1. This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short the act) arises out of the judgment and award dated 09.11.2001 passed in M.A.C.P. No. 568 of 1996 by Motor Accident Claim Tribunal (Auxiliary), Bharuch by which the appellant No. 1, Gangaben Mangalbhi, mother of the deceased was awarded a sum of Rs. 88,000/- toward compensation along with the rate of interest of 9 per cent per annum from the date of application.
The brief facts as per the claimants in the claim petition which as under :-
"1.
That on 22/6/96 at about 12.00 O'clock noon the accident took place on national highway No. 8 in Southern side of village Asuriya. On the day of occurrence, the deceased Balubhai Mangalbhai was standing near the board of village Umra, an at the relevant time of accident, the Truck No. GJ-9/T 6011 came with an excessive speed, and dashed with the Tempo No. GJ-6-V/4959 stationary and as a result the deceased Salubhai Mangalbhai was also dashed and he sustained grievous injuries and on the same day, he died due to accidental injureis. It is further alleged that the opponent No.1-driver was negligent enough to cause the accident. On quantum point, it is the case of the applicant that the deceased was admitted in Ciil Hospital, Bharuch and at evening he died due to injuries."
2. On consideration of claim under different heads namely, earning of the deceased out of agricultural work and agricultural holdings, medical expenses, loss of estate, funeral charges and transportation charges etc. against the total claim of Rs.5,00,000/-. The Claim Tribunal after consideration of material on record namely the evidence documentary, as well as oral award sum of Rs. 88,000/- at the rate of 9 per cent per annum from the date of application till realisation.
In this appeal, Shri D.N. Pandya, learned counsel for the appellant-claimants vehemently contended that the deceased who met with an accident was taken to the Civil Hospital at Bharuch and in the evening he succumbed to injuries and therefore, the Tribunal ought to have awarded compensation under the heads 'mental pain, shock and suffering.' It is next contended that as per deposition of sister of the deceased-appellant No.2. Manjulaben Mangalbhai the annual income of the deceased was Rs. 50,000/- out of agricultural holdings and the deceased was able-bodied man of 21 years of age and had future prospects to earn more and therefore, non consideration the annual income of Rs. 50,000/- and to award unjust and inadequate compensation would defeat the very purpose of benevolent legislation like this act. It is submitted that total agricultural holdings of the family was about 16 acres and the names of co-sharers reflected in revenue records namely, village forms No. 7/12 etc. would also show the name of female co-sharer, who was the relative and the above aspect was not considered by the Tribunal. It is further submitted that deduction of 1/3rd share by the Claim Tribunal when the deceased was unmarried is also harsh and the deceased and the claimant hail from lowest strata of the society and having no knowledge to bring forth relevant material on record about details of agricultural activities and earnings would not mitigate against the claim put forward by them. It is therefore, submitted that under different heads as stated in the appeal deserve to be accepted by allowing the appeal.
Shri Thomas, learned counsel appearing for the opponent United India Insurance Co. would contend that the appellant No. 2, Manjulaben Mangalbhai is married sister of the deceased and claim petition qua her was rightly rejected. Besides, the appreciation of the evidence on record by the Claim Tribunal qua agricultural holdings, share of the deceased in the above holdings, the claimant was unable to produce any cogent evidence and even deposition of sister of the deceased, except the bare statement of agricultural holdings, nothing was brought on record. In the above circumstances that the reasoning and findings of the Claim Tribunal based on an extract of village Umra 7/12 indicating about 16 co-sharers in the total agricultural holdings of 16 acres and applying criteria of notional income of 50,000/- per year can not be said to be in any manner contrary to law. It is further submitted that the Tribunal applied the multiplier of 15 while assessing total income for loss of dependency is also illegal, in as much as the age of the mother of the deceased was around 50 years and at the most the multiplier could have been 14. It is further submitted that the deceased succumbed to injuries in the evening of the day and therefore, non awarding of compensation under the head of pain, shock and suffering can not be faulted with. However, learned counsel for the opponent Insurance Company was unable to justify the deduction of 1/3 share out of the notional income since the deceased was unmarried. In view of the above it is submitted that the appeal deserves to be rejected.
Upon consideration of submissions made by learned counsel for the parties respectively, on perusal of the record of the case in the context of decisions of the Apex Court and factual matrix of the case, reasoning and finding of the Claim Tribunal in the impugned judgment, I am of the view that the Tribunal was not in any error while rejecting the claim of appellant No. 2, Manjulaben Mangalbhai Vasava, who was married sister of the deceased on the date of an accident. The appellant No. 1, Gangaben Mangalbhai Vasava, mother of the deceased was aged about 50 years and no documentary, as well as oral evidence was brought to the notice of the Tribunal about agricultural income of the deceased or even the family. No doubt, for the person hailing from tribal community and having no knowledge about manner and method of bringing evidence before the Claim Tribunal however, the details about agricultural holdings of the deceased and the family was placed on record which would reveal the deceased was one of the 16 co-sharer in the total agricultural holdings of about 16 acres of land. Being an able-bodied man, who died at the age of 21 years had a bright future and could have earned more than what was believed by the Tribunal. The above aspect remained was to be examined with deposition of sister of the deceased who deposed to the extent that her deceased brother was earning Rs.50,000/- per annum. The Claim Tribunal has considered the above aspect but, there were about 16 other members, who were co-sharers and beneficiary of the agricultural holdings, share of the deceased on the basis of agricultural holdings was considered to be 1 acre and therefore, on the basis of notional income of 15,000/- per annum by deducting 1/3rd share, the Tribunal calculated the income and by applying multiplier of 15, the amount was awarded. In the above circumstances the multiplier of 15, if seen in the context of age of the mother of the deceased-appellant No. 1 as 50 years appears to be of higher side but at the same time unmarried deceased aged about 21 years for which 1/3 share was deducted by the Claim Tribunal for determining the compensation was not correct. The various decisions of the Apex Court including the case of Sarla Verma(Smt) and others vs. Delhi Transport Corporation and another reporter in (2009) 6 SCC 121 in case unmarried deceased one half of the share is to be deducted and therefore, out of the notional income of Rs. 15,000/- per year, one half share of the deceased is considered the notional income could be assumed 7,500/- per year and with the multiplier of 15 as it is to be calculated and applied.
I am inclined to modify the award of the Tribunal to the above extend and the appellant No. 1 is held and entitled to receive Rs. 7,500/- multiplied by 15 under the head of future loss of income and dependency. Besides, the Tribunal has awarded funeral expenses of Rs. 2,000/- and towards he head of loss of estate an amount of Rs. 10,000/- and Rs. 1,000/- for transportation.
In view of the facts and circumstances of the case out of the above heads, towards the 'loss of estate' the amount of Rs. 20,000/- ought to have been awarded since the appellant No. 1 was fully dependent on the deceased aged about 21 years. Though, the deceased succumbed to injuries in the evening at Civil Hospital, Bharuch on very day of accident, the trauma and suffering under gone would entail Rs. 5,000/- and the award of the Claim Tribunal would modify accordingly.
Following differences of Rs. 37,500/- towards loss of future income/ future dependency. Rs. 10,000/- towards loss of Estate (20,000-10,000). Rs. 5000/- for pain, shock and suffering. Thus total amount of Rs. 52,500/- at the rate of interest of 9% per annum from the date of Claim Petition be deposited and appellant No. 1 is held to be entitled to receive periodical interest along with order of interest passed by the Tribunal in the Impugned award.
Appeal is partly allowed to the aforesaid.
No order as to costs.
[ANANT S. DAVE,J] FH.
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