The main legal point established is that in assessing compensation, notional income should only be applied for non-earning persons, and in the absence of evidence, the court should determine the actual earning of the deceased or injured.

1. This appeal by the claimants-appellants is directed against the judgment and award dated 10th December, 2004 passed in Compensation Case No. 298 of 2000 whereby a sum of Rs. 1,50,000/- has been awarded by way of compensation for the death of 18 years young boy.

2. Learned Counsel for the claimants-appellants submitted that sufficient evidence was led to the effect that the deceased was selling vegetables in the market and his monthly incomes was Rs. 3,000/-. In spite of that, the tribunal in absence of any documentary evidence has taken the notional income and assessed the compensation. Learned Counsel submitted that in no case, compensation amount should be less than Rs. three lacs.

3. Mr. G.C. Jha, learned Counsel appearing for the respondent-Insurance Company, submitted that the tribunal has rightly taken the notional income for the purpose of determining the compensation.

4. Although the tribunal took notice of the earning of the deceased at Rs. 3,000/- per month but held that in absence of documentary evidence showing income of the deceased, a notional income of Rs. 15,000/- per annum is to be taken as the income of the deceased. Paragraph 14 of the judgment is quoted herein below:

14. So far his income is concerned. It is the case of the claimants that he was earning Rs. 3,000/- per month through his business of vegetables. This CW 1 has also stated so in his evidence. CW 2 has also given similar version, but the claimants could not file any document showing that the deceased was earning Rs. 3,000/- per month through his business and therefore, in the absence of any definite evidence a notional income of Rs. 15,000/- per annum is taken to be the income of the deceased for the purpose of compensation.

5. Admittedly the claimants' witnesses categorically deposed that the deceased was selling vegetables in the market land his earning was Rs. 3,000/- per month. It cannot be accepted from a vegetable seller to produce documentary evidence showing his monthly income. Besides the above, a Division Bench of this Court in the case of Malti Devi and Ors. v. Sri Umesh Rawani and Ors. M.A. No. 397 of 2006 has discussed the applicability of the notional income as defined in the 2nd Schedule of the Motor Vehicles Act and held as under:

From bare reading of the aforesaid provision, it is manifestly clear that owner or the insurer shall be liable to pay compensation in case of death or permanent disablement due to accident arising out of use of the motor vehicles in the manner indicated in Second Schedule. Sub-section (3) of Section 163A provides that Central Government keeping in view the cost of living shall time to time amend the schedule by issuing notification in the official Gazette. Second Schedule of the Motor Vehicles Act lays down quantum of compensation payable in case of death or permanent disablement by taking into consideration the age of the deceased and the annual income. Clause 6(a) very clearly provides that in case of death or permanent disablement of a non-earning person, sum of Rs. 15,000/- shall be taken as notional annual income of such person. In our considered opinion, therefore, notional income of Rs. 15,000/- shall be taken only when deceased or the injured was non-earning person and not an earning person. We are also of the considered, opinion that in case of insufficiency of evidence with regard to earning of the deceased or the injured, the Court shall come to a finding on the basis of evidence as to what was the earning of the deceased or the injured instead of taking notional income for the purpose of determining compensation. As a matter of fact, the notional income as contemplated in Section 163A read with para 6 of Second Schedule applies in case where there is a death or injury of non-earning minor child or non-earning old person or person who does not earn anything.

6. In the light of the aforesaid judgment, in our opinion, the notional income applied for the purpose of determining the compensation