Full Judgment
Radha Mohan Prasad, J.
1. With consent of the parties, this appeal has been heard for final disposal at this stage.
2. The appeal is directed against the judgment and award passed in Motor Vehicle Accident Claim Case No. 20 of 1994 by the District Judge, Katihar, whereby a total compensation amount of Rs. 72,000/- besides interest at the rate of 12% per annum from the date of filing the claim petition has been awarded in favour of the claimant. The claimant Uma Devi filed claim case on account of death of her son in an accident while travelling in Bus bearing No. BRK 2695 coming from Purnea to Katihar. According to the case of the claimant, the deceased was tailormaster and his earning was Rs. 1500/- per month. She also claimed that deceased was a student accordingly, the claimed compensation of Rs. six lacs.
3. The tribunal on consideration of the evidence came to the conclusion that the deceased was neither a student nor a tailoring master. However, the Tribunal on assumption held that he could be at best a labour class people, and, therefore, assessed Rs. 900/- as his monthly income based on the earning at the rate of Rs. 30/- per day, and, accordingly, has computed the compensation amount. The Respondent-Insurance Company has been made liable to pay the compensation. Insurance Company did not file any appeal. In the present appeal, the claimant is only aggrieved by the quantum of compensation amount. It has been submitted that the compensation awarded by the Tribunal is meager and not even according to the notional income as provided in second schedule of the Motor Vehicle Act, hereinafter, referred to as 'the Act'.
4. Mr. Ashok Priyadarshi, learned Counsel appearing for the Respondent-Insurance Company has contended that the accident took place on 4.6.1994, whereas second schedule was incorporated on 10th September, 1994. Thus, according to him, the Tribunal has rightly awarded compensation on the basis of determination of the earning of the deceased as a daily rated worker.
5. I am unable to accept this submission of Mr. Priyadarshi, that compensation amount awarded by the Tribunal is justified in the facts and circumstances of the case. It may be true that second schedule which was incorporated after the date of accident cannot be strictly followed, but I find that the accident is of 4.6.1994 and the second schedule was brought in September, 1994 i.e. only after three months of the accident. The principal on the basis of the which notional income has been fixed in such cases in the schedule can be taken up for determination of compensation in the present case. The determination of monthly income by the Tribunal is not based on any evidence, it is merely on assumption/presumption. Clause 6 of the second schedule of the Act provides as to what should be considered as income prior to the accident in the case of fatal and disability in non-fatal accident and where there is no earning found, it provides that notional income for compensation to those who had no income prior to accident, fatal and disability in nonfatal accident (a) non-earning persons (b) spouse, will be Rs. 15,000/- per annum. Thus, even as per the second schedule the minimum notional income has been considered Rs. 15,000/- per annum. There cannot by any justification in the instant case to award compensation on the basis of monthly income less than that. This Court is of the opinion that where the Tribunal is unable to come to a conclusion regarding monthly income of the deceased on consideration of evidence, he should apply the safest course i.e. treating the notional income as provided in second schedule as the monthly income of the deceased.
6. In the result, the appeal is allowed. The impugned judgment and award is set aside. The matter is remitted back to the Claims Tribunal for fresh computation of compensation amount accordingly within two weeks of receipt of the copy of this order. The Insurance Company shall pay the difference of amount as determined by the Tribunal within one week thereafter.
7. It is made clear that the parties will not be at liberty to raise any other questions before the Tribunal. It is father made clear that the penal rate of interest as provided in the award shall not be ciairned by the claimant if the payment is made within two weeks of the final determination.