MISC. APPEAL No.50 OF 2005 ************ (Against the judgment dated 15.10.2004 and the Award dated 09.11.2004 passed by 7th Addl. District Judge-cum-Motor Vehicle Accident Claims Tribunal, Gaya in M.V.A.Claim Case No.2 of 2001/104 of 2000.) ---------- UNITED INDIA INSURANCE COMPANY Ltd through its Divisional Manager, A.N. Road, Murarpur, Gaya-823001. ------------------------------------(Appellant) Versus 1. MOST.MEERA DEVI, w/o. Late Arjun Singh, r/o. village-Nandu Bigha, P.O. Samaspur, P.S. Belaganj, Distt. Gaya at present resident of village and P.O. Maksudpur, Distt. Gaya. (Claimant) 2. Sardar Charanjeet Singh, 3. Sardar Devendra Singh, Both are s/o. Late Jagwant Singh, c/o. Ranjeet Engineering Works, at and P.O. Bhandaridih, Distt. Giridih. 4. Dwarika Singh, s/o. lalte Bishun Singh, 5. Gayatri Devi, w/o. Dwarikka Singh, 6. Chanchal Kumari D/o. Dwarika Singh, -------------------------------------------(Respondents) P R E S E N T THE HON'BLE MR. JUSTICE C.M.PRASAD Counsel for the Appellant: Mr. Prakash Kumar, Advocate. Counsel for the Respondents: Mr. Rakesh Ambastha, Advocate, Counsel for the Interveners: Mr. Rabindra Kumar Sinha, Mr. Arvind Kumar Singh, C.M. Prasad, J. The appellant United India Insurance Company Ltd. Has preferred this appeal against the judgment dated 15.10.2004 and the Award dated 09.11.2004 of the Motor Vehicles Accident Claims Tribunal, Gaya-cum- 7th Addl. District Judge passed in M.A.C. Case No.2 of 2001/104 of 2000, whereby claim of Rs.3,00.000/- has been allowed to the respondent No.1 Mst. Meera Devi w/o. 2 deceased Arjun Singh, who died in a motor vehicle accident on 7.12.1998 with a direction that the claim should be reduced by a sum of Rs.50,000/- that has already been paid under Section 140 of the M.V. Act (hereinafter referred to as the Act) and that the interest could be payable @ 6% from the date of filing of the claim case till the date of realization. 2. It is relevant to mention here that after filing of this appeal the respondent No.4 Dwarika Singh the father of the deceased, respondent No.5 Gayatri Devi, mother of the deceased and respondent No.6 Chanchal Kumari, sister of the deceased, who had not joined as parties before the Claim Tribunal in the application for compensation, have also appeared and joined in this appeal as interveners with a prayer for share in the award allowed to respondent No.1 Mst. Meera Devi the widow of the deceased. 3. At the very outset this has to be mentioned here that Mr. Prakash Kumar, learned counsel who argued this appeal on behalf of the appellant pressed this appeal only on the ground of the quantum of compensation. It was argued by him that the deceased Arjun Singh was stated to be working as a Mistri in a garage but any evidence from the side of any garage owner was not adduced to show that he was a Mistri working in the garage and that any 3 documentary evidence was also not adduced to show that the deceased was a mechanic working in garage. The learned counsel, referring to the evidence as also discussed in the impugned judgment pointed out that the deceased was earning a monthly income of Rs.5,000/-. He also pointed out that P.W.7 also adduced the similar evidence by saying that the deceased was earning Rs.5,000/- per month. Learned counsel also refer to the evidence of P.W.3 Naresh Singh, father-in-law of the deceased i.e., father of the deceased’s widow Meera Devi that the deceased was giving Rs.3,000/- per month to his wife. Learned counsel also pointed out that deceased’s widow Meera Devi, P.W.5 also stated before the Tribunal that she used to get Rs.3,000/- per month from the deceased. Referring this evidences learned counsel submitted that the evidence about the monthly income of the deceased as adduced by the different witnesses is not consistent and there may be some discrepancy. P.Ws. 1 & 2 are not the family members so they might not have correct knowledge about the exact income of the deceased. Therefore, they stated Rs.5,000/- as monthly income of the deceased but P.W.3 who was directly concerned with the deceased’s income and P.W.5 being the direct beneficiary of the deceased’s income had specific knowledge about the income and 4 they stated before Claim Tribunals that the deceased was earning a sum of Rs. 3,000/- per month. The Claims Tribunal in its judgment has mentioned that there had not been any effective cross- examination by the appellant to that part of the evidence of P.Ws. 3 & 5 that deceased was paying a sum of Rs.3,000/- per month to his wife. However, the Tribunal in its discretion considering all the facts and circumstances of the case ascertained a sum of Rs.2500/- as the monthly income of the deceased for the purpose of calculating the compensation amount to be awarded to the deceased’s wife, who have filed application for compensation. At the time of death the deceased was aged about 24 years which fact has not been disputed. On the basis of the second schedule appended to the Motor Vehicles Act, 1988, learned Claims Tribunal adopted the multiplier of 17 and applying this multiplier in the annual income held that after reducing 1/3rd amount towards the maintenance of the deceased himself, calculated a sum of Rs.3,40,000/-. But since the claim application has been filed for a claim of Rs.3,00,000/- only the learned Claims Tribunal allowed Rs.3,00,000/- with a direction that after deducting the amount of Rs.50,000/- as already paid to the claimant under Section 140 of the Act a sum of Rs.2, 50,000/- vide the award be 5 paid with a direction of payment of interest @ 6% from the date of filing of the application till realization. Learned counsel for the appellant submitted that any specific material with respect of monthly income of the deceased was not brought forth before the Tribunal, hence, the deceased should be treated as a non-earning member and thus a notional income as per Clause-6 of the second schedule @ Rs1500/- per month should only be allowed to the claimant. Clause-6 states about calculation of notional income of those who had no income prior to the accident. Thus, this clause is applicable in case of those who had no income prior to the accident. In the instant case there is evidence of witnesses who have stated that the deceased was earning income by virtue of his working as a Mistri. P.W.3 Father-in-law of the deceased adduced specific evidence that the deceased was providing Rs.3,000/- per month to his wife i.e., widow namely, P.W.1 Meera Devi, who too in her evidence stated that she was receiving Rs.3,000/- per month from the deceased’s husband. Thus, there was evidence on record that the deceased was earning money and therefore the application of Clause-6 of the second schedule for calculating a notional income only is not applicable in this case. Taking into consideration the facts and 6 circumstances of the case the learned Claims Tribunal had assessed a sum of Rs.2500/- as a monthly income of the deceased. On such assessment the compensation amount came to Rs.3,40,000/- but since the claimant had claimed a sum of Rs.3,00,000/- only the compensation amount of Rs.3,00,000/- was allowed by the Claims Tribunal. In the circumstances, I find that the amount as allowed by the Claims Tribunal towards compensation is proper and justified and it needs no interference. The respondent Nos.4, 5 & 6 respectively the father, mother and sister of the deceased have appeared before the Court as intervener/respondents in this appeal and submissions were made on their behalf that they being Class-I and Class-II heirs of the deceased be also allowed a share in the compensation amount. But these intervener/respondents had not filed any application for compensation under Section 166 of the Act before the Claims Tribunal nor did they join the claim case before the Claims Tribunal in any capacity so that their claim could be tested and decided by the Claims Tribunal. Here in this appeal there is no scope for testing their claims or capacity to make the claim by way of any procedure as could have been done by the Claims Tribunal. The claim of the intervener/respondents was resisted by the 7 respondent No.1, the widow of the deceased on the ground that they can file any succession application or any other procedure before any competent Court. In the circumstances, I find that the claims of the intervener/respondents cannot be tested or decided in this appeal; hence, their prayer is refused as not entertainable in this appeal. During hearing learned counsel for the appellant submitted that at the time of filing of this application, the appellant had deposited statutory deposit of Rs.25,000/- through challan and a prayer is made that the Registry of this Court be asked to remit this amount to the court-below for adjustment towards the compensation amount to be paid to the respondent No.1 by the appellant. But this would be a cumbersome and improper way for directing the office of this Court to withdraw the amount and send it to the Claims Tribunal. Therefore, the appellant will himself withdraw the amounts deposited and get it paid to the claimant towards satisfaction of the award as passed by the Claims Tribunal. In the result, this appeal fails and accordingly dismissed. Patna High Court, Dated, the 7th November, 2008,NAFR/Mkr. (C.M. Prasad, J.)