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2010 DIGILAW 447 (CAL)

Khairunnesa Bibi v. National Insurance

2010-04-29

B.BHATTACHARYA, PRASENJIT MANDAL

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JUDGMENT: 1. INSTEAD of disposal of the application, we propose to dispose of the appeal itself by treating it as on day's list with the consent of the learned Counsel for the parties. 2. THIS appeal is at the instance of the claimants in a proceeding under Section 163A of the Motor Vehicles Act and is directed against an award dated 30th May, 2009 passed by the learned Judge, Motor Accident Claims Tribunal, Katwa, in M. A. C. Case No. 36 of 2007 thereby disposing of the said proceeding by awarding a sum of Rs. 1,69,500.00 with interest at the rate of 6% per annum from the date of filing of the application (18th April, 2007) till realisation of the amount. Being dissatisfied, the claimants have come up with the present appeal. 3. THERE is no dispute as regards the death of the victim in an accident when the offending vehicle was insured by the National Insurance Company Limited. It has been established from the evidence on record that the victim was aged 36 years at the time of death leaving his widow, two minor children and mother. 4. THE only dispute involved in this appeal is as regards the quantum of compensation awarded by the Tribunal. In the claim-application, it was asserted that the victim was a vegetable seller and used to earn Rs. 100/- a day. 5. IN support of such case, the widow of the victim alone gave evidence. The owner of the offending vehicle did not contest the proceeding and the INsurance Company, after taking leave under Section 170 of the Motor Vehicles act, merely cross-examined the P.W. 1. 6. THE learned Tribunal below has disbelieved the case of the appellants that the victim was a vegetable seller for the one sentence uttered by the P.W. 1 in cross-examination that she would not be able to examine even a single witness who knows about the vegetable business of her husband and thus, the learned Tribunal below decided to apply the notional income to the fact of the present case. We have gone through the entire depositions. In the examination- in-chief, the widow of the victim specifically stated that her husband was a businessman of vegetable goods and he used to earn Rs. 100/- per diem and used to give her the family expenses and that the victim was the only earning member of the family. 7. We have gone through the entire depositions. In the examination- in-chief, the widow of the victim specifically stated that her husband was a businessman of vegetable goods and he used to earn Rs. 100/- per diem and used to give her the family expenses and that the victim was the only earning member of the family. 7. IN cross-examination, the P.W. 1 further stated that everybody of the locality knows that the victim was a vegetable seller, but she was not in a position to examine a single person in support of such claim. 8. IN our opinion, if a witness asserts that everybody of the locality knew that her husband was a vegetable seller, but for some reason, she was not in a position to examine any of them, that fact does not imply that the victim was not at all a vegetable seller when no person has come forward to dispute the assertion of P. W. 1. When she has stated that everybody of the locality knew that her husband was a vegetable seller and when INsurance Company has taken leave under Section 170 of the Act, the INsurance Company could easily examine any of the person of the locality for the purpose of controverting such statement. Therefore, for a single statement made by a village widow in cross-examination, the fact that the victim was a vegetable seller could not be disbelieved. Moreover, no suggestion was given that apart from the said victim, there was any other earning member in her family. We have already pointed out that the family consisted of five members and in such circumstances, it was preposterous to suggest that without having any earning the victim was maintaining these five persons. In our view, in the facts of the present case, there was no reason to disbelieve the statements of the P.W. 1 that her husband was a vegetable seller in the absence of any evidence to the contrary. 9. AS regards the amount of income, as pointed out by the Supreme Court in the case of Smt. Laxmi Devi and Ors. v. Mohammad Tabbar and Anr., reported in 2008 ACJ 1488 , now a days even an unskilled labourer earns Rs. 3,000.00 a month and having regard to the assertion of the appellants that the victim used to earn Rs. v. Mohammad Tabbar and Anr., reported in 2008 ACJ 1488 , now a days even an unskilled labourer earns Rs. 3,000.00 a month and having regard to the assertion of the appellants that the victim used to earn Rs. 3,000/- a month, such claim cannot be said to be absurd so as to disbelieve such statement. 10. WE, therefore, propose to set aside the award impugned and reassess the same on the basis of income of the victim as Rs. 3,000.00 a month. By application of the Second Schedule of the Motor Vehicles Act, with the aid of multiplier of 16, the amount thus, comes to Rs. 3,84,000.00 and in addition to a sum of Rs. 9,500.00, the total amount comes to Rs. 3,93,500.00 with interest at the rate of 8% per annum from the date of filing of the application tilt actual deposit of the amount. It is needless to mention that so far the deposit made by the Insurance Company pursuant to the award impugned is concerned, running of interest will stop on the amount already deposited before the learned Tribunal from the date of deposit of such amount. The Insurance Company is directed to pay the balance amount within a month from today by depositing the same in Tribunal in the same manner and proportion as indicated in the award impugned. 11. SO far the cheques issued in favour of the minors are concerned, those amounts will not be withdrawn till they attain majority and the mother as natural guardian will be entitled to realise the interest accrued in those accounts for their maintenance during their minority. The appeal is, thus, disposed of with the above directions. 12. THE lower Court records be sent down immediately by special messenger at the cost of the appellants to enable them to withdraw the amount already deposited by the Insurance Company in the Tribunal. In view of disposal of the appeal itself, the connected application being CAN 1815 of 2010 has become infructuous and the same is disposed of accordingly.