SABITA SINGH Vs. NATIONAL COUNCIL OF REGIONALSCHEME CENTRE

JUDGEMENT

(1.) Heard the learned Advocates appearing for the parties.

(2.) This appeal has been preferred by the dependents of the victim who has died in a motor accident assailing the judgment and order dated 28th August, 2002 passed in M.A.C. Case No. 33 of 2001 by the learned Judge, M.A.C. Tribunal, Raiganj, Uttar Dinajpur.

(3.) In the appeal a very short point has been raised about the justification of the finding of the learned Tribunal below so far as the fixation of the notional income when admittedly in evidence there is an oral deposition by the mother of the victim about the income and admittedly a document was produced but not exhibited being the income certificate issued by the Upo-Pradhan of the concerned area and furthermore when there was no challenge by the Insurance Company about the avocation of the deceased. The Insurance Company before the learned Tribunal below also did not pray leave to urge all points as available to the owner of the vehicle in terms of Section 170 of the said Act and as such, the right of Insurance Company to defend got a contour of statutory limitation in terms of Section 149(2) of the said Act which does not extend to the issue of monthly income, age factor etc. The appellants have also taken a point to assail this judgment under appeal that interest from the date of filing of the claim application also was not allowed and no interest was allowed save and except an interest under default clause of payment of the awarded money. It has been accordingly urged even the statutory provision of Section 171 was not at all considered by the learned Tribunal below which provides a duty upon the Tribunal to consider the matter for the ends of justice regarding awarding of interest where the claim application was allowed. The learned Advocate appearing for the Insurance Company however alike the defence as taken before the learned Tribunal below has taken a defence herein also to assail the income matter. We cannot accept the opposition as made by the learned Advocate for the Insurance Company for two reasons namely, (1) A statutory embargo to take such defence in terms of Section 170 read with Section 149(2) of the Motor Vehicles Act, 1988 in absence of any leave granted by the learned Tribunal below. (2) Even on merit of the matter which is now discussed below.