IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.103 of 2005. - - - - - 1. NASIMA KHATOON wife of Md.Izarail Ansari. 2. Md.Izarail Ansari son of Islam Ansari. Both residents of villager Shomaul Sahpur, P.S. Runisaidpur.District Muzaffarpur. …………………………….. Aappellants. Versus 1.SRI VIJAI PRAKASH SINGH s/o Raghunath Prasad Singh, Resident of villagbe Bhataulia, P.O. Patahi, District Muazaffarpur. 2.The Divisional Manager, United India Insurance Company Ltd.,Akharaghat Road, Muzaffarpur ………………………………. Respondents. ----------- For the appellant : Mr. Shambhu Sharan Singh,Adv. Mr.Mukesh Prasad Singh,Adv. For Respondent No.2 : Mr.R.C.L.Das,Adv. Mr.Ashok Kumar, Adv. For Respondent No.1 : Mr.Ram Shankar Das,Adv. 11. 17.11.2008 The Insurance Company, who is liable to make payment of compensation amount, as awarded by the Claims Tribunal, has approached this Court and his counsel is present. Learned counsel for the appellant and respondent no.1 are also present. The lower court records have also been received. With the consent of the parties, this appeal is being finally heard and decided under Order 41 Rules 11 and 12 of the Code of Civil Procedure. The deceased Md. Ehashan Ansari who, according to the evidence of his father (A.W.1) was aged about 18 years had died on 26th October, 2003 in an accident caused by Bus bearing Regd.No. BR/7 – 733. The Bus was insured by the United India Insurance Company Ltd., Akharaghat Road, Muzaffarpur. The witnesses including father and mother and the employer of the deceased adduced evidence before the trial court. The P.M.Report (Ext-5) was also exhibited which mentioned the age of the deceased as ‘18’ years. The 2 accident and fact of insurance of bus is not denied by either side. Witnesses, including parents of the deceased deposed before the learned Claims Tribunal that the deceased was working in a garage at Kowahi Chowk and he was earning a monthly income of Rs.2,500/-. A.W.5 Md. Asraf, the owner of M/s K.G.N. Engineering Works deposed before the Claims Tribunal that the deceased was employed in his garage and he was making a monthly payment of Rs.2,500/- to the deceased. A.W.5 had also issued a certificate regarding payment of such salary to the deceased which certificate was proved as Ext-1 before the Tribunal. But due to failure of production of any register showing payment of salary and its receipt, the Claims Tribunal did not accept the claim of payment of monthly salary of Rs.2,500/- to the deceased and it allowed the claim of Rs.1,500/- per annum. Learned counsel for the appellants submits that sufficient evidence was brought before the court below indicating income of the deceased at Rs.2,500/- per month but without any ground the learned Tribunal reduced it to Rs.15,000/- per annum which comes to Rs.1,250/- per month which is below half of the amount as was claimed and for which the evidence was brought before the Claims Tribunal. Learned counsel also referred to Clause-6 of the Table appended to Schedule-II of the Motor Vehicles act (hereinafter, in short, referred to as the ‘Act’) which mentions that in case of a person who has no income prior to accident, notional income of Rs.15,000/- per annum has to be allowed and 1/3rd of it has to be reduced for personal expenses of the deceased. Learned counsel continues to submit that the 3 deceased was not a non-earning person, but he was a Mistry in a garage and was earning Rs.2,500/- per month for which sufficient evidence has been brought on record. Learned counsel also submitted that the evidence regarding the deceased’s monthly income @ Rs.2,500/- per month was disbelieved by the learned Claims Tribunal simply on the ground that the register regarding payment of salary was not produced before it by the owner of the garage. Learned counsel for the Insurance Company submitted that the deceased was a boy of only 18 years old and though working as a Mistry in a garage he could not have earned more than Rs.1,200/- per month which has been appropriately considered and allowed by the learned Claims Tribunal. But no ground is being shown as to why the evidence with regard to monthly income of the deceased @ Rs.2,500/- be disbelieved and the case of the deceased be treated as a non-earning person. Naturally when there is evidence before the court that the deceased was working as a Mistry in the garage and the parents as well as the owner of the garage had come to depose about the deceased’s income Rs.2,500/- per month, there is no ground to reject these evidence out right and decide the case on the ground that the deceased was a non-earning person and his claim be decided on the ground of fixing a notional income @ Rs.15,000/- per annum as described under the aforesaid table of the Act. After hearing the parties and on consideration of the materials before the court, this case requires to be decided by keeping a striking balance and the needs and propriety in the facts and 4 circumstances of the case. Considering all these circumstances, I feel that a monthly income @ Rs.2,000/- per month requires to be reasonably allowed in this case. Accordingly, a monthly income of Rs.2,000/- is allowed. In such circumstances deducting 1/3rd of the amount for personal expenses of the deceased, a sum of Rs.1,333/- per month which when multiplied with 12 comes to Rs.15,996/- per annum is allowed. Now by applying the Multiplier of ‘16’ as applicable in this case, the amount comes to Rs.2,55,936/-. The Claims Tribunal has allowed a sum of Rs.2,000/- for funeral expenses and Rs.2,500/- as loss of estate as provided under Clause-3 of the 2nd Schedule is also allowed. Thus the total claim allowed to the appellants who are parents of the deceased, comes to Rs.2,60,436/-. Interest at the rate of 9 per cent per annum from the date of filing of the Clam petition as also allowed by the learned Claims Tribunal is maintained. In the result, the appeal is allowed in part, as indicated above. The amount of interim compensation paid to the appellant will be adjusted in the amount to be paid. Jay/ (C.M. Prasad,J)