JUDGMENT

Kesang Doma Bhutia, J. - This appeal is directed against the award passed by the learned Motor accident Claims Tribunal, City Civil Court, 12th Bench in M.J.C. Case No. 428 of 2009 on 28th March 2012.

The respondents being the legal heirs of the deceased victim Sabdar ali Mondal, who had lost his life in a road accident being hit by a lorry bearing Registration No.WB-25B/2581 and that took place on 02.01.2009 at about 22-30 hours in front of Chayghariya Gram Panchayat Office under Bangoan P.S. have filed the claim case under M.V.act.

after considering both oral and documentary evidence adduce by the parties, the learned Motor accident Claims Tribunal fixing the monthly income of deceased at Rs. 9000/- awarded compensation of Rs. 8,01,500/- along with interest at the rate of 6 % per annum from the date of filing of the application till payment.

Being aggrieved by such award the Insurance Company has come with the present appeal contending that learned Tribunal erred in law and facts in awarding excess compensation in favour of the claimants assessing the monthly income of the deceased at Rs. 9000/-when the claimants have failed to produce documents to prove the deceased had agricultural land and from where he used to earn income. The registration certificate of the Omni Bus owned by the deceased was for private use and not for commercial purpose and as such it cannot be said that deceased used to make earning from the said Omni Bus. Therefore, appellant has prayed for setting aside award passed by the Tribunal.

Considering the arguments advance by the learned Counsel for the insurance company, the only issue that requires determination in the present appeal is whether the learned Tribunal below committed error in assessing the monthly income of the deceased victim at Rs 9000/-.

apparently, from the judgement it is seen the learned Tribunal has observed that the claimants have failed to produce any documents relating to income of the deceased or relating to his source of income, but appears to have assessed the daily income of the deceased at Rs.300/- per day just because no contra evidence has been adduced from the side of the Insurance Company.

It is settled principles of law the burden lies upon the person to prove the facts which he or she assert. Therefore, the burden lies upon the claimants to prove what the source of income was and what the monthly income of the deceased was at the time of his death in road accident. It is not the liability of the Insurance Company to prove the income of the deceased victim. The learned tribunal appears to have committed error in shifting the burden upon the Insurance Company to prove the income of the deceased.

In the claim application the claimants have alleged that deceased had agricultural income and also used to run business and earn money from his Omni Bus. Indeed no documentary evidence whatsoever regarding the deceased having agricultural land or any trade or business have come to show that deceased during his life time he used to deal with the agricultural products from where he used to earn.

It is true that deceased was owner of a private Omni Bus and not a commercial Omni Bus. Therefore, it cannot be said that the deceased used to make earning from the said private Omni Bus. Prima facie, nothing has come on record to prove the exact source of income of the deceased and what was his monthly income save and except that he was the owner of a private Omni Bus. Under such circumstances the safest method to calculate the income of the deceased is to take into consideration what was the minimum wages per day at the relevant time. In West Bengal minimum wages in respect of Highly-Skilled worker in 'a' Zone is Rs.11852/- per month as on today in 2022. For the sake of argument even if we assume the deceased was a highly skilled wage earner at the time of his death in 2009 his monthly income cannot be Rs.9000/- as assessed by the learned tribunal.

Therefore, the monthly income of the decea