1. The challenge in this appeal is to the judgment and award dated 30.04.2003, rendered by the Motor Accident Claim Tribunal (Auxi), Sabarkantha at Himmatnagar, in M.A.C.P.No.689 of 1994, whereby the Tribunal awarded by way of compensation Rs.3,35,550/- with interest at the rate of 9% per-annum with proportionate costs thereon to the appellants-original claimants and the Tribunal directed the respondent-original opponent-
G.S.R.T.C to pay the aforementioned amount by way of compensation to the appellants-original claimants. The appellants-original claimants felt that the amount awarded by way of compensation was less and inadequate, and therefore, preferred this appeal for enhancement of amount of compensation and in this appeal, it is requested that the compensation amount may be enhanced to the tune of Rs.1,11,850/-.
2. According to the case of the claimants, on 6.06.1994, deceased Dahyabhai Ghemarbhai Chaudhary was riding a motorcycle and Kamjibhai as well as one another person were pillion riders. It was the case of the claimants that, when they went towards Jayla for Bhiloda on the motorcycle, at that time, the S.T.Bus bearing registration No.GQE-9126 came from the opposite direction belonging to the respondent-opponent-
G.S.R.T.C with full speed and dashed with the motorcycle and in the accident, the rider of the Motorcycle viz. Dahyabhai succumbed to the injuries. The claimants who happened to be mother, widow and brother of the deceased had filed the aforementioned claim petition to recover in all Rs.6,00,000/- by way of compensation.
3. The respondent-original opponent resisted the claim petition by filing written statement and denied the allegations of the claimants that because of rash and negligent driving of S.T.Bus, the accident occurred. It was specifically contended by the respondent-opponent-G.S.R.T.C that since three persons were travelling on the motorcycle, rider of the motorcycle viz. deceased Dahyabhai lost control over the steering, and therefore, the accident occurred because of sole rash and negligent riding of the motorcycle by the deceased.
4. Before the Tribunal, on behalf of the claimants, one of the claimants came to be examined, necessary documentary evidence came to be produced. The Tribunal appreciating the oral and documentary evidences on record, came to the conclusion that both, the driver of the S.T.Bus and motorcycle viz. deceased Dahyabhai were negligent for causing the accident. However, the Tribunal observed that the driver of the S.T.Bus was negligent to the extent of 75% and contributory negligence of the rider of the motorcycle viz. Dahyabhai was assessed at 25%.
4.1 About the quantum of compensation, the Tribunal observed that, at the time of accident, the deceased was serving as teacher and as per the documentary evidence produced on record, the monthly salary of the deceased was Rs.3093/-. The Tribunal deducted 1/3rd amount towards the self expenses of the deceased from his monthly income of Rs.3093/-. Since the deceased was aged about 29 years, the Tribunal applied multiplier of 16 years. Accordingly, the Tribunal awarded Rs.4,22,400/- (Rs.2200x12x16) by way of compensation under the head of loss to the future dependency benefits. The Tribunal then awarded Rs.20,000/- under the head of consortium and Rs.5000/- for funeral expenses etc. Thus, the Tribunal came to the conclusion that the claimants were entitled to recover Rs.4,47,400/-, but since the contributory negligence of the deceased Dahyabhai himself was assessed at 25%, the Tribunal deducted Rs.1,11,850/- out of Rs.4,47,800/- and came to the conclusion that the claimants were entitled in all Rs.3,35,550/-.
5. MR. Desai, learned advocate for the appellants- original claimants, at the outset, submitted that, the Tribunal committed serious error while coming to the conclusion that the deceased was contributorily negligent to the extent of 25%. Mr. Desai, learned advocate for the appellants- original claimants, took me through relevant observations made by the Tribunal in the impugned judgment and award, so also the relevant papers from the paper book and submitted that, as a matter of fact, the driver of the S.T.Bus was 100% negligent.
5.1 Mr.Desai, learned advocate for the appellants-original claimants submitted that, on the basis of evidence adduced by the claimants before the Tribunal, the Tribunal rightly came to the conclusion that the actual income of the deceased as teacher before the accident was Rs.3093/- per month. However, Mr.Desai, learned advocate for the appellants-original claimants submitted that, while awarding compensation under the head of loss to the future dependency benefits, the Tribunal did not consider future prospective income of the deceased. It is therefore, submitted that the Tribunal should have considered future prospective income of the deceased at Rs.4500/- per-month. It is submitted that the Tribunal awarded multiplier of 16 years, but the deceased was aged about 29 years and one of the dependents namely appellant-original claimant no.2-Jamiben-widow of the deceased was aged about 24 years, and therefore, considering the age of the deceased, so also the age of one of the claimants, the Tribunal should have applied multiplier of 17 years. Mr.Desai, learned advocate for the appellants submitted that, the appellants are therefore, entitled to recover Rs.1,11,850/- by way of additional amount of compensation.
6. Mrs.Vasavdatta Bhatt, learned advocate for the respondent-original opponent, at the outset, submitted that, the Tribunal was preferably justified in coming to the conclusion that the deceased was contributorily negligent to the extent of 25% and it has come on record that at the time of accident, three persons were traveling on the motorcycle and the deceased permitted two pillion riders. It is further submitted that considering the evidence, so also F.I.R and panchnama of scene of occurrence, it clearly transpires that the deceased himself was contributorily negligent for the accident. Mrs. Vasavdatta Bhatt, learned advocate for the respondent, submitted that even the amount awarded by way of compensation to the claimants by the Tribunal cannot be said to be on lesser side. It is therefore, submitted that the appeal may be dismissed.
7. I have examined the record and proceedings in context with the submissions advanced on behalf of both the sides.
8. The Tribunal in the impugned judgment and award while appreciating oral and documentary evidences came to the conclusion that the driver of the S.T.Bus was negligent to the extent of 75% and the deceased who was riding the motorcycle was negligent to the extent of 25%. The said finding is challenged by the appellants in this appeal. In this respect, re-examining the oral and documentary evidences produced by the claimants before the Tribunal and appreciation of evidence made by the Tribunal in the impugned judgment and award, this Court is of the opinion that no error appears to have been committed by the Tribunal while coming to the conclusion that the deceased was contributorily negligent to the extent of 25%. The Tribunal rightly examined the oral evidence together with documentary evidence and more particularly the copies of F.I.R and panchnama of scene of accident.
9. Considering the over all evidence on record, so also the impugned judgment and award rendered by the Tribunal, it transpires that at the time of accident, the deceased was aged about 29 years and he was serving as teacher and as per the evidence regarding his income namely income certificate at Exh:29, the monthly salary of the deceased was Rs.3093/-. It appears that the Tribunal did not commit any error in coming to the conclusion that before the accident, the deceased was aged about 29 years and was drawing salary at Rs.3093/- per-month. However, it transpires that while awarding amount of compensation under the head of loss to the future dependency benefits, the Tribunal did not consider the future prospective income of the deceased. Thus, there is a substance in the submissions made by Mr.Desai, learned advocate for the appellants that, the Tribunal committed error in not considering future prospective income of the deceased. Since the deceased was aged about 29 years and his actual income is considered to be Rs.3093/ per-month, it can safely be said that had he survived, he would have earned in future, at least Rs.4500/- per- month. The Tribunal deducted 1/3rd amount towards the self expenses of the deceased. Deducting 1/3rd amount out of Rs.4500/-, it can safely be said that the monthly loss to the dependency benefits sustained by the claimants comes to Rs.3000/- and the annual loss comes to Rs.36000/- (Rs.3000 x 12). The Tribunal applied multiplier of 16 years. However considering the age of the deceased at the time of accident, so also considering the age of the widow of the deceased being 24 years at the time of accident and death of the deceased, this Court is of the opinion that the Tribunal should have adopted multiplier of 17 years. Thus, the Tribunal should have awarded Rs.6,12,000/- (Rs.36000/-x17) under the head of loss to the future dependency benefits. The Tribunal rightly awarded in all Rs.25000/- under the head of consortium and funeral expenses etc. However, the Tribunal assessed the contributory negligence of the deceased at 25%. Deducting 25% out of Rs.6,37,000/-, the Tribunal should have awarded Rs.4,77,750/- (Rs.6,37,000 – 1,59,250/-) by way of compensation. The Tribunal awarded Rs.3,35,550/- by way of compensation to the claimants and therefore, deducting said amount from Rs.4,77,750/-, the Tribunal should have awarded Rs.1,42,000/- more by way of compensation. However, as stated above, the instant appeal is restricted for enhancement of the amount of compensation to the tune of Rs.1,11,850/-, the appellants-original claimants are therefore, entitled to recover Rs.1,11,850/- more by way of compensation.
10. In above view of the matter, the instant appeal deserves to be allowed.
11. For the foregoing reasons, the appeal is allowed and impugned judgment and award dated 30.04.2003, rendered by the Motor Accident Claim Tribunal (Auxi), Sabarkantha at Himmatnagar, in M.A.C.P No.689 of 1994 is hereby modified and the appellants-original claimants are entitled to recover by way of additional amount of compensation Rs.1,11,850/- (Rupees One Lac Eleven Thousand Eight Hundred Fifty) with interest at the rate of 7% per-annum from the date of filing of the claim petition till realization with proportionate cost thereon. The respondent -original opponent shall deposit the aforementioned additional amount of compensation with interest and proportionate costs, with the concerned claim Tribunal within two months.
12. Upon the amount being deposited, the Tribunal shall pass appropriate order for disbursement of the amount of compensation, so also investment in fixed deposit in accordance with law.
(J.C.UPADHYAYA, J.) Suchit*