- (1.) QUESTION of application of notional income where the deceased had even a slightest earning is now no longer res Integra in view of the two Division Bench decisions of our Court in the case of Mira Debi Chowdhury v. Chhatelal Chowdhury reported in (2007)1 WBLR (Cal) 596 and in the case of Smt. Sabita Singha and Others v. M/s. National Council of Regional Scheme Centre and another reported in (2007)1 WBLR (Cal) 18. In such trajectory, we have been asked to look into the Award of Compensation returned by the learned Motor Accident Claim Tribunal (Fast Track, 2nd Court, Jalpaiguri) in connection with M.A.C. Case No. 113 of 2007 dated 28.6.2006. The learned Tribunal took into account the no income effect of the deceased (son of PW.1) and calculated that he could be classified on the basis of the principle of notional income. The learned Tribunal after calculating the same by way of applying multiplier of 5, assessed the loss at Rs. 56,000.00 and by way of application of default clause awarded interest at the rate of 9% per annum in the event the amount is not paid within 30 days.
(2.) SHRI Banerjee, in appeal against the same, has taken us through the order under appeal and has placed the evidence before us. Shri Banerjee restricted his submissions to two aspects of the matter -firstly, that since son of the deceased who was a practising Advocate as evident from the certificate of the Bar Council of India (Ext.8) and unequivocal deposition of P.W. 1, (mother) and P.W.2, classification on the basis of the notional income was absolutely wrong. Shri Banerjee further submitted that barring application of default clause no interest has been awarded on the same which was directed to be paid by treating the income of the deceased on the basis of the notional income. Above all, Shri Banerjee submitted that the multiplier of 5 which was used by the learned Tribunal was absolutely wrong as according to the Tribunal, it was held the age of the mother (P.W.I) was 56 years as found from her evidence, whereas deposition was taken place in 2004 and the incident was of 2002. As such, multiplier would be 11 calculating the age of the mother of the deceased as below 50 years. Shri Pal, for the Insurance Company, has strenuously opposed all the submissions made by Shri Banerjee. He has placed the judgment in his own way in the light of the evidence of P.W.1 (mother) and has submitted that at first when proof of income could not be established by way of legally sustainable documents, very rightly the learned Tribunal assessed the deceased in the classification of notional income. He found no wrong in the same. Shri Pal was further of the view that in the event the mother of the deceased, P.W.1, was in the know of the income and he had no any income at all, there could have been some substantial proof. Furthermore, by the application of correct multiplier he was of the view, as it has been borne out from the evidence of P.W.1 as also in her claim petition that she was 56 years of age, in the absence of any supporting document it can be easily calculate that she is 56 years and correct multiplier would be 8 for the purpose of assessing the income and it can never be 11 as shown by Shri Banerjee for the Appellant. Shri Pal was of the further view that on the question of interest as already direction has been passed by the learned Tribunal that in the event the same is not liquidated within a period of 30 days interest would be paid, the amount has already liquidated in the meantime and as such, claim for interest at this belated stage is not maintainable.
(3.) AS we have found our scope is extremely limited, we are covered by two successive decisions of our Court in Smt. Sabita Singha and Others (supra) and Mira Debi Chowdhury (supra), where it has been noticed that whatever paltry the amount of income may be, when it was established that the deceased had certain amount of income, the calculation of the learned Tribunal in this aspect is absolutely untenable. For this purpose we would refer to the evidence of P.W.1, the mother of the deceased, who specifically deposed that her son was a practising Advocate of Jalpaiguri Court and he was 32 years at the time of his death which has been followed by the deposition of P.W.2, eye-witness who has categorically deposed that the deceased was a practising Advocate who died in the motor accident on 21.9.2002 while he was on his way near Toil-Gate of Tista Bridge.;