Court No. - 6
Case :- FIRST APPEAL FROM ORDER No. - 3629 of 2018 Appellant :- The National Insurance Co. Ltd. Respondent :- Smt. Janki Devi And 3 Ors Counsel for Appellant :- Vipin Chandra Dixit Hon'ble Ashok Kumar,J.
Heard learned counsel for the appellant-Insurance Company.
This appeal is filed under Section 173 of Motor Vehicles Act, 1988 against the judgment and award dated 26.05.2018 passed by Additional District Judge/Motor Accident Claims Tribunal, Gautam Buddh Nagar in MACP No. 184 of 2015.
Counsel for the appellant-Insurance Company has submitted that the order of the Tribunal is not acceptable so far as it relates with fixation of notional income.
Learned counsel for the appellant has submitted that the Tribunal has erred while fixing the notional income at Rs.8,000/- per month as against claimed by the claimants to the tune of Rs.16,000/- per month. The Tribunal without considering the objection of the appellant that no proof with respect of the payment of salary is placed nor any evidence is placed showing that the salary was ever deposited in the bank account of the victim deceased.
It is admitted case that the salary claimed by the claimants was Rs.16,000/- per month which was below the taxable limit and total salary comes Rs.1,96,000/- per annum.
In view of the aforesaid fact and since the victim deceased was employed just few months before the accident the record related to the deposit of salary may not have been prepared or provident fund account may not be open.
In view of the aforesaid and since the victim deceased was a diploma holder of the subject named Eco and TMT Test, which fact is not disputed by the appellant, therefore, in my opinion, the Tribunal is fully justified while determining the monthly income of the victim deceased at the rate of Rs.8,000/- per month.
It is further relevant to mention here that this Court consistently fixing notional income of Rs.6,000/- per month in the cases of skilled labour and, therefore, in the event when deceased was diploma holder and was having technical knowledge, was supposed to earn much more than what was/is earned by unskilled labour.
Learned counsel for the appellant has submitted that the police has submitted the charge sheet in which Jaiprakah and Rajendra were witnesses who were not examined and further that one K.P. Prasad Sharma was examined who claimed that he was present at the spot where the accident took place but name of K.P. Prasad Sharma is not mentioned in the chargesheet, therefore, the same creates doubt about presence of those persons.
Admittedly, the accident took place at 7.30 A.M. at Sector 12, NOIDA when the victim- deceased was driven by a bus which was driven speedily and negligently by the driver and immediately after the accident the deceased was declared died.
In the month of May at 7.30 A.M. and at the place named Sector 12, NOIDA one cannot rule out the presence of many persons as narrated in the order, therefore, in my opinion the Tribunal was fully justified by accepting the chargsheet submitted by the police. Tribunal has discussed the said issue in detail in paragraph no.12, 13, and 14 of the impugned judgment and award.
Learned counsel for the appellant has submitted that a certificate was issued by a specialized investigator one Mohindra Kumar Mittal dated 15.03.2016 which clearly indicates that the said investigator has filed the documents relating to the erring bus and after verification, he found that the said bus was having contract carriage permit operative within municipal limit of New Delhi whereas admittedly the accident took place at Sector 12, NOIDA, which is beyond the permissible area of contract carriage.
Learned counsel for the appellant further submitted that the certificate was not placed before the Tribunal as such prayed that the same be considered as an additional evidence under Order 41 Rule 47 of C.P.C., 1908.
In view of the aforesaid facts, this Court finds it appropriate that the matter be relegated to the Tribunal only to consider the said certificate dated 15.03.2016 issued by the specialised investigator Mohindra Kumar Mittal and if the Tribunal arrived at a conclusion that the bus in question was plied beyond the permissible limit, a reasoned order be passed after providing opportunity to the owner of the bus.
No other modification in the impugned judgment and award is required. Accordingly, this appeal is finally disposed of.
The Tribunal is directed to pass an appropriate order in accordance with law as indicated hereinabove within a period of two months from the date of production of certified copy of this order.
Statutory amount, if any, deposited before this Court be remitted to the Tribunal concerned within two weeks, for adjustment towards deposit to be made by the appellant for payment to the claimants.
Order Date :- 13.9.2018 A.Kr.*