- (1.) THE Judgment of the Court was as follows : Only question involved in this Appeal relates to whether the evidence of P.W.3, employer-cum-uncle of the deceased, is to be accepted, It is the case of the Appellants that their son used to work in the fertilizer shop of Ramprosad Das, P.W.3 and used to earn Rs. 3,500/-per month. This was also spoken by P.W. 3. But since no document could be produced before the tribunal, the latter disbelieved the same and took the deceased as a non-earning person and fixed it as a case of notional income and awarded Rs. 1,30,000/- adding thereby pecuniary loss which brought the entire compensation to Rs. 2,50,000/- which carried an interest at the rate of 7.5% per annum.
(2.) SHRI Banerjee for the Appellants has placed before us the claim petition. SHRI Banerjee has submitted that in the claim petition it has been clearly mentioned that the Appellants' son used to work in the shop of Ramprosad Das, and used to earn Rs. 3,500/- per month. The claim petition has been filed by the Parents of the deceased (P.Ws. 1 and 2). On the basis of the same a total claim was filed before the tribunal for Rs. 5,00,000/-. SHRI Banerjee has submitted that since P.W.3, Ramprosad Das, who also happens to be the uncle of the deceased in whose fertilizer shop the deceased used to work as salesman, could not produce any document, it was not proper on the part of the tribunal to have disbelieved the same as otherwise both P.W.1, his mother, and P.W.3, his uncle, have spoken with regard to the employment. According to SHRI Banerjee, in cases of this type strict proof as available before a regular civil Court ought not to have been insisted. He has relied on the decision of the Hon'ble Supreme Court in Ashwani Kumar Mishra v. P. Muniam Babu and Others reported in 1999 WBLR (SC) 316 to illustrate his point to the aforesaid score. According to SHRI Banerjee, when the evidence of P.W.1 with regard to the income of the deceased goes practically unchallenged in her cross-examination, simply on the ground that there was lack of document, which according to him in a village shop should not be strictly insisted, the tribunal went wrong in fixing the case as non-earning person and awarded a notional income compensation. He has also referred to the decision of Dr. K.G. Poovaiah v. General Manager/Managing Director Karnataka State Road Transport Corporation reported in (2001) 9 Supreme Court Cases 167 and submitted that when income proof is not filed but if the question of income is found to be reasonable, the same should be accepted. On the other hand, Shri Pahari for the Insurance Company has disputed the submissions of Shri Banerjee. According to Shri Pahari, the tribunal has rightly disbelieved the earning capacity of the deceased in view of the fact that P.W.3 could not produce certificate in respect of the employment of the deceased in his shop. Furthermore, Shri Pahari has submitted that the claim was for Rs. 5,00,000/- which had no basis. He submitted that as there was no proof of employment since no document in support of the same could be produced, the tribunal has correctly taken the case of a non-earning person. He has distinguished the two decisions of Ashwani Kumar Mishra (supra) and Dr. K. G. Poovaiah (supra) cited by Shri Banerjee and prayed for dismissing the appeal. In our opinion, a very short point subsists for our consideration. The evidence of P.W.1, mother of the deceased, indicates that the deceased (her son) used to work as a salesman earning Rs. 3,500/- per month from the shop of Ramprosad Das (P.W.3). In her deposition she also spoke about her son working as salesman in the fertilizer shop and drawing a salary of Rs. 3,500/- per month. He was in the age group of 22 years. As rightly pointed out by Shri Banerjee. she was not cross-examined with regard to the question of employment of the deceased or the amount of salary he used to receive. P.W.3, the purported employer of the deceased, has deposed that he was the owner of fertilizer shop where the deceased, Himangsu Das, used to work as salesman and he used to be paid Rs. 3,500/- per month. It is true that in his cross-examination he could not show any document that Himangsu used to work as salesman or any document in support of payment of salary.
(3.) WE are deciding a case of an unfortunate parents who had lost their son under fortuitous circumstances as known to Section 166 of the Motor Vehicles Act and not a labour dispute where the question of employment of the deceased vis-a-vis his employer is concerned. Relying of the decision of Ashwani Kumar Mishra (supra) relied upon by Shri Banerjee, we are of the opinion that Court while fixing the amount of compensation in cases of accident, some guess work, some hypothetical consideration is involved although the same has to be based on objective standard. In the instant case, apart from the cross-examination of P.W.3, where he had admitted that he could not produce the document relating to the service of Himangsu (deceased) and the salary paid to him, yet it has to be understood that it was a shop in a remote village which had a registration number as reflected from the claim petition. Simply for the fact that absence of maintenance of proper record as gathered from the cross-examination of P.W.3, the entire case of the claimants which otherwise finds support from the evidence and materials on record, should not have been discarded by the tribunal in a summary fashion by concluding that the deceased was a non-earning person and based his award on notional income along with pecuniary benefit with interest. Having a wholesome appreciation of the entire aspect of the matter, we are of the opinion that the submissions made Shri Banerjee have substance and after taking note of the objection of Shri Pahari for the Insurance Company, we feel that the basic income of the son of the claimants, Himangsu Das, who was under the employment of P.W.3, has to be assessed at Rs. 3,500/- per month which would bring to Rs. 42,000/- per year and after one-third is deducted then it takes us to Rs. 28,000/- and keeping in view the age of the mother (48 years) applying the multiplier of 13 as have been done by the tribunal, the same would workout to Rs. 3,64,000/- plus funeral expenses and loss of estate to Rs. 4,500/-, totalling to Rs. 3,68,500/-. Already the tribunal has granted interest at the rate of 7.5% per annum. We find that in view of the rise of price index, the rate is not commensurate. Accordingly, we would also increase the said rate of interest to 8% per annum.;