IMPORTANT POINT
The court established that actual income evidence must be prioritized over notional income in compensation claims under the Motor Vehicle Act.

JUDGMENT :

KARDAK ETE, J.

1. Heard Mr. A.R. Agarwala, learned counsel for the appellants. Also heard Mr. R. Goswami, learned counsel, for the respondent No. 3. None appears for the respondent Nos. 1 & 2.

2. This Appeal is preferred under Section 173 of the Motor Vehicle Act, 1988 (hereinafter referred to as ‘the M.V. Act’), assailing the judgment and award dated 08.10.2013, passed by the learned Member, Motor Accident Claims Tribunal, Dhubri, whereby a compensation amount of Rs.6,11,700/- (Rupees six lakh eleven thousand and seven hundred) with interest @ 8% per annum, from the date of filing of the claim petition, has been awarded to the claimants.

3. Brief facts of the case are that on 18-11-2009, at around 9:00 P.M., while the husband of the claimant and two others were walking on the left side of the No. 31 National Highway near Botertol, Geramari, a Truck bearing registration No. AS-17-8681, being driven by its driver in a high speed in reckless manner, knocked down her husband and two others from behind. As a result of which, all of them were thrown out of the road causing death of her husband and one Sanjan Ali and Md. Awal Hoque sustained grievous injuries. Immediately after the accident, Police from Gauripur Police Station came and with the help of local villagers and one of the eye witnesses, namely, Ali Hussain took all the injured persons in their police van to Dhubri Civil Hospital but her husband and Sanjan Ali died on the same night at Dhubri Civil Hospital. Post Mortem examination was conducted at Dhubri Civil Hospital. A case being Gauripur P.S. Case No. 1/2010, under Section 279/338/304-A of the IPC was registered.

4. The deceased was aged about 30 years at the time of his death and used to earn Rs.6,000/- (Rupees six thousand) per month, by doing business of seasonal goods. The deceased left behind five dependants. The offending vehicle was duly insured with the M/s Bajaj Allianz General Insurance Company Limited. The claimant claims to have incurred an expenditure of Rs.50,000/- (Rupees fifty thousand) only for burial and other expenses of her husband. The accident took place due to rash and negligent driving by the driver of the offending truck. The claimant claimed compensation of Rs.8,00,000/- (Rupees eight lakh) only, for the death of her husband.

5. The respondent No. 3 has contested the case by filing written statement, raising the issue of maintainability of the claim petition. The respondent No. 3 denied all the allegations that the vehicle was involved in the alleged accident and contended that the claimant be directed to produce the original Insurance Policy and prays for dismissal of the claim petition. The respondent No. 1 & 2 have not appeared and contested the case. As such, the case proceeded ex-parte against them.

6. Upon consideration of the pleadings and hearing the learned counsel for the parties, the learned Tribunal has framed the following four issues, which are as under:

(1) Whether the accident took place due to rash and negligent driving of vehicle No. AS-17/8681 and claimant’s husband died due to the accident?

(2) Whether the offending vehicle was duly insured with M/s Bajaj Allianz General Insurance Co. Ltd at the time of accident?

(3) What shall be the just and proper compensation and by whom payable?

(4) Whether the claimant is entitled to get the relief as prayed for?

7. During the trial, the claimant examined herself as CW-1 and 2 (two) other witnesses as CW 2 and 3, in support of her claim, who were duly cross examined by the Respondent no. 3 but did not adduce any evidence and after hearing the learned counsel for the parties, the learned Tribunal, has passed the judgment on 08.10.2013, which is impugned in the present appeal.

8. The learned Tribunal has decided the issue no. 1 and 2 in favour of the claimants. As regards issue no. 3 and 4, learned Tribunal has held that the deceased was in between 28 to 30 years at the time of his death. It further held that, although, the claimant in h