MANJULATA SAHOO Vs. NEW INDIA ASSURANCE CO. LTD.

JUDGEMENT

(1.) This Miscellaneous Appeal against the order dated 25th November, 2002 passed by the Third Motor Accident Claims Tribunal, Puri in M.A.C.T. Misc. Case Nos.29/469 of 1996/1994, is filed by the widow, wife of the deceased and two children who were minor at the time of death of the deceased-father, died in a motor accident on 9.9.1994 at about 11.00 A.M. near Huri Uthani, on National Highway No.5, in between Khurda-Berhampur Road, are before this Court seeking for enhancement of compensation at Rs.14 lakhs with interest, urging various facts and legal grounds.

(2.) The brief facts are stated for the purpose of appreciating rival legal contentions. The necessary fact is that the Insurance Company has satisfied the awarded compensation amount at Rs.3,42,000/- with interest at the rate of nine percent from the date of claim, i.e., 7.10.1994, as indicated in the order impugned. Therefore, this Court is required to examine:

(3.) The undisputed fact is that the husband of the first appellant died in a motor vehicle accident on 9.9.1994 and the Tribunal after conducting enquiry recorded finding of fact on contentious issue No.2 with regard to death of the deceased on account of motor accident involving the offending bus bearing number ORX 799. The same was insured with the insurer herein and, therefore, on the basis of the evidence of P.W.1, and other witnesses examined on behalf of the claimants and the documentary evidence Exts.1 to 4 adduced on their behalf, the Tribunal assessing the loss of dependency of the deceased and other conventional heads, awarded compensation at Rs.3,42,000/ -. It is the case of the claimants before the Tribunal that the deceased was maintaining sound health. He was a wholesale dealer of Exide Batteries and supplying the same to various agencies and was running an office. The claimants claimed that the income of the deceased was Rs.10,000/- per month. The Insurance Company has not disputed the vehicle being insured. Therefore, the finding and reasons recorded by the Tribunal on the contentious issue and quantifying the compensation, is challenged by the claimants contending that though there is legal evidence on record to show that the income of the deceased was Rs.10,000/- per month, the same is not accepted by Tribunal which fixed the monthly income at Rs.3,000/- deducting Rs.1,000/- towards his personal expense, taken the contribution to the family at Rs.2,000/- in absence of the calculation sheet for assessment of the profit earned per month and any documentary evidence produced on behalf of the claimants, the same is arrived at pursuant to the find Schedule under Section 163A of the Motor Vehicles Act, 1988. Therefore, the learned counsel for the appellant submits that the approach of the Tribunal is erroneous in absence of rebuttal evidence adduced on behalf of the owner. The defence available to the insured with regard to the quantum, is not available to the insurer as it has not availed the permission under Section 170(1)(b) of the Act. Therefore, the relevant consideration available to the Tribunal should have been to accept the evidence. If it is not Rs.10,000/- it should have taken the maximum annual income at Rs.60,000/- accepting the monthly income at Rs.5,000/- as the claimant has stated that the deceased was supplying Exide Batteries to the various agencies.