Ref: I.A. no. 6222 of 2016

1. The appellant has filed the aforesaid interlocutory application for condonation of delay of four months five days in filing this appeal with the case that after obtaining certified copy of the judgment and award on 27.11.2013, the appellant no. 1 seriously fell ill, so she could not get the memo of appeal prepared and filed in the case contacting her learned advocate within time. There has been no deliberate delay and laches on the part of the appellants in filing the appeal.

2. In the facts and circumstances of the case and in the interest of justice, the aforesaid interlocutory application is allowed and delay made in filing the appeal is condoned.

3. The aforesaid interlocutory application is, accordingly, allowed.

4. Heard learned counsel for the appellants and learned counsel for the respondent no. 3 on this miscellaneous appeal.

5. This miscellaneous appeal has been filed against the judgment dated 18.11.2013 and award dated 21.11.2013 passed by learned Additional District Judge-XI-cum-Motor Vehicle Accident Claim Tribunal, Patna in Claim Case no. 51 of 2010 whereby the learned Tribunal allowing the claim petition filed by the appellants, directed the respondent no. 3 (Oriental Insurance Company Ltd.) to pay final amount of compensation to the tune of Rs. 66,65,473/- along with interest @ 8% per annum from the date of filing of the case till the date of its realization to the claimants-appellants.

6. Factual matrix of the case is that the Claim Case no. 51 of 2010 was filed by the claimants under Section 166 of the M.V. Act for awarding compensation to the tune of Rs. 1,50,00,000/- along with interest @ 12% per annum on account of death of their husband and father respectively, namely, Mithilesh Kumar Rai in the motor vehicle accident with the case in succinct that the said Mithilesh Kumar Rai had gone to Chhapra by Ambassador Car bearing registration no. BR-06M-3435 of Punjab National Bank in inspection duty. On 17.12.2009, while he was regressing to Chhapra from Siwan by the said car and arrived at Banbar Dhala of Chhapra- Siwan main railway-crossing, the road was blocked as Hajipur Fubaria 375U train was to pass, so the driver of the car halted the same beyond the Railway barrier on Siwan side and waited for the train to pass. In the meantime, at about 08:00 PM, the train arrived and simultaneously the driver of the truck bearing registration no. UP-64H-2637 driving it very rashly and negligently dashed the said car from rear side with such a huge momentum that it was badly crushed and pushed ahead breaking the Railway barrier and dashing the moving train, as a result of which, the damaged car along with three occupants were dragged by the said train for some distance and thrown by the side of Railway track. Immediately, local congregated there and rushed the occupants of the ill fated car to Chhapra Sadar, Hospital where the said Mithilesh Kumar Rai was declared brought dead as he succumbed to his injuries on the way to hospital. The said Mithilesh Kumar Rai was aged about 48 years and he was Assistant General Manager and Circle Head in Punjab National Bank and was posted at Muzaffarpur at the time of accident and he used to earn Rs. 74,500/- from the said vocation.

7. The Opposite Party nos. 1 and 2 did not put their appearance in the case despite service of notice. So the case proceeded ex parte against them while the Opposite Party no. 3 filed its written statement. The claimants adduced ocular and documentary evidence in buttress of their case.

8. After hearing the parties and perusing the record, learned Tribunal passed the impugned judgment and award as stated in the earlier paragraph.

9. Being aggrieved and dissatisfied with the aforesaid judgment and award, the claimants have preferred the present appeal.

10. It is submitted by the learned counsel for the appellants that the income of the deceased ought to have been computed on the basis of his gross income including the P.F, HR,