Wangdi, J.

1. This Appeal arises out of the judgment (hereinafter referred to as the impugned judgment) of the Learned Member, Motor Accident Claims Tribunal, South and West Sikkim at Namchi (in short the Learned Claims Tribunal) dated 07-08-2012 in M.A.C.T. Case No.23 of 2010, by which the claims for death compensation by the widow of the deceased on behalf of herself and on behalf of her two minor children for the death of her husband in a motor vehicle accident was rejected.

2. The Claim Petition had been filed by the Appellants on the death of the deceased, Asish Sunam, in an accident of a Maruti 800 Car bearing registration No.SK 02A 5013 on 09-05-2010 on the way back to Jorethang from Siliguri.

3. Based upon the respective pleadings, five issues were framed by the Learned Claims Tribunal out of which four were decided against the Appellants, issue no.2 having gone in their favour. We may reproduce the issues that have been decided against the Appellants which are as follows:-

Issue No.1

Whether the vehicle bearing registration No.SK 02 A 5013 (Maruti 800) met with an accident 40 kms. north- east of Andhere Jhora, Sevoke on 10-05-2010 and the deceased succumbed to his injuries

Issue No.3

Whether the income of the deceased was Rs.15,000/- (Rupees fifteen thousand) only per month

Issue No.4

Whether the vehicle had been driven in contravention to the insurance policy of the said vehicle

Issue No.5

Whether the Claimants are entitled to the reliefs as claimed for and who is liable to pay the compensation

4. Aggrieved by this, the Appeal has been preferred on various grounds set out in the Memo of Appeal.

5. Mr. A. K. Upadhyaya, Learned Senior Advocate, appearing on behalf of the Appellants, submits that on the evidence which is available on the records those ought not to have decided against the Appellants. It was urged that the controversy as regards the date of the accident was unwarranted as the Learned Claims Tribunal had fallen in error in concluding that it took place on 10-05-2010 relying upon the First Information Report (in short the FIR). As per him, the Learned Claims Tribunal had overlooked the fact that the very FIR had in fact been filed in the morning of 10-05-2010 by the father of the deceased informing of the accident having taken place on 09-05-2010. Apart from this, the Death Certificate, Exhibit 12, filed as a part of Annexure P20 to the Appeal, also indicates 09-05-2010 as the date of the accident in which the deceased had died. As regards the income of the deceased under issue no.3, it is submitted that the Learned Claims Tribunal has erroneously rejected the Income Certificate, Exhibit 11, issued by the Block Development Officer (in short the BDO) filed as Annexure P21 to the Memo of Appeal. Relying upon the decision of this Court in Branch Manager, Oriental Insurance Company Ltd. vs. Smt. Meena Bania andOthers : 2012 (1) T.A.C. 444 (Sikkim), it was submitted that the BDO being a public servant, the Certificate issued under his seal and signature ought to have been accepted as a reliable piece of evidence. On issue no.4 as regards the validity of the Driving Licence of the deceased driver Sanjeev Rai of the vehicle that met with the accident, it was urged that the Learned Claims Tribunal had misdirected itself in relying solely upon the entry found in the Final Report submitted by the Kurseong Police where it was mentioned as being valid only up to 08-2-09 in column 3 under serial no.11 thereof and thus holding that it was invalid on the date of the accident. It is his submission that the Learned Claims Tribunal had overlooked the Certificate, Exhibit 13, issued by the Senior Regional Transport Officer (in short the RTO), Motor Vehicle Division, Jorethang, South Sikkim which proved otherwise. It was then contended that the premises in which the Learned Claims Tribunal had decided issue no.5 in so far as it related to the age of the deceased, was erroneous in as much as the claims of the Appellants were rejected simply based upon the discrepancies found in the Claim Petition and the FIR, Exhibit B.

Therefore, the impugned judgment as per the Learned Counsel, was bad that called for it being set aside and the claims of the Appellants being allowed.

6(i). In so far as the Respondents are concerned, Mrs. Pritima Sunam, Advocate, appearing on behalf of the Respondent No.1, the registered owner of the vehicle, submits that she has nothing to submit and would leave the matter for decision by this Court.

(ii) Mr. Sonam Dorjee Lepcha, Advocate, appearing on behalf of Respondent No.2-Insurance Company, however, submits that there is no error committed by the Learned Claims Tribunal in passing the impugned judgment for the very reasons as set out by the Learned Claims Tribunal. His submissions are as under:-

(a)On issue no.1, it is submitted that there are discrepancies as regards the date of the accident and the death of the deceased. There is also confusion as regards the place of death. As per him, the Death Certificate indicates the date of the deceased as 09-05-2010 whereas the Formal FIR, Exhibit 3, submitted by the Kurseong Police indicates it as 10-5-2010. As per the Death Certificate, a part of Annexure P20, the place of death has been indicated as Zoom, P.O.Zoom, W-Sikkim whereas in the Death Certificate, Exhibit 12, it is stated as Andheri Jhora P.O- Kalijhora.

(b)As regards issue no.3, it is submitted that the Income Certificate, Exhibit 11, was found to be an unreliable piece of evidence as the BDO who issued the Certificate was not examined.

(c)Apart from this, it is also submitted that income of Rs.15,000/- of the deceased as indicated in the Income Certificate, Exhibit 11, is excessive.

(d)On issue no.4, it is submitted that the Driving Licence of the driver, Sanjeev Rai (also deceased) had already expired as per the entry in the Police Final Report, Exhibit C, in which the last date of its validity is entered as 08-2-09. Exhibit 13 which is the Certificate issued by the Senior RTO cannot be relied upon as being contradictory to the entry in the Final Report Exhibit C.

(e)On issue no.5, as per Mr. Lepcha, there are conflicting dates as regards the date of birth of the deceased. In the FIR, Exhibit B, it is indicated as 26 years while in the Claim Petition it is 30 years.

In view of these facts, the Learned Counsel submits that there is no reason as to why the impugned judgment should be interfered with.

7. I have heard the rival contentions and have perused the Memo of Appeal, entire records of the case and the documents contained therein. Upon consideration of those and the only questions raised by the parties already alluded to, I am of the view that the Learned Claims Tribunal fell in grave error in rejecting the claims of the Appellants by overlooking and misconstruing the glaring evidence and relying upon those which on the facts and circumstances are clearly not sustainable. We may examine the various issues in question in seriatim as under and analaysis the evidence in respect of each of those.

(i) Issue No.1

Whether the vehicle bearing registration No.SK 02 A 5013 (Maruti 800) met with an accident 40 kms. north-east of Andhere Jhora, Sevoke on 10-05-2010 and the deceased succumbed to his injuries

(a) There can be no controversy as regards the date of the accident which is clearly evident from the FIR, Exhibit B, which indicates that the accident took place in the evening of 09-05-2010 at 07.30 p.m. The written FIR is dated 10-05-2010, the first and second paragraphs of which reads as under:-

With due respect and humble submission, I beg to state that my son, Mr. Asish Sunam (26 yrs.) along with Mr. Sanjeev Rai (22 yrs) & Rakesh Sunam (32 yrs) (all R/O of Zoom Busty, P.S. Nayabazar, W. Sikkim) met with an accident at Andheri Jhora on the way to Jorethang from Siliguri at around 7 pm in Maruti 800 vehicle (SK- 02 A-5013).

That, I have been informed by one of the person who was in the rear seat (Mr. Rakesh [underlining mine] Sunam, S/O Deoraj Sunam) of that said vehicle at around 7.30 pm.

(b) On the left hand column of the FIR, Exhibit B, we find the following entry made by the Office-in-Charge, Sevoke Police Post, Kurseong, Darjeeling:-

Received on 10.05.10 at 07.05 h and diarised vide Sevoke PP. GDE No.130/10 dt. 10.05.10 & forwarded to I/C Kurseong P.S. for recording a specific case & U.D. case.

Sd/-

10.05.10 O/C Sevoke PP

Office-in-Charge

Sevoke Police Post

P.S. Kurseong

Dist. Darjeeling

[underlining mine]

(c) From the above, it is quite evident that the FIR was lodged at about 07.05 a.m. on 10-05-2010 reporting of the accident that took place at about 07.30 p.m. of the previous day, i.e., 09-05-2010. We also find this as an admitted fact as would appear from the evidence of D.W.1 on behalf of the Insurance Company-O.P. No.2, namely, Mihir Kumar Basu, Advocate, who at page 4 of his Investigation Report has observed That the time and place of accident as mention (sic) in the claim petition are true but the date as mention (sic) in the claim petition point No.8 is not true because the incident occurred on 09-05-2010. D.W.1 is the witness for the Insurance Company, the contesting O.P./Respondent and, therefore, his evidence to the above effect would amount to admission on the part of the Insurance Company of date of the accident as 09-05-2010. We also find 09-05- 2010 entered as the date of death in the Death Certificate, Exhibit 12, issued by the Sub-Register of Birth & Death, Champasari Gram Panchayat, Champasari, Darjeeling, Government of West Bengal, filed as a part of Annexure P20 to the Memo of Appeal. It stands established by these that the accident took place on 09- 05-2010. The finding of the Learned Claims Tribunal on this, therefore, is clearly erroneous.

(ii)Issue No.3

Whether the income of the deceased was Rs.15,000/- (Rupees fifteen thousand) only per month

(a) While deciding this issue, the Learned Claims Tribunal appears to have concluded that the Income Certificate, Exhibit 11, issued by the BDO was unreliable only on the ground that the BDO was not examined. This finding is found to have been linked with the claims on behalf of the Appellants that the deceased used to own a vehicle which was plied by him as a taxi. It is difficult for this Court to accept that the Certificate issued by the BDO cannot be accepted as a reliable piece of evidence simply because it was not proved by the BDO himself by entering into the witness box. The Learned Claims Tribunal appears to have clearly overlooked the decision of this Court in Meena Bania (supra) wherein on this very question it has been held as follows:-

17.1 Income certificate issued by the BDO on agricultural income is a valid and accepted document in the State of Sikkim and the position is the same as regards validity while being presented to other authorities also. The BDO or the Block Development Officer in a State is a revenue authority and is competent under the State Government Rules to issue such certificates, a fact which this Court takes judicial notice of. In view of the above, the objection raised on this account is clearly sustainable and, therefore, stands rejected accordingly.

(b) I have perused the Income Certificate, Exhibit 11, filed as Annexure P21 to the Memo of Appeal, which we may reproduce for convenience:-

GOVERNMENT OF SIKKIM BLOCK ADMINISTRATIVE CENTRE

(SORENG)

(NOT TO BE USED FOR EXEMPTION OF COURT FEES)

Memo No. 1921 /BAC/SRGDated : 31/01 /2010

INCOME CERTIFICATE

vv

This yearly/monthly individual income of Shri/

v

Smt/Kumari Asish SunamDarjeeS/O, W/O,



D/O Shri, Mani Raj Darjee/SunamResident of



Zoom Block (W) SikkimSikkim is as under:-

1. SALARY: Rs.________-_ ______



2. AGRICULTURE : Rs._______-_________

3.OTHER SOURCES/ : Rs._____15,000/0_____

Vehicle income

TOTAL : Rs._____15,000/0_____

(Rupeesfifteen thousand)only)

(Per Month)]

The above income has been prepared on the basis of the report of the Zoom Gram Panchayat recommendation and on the basis of solemn affirmation under oath before the BDO on 30th January 200 2010.

Sd/-

Block Development Officer

Rural Management & Dev. Deptt.

Soreng Block, W-Sikkim

BLOCK DEVELOMENT OFFICER

BLOCK ADMINISTRTIVE CENTRE

(c)As held in Meena Bania (supra) the BDO is a competent Authority under the State Government to issue Certificates of income. Apart from this, he is undoubtedly a public servant and, therefore, Certificates issued under his seal and signature can be judicially taken notice of under Illustrations (e) of Section 114 of the Indian Evidence Act, 1872.

(d)On a perusal of the Income Certificate, Exhibit 11, it is evident that there are three different sources of Income Certificate which a BDO is competent to issue. They are - income from (1) salary, (2) agriculture and (3) other sources. As would appear from the Income Certificate, Exhibit 11, the income certified is in respect of third category, i.e., other sources mentioned as vehicle income. In the cross-examination of the Appellant No.1 by the Learned Counsel for the Insurance Company, we also find her having stated that It is true that the driver of my taxi submits approximately Rs: 10,000/- to Rs: 15,000/- per month. This was an answer to a suggestion made on behalf of the Insurance Company as regards the period post the death of the deceased. These two evidence taken together would lead one to an irresistible conclusion that the income certified by the BDO in his Certificate, Exhibit 11, is the nearest possible income earned by the deceased at the time of his death.

(e) On the aspect of the deceased having purchased a taxi vehicle from P.W.2, Anil Kumar Pradhan, I find that the plea has been rejected by the Learned Claims Tribunal considering the vagueness of the Sale/Gift Deed Document, Exhibit 14. However, we find that this is not the sole evidence as P.W.2, the seller, has most unequivocally testified of this fact by filing an affidavit, the relevant portions of which reads as under:-

2. That I have sold the vehicle bearing registration No.Sk-04-8112 to Late Ashis Sunam on 22.12.2008 and have also executed a Sale Deed Document in his name on the same day.

3. That I have handed over the Vehicle along with its documents to Ashish Sunam after the execution of the above mentioned Sale Deed .

4. That the owner of the Vehicle bearing Reg. No. Sk-04-8112 is Ashish Sunam .

(f)I, therefore, do not find any reason not to accept that the vehicle was indeed purchased by the deceased from P.W.2. It is no doubt true that the Sale Deed is vague and unregistered. However, this by itself does not negative the factum of it having been purchased and its possession taken over by the deceased in view of the testimony on this by the seller himself. It can also certainly be considered as a relevant factor for arriving at his income regarding which we have already discussed. The only other consequence is that it does not divest P.W.2, Anil Kumar Pradhan, from his liability as the registered owner of the vehicle under the law for which reason he has obviously been arrayed as a party in the Claim Petition.

For these reasons, I am of the view that the finding of the Learned Claims Tribunal on issue no.3 is not sustainable.

(iii)Issue No.4

Whether the vehicle had been driven in contravention to the insurance policy of the said vehicle

(a) The Learned Tribunal, in my view, has fallen in grave error in relying solely upon column no.3 under serial no.11 of the Final Report, Exhibit C submitted by the Kurseong Police, to arrive at a finding of the Driving Licence of the deceased having expired on 08-02-2009. This entry obviously appears to be an erroneous one in view of the evidence of P.W.3, the Senior RTO posted at Jorethang who is the competent Officer in issuing such Licences. We find from the records of the Learned Claims Tribunal that the relevant Register of the Office had been called for at the behest of the Claimants without being objected to on behalf of the Respondents as would appear from the Order of the Learned Claims Tribunal dated 21- 02-2012. The Driving Licence Register thus produced was exhibited in Court and thereafter returned as revealed from the entry made by the Learned Claims Tribunal in the deposition of P.W.3. The Register had been exhibited as Exhibit 19 and the relevant page, Exhibit 18, containing entry at serial no.1119 dated 09-03-2009 of the Driving Licence, Exhibit 17, valid up to 8-3-029, that are

summed up in the Certificate issued by him marked as Exhibit 13. There is nothing in his cross-examination that has in any manner contradicted this. For these reasons, I am convinced of the fact that the Driving Licence of the driver was valid up to 08-03-2029.

(b) There is another document which appears to have escaped the notice of the Learned Claims Tribunal. This is a Certificate dated 10-06-2011 issued by the Inspector-in-Charge, Kurseong Police Station which we find in the records apparently filed along with the Sale Deed document, Exhibit 14. The contents of the document read as under:-

To whom it may concern

This is to certify that the Driving Licence bearing No. 1119/09/J in the name of Late Sanjeev Rai S/o Sri D. S. of Zoom West Sikkim valid up to 08.02.2029 which was seized in by the Officer-in- Charge Sevok Police Post West Bengal on 13.08.10 in c/w Ksg (Kurseong) P.S. Case No. 82/10 dt. 11.05.2010 u/s 279/304A IPC and the said D/L in the name Sanjeev Rai (deceased driver) has been misplaced at Kurseong Police Station. This refers Kurseong Police Station General Diary Entry No. 430/11 dt. 10.06.2011.

Sd/-

10/06/2011

Inspector-in-Charge Kurseong Police Station Dist. Darjeeling

(c) From the above, no doubt there appears to be an error in mentioning the month as 02 in place of 03. In my view, this error is no consequence as the year is found to have been clearly mentioned as 2029 which would bring the Driving Licence within the period of validity.

(iv)Issue No.5

Whether the Claimants are entitled to the reliefs as claimed for and who is liable to pay the compensation

On a bare reading of the impugned judgment, we find that the Leaned Claims Tribunal has decided the issue against the Claimants only on account of the confusion about the age of the deceased which as per its finding was either 26 years as per the FIR, Exhibit B or 30 years as mentioned in the Claim Petition. To set this controversy at rest, we may consider the Driving Licence, Exhibit 9, which indicates the date of birth of the deceased as 17- 10-80 and 20 years as on 01-01-2001 in the Voter Identity Card filed as a part of the investigation report of Mihir Kumar Basu, D.W.1, Exhibit D. These taken together would show that the age of the deceased was about 30 years as stated in the Claim Petition. We may, therefore, take the age of the deceased as 30 years. In any case, in my view, this does not make any difference and would be of no consequence as the multiplier provided under Second Schedule of the Motor Vehicles Act, 1988, is the same in respect of those persons fallen within the age of above 25 years to 30 years which is 18.

8. For all these reasons, the Appeal has to succeed and the Appellants entitled to the reliefs as sought for in the Claim Petition. The compensation in favour of the Appellants are thus worked out as under:-

Monthly income of the deceasedRs.15,000.00

Annual income of the deceased(15000 x 12 months)Rs. 1,80,000.00

Less 1/3 of Rs.1,80,000/-(-)Rs.60,000.00

[in considerationoftheexpenses

which the victim wouldhaveincurred

towards maintaining himself had he

been alive]

Net yearly incomeRs. 1,20,000.00

Applicable Multiplied - 18(1,20,000 x 18)Rs.21,60,000.00

[The age of the deceased at the time

of death about 30 years and the

relevant multiplieras per the Second

Schedule is 18]

Funeral expenses(+)Rs.2,000.00

Loss of consortium(+)Rs.5,000.00

Loss of estate(+)Rs.2,500.00

Rs. 21,69,500.00

Less interim relief(-)Rs.50,000.00

[Rs.50,000/-asinterimpayment

received bythe Appellantsvide Order

dated 13-05-2011during the trial]TotalRs.21,19,500.00



9. The Appellants shall be entitled to a simple interest @ 10% on the above with effect from the date of the Claim made before the Learned Claims Tribunal until full and final settlement of the award.

10. The compensation shall be divided in three equal parts in favour of the two minor children and the Appellant No.1.

11. In view of this, since the Appellants No. 2 and 3 are minor, it will be in the interest of justice to direct that their shares be kept in Fixed Deposits in a Nationalised Bank in separate accounts in their respective names until such time they attain the age of majority. So far as the Appellant No.1, wife of the deceased, is concerned, an amount of Rs.6,00,000/- (Rupees six lakhs) only out of her share also be kept in a Fixed Deposit in a Nationalised Bank for at least 5 years leaving the balance to be operated in a Savings Bank Account in a Nationalised Bank to meet her household expenses and the expenditure towards the upkeep and education of the minor children. For this purpose, the Appellant No.1 shall also be entitled to withdraw the interests accruing on all the Fixed Deposits.

12. It is made clear that the Fixed Deposits kept in the names of the Appellants, i.e., the wife and the two minor children, shall not be pledged against any form of advances and be kept encumbered. This shall be conveyed to the Nationalised Bank where the Fixed Deposit Accounts are being opened.

13. In the event of dire necessity in the interest of the family, it shall be open for the Appellants to approach this Court for relaxation of these conditions.

14. In the result, the MAC App. is allowed.

15. No order as to costs.

16. Considering the fact that the accident took place as far back as on 09-05-2010, the Respondent No.2- Company is directed to pay the compensation to the Appellants within six weeks from hence and not later than that. A report of compliance of the directions shall be filed by the Respondent No.2-Company on or before the expiration of the period as stipulated by this Court.

17.Let a copy of this judgment and the Original records be transmitted forthwith to the Learned Claims Tribunal for compliance.