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2008 DIGILAW 955 (JHR)

Shanti Nayak v. Oriental Insurance Co. ltd.

2008-08-19

JAYA ROY, M.Y.EQBAL

body2008
Order Heard Mr. Ananda Sen, learned counsel appearing for the claimants-appellants and Mrs. Nisha Thakur, learned counsel appearing for the respondent-Insurance Company. 2. This appeal is directed against the judgment and award dated 16th January, 2006 passed by the Motor Accident Claims Tribunal, Seraikella in Compensation Case No. 47 of 2005 whereby he has awarded a sum of Rs: 1,63,000/- by way of compensation for the death of the deceased, Meghu Nayak, in a motor vehicle accident. 3. The claimants-appellants have preferred this appeal for enhancement of compensation. It appears that on 31.7.2005, the deceased Meghu Nayak alongwith his son was going on the left plank portion of the road near Hat Gamharia Bazar at 4.00 p.m. In the meantime, the offending truck arrived there at a very high speed and dashed the deceased on his back as a result of which he succumbed to his injuries at the spot. 4. The claimants case is that the deceased was working as a Munshi under a contractor and he was earning Rs. 3,000/-per month. The claimants-appellants adduced evidence in support of the age and income of the deceased, but the Tribunal held that in absence of any cogent evidence, notional income is to be taken. Accordingly, the notional annual income of Rs. 15,000/- was taken and after deducting 1/3rd, assessed compensation at Rs.1,60,000/- and by adding Rs. 3,000/towards funeral expenses, a total compensation of Rs.1,63,000/- has been awarded. 5. As noticed above, the deceased died leaving behind a widow, three minor sons and old mother. All of them were dependent on the deceased Meghu Nayak. In support of earning of the deceased, the claimants examined witnesses. AW-1 is the widow herself. She stated about the income of the deceased deposing that he was working as Munshi under a contractor. This fact was supported by witness AW-2 Chandan Nayak. AW-3 Shiv Charan Mahali, the contractor under whom the deceased was working, also deposed and he confirmed that the deceased was getting Rs. 3,000/- per month from him while working as Munshi under him. From perusal of the judgment, it appears that the Tribunal, despite the aforesaid evidences, erroneously came to the conclusion that since the contractor did not maintain the register showing the payment of monthly wages to the deceased, it has no option but to take the notional income and assessed the compensation. 6. From perusal of the judgment, it appears that the Tribunal, despite the aforesaid evidences, erroneously came to the conclusion that since the contractor did not maintain the register showing the payment of monthly wages to the deceased, it has no option but to take the notional income and assessed the compensation. 6. In the case of Malti Devi & Ors. vs. Sri Umesh Rawani and Others [ 2007(3) J.L.J.R. 376 ], a Division Bench of this Court considering the Second Schedule appended to the Motor Vehicles Act has laid down the law as to when !he Tribunal will take notional income. It was held that notional income shall be taken only when the deceased was a non-earning person and not when he was an earning person. In case of insufficiency of evidence with regard to income of the deceased, the Court shall come to a finding on the basis of evidence as to what was the earning of the deceased instead of taking notional income for the purpose of determining compensation. Para-4 of the aforesaid judgment is quoted herein below:- "4. From bare reading of the aforesaid provision, it is manifestly clear that owner or the insurer shall be liable to pay compensation in case of death or permanent disablement due to accident arising out of use of the motor vehicles in the manner indicated in Second Schedule. Sub-section (3) of Section 163A provides that Central Government keeping in view the cost of living shall time to time amend the schedule by issuing notification in the Official Gazette. Second Schedule of the Motor Vehicles Act lays down quantum of compensation payable in case of death or permanent disablement by taking into consideration age of the deceased and the annual income. Clause 6(a) very clearly provides that in case of death or permanent disablement of a non-earning person, sum of Rs. 15,000/- shall be taken as notional annual income of such person. In our considered opinion, therefore, notional income of Rs. 15,000/-shall be taken only when deceased or the injured was non-earning person and not an earning person. Clause 6(a) very clearly provides that in case of death or permanent disablement of a non-earning person, sum of Rs. 15,000/- shall be taken as notional annual income of such person. In our considered opinion, therefore, notional income of Rs. 15,000/-shall be taken only when deceased or the injured was non-earning person and not an earning person. We are also of the considered opinion that in case of insufficiency of evidence with regard to earning of deceased or the injured, the Court shall come to a finding on the basis of evidence as to what was the earning of the deceased or the injured instead of taking notional income for the purpose of determining compensation. As a matter of fact, the notional income as contemplated in 163A read with para 6 of Second Schedule applies in case where there is a death or injury of non-earning minor child or non-earning old person or persons who does not earn anything." 7. In the instant case, as noticed above, evidence was laid by the claimants witnesses that the deceased was earning Rs. 3,000/-per month which was being paid by the contractor-AW-3. It is, therefore, clear that the deceased was an earning member, may be his earning was more or less Rs. 3,000/- per month. In view of the aforesaid judgment, the Tribunal came to an erroneous finding as to what the deceased was actually earning. 8. After taking the entire evidence in toto, we are of the view that even assuming that the deceased's monthly income was Rs. 2,0001-, at least the annual dependency shall be Rs. 16,000/-. If multiplier of 15 is taken, a compensation of Rs. 2,40,000/- can easily be assessed as just and reasonable compensation payable to the claimants who are not only the widow and old mother, but three minor children also. We have taken this average income of the deceased for the reason that Mr. Ananda Sen, learned counsel appearing for the appellants, is not in a position to satisfy us that a sum of Rs. 3,000/- is to be taken into consideration as monthly earning of the deceased. 9. For the reasons aforesaid, this appeal is allowed and the amount of compensation is enhanced to Rs.2,40,000/- from RS.1,63,000/-. The enhanced amount will carry interest as awarded by the Tribunal.