IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.523 of 2010 The Oriental Insurance Company Ltd., Divisional Office, Bhagalpur. ….. Opposite Party No. 3 in the Court below………. Appellant. Versus 1. Sachindra Choudhary husband of deceased Rukmani Devi, Resident of Village – Barahat Akagorha, P.S. – Barahat, District – Banka ……… Claimant No. 1 in the court below………. Respondent. 2. Ganesh Choudhary, Son of Sachindra Choudhary, Resident of Barahat Akagorha, P.S. – Barahat, District – Banka …….. Claimant No. 2 in the court below……….. Respondent. 3. Lali Kant Choudhary, Son of Sachindra Choudhary, Resident of Barahat Akagorha, P.S. – Barahat, District – Banka …….Claimant No. 3 in the court below……….. Respondent. ……….. Respondents 1st set. 4. Md. Sabir Ali (Driver) Son of Md. Khalil Ahmad, Resident of Puraini, P.S. – Jagdishpur, District – Bhagalpur. …….. Opposite Party No. 1 in the court below…………. Respondent 5. Sister Amla (Owner) daughter of Baliyamrat, Hamgardar Jarj Joseph St. Tressa School near Court compound, Bhagalpur. ……. Opposite Party No. 2 in the court below……… Respondent ……….. Respondents 2nd set. …………………. Respondents ---------------------------------- Advocate for Appellant: Mr. Barun Kumar Choudhary, Adv. Advocate for Claimant: Mr. Vivekanand Vivek, Adv. ---------------------------------- 4 15.09.2011 Heard Sri Barun Kumar Chaudhary, learned counsel for the appellant and Sri Vivekanand Vivek, learned counsel who appears on behalf of Respondent Nos. 1 to 3/claimants. None appeared on behalf of Respondent Nos. 4 & 5. The present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the M.V. Act) has been preferred against judgment dated 5th April, 2010 and award dated 29.04.2010 in Claim Case No. 190 of 2009 passed by 1st Additional District Judge-cum-Motor Vehicles Accident Claims Tribunal, Bhagalpur (hereinafter referred to as the “Claims Tribunal”). The appeal has been preferred by the Oriental Insurance Co. Ltd (insurer) only to the extent of challenging the compensation 2 amount. Learned counsel for the appellant has not disputed the impugned judgment on its merit but has argued that since there were no documentary evidence on record in support of the income of the deceased the learned Claims Tribunal was required to adopt notional income in view of Schedule-II of the Motor Vehicles Act. Short fact of the case is that on 06.11.2009 at 6.30 a.m. while wife of Respondent No. 1 and mother of Respondent Nos. 2 & 3 was going to open her tea stall she was dashed by a Bus bearing registration no. BR10H-7726. The accident had occurred due to negligent and rash driving of the vehicle by the driver. In the said accident the wife of Respondent No. 1 namely Rukmani Devi died. Relating to said occurrence F.I.R. vide Mojahidpur P.S. case No. 112 of 2009 was registered against the driver of the vehicle and on the dead body of the deceased autopsy was conducted. Subsequently, claim petition was filed under the provisions of the M.V. Act by the claimants i.e. Respondent Nos. 2 & 3. In support of claim case four (04) witnesses were examined. Out of four (04) witnesses, C.W. 1 is Respondent No. 3 , C.W. 2 is Respondent No. 1, C.W. 3 is Respondent No. 2 and one another witness namely Rajendra Prasad Sah was examined as an independent witness. During the trial it was admitted that offending vehicle was insured by the appellant and also driver of the vehicle was having valid driving licence at the time of accident. The claimants had pleaded that deceased was having income in between Rs. 150/- to Rs. 200/- 3 per day. However, learned Claims Tribunal taking into account the income of the deceased as Rs. 125/- per day had finally directed the appellant to pay total compensation amount of Rs. 3,90,000/- and also Rs. 2,000/- towards funeral expenses, Rs. 5,000/- towards loss of consortium and Rs. 2,500/- towards loss of estate. Since Rs. 50,000/- was already paid under Section 140 of the M.V. Act as interim compensation it was directed to deduct the said amount and remaining amount was directed to be paid along with interest at the rate of 6% per annum till the date of payment. The insurer i.e. the appellant aggrieved with the compensation amount has preferred the present appeal oblivious of the fact that before the court below cogent materials were brought on record in support of the income of the deceased. Sri Barun Kumar Choudhary, learned counsel for the appellant has emphatically argued that in absence of documentary evidence in support of the proof of income of the deceased the learned Claims Tribunal was required to take into account notional income as prescribed in Schedule-II of the M.V. Act. It was submitted that while granting compensation the court is required to see that compensation in an accident may not be treated as windfall in favour of the claimants. In support of his argument he has relied on (2009) 13 SCC 422 ( Reshma Kumari & Ors. Vs Madan Mohan & Anr.). On question put by the court as to whether there is any statutory provision which prescribes that for establishing income documentary evidence is must to be produced by the claimant 4 learned counsel for the appellant answered in negative. However, he relying on the judgment in Reshma Kumari Case (Supra) has only argued that keeping in view the fact and circumstances of the present case that too since the deceased was a house wife such high compensation amount should not have been directed to be paid and as such it was submitted that since death had occurred the Tribunal was required to give minimum compensation amount accepting the notional income as prescribed in the Act. Accordingly it has been prayed to modify the impugned judgment and award. Sri Vivekanand Vivek, learned counsel for Respondent Nos. 1 to 3 /claimants submits that the compensation amount is reasonable one which requires no interference. He has argued that there is consistent evidence on record that the deceased was having Rs. 150/- to Rs. 200/- income per day and as such the learned Claims Tribunal has rightly awarded compensation amount. He has further argued that there are number of decisions to show that if there is oral evidence on the point of income the claim cannot be denied only on the plea that there is no documentary evidence. Besides hearing learned counsel for the parties I have also perused the materials available on record. In this case four (04) witnesses were examined in support of the claim case and all the four (04) witnesses have consistently stated that deceased was having income of Rs. 150/- to Rs. 200/- per day. It is true that three witnesses out of four were claimants in the case but C.W. 4 (Rajendra Prasad Sah) who was 5 completely an independent witness has categorically supported the claimants’ case. In his evidence he has stated that while he along with one another was moving he witnessed the accident in which Rukmani Devi wife of Respondent No. 1 and mother of Respondent Nos. 2 & 3 succumbed to the injuries. The witness C.W. 4 has also stated that the deceased was going to open her tea stall. Consistently it has been said by all the witnesses that deceased was running a tea stall. The husband of the deceased i.e. C.W. 2 (Respondent No. 1) has further stated that since last five years he was ailing and he was completely dependent on his wife who was running tea stall and was earning Rs. 150/- to Rs. 200/- daily. In view of the facts and circumstances particularly the evidence brought on record the court is of the opinion that the claimants have established that the deceased was having earning as stated in the claim petition. For the purposes of establishing income of deceased or a victim there is no mandatory provision to bring on record documentary evidence. If there is reliable oral evidence the income can be accepted. So far application of notional income is concerned, Schedule-II makes it clear that notional income shall be taken into account in cases of those victims or deceased who had no income prior to the accident. In the present case there is consistent evidence that deceased was running a tea stall and earning Rs. 150/- to Rs. 200/- per day. However, the Claims Tribunal has accepted only Rs. 125/- per day, and thereafter, adopting multiplier of 13 has awarded compensation. 6 In view of the facts and circumstances as well as evidence on record, the court is of the opinion that the impugned judgment and award require no interference, and as such, the appeal stands dismissed. The compensation amount with interest as directed by the Claims Tribunal must be paid to the claimants within two months from the date of receipt/production of a copy of this order. Since the appeal has been dismissed the statutory amount which was deposited at the time of filing of the appeal may be remitted back to the court below. Praful (Rakesh Kumar, J.)