The credibility of eye witness testimony and the application of the Second Schedule provisions of the Motor Vehicle Act were central to the court's decision.

Sanjay Misra, J.

Heard Sri Ajay Singh learned counsel for the appellants and Sri Vinod Kumar Dwivedi learned counsel for the claimant respondents.

2. This is a First Appeal From Order under Section 173 of the Motor Vehicle Act 1988 against the judgment and order dated 8.9.2000 passed in Motor Accidents Claim Petition No. 149 of 1995 by the Motor Accidents Claim Tribunal/IV Additional District Judge, Basti (Ram Surat Vs U.P.S.R.T.C.).

3. Learned counsel for the appellants has submitted that the claimant respondents who are parents of the deceased Shiv Poojan aged about 14 years at the time of his death were not eye witnesses to the accident and therefore they could not depose with respect to factum of the accident and as such when the eye witness namely Surendra Prasad left for Bombay on the same day of accident after lodging FIR it raises a suspicion since he returned on getting information at Bombay regarding the accident and death of Shiv Poojan. It is also submitted that the deduction for the amounts which the deceased would have spent on himself if he had not died has not been considered by the impugned order and therefore the same requires to be set aside.

4. Learned counsel for the respondents has contested the submission and has submitted that Surendra Prasad was the eye witness to the incident and he had noted the number of the bus of the Corporation at the scene of the accident and had lodged FIR. Therefore, if he left for Bombay on the very same day and came back on learning of the death of Shiv Poojan it does not raise any suspicious circumstance regarding his testimony therefore the submission that the parents of the deceased were not eye witness and could not depose on the factum of the accident does not have any relevance.

5. On the question of deduction of amount that the deceased would have spent upon himself had he been alive could not be considered by the Tribunal since under the Second Schedule of the Motor Vehicle Act it has been clearly provided that in case of a fatal accident the amount of compensation so arrived shall be reduced by 1/3 in consideration of the expenses which the victim would have incurred towards maintaining himself had be been alive but it is also provided in the Second Schedule that the amount of compensation shall not be less than Rs. 50,000/-. He states that the amount of compensation awarded is Rs. 66,000/- on the basis of likely earning of the deceased, Rs. 2,000/- for funeral expenses and Rs. 2,000/- for expenses incurred in taking the deceased for treatment to the hospital which is medical expenses. He states that if out of the total compensation Rs. 70,000/- awarded to the parents if the amount of 1/3 is deducted on the ground that the victim would have incurred had he been alive the amount of compensation would fall below Rs.50,000 which could not be done in view of the Second Schedule of the Motor Vehicle Act.

6. Having considered the submission of learned counsel for the parties and perused the record Surendra Prasad was the eye witness of the incident who noted the bus number and promptly lodged FIR. Surendra Prasad is not a member of the family of the claimant respondents but was an independent witness therefore his leaving for Bombay on the same day after lodging FIR cannot be a circumstance which can give rise to any suspicion on the factum of the accident. Moreover, the police report and investigation have also led to chargsheeting of the driver of the bus of the Corporation. Consequently, the factum of accident was duly proved by the eye witness of the accident and no error can be found in the findings recorded by the Tribunal on Issue no. 1.

7. Insofar as the question of deduction of 1/3 amount in the amount of compensation so arrived under the head of expenses which the victim would have incurred upon himself, under the Second Schedule it could not be less than Rs. 50,000/- after deduction. Consequently the Tribunal was correct in not reducing any amount as ex