M.Y. Eqbal, J.
1. The appellants who are the mother, widow and minor sons of the deceased have preferred this appeal for enhancement of compensation so awarded by Claims Tribunal, Hazaribagh in Claim Case No. 190/2002.
2. The claimants/appellants filed application under Section 166 of the Motor Vehicle for compensation of Rs. 5,00,000/- on account of death of deceased late Prem Thakur who met with an accident on 5.10.2002 near Jarandih Colliery Office in Bokaro district. While the deceased was traveling as a passenger in a trekker, a Dumper bearing registration No. BHM-1872 coming in a very rash and negligent manner dashed the trekker. The deceased sustained grievous injuries and was taken to D.V.C. Hospital, Bokaro Thermal Power, where he died. The deceased was aged about 32 years and was employed in M/s Khana Body Builder in Hazaribagh. Claimants' case was that the deceased was earning Rs. 4500/- per month. The Tribunal in absence of any authentic documentary proof of the monthly earning of the deceased took notional income of Rs. 15,000/- and assessed compensation at Ra.s1,77,000/-.
3. Learned Counsel for the appellants submitted that wife of the deceased was examined as witness and was supported her case that deceased was earning Rs. 4500/- per month. Another witness deposed that deceased was a body maker of vehicle and was earning Rs. 4500/- per month. This witness further deposed that the deceased was employed in his workshop since June 2002. The Tribunal took the view that in absence of authentic documentary proof notional income of Rs. 15000/- per annum will be considered as the earning of the deceased and assessed compensation. The question, therefore, that falls for consideration is to whether tribunal was justified in taking notional income of Rs. 15,000/- for the purpose of determining the quantum of compensation. In this regard, I would first like to quote Section 163A of the Motor Vehicles Act, which reads as under :
163A Special provisions as to payment of compensation on structured formula basis- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation- For the purposes of this subsection, 'permanent disability' shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under Sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.
4. 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 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.
5. In the instant case, as noticed above, not only the widow of the deceased but also C.W.2 has deposed and stated that the deceased was body-maker of vehicles and previously he was a Khalasi. C.W.3 also stated that deceased was body-maker and he was working in his workshop and was getting Rs. 4500/-. These evidence have not been controverted by either owner or insurer of the vehicle. Inspite of that the Tribunal has taken notional income of Rs. 15,000/- which is totally against the law and the provisions of the Act and the Schedule referred to hereinabove.
6. Besides the above, deceased died leaving behind parents, widow and minor children and it has not been disputed that deceased was maintaining his family. If the notional annual income of Rs. 15,000/- is taken then monthly notional income comes to Rs. 1250/- and the daily notional income comes to about Rs. 40/-. At no stretch of imagination it can be accepted that deceased was maintaining his family by earning Rs. 40/- per day. Even if we take minimum wages payable to skilled labourer it cannot be less than Rs. 100/- per day.
7. Taking into consideration all aspects of the matter, it can safely be held that deceased must have been earning Rs. 3,000/- per month. If we deduct 1/3rd out of the monthly earning then monthly dependency comes to Rs. 2,000/- and annual dependency comes to Rs. 24,000/-. If multiplier of 15 is taken then the minimum compensation comes to Rs. 3,60,000/-. In our view, therefore, a sum of Rs. 3,50,000/- shall be just and reasonable compensation.
8. We, therefore, allow this appeal and enhance compensation amount from Rs. 1,77,000 to Rs. 3,50,000/-.