- (1.) THIS appeal is at the instance of the claimants in a proceeding under Section 166 of the Motor Vehicles Act and is directed against an award dated 21st April, 2004 passed by the Motor Accident Claims Tribunal and Additional District Judge, Fast Track, First Court, Jalpaiguri in MAC Case No. 26 of 2002 thereby dismissing the said application only on the ground that out of the eleven heirs of the deceased, five were left out.
(2.) THE learned Tribunal below, however, found that there was rash and negligent driving on the part of the offending vehicle and that the said vehicle was insured by the Insurance Company, who is contesting the proceeding. Being dissatisfied, the claimants have come up with the present appeal. In this appeal, the claimants filed an application for addition of the left-out heirs and this Court allowed such application and pursuant to that order, the five remaining heirs have entered appearance through the learned Advocate, who is representing the claimants and have supported the claim of the appellants.
(3.) IN such circumstances, instead of remanding the matter back to the Trial Court, we propose to assess the compensation on the basis of the evidence already on record. From the evidence of PW1, we find that it was specifically asserted that the victim used to earn Rs. 4,000/- per month. In the evidence, the first widow of the victim asserted that the victim had monthly income of Rs. 4,000/- a month from the cultivation and he had also a business of tobacco. It appears that no suggestion was given to the said widow asserting that the victim had no such income or any income.;