In cases of vehicular accidents, actual income must be considered for compensation if evidenced; liability cannot shift from the insurer to the owner when the driver has a valid license.

JUDGMENT :

GAUTAM KUMAR CHOUDHARY, J.

1. Heard, learned counsel for the parties.The claimants are in appeal for enhancement of compensation awarded in Claim Case No. 107 of 2004 under Section 166 of the M.V. Act by which the liability to pay the compensation amount has been fixed on the owner of the offending vehicle i.e. Opp. Party No.1 and not on the insurer of the offending vehicle i.e. Opp. Party No.2 (National Insurance Company Limited).

2. It is argued by learned counsel for the appellants/claimants that admittedly the offending vehicle bearing Registration No.WB-03A-7702 was under the insurance cover of Opp. Party No.2 (National Insurance Company Limited) and a finding in this regard has been recorded by the learned Tribunal in Issue No.(iv).

3. It is further argued on behalf of the claimant(s) that just compensation has not been awarded as the learned Tribunal has taken notional income of the deceased, whereas there was specific evidence led on behalf of the claimant(s) that the deceased was having a dairy business and was earning a sum of Rs. 3,000/- per month and aged 42 years at the time of accident and no contrary evidence was led on behalf of the respondent and despite this, the learned Tribunal has discarded the oral evidence and considered notional income of Rs.15,000/- per annum for computing the annual income of the deceased.

4. It is further argued that the liability to pay compensation amount has been shifted on the owner of the vehicle, despite the owner having a valid driving licence at the time of accident. Shifting of liability on the owner of was against the settled position of law and it will also cause hardship and practical difficulty and delays in getting the award executed against the owner of the vehicle. The only ground on which the liability has been fixed on the owner is that the Driving licence (Ext.3) of the driver, Md. Imtiyaj was for the driving of light motor vehicle and not of a heavy motor vehicle like a truck.

5. Learned counsel on behalf of the Insurance-Company has defended the impugned judgment of Award. It is argued that claimants have no locus standi to assail the judgment of the learned Tribunal on the ground that right of recovery has been given to the Insurance-Company against the owner of the vehicle. It is contended that this plea could have been raised by the owner of the vehicle and not by the claimants, who are third party (s) in the accident.

6. Learned counsel on behalf of the Insurance-Company has submitted that whatever compensation is awarded, the owner of the offending vehicle should be made liable to pay the compensation amount.

7. Having heard learned counsel for the parties and perusing the materials on record, I find much force in the argument advanced on behalf of the appellants that in absence of any contrary evidence, it was not open to the learned Tribunal to take notional income of the deceased, when there is oral evidence with regard to income of Rs.3,000/- per month of the deceased and the same cannot be said by any stretch of imagination be said to be exaggerated or extravaganza. Further, compensation under the head of future prospects has also not been awarded, and the meagre amount has given under the head of conventional head.

8. Under the circumstance, the claim of the appellants for enhancement of compensation merits consideration by this Court. Accordingly, by taking the income of the deceased to be Rs. 3,000/- as the monthly income, 42 years age of the deceased and considerin