JUDGMENT :

Shampa Dutt (Paul), J.

IA No. CAN 6350 of 2018

1. IA CAN 6350 of 2018 is moved by the learned counsel for the appellant in presence of the learned counsel for the respondent/insurance company praying for condonation of delay in filing the appeal.

2. Considering the averments made in the application and in the interest of justice, the delay is condoned.

3. The application being CAN 6350 of 2018 stands disposed of.

4. The present claim appeal has been preferred by Claimants/Appellants against the judgment and award dated 28^th September, 2012 passed by the learned Judge, Motor Accident Claims Tribunal and the Additional District Judge, 5^th Court, Krishnanagar, Nadia, in MAC Case No. 198 of 2007, under Section 163A of the Motor Vehicles Act, 1988.

5. FACTS :-

“………..The victim Ashmat Mondal was travelling himself in a bus having registration no. WB 51- 6768 plying on the Krishnagar-Karimpur Coalter Road on 25.02.2007 at about 11.00 a.m. with a high and excessive speed. The driver of the bus suddenly pressed the brake near Taranipur Mathpara to save an old lady who suddenly had come in front of the bus. The victim fell down from the roof of the bus. The victim sustained severe injuries and he was immediately removed to Tehatta Hospital and he was transferred to Nadia District Hospital at Saktinagar for better treatment. The victim, however, died on 26.02.2007 in the hospital. The victim was a self employed person having monthly income of Rs.3,150/- at the time of his death. The petitioners have claimed compensation for the said premature death of the victim as his legal heirs………..”

6. The O.P. No. 2 the United Insurance Company Ltd. entered appearance and contested the case by filing written objection thereby denying all the material facts contending, inter alia, that the case is not maintainable, barred by limitation, barred by principles of estoppel, waiver and acquiescence.

7. The specific case of the O.P. Insurance company is that the bus being registration No. WB 51-6768 is not liable for the accident and the said vehicle was not driven with a high speed and in a rash and negligent manner. The claim of compensation is exaggerated, baseless, imaginary and without any mathematical calculation. The instant is liable to be dismissed with cost.

8. The Claimants have examined himself and one eye witness in the present case.

9. Relevant documents have been marked as Exhibits in the present case being Exhibits 1 to 5.

10. The learned Tribunal considering the materials on record held as follows :-

“……..MAC Case No. 198 of 2007

Dated 28^th September, 2012

.…….I feel inclined that the deceased used to earn Rs.100/- per day. I have already discussed that the deceased used to work for twenty days in a month in average. The monthly income of the deceased, thus, comes as Rs.2,000/-. The annual income of the deceased, therefore, comes as to Rs.2,000x12 = Rs.24,000/-. The said amount shall be reduced by one third for the expenses which the deceased/victim would have incurred towards his maintenance had he been alive. The net annual income of the deceased, therefore, comes to Rs.16,000/-. By applying multiplier 18, the total loss of dependency is worked to Rs.2,88,000. In addition to that, the claimants are also entitled to get Rs.2,000/- funeral expenses and Rs.2,500/- for the loss of estate. The Petitioner No. 1 being the wife of the deceased is also entitled to get Rs.5,000/- as loss of consortium. Thus, the total award of compensation is worked out to Rs.2,97,500/-. The O.P. Insurance company is liable to pay the said compensation to the claimants with interest @ 6% per annum in case of default to pay the same within the stipulated period…..

Sd/-
Member
Motor Accident Claim Tribunal
Additional District Judge,
5th Court, Nadia………..”

11. Being aggrieved the present appeal has been preferred by the Claimants/Appellants on the ground:-

That the learned Tribunal did not consider the actual income of the deceased and, as such, awarded compensation on the basis