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2006 DIGILAW 1260 (PAT)

Kalawati Devi & Ors. v. Umesh Yadav

2006-12-18

REKHA KUMARI

body2006
Judgment 1. This appeal is directed against the order dated 7.3.2002 passed by the 3rd Addl. District Judge cum Motor Vehicle Claims Tribunal, Bhagalpur in Claim Case No. 1/99 whereunder it has refused to award any compensation to the appellants except Rs. 5000.00 as loss of estate. 2. Heard both the sides. 3. The case of the appellants is that one Sanjay Sah, son of Smt. Kalawati Devi and Mahesh Sah, was running a sweetmeat shop. He was aged about 25 years and was earning Rs. 3000.00 per month. He met with an accident on account of rash and negligent driving of Ta.ta Maxi No. BRJ 7114 owned by respondent no. 2 and insured by respondent no. 3. As ° result of the accident Sanjay Sah died. The appellants, hence, filed the Claim Case No. 1/99 under the Motor Vehicles Act for Rs. 4 lacs. The. appellants were awarded Rs. 50,000.00 as adinterim compensation under sec. 140 of the Act. The owner of the vehicle contested the claim by filing a written statement. The applicants examined witnesses and filed documents in support of their claim. The respondents did not examine any witness. The Tribunal after considering the evidence held that sweet shop is still running and the appellants have been earning Rs. 100.00 to 150.00 per day from that shop and therefore, there has been no permanent loss to the appellants on account of death of the deceased and the appellants are not entitled to any further compensation except Rs. 50,000/-awarded as interim maintenance of Rs. 5,000.00 loss of estate. 4. Learned counsel for the appellants submitted that the impugned order cannot be sustained. The Tribunal was wrong in holding that the appellants did not suffer any loss on account of death of the deceased. Even if the shop is being run and income from the shop is as before, that does not mean that the appellants did not suffer loss on account of death of the deceased. He further submitted that there is evidence that the deceased was earning Rs, 3,000.00 per month and was aged about 25 years. Therefore, the Tribunal should have calculated the compensation on that basis and if the Tribunal was of the opinion that the deceased had no income, it should have calculated the compensation taking the national income at the rate of Rs. 15,000/-per annum as provided in Schedule II of the Act. Therefore, the Tribunal should have calculated the compensation on that basis and if the Tribunal was of the opinion that the deceased had no income, it should have calculated the compensation taking the national income at the rate of Rs. 15,000/-per annum as provided in Schedule II of the Act. In support of his submissions he relied on the decisions of this Court in the case of Bibi Roshan Ara V/s. Kedar Prasad Agrawal & Ors., reported in 2002(3) PLJR 741. 5. The respondents defended the order. 6. There appears substance in the submission of the learned counsel for the appellants. The approach of the Tribunal appears to be erroneous. It should not have rejected the claim of the appellants on the ground that the deceased was running the shop and the appellants are still getting the same income from the shop. There may be several factors in keeping the shop running with the same income but that does not mean that the appellants did not suffer financial loss and were not entitled to any further compensation. It should have, therefore, calculated the compensation on the basis of the annual income of the deceased based on evidence adduced and if it is found from the evidence that the deceased had no income prior to the accident as provided in Schedule II (Sec.163(a) Clause 6 it should have taken the notional income at the rate of Rs. 15,000/-and calculate the compensation accordingly. 7. From the above discussions, I come to the conclusion that the impugned order is not fit to be sustained and the same is set aside. The case is remitted back to the Tribunal for passing a fresh order in accordance with law after hearing both the parties.