Loknath Prasad, J.
1. This appeal is directed against the judgment passed in Compensation case No. 125/87 by Sri. Lakhan Kumar Sahay Addl. Judicial Commissioner-cum-Motor Vehicle Accident Claims Tribunal, Lohardage thereby and thereunder the claim of compensation as preferred by the appellant is dismissed.
2. The fact, in short, for the purpose of this appeal is that the aforesaid compensation case was preferred by these appellants who are none-else-than the widow, sons and daughter of one Chamru Ram who while going on cycle on 24.2.1987 and reached near a bridge on Shankh river at Kuru-Lohardage road, then the Oraon bus bearing No. BPV 9669 came with great speed and was being driven rashly and negligently by the driver and it dashed against the deceased causing fatal injury on the spot. The driver sped away with the vehicle towards Lohardage side. However, one lady passenger wife of Swapan Ghosh came down from the but at Pathratoli and subsequently one Awadh Bihari Singh a co-villager of the deseed had gone to place of the accident and found the deceased. So the matter was reported to the police and the police registered Lohardaga P.S. Case No. 19/87 and the dead body was sent for post mortam examination. The police after completing the investigation submitted charge-sheet as against the driver. Due to the death of the deceased, this compensation case was preferred and compensation was, claimed at Rs. 2 Lakhs on the ground that the appellants were solely dependent upon the income of the deceased and he was working as a labourer and monthly income was to 1000/-. In the court below the owner of the Oraon bus, that is, Respondent No. 1 here in spite of proper service of notice, did not contest the claim case and only the Insurance Company contested the claim case and has admitted that the vehicle was fully insured and has claimed that the compensation amount was claimed towards higher side and it is also the case of the Insurance Company that nobody is a witness to the occurrence and post mortam report should also be filed and further in any view of the matter, the claim of appellants is to executive. The Tribunal came to the conclusion that the post moterm report was not produced to prove the accidental/death by dash against a motor vehicle and even the identity of the bus had not been established as the registration number of vehicle had not been given and thus rejected the entire claim of the appellant and even directed the appellant to refund the amount of compensation which they go under Section 92 of the Motor Vehicles Act. Being aggrieved and dissatisfied by this order, the appellants have preferred this appeal.
3. In this appeal also the owner of the bus being Respondent No. 1 had entered appearance through an Advocate but had not contested the appeal and only Insurance Company has contested the appeal.
4. The appellants' claim was rejected by the court below mainly on the ground that the identity of the bus involved in the accident had not been established. In the claim petition, full details were given about the bus SPV 9669, that is, Oraon bus and this fact has not been challenged by the owner of the bus himself. Moreover the Insurance Company has not adduced any evidence denying that Oraon bus bearing registration No. BPV 9669 was not involved. Moreover, admittedly the FIR was lodged for the accident, that is, Ext. 1 by Awadh Bihar Singh who has even claimed to have witnessed the occurrence. He had clearly stated that accident took place due to rash and negligent driving by the driver of the Oraon bus. In the charge-sheet also, that is, Ext. 2 it is dear that Oraon bus bearing No. RPV 9669 was involved in the accident.
5. Furthermore P.W. 2 Awadh Bihari Singh who is the informant of the criminal case also claimed that he had seen the accident and when the deceased was going by bicycle the Oraon bus came on the relevant day and dashed the cycle and caused the fatal injury to the deceased. Thus he longed the criminal case. However, his evidence to be witness was discarded by the court below mainly on the ground that he lodged the FIR claiming that he had seen the occurrence but actually he was informed accident by a lady and then he had gone to the place of accident and had seen the deceased.
6. At the very outset it can be said that the Tribunal has grossly error in rejecting the evidence of this witness because the Insurance Company contesting the claim case has not at all controverted his evidence as eyewitness and has not brought his attention to the statements he made before the place while lodging the FIR vis-a-vis that in court and as such it cannot be said that the witness had made different statements in different forms than what he stated before the court. Similarly P.W. 3 the wife of Swapan Ghosh who was also travelling in the same bus had clearly stated that she too was travelling in the bus and when the bus reached near the bridge over Shankh river it dashed against the cycle of the deceased. So the evidence of this very important witness clearly proves the involvement of the Oraon bus in the accident. So the documentary evidence and the oral evidence as discussed above coupled with non-denial by the owner and also Insurance Company admitted that bus bearing registration No. BPV 9669 was fully insured, and so this fact will prove that on 24.7.1987 bus bearing registration No. BPV 9669 was being rashly and negligently driven by the driver for which the deceased died on the spot near a bridge an Shankh river on Kuru-Lohardaga road.
7. So the accidental death involving the vehicle insured with the Insurance Company of the respondent is well proved and Chamru Ram died in this accident.
8. No doubt the learned court observed that post mortem report has not been filed, but charge-sheet by the police had been filed showing the death of the deceased during this accident and there are other oral and circumstantial evidence which clearly proves the death of the deceased in this accident and as such the appellants who are heirs of the deceased and solely dependant on the income of the decease are certainly entitled to claim the compensation.
9. So for the quantum of compensation is concerned, no doubt, the claimants had claim that the deceased had a monthly income of Rs. 1000/- but no documentary evidence was adduced. On the other hand it has come in evidence and PM. 2 admitted that the deceased was a very man and he was working as a labouer. However, taking into consideration the income of the deceased on a lower side, his monthly income comes to Rs. 450/- per month and if 1/3rd is to be deducted by way of personal and incidental expenses of the deceased, the dependancy of the family which is a large family comes to Rs. 300/- per month. Admitted the deceased died at the age of 40 and so the annual income can be multiplied by 12 and thus it comes around Rs. 43000/-. Accordingly 1 come to the conclusion that due to the death of the deceased in the accident involving motor vehicle, which was comprehensively insured with the respondent Insurance Company, the appellants are entitled to realise Rs. 4000/- by way of compensation through the United India Insurance Company less the amount of Rs. 15000/- already received by the claimants. The appellants are also, entitled to realize interest to 12% p.a. from the date of filing of the petition till realisation. Accordingly this appeal is allowed in the manner indicated above but without costs.