SHEFALI TALI Vs. NATIONAL INSURANCE CO LTD

JUDGEMENT

(1.) THE widow and the children and the mother of he deceased are in appeal against an order of 16.3.2004 passed by the learned Motor Accident Claim Tribunal, Krishnagar (First Court), in connection with M. A. C. Case No. 26 of 1997. Assessing the income of the deceased (husband of the Appellant No. 1), the learned Tribunal concluded that the Claimants would be entitled to a sum of Rs.1,60,000/- in their respective proportionate share without, however, awarding any regular interest barring application of the default clause. This is seen them in appeal on the following grounds : Firstly, that the assessment of the income was even less than that what is contemplated under the notional income basis; secondly, application of the rule of 1/3rd deduction would not be appropriate in view of the fact that the deceased had three minor children and his elderly mother including his widow. Reference was made to the decision of National Insurance Company Limited v. Khimlibai and Others reported in (2010)2 WBLR (SC) 42 on this score and thirdly, the assessment of income was made on an erroneous premises losing sight of the evidence of P.Ws. 2 and 3 who were the Secretary and Member of the Betai Rickshaw O Van Chalak Union, under which the deceased was plying cycle-rickshaw being an erstwhile member as both of whom has deposed with regard to the income as of Rs.100/- to Rs.150/- per day basis.

(2.) ON the basis of the same Shri Banerjee, who has placed the judgment and order under appeal along with the evidence, has submitted that the order is required to be interfered with since not only the amount of Rs.1,60,000/- which has been awarded by the learned Tribunal as compensation was absolutely inadequate, but the fact remains it was arrived, at on the basis of improper assessment of the evidence and incorrect calculation. Shri Banerjee has further submitted that no order of interest was passed on the sum which was awarded. He, accordingly, has prayed for modification of the same in the line of the position that he has placed before us from the judgment and order under appeal.

(3.) AFTER we have heard the submissions of both Shri Banerjee for the Appellants and Shri Singh, for the Insurance Company, we find that before us there is evidence of widow, P.W.1, the Secretary of the said Union to which the deceased belonged, P.W.2 and another member of the said Union, P.W.3. From the evidence of P.W.1 it appears that her late husband was a Rickshaw-puller and he used to earn Rs.100/- to Rs.150/- per day. In her cross-examination also she could not be shaken from her previous position. The claim petition filed by her also indicated that the deceased was a Rickshaw-puller and used to earn Rs.3,000/- per month and she made a claim of Rs.2,50,000/- as amended. P.W.2, the Secretary of the Union, whose evidence has come under cloud in the light of the submissions of Shri Singh for the Insurance Company, appears to be Secretary of Betai Rickshaw O Van Chalak Union. He deposed that the deceased was a member of the said Union. He was an eye-witness and was also author of the F.I.R. (Ext.1). His evidence shows that at the relevant time Van-rickshaw Pullers used to earn Rs.100/- per day. He had issued a certificate which was referred to in details by Shri Banerjee (Ext.4) to show the membership of the deceased and the factum of his plying rickshaw at the relevant time. In his cross- examination as pointed out by Shri Singh, he had admitted that he is a priest by profession and could not show document with regard to the details of the Union. P.W.3, a member of the said Union, justified that the deceased was a Van-rickshaw Puller and used to earn Rs.100/- to Rs.150/- per day and that he was also a member of the said Union and in his cross-examination he could not be distracted from his previous deposition with regard to either of the facts that the deceased was a Van-Rickshaw Puller or he used to earn Rs.100/- to Rs.150/- per day.