IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.523 of 2010
The Oriental Insurance Company Ltd., Divisional Office, Bhagalpur.
..... Opposite Party No. 3 in the Court below.......... Appellant.
Versus
1. Sachindra Choudhary husband of deceased Rukmani Devi, Resident of
Village - Barahat Akagorha, P.S. - Barahat, District - Banka
......... Claimant No. 1 in the court below.......... Respondent.
2. Ganesh Choudhary, Son of Sachindra Choudhary, Resident of Barahat
Akagorha, P.S. - Barahat, District - Banka
........ Claimant No. 2 in the court below........... Respondent.
3. Lali Kant Choudhary, Son of Sachindra Choudhary, Resident of
Barahat Akagorha, P.S. - Barahat, District - Banka
.......Claimant No. 3 in the court below........... Respondent.
........... Respondents 1st set.
4. Md. Sabir Ali (Driver) Son of Md. Khalil Ahmad, Resident of Puraini,
P.S. - Jagdishpur, District - Bhagalpur.
........ Opposite Party No. 1 in the court below............. Respondent
5. Sister Amla (Owner) daughter of Baliyamrat, Hamgardar Jarj Joseph
St. Tressa School near Court compound, Bhagalpur.
....... Opposite Party No. 2 in the court below......... Respondent
........... Respondents 2nd set.
...................... Respondents
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Advocate for Appellant: Mr. Barun Kumar Choudhary, Adv.
Advocate for Claimant: Mr. Vivekanand Vivek, Adv.
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4 15.09.2011 Heard Sri Barun Kumar Chaudhary, learned counsel for
the appellant and Sri Vivekanand Vivek, learned counsel who
appears on behalf of Respondent Nos. 1 to 3/claimants. None
appeared on behalf of Respondent Nos. 4 & 5.
The present appeal under Section 173 of the Motor
Vehicles Act, 1988 (hereinafter referred to as the M.V. Act) has
been preferred against judgment dated 5th April, 2010 and award
dated 29.04.2010 in Claim Case No. 190 of 2009 passed by 1st
Additional District Judge-cum-Motor Vehicles Accident Claims
Tribunal, Bhagalpur (hereinafter referred to as the “Claims
Tribunal”). The appeal has been preferred by the Oriental Insurance
Co. Ltd (insurer) only to the extent of challenging the compensation
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amount.
Learned counsel for the appellant has not disputed the
impugned judgment on its merit but has argued that since there were
no documentary evidence on record in support of the income of the
deceased the learned Claims Tribunal was required to adopt
notional income in view of Schedule-II of the Motor Vehicles Act.
Short fact of the case is that on 06.11.2009 at 6.30 a.m.
while wife of Respondent No. 1 and mother of Respondent Nos. 2
& 3 was going to open her tea stall she was dashed by a Bus bearing
registration no. BR10H-7726. The accident had occurred due to
negligent and rash driving of the vehicle by the driver. In the said
accident the wife of Respondent No. 1 namely Rukmani Devi died.
Relating to said occurrence F.I.R. vide Mojahidpur P.S. case No.
112 of 2009 was registered against the driver of the vehicle and on
the dead body of the deceased autopsy was conducted.
Subsequently, claim petition was filed under the provisions of the
M.V. Act by the claimants i.e. Respondent Nos. 2 & 3. In support of
claim case four (04) witnesses were examined. Out of four (04)
witnesses, C.W. 1 is Respondent No. 3 , C.W. 2 is Respondent No.
1, C.W. 3 is Respondent No. 2 and one another witness namely
Rajendra Prasad Sah was examined as an independent witness.
During the trial it was admitted that offending vehicle was insured
by the appellant and also driver of the vehicle was having valid
driving licence at the time of accident. The claimants had pleaded
that deceased was having income in between Rs. 150/- to Rs. 200/-
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per day. However, learned Claims Tribunal taking into account the
income of the deceased as Rs. 125/- per day had finally directed the
appellant to pay total compensation amount of Rs. 3,90,000/- and
also Rs. 2,000/- towards funeral expenses, Rs. 5,000/- towards loss
of consortium and Rs. 2,500/- towards loss of estate. Since Rs.
50,000/- was already paid under Section 140 of the M.V. Act as
interim compensation it was directed to deduct the said amount and
remaining amount was directed to be paid along with interest at the
rate of 6% per annum till the date of payment.
The insurer i.e. the appellant aggrieved with the
compensation amount has preferred the present appeal oblivious of
the fact that before the court below cogent materials were brought
on record in support of the income of the deceased.
Sri Barun Kumar Choudhary, learned counsel for the
appellant has emphatically argued that in absence of documentary
evidence in support of the proof of income of the deceased the
learned Claims Tribunal was required to take into account notional
income as prescribed in Schedule-II of the M.V. Act. It was
submitted that while granting compensation the court is required to
see that compensation in an accident may not be treated as windfall
in favour of the claimants. In support of his argument he has relied
on (2009) 13 SCC 422 ( Reshma Kumari & Ors. Vs Madan Mohan
& Anr.). On question put by the court as to whether there is any
statutory provision which prescribes that for establishing income
documentary evidence is must to be produced by the claimant
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learned counsel for the appellant answered in negative. However, he
relying on the judgment in Reshma Kumari Case (Supra) has only
argued that keeping in view the fact and circumstances of the
present case that too since the deceased was a house wife such high
compensation amount should not have been directed to be paid and
as such it was submitted that since death had occurred the Tribunal
was required to give minimum compensation amount accepting the
notional income as prescribed in the Act. Accordingly it has been
prayed to modify the impugned judgment and award.
Sri Vivekanand Vivek, learned counsel for Respondent
Nos. 1 to 3 /claimants submits that the compensation amount is
reasonable one which requires no interference. He has argued that
there is consistent evidence on record that the deceased was having
Rs. 150/- to Rs. 200/- income per day and as such the learned
Claims Tribunal has rightly awarded compensation amount. He has
further argued that there are number of decisions to show that if
there is oral evidence on the point of income the claim cannot be
denied only on the plea that there is no documentary evidence.
Besides hearing learned counsel for the parties I have
also perused the materials available on record.
In this case four (04) witnesses were examined in
support of the claim case and all the four (04) witnesses have
consistently stated that deceased was having income of Rs. 150/- to
Rs. 200/- per day. It is true that three witnesses out of four were
claimants in the case but C.W. 4 (Rajendra Prasad Sah) who was
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completely an independent witness has categorically supported the
claimants’ case. In his evidence he has stated that while he along
with one another was moving he witnessed the accident in which
Rukmani Devi wife of Respondent No. 1 and mother of Respondent
Nos. 2 & 3 succumbed to the injuries. The witness C.W. 4 has also
stated that the deceased was going to open her tea stall. Consistently
it has been said by all the witnesses that deceased was running a tea
stall. The husband of the deceased i.e. C.W. 2 (Respondent No. 1)
has further stated that since last five years he was ailing and he was
completely dependent on his wife who was running tea stall and was
earning Rs. 150/- to Rs. 200/- daily.
In view of the facts and circumstances particularly the
evidence brought on record the court is of the opinion that the
claimants have established that the deceased was having earning as
stated in the claim petition. For the purposes of establishing income
of deceased or a victim there is no mandatory provision to bring on
record documentary evidence. If there is reliable oral evidence the
income can be accepted. So far application of notional income is
concerned, Schedule-II makes it clear that notional income shall be
taken into account in cases of those victims or deceased who had no
income prior to the accident. In the present case there is consistent
evidence that deceased was running a tea stall and earning Rs. 150/-
to Rs. 200/- per day. However, the Claims Tribunal has accepted
only Rs. 125/- per day, and thereafter, adopting multiplier of 13 has
awarded compensation.
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In view of the facts and circumstances as well as
evidence on record, the court is of the opinion that the impugned
judgment and award require no interference, and as such, the appeal
stands dismissed.
The compensation amount with interest as directed by
the Claims Tribunal must be paid to the claimants within two
months from the date of receipt/production of a copy of this order.
Since the appeal has been dismissed the statutory
amount which was deposited at the time of filing of the appeal may
be remitted back to the court below.
(Rakesh Kumar, J.)
Praful