;

Rs. 46,000/- towards treatment expenditure with reference to the bills (Ex.31 to 124) in the sum of Rs.40,495.64; Rs.5,000/- towards special diets; Rs.2,000/- towards transportation; and further

Rs.14,000/- towards loss of income during treatment. In this manner, assessing the total loss at Rs.3,30,800/-, the Tribunal has made the award in that amount in favour of the claimant-appellant and has also allowed interest @ 9% per annum from the date of filing of the claim application after adjustment of the amount of

Rs.25,000/- allowed under No Fault Liability.

Seeking enhancement over the compensation amount, learned counsel for the appellant has submitted that the income of the claimant-appellant having been established on record and there being no evidence in rebuttal, the Tribunal has been in error in taking his monthly income only at Rs.5,000/- as kerosene dealer.

Learned counsel further submitted that the Tribunal has not awarded any amount towards disablement of eye as suffered by the appellant.

The submissions cannot be accepted for the simple reason that the assessment of pecuniary loss at above Rs.2.20 lacs has itself been much on the higher side in this case. Though the appellant has been shown to have suffered fractures at and around pubic rami and trochantric but then, ultimately he has been certified carrying disablement at 20.18%. It does not appear to be a case of any loss of income so far his kerosene dealership is concerned. A component of loss towards agricultural income could have been considered but in that relation the figure of above

Rs.2.20 lacs appears excessive. There is no definite evidence about disablement related to eye and with excessive amount already allowed by the Tribunal towards pecuniary loss, there appears no scope for enhancement. The Tribunal has liberally awarded compensation on all other scores too and has ultimately made the award in the sum of Rs.3,30,800/- that could only be said to be rather on the higher side.

The submission of the learned counsel about unrebutted evidence to be conclusive is not well founded. A reasonable estimate on the income of the victim particularly for the purpose of assessing pecuniary loss is dependent upon a variety of facts, factors and circumstances; and though in a given case want of rebuttal could also be one of the circumstances relevant, yet it cannot be taken decisive of the point in every case.

Moreover, in the present case, this Court is satisfied that the claimant-appellant has not been forthright in his submissions while claiming compensation. It is noticed that his age was definitely above 40 years at the time of accident and despite being aware of his correct age, the claimant has chosen to state the same at 35 years in the claim application; obviously in order to claim excessive compensation. It is also noticed that his date of birth has been stated as 12.11.1958 in the photostat of the tax return placed on record. His age has been stated at 42 years in the injury report dated 25.12.1999 and so also in the X-ray report dated 06.01.2000; and at 50 years in the disablement certificate

(Ex.16). In any case, his age was not below 40 years and there appears no justification for the claimant-appellant making mis- statement on a material fact about his age.

The Tribunal has further proceeded to allow interest @ 9% per annum from the date of filing of the claim application and such rate of interest in the award made on 15.03.2005 cannot be said to be low or insufficient.

In the ultimate analysis, the award as made by the

Tribunal cannot be said to be low or insufficient and there appears no scope for enhancement at the instance of the appellant.

The appeal fails and is, therefore, dismissed summarily.

(DINESH MAHESHWARI), J.

Mohan/


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