Judgment : ASHIM KUMAR BANERJEE.J (1). The appellant was a vegetable dealer. He was travelling by the offending vehicle towards Ghatal for purchasing vegetable for his business. The vehicle dashed a truck whose identity could not be established. Due to such accident the appellant sustained injury. He was treated as an indoor patient for couple of weeks in the hospital. Later on he was treated by a private hospital. He claimed that he was permanently disabled to the extent of twenty five per cent. He was twenty five years on the date of accident earning Rs. 100 to Rs. 110 per day. In this backdrop, he filed a claim petition inter alia, claiming a sum of Rs. 1.5 lakhs as compensation. The Insurance Company opposed the claim. The owner did not come forward to contest the claim. The Tribunal accepted the contention of the appellant to the extent that he was involved in the accident sustaining injury. However, while granting compensation the Tribunal applied the structured formula by taking a notional income to the extent of Rs. 15,000.00 and granted compensation to the extent of Rs. 56,250.00. The Tribunal, however, did not grant any interest from the date of filing of the claim petition. The Tribunal foisted the liability on the owner and absolved the Insurance Company from its liability to pay the compensation amount. Being aggrieved, the appellant preferred the instant appeal which was heard by us on the above mentioned date. (2). Mr. Krishanu Banik, learned counsel appearing in support of the appeal contended before us that the Insurance Company was not entitled to take the plea that the offending vehicle did not have any valid permit to carry passengers and as such the Insurance Company was liable to make payment of the compensation amount. (3). To elaborate his argument Mr. Banik contended that whether the insurance policy covered the subject risk or not, was to be proved by the Insurance Company having special knowledge of the same. The victim being a third party could not have any access to the policy of insurance. The Insurance Company having not led any evidence proving the insurance policy, was not entitled to take such plea. (4). The victim being a third party could not have any access to the policy of insurance. The Insurance Company having not led any evidence proving the insurance policy, was not entitled to take such plea. (4). Opposing the appeal, the learned counsel appearing for the Insurance Company contended that when the owner did not come to support the case of the appellant to the extent that he was availing the service of the said vehicle for the purpose of bringing vegetable the claimant was not entitled to any relief. (5). In support of their respective contentions the learned counsel appearing for the parties cited the following decisions:- (i) New India Assurance Company Limited VS-Asha Rani and Others reported in 2003, Volume-I, Accidents Claims Journal, Page-1. (ii) National Insurance Company Limited VS-Baljit Kaur and Others reported in 2004, Accidents Claims Journal, Page-428 (iii) National Insurance Company Limited VS-Bommithi Subbhayamma and Others reported in 2005, Volume-II, Accidents Claims Journal, Page- 721. (iv) New India Assurance Company Limited VS- Vedwati and Others reported in 2007, Accidents Claims Journal, Page-1043. (v) National Insurance Company Limited VS- Kaushalaya Devi and Others reported in 2008 Accidents Claims Journal, Page-2144. (6). We have considered the rival contentions. We have also perused the judgment, evidence as well as exhibits on record. We find that neither the insurance policy was disclosed by the Insurance Company nor any attempt was made to adduce evidence in support of their contention. There is one more salient feature which would be relevant herein for considering the case in hand. The Insurance Company, in its written statement, simply denied that the offending vehicle was having any insurance cover from the subject Insurance Company. However, no such plea was specifically taken. The Insurance Company filed an additional Written Statement by taking the plea that the claimant himself was travelling in the offending vehicle as a passenger and as such was not entitled to compensation in accordance with the law. Once such specific plea was taken in the additional Written Statement it was the duty of the Insurance Company to produce the policy of insurance. It was also the duty of the Insurance Company to adduce the evidence to rebut the contention of the appellant that he was availing the service of the vehicle for the purpose of purchasing vegetable and bringing those to his place of business. It was also the duty of the Insurance Company to adduce the evidence to rebut the contention of the appellant that he was availing the service of the vehicle for the purpose of purchasing vegetable and bringing those to his place of business. Hence, he cannot be called simply a passenger availing the service of goods vehicle which would entail the Insurance Company to take such plea being supported by the Apex Court decision in the case of New India Assurance Company Limited VS- Asha Rani and Others (Supra). In the said case it was an admitted position that the victim was travelling by a goods carrier which did not have authority to carry passengers. Considering such aspect the Apex Court absolved the Insurance Company from its liability to pay any compensation. Such is not the case here. If we look to the deposition of the claimant we would find that he was in the cabin of the offending vehicle when he received injury. He also deposed that he used to take fresh vegetable from Ghatal for his business. PW-2, a copassenger deposed that he was going to Ghatal by the offending vehicle for taking vegetables. In cross-examination PW-2 also deposed that the buskets were there in the vehicle. No suggestion was given either to the PW-1 or PW- 2 or PW-3 another co-passenger to the extent that they were not availing the vehicle for the purpose of bringing vegetable. In absence of such evidence we are unable to approve the finding of the Tribunal. (7). Reliance was placed by the learned counsel appearing for the Insurance Company on the Apex Court decision in the case of National Insurance Company Limited VS-Kaushalaya Devi and Others (Supra). In the said case the driver had a valid licence for driving a lighter vehicle whereas he was entrusted to drive the truck being a heavy vehicle. The Apex Court considering such fact absolved the Insurance Company from its liability. Paragraph 13 of this decision has same relevance. The Apex Court observed that the deceased victim was not the owner of any goods which had been carried by the said truck. Admitted position was that he had been travelling in the truck for the purpose of collecting the empty containers. In the case before us, the victim was travelling in the drivers cabin whereas the vegetable buskets were on the Matador. Admitted position was that he had been travelling in the truck for the purpose of collecting the empty containers. In the case before us, the victim was travelling in the drivers cabin whereas the vegetable buskets were on the Matador. He was travelling along with other vegetable dealers for the purpose of purchasing vegetable and carrying the same to their business place. Hence, it has got a distinctive feature. There is one more salient feature which we cannot ignore. There were altogether four persons including the driver in the cabin. We find although it is a goods carrier the policy sometimes covers the risk of the driver, khalasi and one or two persons travelling with them. In the instant case the Insurance Company did not disclose the original policy. We feel that to avoid the liability, the Insurance Company should have been more vigilant to disclose not only the Insurance Policy but also some evidence to rebut the definite assertion on the part of the claimant as corroborated by his colleagues. In absence of such definite rebuttal we are unable to absolve the Insurance Company from its liability. We feel that it would be difficult to conclusively hold that the Insurance Company was not liable as the victim was travelling as a passenger in a goods carrier, in absence of appropriate evidence as also absence of production of the original policy of insurance by the Insurance Company. On the issue of quantum of compensation, the Tribunal was not satisfied with the evidence that was laid by and on behalf of the appellant in support of his income. The Tribunal applied the structured formula by considering notional income of Rs. 15,000.00 per annum. (8). The accident occurred in the year 2000. The amount of Rs. 15,000.00 was fixed as notional income by the legislature in 1994. Hence, applying the ratio decided in the case of Lachmi Devi VS- Md. Tabbar and Anr (reported in 2008 Accident Claims Journal, Page 1488) we should modify the amount by taking the notional income as Rs. 27,600.00 [Rs. 36,000.00 (Rs. 2100.00 x 4)]. The amount thus comes to 27600.00 x 15 x 25 / 100 = 1, 035,00.00) (9). The appeal, thus, succeeds and is allowed. Tabbar and Anr (reported in 2008 Accident Claims Journal, Page 1488) we should modify the amount by taking the notional income as Rs. 27,600.00 [Rs. 36,000.00 (Rs. 2100.00 x 4)]. The amount thus comes to 27600.00 x 15 x 25 / 100 = 1, 035,00.00) (9). The appeal, thus, succeeds and is allowed. The Insurance Company being the respondent no.1 would be obliged to make payment of the compensation to the appellant to the extent of Rs.1, 03500.00 together with interest at the rate of six per cent per annum on and from the date of filing of the claim petition until payment. The insurance company would pay the compensation by account payee cheque drawn in favor of the claimant to be sent to his address by registered post with acknowledgement due. (10). The Insurance Company would, however, be entitled to recover the amount from the owner if they so desire and if they are so entitled to in law. The appeal is disposed of without any order as to costs. Lower Court records be sent down at once. (11). Urgent Xerox certified copy would be given to the parties, if applied for.