1. By way of this appeal, the present appellant-original claimants have challenged the judgement and award dated 31.01.2002, passed by the Motor Accident Claims Tribunal(Auxi.), Khambhalia, in M.A.C.T. No.309 of 1998, whereby the tribunal has awarded compensation in the sum of Rs.3,14,100/- to the claimants with interest at the rate of 9% per annum from the date of filing of application till realization.
2. The brief facts leading to filing of this appeal are that on 28.01.1998 one Devabhai was proceedings on his bicycle from Bhanvad to Pachatardi. At that time one jeep bearing registration No.GJP-2392 came from the wrong side and dashed the bicycle of Devabhai. As a result of the said accident, Devabhai sustained grievous injuries and due to which he died. Therefore, the legal heirs of deceased filed claim petition being M.A.C.P. No. 309 of 1998 before the Tribunal for compensation.
2.1. The learned tribunal after hearing learned advocates for both the parties and after recording the evidence decided the claim petition and passed the award as stated hereinabove against which the present appeal is preferred by the appellant-original claimants.
3. Learned counsel for the appellant submitted that the failed to appreciate the material on record in its true perspective. The Tribunal ought not to have held deceased negligent to the extent of 10%. He further submitted that the Tribunal ought to have deducted 1/4 amount from the income of the deceased in stead of 1/3. Therefore, he prayed to allow this appeal.
4. Learned Advocate for the respondents submitted that the tribunal has rightly assessed the negligence as the deceased has not taken due care while driving his bicycle. He further contended that the Tribunal ought to have granted the multiplier of 16, as per the decision of the Apex Court in the case of Sarla Varma and Ors. Vs. Delhi Transport Corporation, reported in 2009(6) SCC, 121 instead of 17.
5. I have heard learned counsel appearing for the respective parties and perused the record as well as the judgement and award of the tribunal. The Tribunal after considering the Panchanama and FIR has held deceased negligent to the extent of 10%,. Therefore, I am of the view that the Tribunal has rightly held 10% negligence on the part of the deceased. However, I find that the Tribunal has committed an error in deducting 1/3 amount from the income of the deceased. In view of the decision of the apex Court in the case of Sarla Varma and Ors. Vs. Delhi Transport Corporation(supra), the Tribunal ought to have deducted 1/4 amount from the income of the deceased.
6. There is no dispute about the income of the deceased, which is at Rs.2250/- per month and accordingly annual income comes to Rs.27,000/-. If we deduct the 1/4 amount from the annual income of the deceased, the annual dependency comes to Rs.20,250/-. I also find that the multiplier of 17 adopted by the Tribunal is on higher side. As per Sarla Varma and Ors. Vs. Delhi Transport Corporation(Supra) the multiplier of 16 is just and proper. If multiplier of 16 is considered, the dependency comes to Rs. 3,24,400/-. The appellants are also entitled to Rs.10,000/- under the head of loss to the estate, Rs.10,000/-under the head of loss of consortium, Rs.5,000/- under the head of funeral expenses, Rs.5000/- under the head of pain shock and suffering, Rs.20,000/- under the head of medical expenses and Rs.3,000/- for transportation. The total compensation comes to Rs. 3,77,000/- and after deducting 10% negligence amount, the net amount comes to Rs.3,39,300/- Therefore, the appellants are entitled to Rs.3,39,300/-, whereas the Tribunal has awarded only Rs.3,14,100/-.
7. In that view of the matter, the present appellants are entitled to additional amount of Rs.25,200/- with interest at the rate of 7.5% per cent per annum from the date of filing of the application till realization.
8. The judgement and award of the tribunal is modified to the aforesaid extent. Decree be drawn accordingly. The present appeal is partly allowed.
pawan
[K.S.JHAVERI,J.]