- (1.) THIS appeal is directed against Order no. 61 passed by the learned Judge, Motor Accident Claim Case no. 175 of 1971. The objectors Bharat Petroleum Corporation ltd. and the National Insurance v Co. Ltd. are the appellants in the instant appeal. The said Motor Accident Claim Case no. 175 of 1971 was started on the basis of the claim petition presented by the respondents viz. . , the widow, sons and daughters of Sudhir Kumar Ghosh who died due to an accident on 29th of July, 1971 caused by a petrol talker bearing No. W. B. Q. 3600 belonging to the respondent No. 1, Bharat Petroleum Corporation Ltd. The said vehicle was insured with the appellant no. 2, National Insurance Company Ltd. It is the case of the respondents who were the claimants petitioners in the said motor accident claim case that due to rash and negligent driving of the said petrol tanker No. W. B. Q. 3600, the victim sudhir Ghosh was crushed to death on the spot at the junction of Raja Monindra Road and Manmata Datta Road near Ashu Ghosh's bazar within the city of Calcutta. It appears from the evidence that the victim was sixty nine years old at the time of his death. It also transpires from. the evidence that the said victim was formerly an employee in a firm belonging to the tata Groups and after retirement from the service of the said tata Group, the victim got another employment in a firm in calcutta where he had been earning about Rs. 175/- per month. It transpires from the evidence given by the partner of' the firm where the victim was employed after his retirement from the service of Tata Group, that he had been drawing the said salary of Rs. 175/- per month and in May 1970 he left the said job. The partner of the firm has deposed to the effect that the victim had a good health. The learned Judge of the motor accidents Claims Tribunal after taking into consideration of the evidence on record has inter alia come to the finding that the said accident occurred due to rash and negligent driving of the said petrol tanker and the victim had been earning about Rs. 450/- to Rs. 500/- per month according to the evidence of the widow. The learned Judge has also taken into consideration that the victim was an overseer in a private firm and he could also do private works. On such consideration, the learned Judge was of the view that the family would have received from the victim at least Rs. 10,000/- if the victim had not died due to the said accident. The learned Judge did not allow any maintenance to the married daughter, Smt. Sabita mitra. But he allowed a sum of Rs. 2000/- to the widow on account of loss of consortium and he has also awarded a sum of Rs. 400/- to each of such sons and daughters on account of loss of love and affection from the deceased father. The learned Judge has, therefore, passed an award for a total sum, of Rs. 15,200/- for the loss of income and also the loss of consortium and also the loss of love and affection to the widow, sons and daughters. He has also allowed a sum of Rs. 100/-towards the cost incurred for the said motor accident claim case.
(2.) AGAINST the said judgment and award of the learned Tribunal the owner of the said vehicle and also the insurer who are objectors in the said claim case, have preferred the present appeal.
(3.) MR. Chowdhury, learned counsel appearing for both the appellants has contended that In the instant case the learned tribunal has awarded the said sum of Rs. 10,000/- towards the pecuniary loss on account of the death of the said victim without any material whatsoever. Mr. Chowdhury has contended that admittedly the said victim was out of employment at the time of his death. He retired from the service of the Tata group sometime in 1960, and in December 1960 he joined a private firm and left the service in the said private firm in may, 1970. The partner of the firm deposed to the effect that the victim had been earning a remuneration to the extent of rs. 175/- per month only in the said private firm. Mr. Chowdhury has contended that there is no evidence whatsoever that after the victim had left the service in the private firm in May 1970, he had been earning any amount from any source. In the aforesaid circumstances, there was no reasonable basis for the learned Judge to proceed on the footing that the victim had been earning at the rate of about Rs. 500/- per month and he could contribute about Rs. 10000/- to the family if he had not died due to the said accident. Mr. Chowdhury has contended that the victim was fairly advanced in age at the time of the accident and he had been spending retired life without any job or earning whatsoever. In the aforesaid circumstances, it could not be contended by the claimants that they had suffered any pecuniary loss on account of the death of the said victim.;