POONAM DEVI WIFE OF LATE SHAILENDRA KUMAR SINGH Vs. PAWAN KUMAR PATWARI SON OF SRI PRABHU DAYAL PATWARI

JUDGEMENT

(1.) This appeal is directed against the judgement and award dated 22nd June 2005 passed by the in claim case No. 5 of 1998 whereby exercising the power of the Motor Vehicle Accident Claims Tribunal, whereby the claim of appellant Nos. 1 to 5 having been dismissed by the IVth Additional District Judge, Bhagalpur, hence the present appeal is preferred.

(2.) The short facts are that the husband of the appellant, namely, Shailendra Kumar Singh while travelling in the bus from Baskinath to Bhagalpur bearing Registration No. BR- 36-9981. The bus when reached near Tarapatti Kadarsa within the Banka (Barahat) Police Station, District -- Banka on account of sudden break applied by the bus driver, the gate of the bus which was driven in a rash and negligent manner got open and the husband of the appellant no. 1 who was sitting on the seat near the gate was thrown out resulting into the serious injury and in course of treatment he died. The First Information Report was lodged vide Banka (Barahat) P.S. Case No. 331 of 1997 under Section 279 and 338 of the Indian Penal Code at the report of the Chowkidar, namely, Anil Paswan. The post mortem report of the deceased was held in the hospital. The claimants after performing the rituals filed the aforesaid claim case on claiming compensation of Rs. 2,30,000/- asserting that the deceased was doing the vegetable business and was earning Rs. 2,500/- per month. In support of the claim, the claimants filed the certified copy of the First Information Report, Post mortem Report and the insurance policy which were marked as Exhibit 1,2 and 3. The witnesses were examined. The claimants as also the co-passenger, who were the eye witnesses supported the claim of the applicants as also the manner of the accident. The Tribunal on considering the oral evidence as also the documentary evidence came to the conclusion that since the eye witnesses in their evidence with respect to the place of occurrence given by them were not consistent with the boundary of the place of occurrence given by the Chowkidar in the first information report accordingly, disbelieved the evidence of the eye witnesses. The claim case was as such, dismissed. Learned counsel for the appellants submits that the claim of the appellants were rejected without valid justification for the reasons that the evidence of the claimant witnesses namely, P.Ws. 1 and 5 who were co-passenger have categorically said in their evidence that the deceased was inside the bus sitting on the seat adjacent to them, however, on account of the sudden break applied by the driver of the vehicle which was being run by him in a rash and negligent manner, the gate of the bus opened and the deceased who was sitting near the gate, was thrown out from the bus, sustained serious injuries to which he succumbed in course of the treatment. It is further submitted that the deceased who was doing the vegetable business was having monthly income Rs. 2,500/-. Besides the age of the deceased stated to be 32 years which has come in the evidence of the wife of the deceased as also the other witnesses C.Ws -- 2 and 5. Accordingly, it is submitted that the court below dismissed the claim application without valid justification, hence the order under appeal deserves to be set aside.

(3.) A supplementary counter affidavit has been filed on behalf of the respondent nos. 3 and 4 stating therein that since no proof of income of the deceased was produced in the court below therefore, for the purpose of compensation, the deceased income would be taken on the basis of notional income and on such calculation and after making the necessary statutory deduction on account of the personal expenses, the total compensation amount arrived at Rs. 1,70,000/- as stated in paragraph -6 of the supplementary counter affidavit. It is further stated that since the deceased was sitting on the roof of the bus and fallen down on the road resulting into his death, a compensation of 50 per cent under the notional income in such cases could be paid accordingly the claimants can get a compensation of Rs. 85000/-. The learned counsel otherwise support the order under the appeal.