NATIONAL INSURANCE COMPANY LTD Vs. ANISA BEGUM

JUDGEMENT

(1.) THE award of the Motor Accident Claims tribunal being dated 27th January, 2007 has been challenged by the insurance company before this Court on the ground that there is no evidence of the salary of deceased. No appropriate quantum has been fixed. There was contributory negligence on the part of the deceased. The vehicle was not in use and not lying at a public place. Learned Counsel appearing for the appellant relied upon a judgment of the Supreme Court in Donat louis Machado and others v. L. Ravindra and others on the point of dependency. It was held that at least 1/3rd of the amount would have spent for the dependent/s and rest of 2/3rd amount of his earnings would have spent on his own family which he would have raised and on himself. Showing of such reference has been made in the context that the deceased is bachelor.

(2.) HOWEVER, let us consider all the points one by one. Appellant said there is no proof of income. According to us, it is not a case of no evidence. It is a case of oral evidence. Onus primarily lies with the person who is trying to establish the onus. But as soon as it is done either by documentary or oral evidence it shifts to the opposite party for denial or rebuttal either by the same witness or by their own witness. Since no such denial or rebuttal is available on the part of the insurance company in the Tribunal, we have to accept the evidence on the part of the claimants/respondents. The Tribunal fixed the salary of Rs. 5000/- per month as stated by the mother of the deceased being the lower side for the purpose of calculation of the compensation. According to us, such calculation is not faulty. If we have considered the two points i. e. quantum and the ratio of the Supreme Court as referred above, we do not find any fault has been committed by the tribunal in this case. The Hon'ble Supreme court was pleased to fix at Rs. 5000/- monthly notional income over and above the earnings rest of Rs. 2,500/- per month and thereafter deducted 50% of the calculated quantum in that way. Therefore, calculation of 50% as aforesaid cannot be said to be wrongful even determining the quantum.

(3.) SO far as on the part of negligence is concerned, it has been said by the learned counsel appearing for the appellant that the vehicle was laying at repairing shop and not in use or in running condition. The vehicle was not even in a public place. According to learned Counsel appearing for the respondents that there is no issue was framed on that score. No award has been made for mental shock or on the basis of future capacity of income if he would have survived. Therefore, the Tribunal has taken out a conservative outlook in determining the compensation.