Bibi Roshan Ara vs Kedar Prasad Agarwal and Others

Radha Mohan Prasad, J.—With consent of parties, this appeal has been heard for final disposal at this stage itself.

This appeal is directed against the judgment and award passed by the 7th Additional District and Sessions Judge Cum-Additional Motor vehicle Accident Claims Tribunal, Bhagalpur in Claim Case No. 48 of 1996, whereby the Tribunal has awarded compensation by treating Rs. 6,660/- as annual income of the deceased.

It is submitted that the claimant examined witnesses, who stated that her husband was working as Khalasi and getting Rs. 1500/- per month. However, the Tribunal has not accepted and arbitrarily proceeded to award compensation by treating Rs. 6,660/- as annual income of the deceased without any basis.

It is submitted that even as per the requirement of law, as contained in the Second Schedule of the Motor Vehicles Act, Rs. 15,000/- per month (sic-annum?) is prescribed as notional income for compensation to those who had no income prior to accident in case of fatal and disability in non-fatal accidents. Thus, according to the learned Counsel for the Appellant, the Tribunal has communed error in finding Rs. 6,660/- as annual income of the deceased and that too without there being any evidence on record in support thereof. Learned Counsel for the Appellant has further submitted that the Tribunal has also committed error in awarding interest not from the date of filing of the claim petition and erroneously held the claimant to be entitled to get interest from the month of February, 1999 on the plea that there was delay in producing the witness on behalf of the claimant. It is submitted that, in fact, there is no delay on the part of the claimant. But besides this, the Tribunal was never prevented from disposing of the claim petition. According to the learned Counsel for the Appellant, even assuming that the claimant did not produce any witness, the Tribunal was not prevented from proceeding to decide the matter on the basis of the evidence/materials already on record. It is, thus, submitted that on the above both counts, the impugned judgment and award is bad in law and also on facts.

None has appeared on behalf of the owner. However, the Insurance Company upon which the liability has been fixed has appeared through Mr. Mukteshwar Prasad Singh, learned Advocate.

Mr. Singh has submitted that there is no error committed by the Tribunal in not accepting the evidence of the Appellant that her husband had income of Rs. 1500/- per month in the absence of any documentary proof of his income. On the question of delay in disposal of the claim case, he submitted that the delay was on account of non-production of witness on behalf of the claimant.

I am unable to appreciate the said submission of the learned Counsel for the Respondent Company. On the face of the evidence of P.W. 1, P.W. 2 and P.W. 3 and especially in the background of the statutory requirement for ascertainment of annual income on the basis of the notional income for compensation, the learned Tribunal has grossly erred in fixing Rs. 6,660/- as the annual income of the deceased, for which also there is no basis. As per the provision contained in Clause 6 of the Second Schedule, even for determination of notional income for compensation for those who had no income prior to accident, the statute provides Rs. 15,000/- per annum as annual income.

Under such circumstances, there cannot be any justification to fix any lesser amount as annual income in a case where there is no basis before the Tribunal to fix less amount of annual income. Moreover, this Court find substance in the submission of the learned Counsel for the Appellant that in the facts and circumstances, there cannot be any justification to deny the Appellant interest from the date of filing of the claim case.

There is no law brought to the notice of this Court that if there is delay in producing witness on behalf of the claimant, the learned Tribunal shall not proceed to decide the claim case on the basis of the materials already on record. Under such circumstances, in my opinion, the alleged delay in producing witnesses cannot be a ground for refusing interest from the date of filing of the claim case.

The appeal is, thus, allowed. The impugned judgment and award is, accordingly, set aside. The matter is remitted back to the learned Tribunal for fresh calculation on the basis of the above decision of this Court within two weeks of the receipt/production of a copy of this judgment/order. The record, received in this Court shall be returned back to the Court below by the office forthwith.

It is needless to say that any amount already paid by way of interim compensation shall be adjusted as against the final compensation determined by the Tribunal as per the judgment and the remaining amount shall be paid to the claimant within two weeks of the determination by the Tribunal. In the facts and circumstances, there shall be no order as to costs.