National Insurance Company Ltd. vs Santoshi Kejriwal

Rakesh Kumar, J.—Heard Mr. Bimlesh Kumar Jha, learned Counsel for the appellant, Mr. Mukesh Prasad Singh, learned Counsel, who has appeared on behalf of respondent Nos. 1 and 2/claimants and Mr. Shambhu Sharan Singh, learned Counsel, who has appeared on behalf of respondent No. 3/owner of the truck bearing registration No. B.R.04A-9632 (hereinafter referred a to as the "offending vehicle"). The present Appeal has been preferred against judgment dated 5th August, 2009 and Award dated 18th August, 2009 passed in Claim Case No. 3 of 2004 by the Court of learned 1st Additional Sessions Judge-cum-Motor Accident Claims Tribunal, Chapra (hereinafter referred to as the "Claim Tribunal"). The learned Claim Tribunal has directed the appellant/National Insurance Co. Ltd. to make payment of Rs. 8,74,000 only with interest at the rate of 6% per annum from the date of presentation of the case till its realization.

Short fact of the case is that on 30th November, 2003 at about 8.30 p.m. while son of respondent No. 2 and husband of respondent No. 1 was moving as pillion rider on a motorcycle with one Amit Kumar Gupta, a truck bearing registration No. B.R.04A-9632 being driven rashly and negligently by the driver dashed the motor cycle in which both motor cyclist died, and thereafter, an F.I.R. vide Doriganj P.S. Case No. 75 of 2003 was registered and after investigation charge-sheet was also submitted. Since it was a death due to rash and negligent driving, claimants filed claim case claiming compensation against the insurer of the vehicle i.e. appellant on the ground that vehicle in question was under insurance cover of the appellant at the time of accident. In the claim case before the Tribunal stand was taken that the deceased, who was aged about 28 years was earning Rs. 8,000 per month. He was running a shop in the name and style of, "Shringar Ghar" in a shop situated at employed PW-2/Vikash Tiwari as Salesman in his shop and he was making payment of Rs. 1,500 per month as salary to Sri Vikash Tiwary. Besides this, Rs. 500 per month was being paid as rent to the shop-owner and Rs. 500 per month as electric charge. The deceased was depositing Rs. 50 per day in the Sahara Bank. He had also taken loan for his business from the Central Bank. The deceased at the time of getting the shop settled had paid Rs. 41,000 as Pagari (Advance) to the shop-owner. Besides oral evidence, to establish the income of the deceased the claimants had brought on record receipt of deposit of money in the Bank of Baroda and photo copy of Pass Book to show that he was also having Rs. 60,000 in his Account in the Bank of Baroda at the time of death. Exhibit-6 as receipt of money in the Bank of Baroda, Exhibit-7 as original LIC Bond, Exhibit -6/5 as deposit receipt of LIC premium, Exhibit-6/6 as quarterly payment receipt, Exhibit -6/7 as premium receipt, Exhibit - 6/8 as receipt of LIC, Exhibit -7/1 as Pass Book of the Bank of Baroda showing deposit of Rs. 60,000 in the name of deceased, Exhibit -9 the agreement in respect of shop in question, which shows payment of Rs. 41,000 as Pagari. Besides this, Exhibit-10, 11 to 11/3 were brought on record to establish that deceased was doing business question of quantum of compensation amount and no other dispute has been raised, this Court is not dealing with other evidences for deciding the present Appeal.

It is not in dispute that before the Tribunal, besides F.I.R., post-mortem examination report, insurance policy, other materials were also brought on record. Though specific plea on behalf of the claimants was that deceased was earning Rs. 8,000 per month, the Claims Tribunal, of course without any cogent reason has reduced the income from Rs. 8,000 per month to Rs. 6,000 and fixed the award amount in view of multiplier of Schedule -II of the Motor Vehicles a Act.

Mr. Jha, learned Counsel for the appellant, has assailed the judgment and award only on the point that quantum of compensation is excessive. He submits that since on record, no documentary evidence was brought to show actual income, such as Income Tax Return or any other document, the learned Tribunal was required to fix compensation on the basis of notional income in strict compliance with the provisions contained in Schedule-II of the Motor Vehicles Act. He has argued that in absence of any cogent documentary evidence to show income, the learned Tribunal was required to proceed on the basis of notional income. Since the deceased, according to learned Counsel for the appellant, the judgment and award is liable to be set aside.

Mr. Mukesh Prasad Singh, learned Counsel for the claimants/respondent Nos. 1 and 2, has vehemently opposed the Appeal. He submits that there is no strait-jacket formula on the point of establishing income of the deceased. He submits that at the time of filing claim petition it was categorically stated that deceased was having earning of Rs. 8,000 per month, to corroborate the income of the deceased, claimants had brought on record documentary evidences, which were sufficient to draw an inference that the stand taken in the claim petition in respect of income of the deceased was correct and valid. He submits that monthly expenses of the deceased which have been brought on record is sufficient to prove the oral evidence regarding income of the deceased. The salesman of the shop, which was being run by the deceased has been examined as PW-2 and he also, before the Tribunal, has accepted that he was getting Rs. 1,500 per month as salary from the deceased. The materials brought on record to show that monthly rent was being paid at the rate of Rs. 500 per month. Besides this, Rs. 500 per month was being paid as electrical charge. He submits that Saving Bank Account of the deceased reflects that out of earning the Bank. The deceased was regularly saving Rs. 50 per day and the said amount was being deposited in his Account kept in Bank/Sahara India Ltd. He submits that mother of the deceased was examined as PW-1. She had also stated that deceased was earning Rs. 8,000 per month. Accordingly, it was submitted that there were cogent evidences on record to establish that deceased was having specific monthly income. There was no reason to prefer for fixing compensation on the basis of notional income, and as such, the Tribunal has rightly considered monthly income of the deceased. Of course, he submits that the Tribunal has not assigned any reason for reducing the income from Rs. 8,000 to Rs. 6,000 per month, but since no cross-appeal was preferred by the claimants, he is not pressing this point. Besides hearing learned Counsel for the parties, I have also perused the materials available on record. After going through the same, the Court is of the opinion that judgment and award is not required to be interfered with because of the fact that, besides claiming income of the deceased as Rs. 8,000 per month in the claim petition, orally also, the mother of the deceased had made categorical statement that deceased was having earning of Rs. 8,000 per month. Since the deceased was running a shop and the claimants to bring on record any further document. The documents as well as evidences which have been brought on record to show monthly expenses of the deceased is enough to draw a an inference that claimants had rightly claimed regarding monthly income of the deceased. It was categorically claimed that deceased was having income of Rs. 8,000 per month but the learned Tribunal to the reasons best known to it has reduced it from Rs. 8,000 to Rs. 6,000. Since the claimants have not preferred appeal, the Court is refraining from enhancing the compensation amount by way of treating the income of deceased from Rs. 6,000 to Rs. 8,000. In view of the facts and circumstances, I do not find any ground for interference with the judgment and award. The Appeal stands dismissed with a direction to the appellant to take immediate steps for payment of compensation amount in terms of the award of the Tribunal within a period of two months. Since the Appeal fails, Office is directed to remit back the statutory amount which was deposited by the appellant at the time of filing of this Appeal to the Court below forthwith.