REENA JAIN Vs. ORIENTAL INSURANCE COMPANY LTD

JUDGEMENT

(1.) Rajesh Kumar Jain son of Prem Nath Jain, aged 42 years, died as a result of injuries suffered in a motor vehicular accident that occurred at about 10:30 PM on 21.05.2000 in the area of Badhra Gorner, Pilkhawa Ghaziabad (UP), within the jurisdiction of police station Pilakhawa (UP), on account of collision between a Tata Sumo bearing registration no. DL -9CA -2985 (Tata Sumo) driven by an employee of the registered owner and a truck bearing registration no. UGU -8830 (the truck). The claim petition under Section 166 read with Section 140 of Motor Vehicles Act, 1988 (the MV Act) was brought before the motor accident claims tribunal (the tribunal) on 26.08.2002, registered as petition no.214/2003 (2002) by his legal representatives namely Reena Jain (widow), Atul Jain and Varun Jain (sons), besides Prem Nath Jain & Sudershan Kumari Jain (the parents). The said claimants impleaded as party respondents, Vinod Kumar (the owner of Tata Sumo), Oriental Insurance Company Ltd. ( insurer of Tata Sumo), besides Nuruddin and Yunush Khan (the co -owners of the truck). The tribunal inquired into the claim petition and, by judgment dated 01.12.2005, awarded compensation in the sum of Rs.5,65,010/ - with interest @ 6% per annum from the date of filing of the petition (26.08.2002) till realization, excluding the period (08.07.2004 to 25.05.2005), during which, in the judgment of the tribunal, the claimants had not been diligent in prosecuting their case. The judgment directed the Oriental Insurance Company Ltd. (the first respondent herein) to pay compensation fastened on the owner of Tata Sumo (insured).

(2.) The appeal was presented in March, 2006 and has remained hanging fire now for almost 10 years. The solitary grievance pressed is with regard to multiplicand on the basis of which the loss of dependency was worked out by the tribunal for calculating the compensation payable. This particularly concerns the assumption of the tribunal that the deceased, a self -employed person, was in receipt of income in the sum of Rs.50,000/ - per month, on the basis of following reasoning: -

(3.) During the pendency of the appeal at hand, upon their application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 (CPC), the appellants (claimants) were allowed to lead additional evidence. In terms of the liberty thus granted, the appellants examined Ms. Reena Jain (first appellant) as AW1 and Atul Jain (second respondent) as AW2. The said additional evidence has mainly proved on record, on the strength of the affidavits (Mark -AW1/1 and AW2/1 respectively) of said witnesses, certain further documents gathered by the claimants from the income tax department, in support of the claim that the petitioner was earning from his business an income to the tune of Rs.5,61,295/ - at the relevant point of time as pleaded in the claim petition. The documents proved were released by the income tax department to the claimants on the basis of their applications under the Right to Information Act, 2005.