Smt. Seema Devi And Others ... vs Mohammad Alam And Others
2023 Latest Caselaw 2767 UK

  IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

              Appeal from Order No.148 of 2012

Smt. Seema Devi and others                              ....Appellants

                                 Versus

Mohammad Alam and others                              .... Respondents

Present:

Mr. Jitendra Chaudhary, counsel for the appellants.
Mr. Kartikey Maulekhi, counsel holding brief of Mr. P.C. Maulekhi counsel for
respondent no.3.

                                                      Dated: 20.09.2023

Hon'ble Vivek Bharti Sharma, J. (Oral)

This appeal has been filed by the

appellants/claimants for enhancement of compensation

against the judgment and award dated 31.10.2011

passed by the Motor Accident Claims Tribunal/District

Judge, Dehradun in MACP No.252 of 2008.

2. At the very outset, counsel for the appellants

would submit that the application for condonation of

delay is to be decided as there is a delay of 75 days in

filing the present appeal.

On the submissions of the counsel for the

appellants, the Court perused the case file as well as the

order sheet and it was found that the delay had already

been condoned by the Co-ordinate Bench of this Court on

09.04.2018 itself. Perusal of the order sheet dated

09.04.2018 would reflect that the counsel for the

appellants was not only present on that date when the

delay was condoned but he even addressed the Court on

the application for condonation of delay. This is not fair

on the part of the counsel for making submissions

against the record. The counsel for the appellants is

directed to be careful in future.

3. Heard on the admission.

4. Counsel for the appellants would submit that

the compensation awarded by the learned Tribunal is on

lower side; that, it has come on record that the deceased

Nand Kishore was working as a petty contractor. He

would refer to the findings recorded by the Trial Court on

issue no.2 and would submit that PW4 Vijay Prakash has

deposed in his evidence that deceased Nand Kishore was

working as petty contractor to whom he used to give

small work and he had given him ₹ 1,27,725/- for the

work done by him along with four other labourers during

the period from 01.04.2008 to 07.08.2008; that, PW3

stated that his son used to send ₹ 80,000 to 90,000

annually.

However, on the query of the Court, he would

submit that he has no other evidence to place in support

of his contention that would reflect that the

compensation award is on lower side. He would further

admit at Bar that there is no other evidence about the

income of the deceased Nand Kishore.

5. This Court finds no infirmity in the impugned

award. The fact that the deceased got ₹1,27,725/- for

himself and four others between 01.04.2008 to

07.08.2008 does not mean that this whole amount was

the income of the deceased for the period of 01.04.2008

to 07.08.2008. Other statement of PW3 that deceased

used to send ₹ 80,000 to 90,000/- cannot be taken as

the income of the deceased in absence of any

trustworthy, cogent and reliable evidence for the same.

Perusal of the Award would reflect that in the

absence of trustworthy, credible and cogent evidence

about the income of the deceased the learned Tribunal

presumed that the deceased Nand Kishore was working

as Mason and he might be earning ₹ 200/- per day i.e. to

say ₹6,000/- per month and consequently ₹ 72,000/- per

annum.

6. In the considered view of this Court, the

fixation of the income of the deceased by the learned

Tribunal is correct and justified in the facts and

circumstances of the case and the impugned judgment

and award does not call for any interference of this

Court.

7. In view of the above submission, there is no

merit in the appeal. Same is, accordingly, dismissed in

limine.

(Vivek Bharti Sharma, J.) 20.09.2023 BS