MALTI DEVI Vs. UMESH RAWANI

JUDGEMENT

(1.) THE appellants who are the mother, widow and minor sons of the deceased have preferred this appeal for enhancement of compensation so awarded by Claims tribunal, Hazarbagh in Claim Case No. 190/2002. The claimants/appellants filed compensation under Section 166 of the motor Vehicles Act for compensation of rs. 5,00,000/- on account of death of deceased late Prem Thakur who met with an accident on 5-10-2002 near Jarandih Colliery office in Bokaro district. While the deceased was travelling as a passenger in a trekker, a dumper bearing registration No. B. H. M.-1872 coming in a very rash and negligent manner dashed the trekker. The deceased sustained grievous injuries and was taken to D. V. C. Hospital, Bokaro Thermal Power, where he died. The deceased was aged about 32 years and was employed in m/s. Khanna Body Builder in Hazaribagh. Claimant's case was that the deceased was earning Rs. 4,500/- per month. The Tribunal in absence of any authentic documentary proof of the monthly earning of the deceased took notional income of Rs. 15,000/- and assessed compensation at Rs. 1,77,000/ -.

(2.) LEARNED Counsel for the appellants submitted that wife of the deceased was examined as witness and has supported her case that deceased was earning Rs. 4,500/-per month. Another witness deposed that deceased was a body maker of vehicle and was earning Rs. 4,500/- per month. This witness further deposed that the deceased was employed in his workshop since June 2002. The Tribunal took the view that in absence of authentic documentary proof notional income of Rs. 15,000/- per annum will be considered as the earning of the deceased and assessed compensation. The question, therefore, that falls for consideration is to whether Tribunal was justified in taking notional income of Rs. 15,000/- for the purpose of determining the quantum of compensation. In this regard, I would first like to quote section 163-A of the Motor Vehicles Act, which reads as under:

(3.) FROM bare reading of the aforesaid provision, it is manifestly clear that owner or the insurer shall be liable to pay compensation in case of death or permanent disablement, due to accident arising out of use of the motor vehicles in the manner indicated in second schedule. Sub-section (3) of Section 163-A provides that Central Government keeping in view the cost of living shall time to time amend the schedule by issuing notification in the official gazette. Second schedule of the motor Vehicles Act lays down quarter of compensation payable in case of death or permanent disablement by taking into consideration the age of the deceased and the annual income. Clause 6 (a) very clearly provides that in case of death or permanent disablement of a non-earning person, sum of rs. 15,000/- shall be taken as notional annual income of such person. In our considered opinion, therefore, notional income of rs. 15,000/- shall be taken only when deceased or the injured was non-earning person and not an earning person. We are also of the considered opinion that in case of insufficiency of evidence with regard to earning of the deceased or the injured, the court shall come to a finding on the basis of evidence as to what was the earning of the deceased or the injured instead of taking notional income for the purpose of determining compensation. As a matterof fact, the notional income as contemplated in Section 163-A read with para 6 of second schedule applies in case where there is a death or injury of non-earning minor child or non earning old person or person who does not earn anything.