Hon'ble Judges/Coram:
Rekha Palli

DECISION

Rekha Palli, J.

1. The present appeal under Section 173 of the Motor Vehicles Act, 1988 ('the Act'), preferred by the insurer, seeks to assail the award dated 10.11.2022 passed by the learned Motor Accidents Claim Tribunal in MACT No. 299/2021. Vide the impugned award the learned Tribunal, while holding that the death of Shri Chandramohan Raiwas was the result of an accident which took place at Ahirauli Chatti, Ghaziabad due to rash and negligent driving of a truck insured by the appellant, driven by respondent no.6, has awarded a sum of Rs. 59,00,000/-as compensation to the claimants.

2. This compensation awarded by the learned Tribunal includes a sum of Rs. 56,70,000/-towards loss of dependency, by treating the monthly income of the deceased as Rs. 30,000/-. While holding that the monthly income of the deceased was required to be taken as Rs. 30,000/, the learned Tribunal took into account the fact that the deceased was a qualified Homeopath holding a degree of Bachelor in Homeopathic medicine and Surgery with 10 years of practice. To arrive to this conclusion, the learned Tribunal relied on the uncontroverted testimony of PW1, the widow of the deceased, who, by producing the register of patients maintained by her late husband, stated that he was earning an amount of at least Rs. 50,000/-per month. The relevant findings of the learned Tribunal on this aspect read as under:

"17. PW-1, the wife of the deceased has categorically stated that at the time of accident, her husband was working as Homeopathic Doctor at Ghazipur, Uttar Pradesh. She deposed that her deceased husband has treated numerous patients of different types of diseases and he was well known to treat Paralytic patients. She deposed that he was earning Rs. 50,000/-per month. However, she has not placed on record any document in regard to the fact that her husband was earning Rs. 50,000/-per month. However, she has placed on record the Ex. PW 1/7 i.c., educational qualification documents, i.e., the degree of Bachelor of Homeopathic Medicine and Surgery qualified in the year 2009. Further he has been registered as Homeopathic doctor by the Registrar at Homeopathic Medicine Board, Lucknow, Uttar Pradesh. PW 1 has also placed on record Ex. PW 1/8 i.e., register of patients maintained by deceased whereby a number of entries have been mentioned of the patients treated by the deceased. This document has not been disputed by respondent except the bald suggestion given by the insurance company which has also been denied by the petitioner. Moreover, the fact has also not been denied by the insurance company that the deceased was a doctor practicing as Homeopathic Doctor.

18.Further the insurance company has taken the plea that the court is inclined to grant the compensation, then court may take the minimum wages prevailed at the time of accident in Bihar for the assessment of the future loss of income. However, the plea of the insurance company is not tenable particularly when deceased was a certified Homeopathic doctor having the degree in Homeopathic Medicine and Surgery and this fact has not been denied by the insurance company. It cannot be said that person who is doctor by profession would have been earning @ minimum. wages. Register maintained by the deceased in ordinary course of nature of business of the patients treated by him has not been proved, yet in all probability it is presumed that the person having ten years practice in Homeopath would have earned at least Rs. 1000/-per day. Therefore, it is assumed that the deceased would have been earning Rs. 30,000/-per month being in this profession. Hence, the income of the deceased is taken as Rs. 30,000/-per month for the assessment of future loss of income."

3. Being aggrieved, the present appeal has been preferred by the insurer on two grou........