1.0 This appeal is directed against the judgement and award dated 02.04.2004 passed by the Motor Accident Claims Tribunal (Auxi.), Bhavnagar in Motor Accident Claim Petition No.403 of 1994 wherein the learned Tribunal has partly allowed the aforesaid claim petition by awarding compensation in the sum of Rs. 800000/ from the date of claim petition till realization.
2.0 On 06.05.1994 Lallubhai Karshanbhai Savani was going to Diamond Factory on Scooter bearing No. G.J. 4 B 6096. At about 9.30 to 10.00 a.m, when he reached near garden at Rupali circle, one Tanker No. G.J 3 T 1517 came in excessive speed and in a rash and negligent manner, dashed with the scooter. As a result of this Lallubhai sustained serious injuries and succumbed to those injuries. The legal heirs of the deceased filed the aforesaid claim petition wherein the learned Tribunal passed the aforesaid award.
3.0 Learned advocate appearing for the appellant contended that the learned Tribunal has committed error in quantifying the award at Rs. 80000/; that the learned Tribunal erred in awarding Rs. 630000/ under the head of dependency loss; that the learned Tribunal erred in assessing the monthly dependency loss at Rs. 3500/ i.e. Rs .42000/ annually; that the learned Tribunal committed error in deducting 1/3rd towards personal and living expenses and that multiplier applied by the learned Tribunal is on higher side.
4.0 He further contended that accident occurred in the year 1994 and in the year 1994 the taxable income was Rs. 28000/ and therefore, income assessed at Rs. 5000/ by the learned Tribunal is on higher side. According to him, the income at Rs. 42000/ per year ought to have been assessed. The parents and widow of the deceased are the claimants. The widow of the deceased has remarried and therefore, 50% is required to be deducted towards personal and living expenses. Therefore, 50% deduction of Rs. 42000/ per year would come to Rs.21000/ towards loss of dependency benefits. Looking to the age of the parents of the deceased, multiplier of 11 is required to be adopted. By applying multiplier of 11 years, the future loss of income would come to Rs. 231000/. By addition of Rs. 10000/ towards loss of estate and Rs. 5000/ towards funeral expenses in view of principles laid down by the Hon'ble Apex Court in case of Sarla Verma (Smt) and others versus Delhi Transport Corporation and another reported in (2009) 6 Supreme Court Cases 121, the total compensation would come to Rs.246000/.
5.0 Learned advocate for the respondent submitted that 1/3rd deduction is just and proper. According to him considering the income of Rs. 420000/ per year and 1/3rd deduction towards personal and living expenses, the loss of dependency benefit would come to Rs. 28000/. By applying multiplier of 11 the future loss of income would come to 308000/. By addition of Rs. 10000/ towards loss of estate and Rs. 5000/ towards funeral expenses, the total compensation would come to Rs. 3095000/.
6.0 Heard learned advocates for the respective parties and perused the documents on record.
7.0 As far as income is concerned, it is required to be noted that accident occurred in the year 1994 and at that point of time, the taxable income was Rs. 28000/ and therefore, by considering the evidence on record, the learned Tribunal has committed error in assessing the monthly income at Rs. 5000/. Therefore it would be just and proper to consider the income at Rs. 42000/ per year. Further, the employer was not examined and the deceased was not paying the income tax. Therefore, maximum income should be assessed Rs. 42000/. By deducting 1/3rd towards personal and living expenses, the loss of dependency benefit would come to Rs. 28000/. By applying multiplier of 11 the future loss of income would come to 308000/. By addition of Rs.10000/ towards loss of estate and Rs.5000/ towards funeral expenses, the total compensation would come to Rs. 309500/. The Tribunal has awarded Rs. 80000/ and therefore, there is an excess amount of Rs. 490500/.
8.0 In the premises aforesaid, the appellant Insurance Company is liable to pay compensation in sum of Rs.309500/. However, the Tribunal has awarded Rs. 800000/. Therefore, excess amount of Rs. 490500/ ( Rs.800000/ Rs. 309500/) shall be refunded to the appellant at the proportionate costs and interest. It is, however, observed that if the amount deposited before the Tribunal is already withdrawn by the original claimants, the same shall not be recovered from the original claimants and the Insurance Company shall be at liberty to recover the same from the owner of the vehicle. If the amount is not withdrawn by the original claimants, it will be open to the appellant to recover the same. No order as to costs.
(K.S.JHAVERI, J.) niru*