The challenge in this appeal is to the judgment and award rendered on 13/4/2007 by the Ld. M.A.C. Tribunal [Main] Kheda at Nadiad in Misc. M.A.C. Petition No. 136/2006, whereby under section 163-A of the Motor Vehicles Act [for short 'the Act'], the Tribunal awarded in- all Rs.1,65,500/- to the appellants herein, who were original claimants before the Tribunal, by way of compensation with running interest at the rate of 7.5% p.a., from the date of the filing of the aforementioned petition till the realization with proportionate costs thereon. The Tribunal directed all the two respondents herein, who were original opponents to pay the aforesaid amount. The appellants felt that the amount awarded by way of compensation to them on structured formula basis under section 163-A of the Act is very less and inadequate and not in accordance with the structured formula and, therefore, preferred this appeal for enhancement of compensation amount and the enhancement sought for in the appeal is to the extent of Rs.2,52,000/-. 2. According to the case of the claimants, the fatal accident occurred on 6/5/2006 and in the accident, deceased Jashbhai sustained serious bodily injuries and he succumbed to the injuries. Deceased Jashbhai happened to be son of the appellants – claimants nos. 1 and 2 and husband of appellant – claimant no. 3 Ranjanben and
had boarded Rickshaw No. GJ-23-U-17 which was driven by the respondent – opponent no. 1, who happened to be driver-cum-owner of the rickshaw and insured with respondent – opponent no. 2 New India Insurance Co, Ltd. The driver was driving the rickshaw with full speed, rashly and negligently and he lost control over the rickshaw and had went off the road and turned turtled. The deceased sustained bodily injuries and he succumbed to the injuries. It was the case of the claimants that the occupation of deceased was selling milk as he had cattle. He was selling milk to various dairies and according to the claimants, the deceased used to earn Rs.3,000/-
p.m. It was further the case of the claimants that at the time of the accident, the deceased was aged about 34 years and 6 months as his date of birth was 30/4/1972. The claimants filed the aforementioned claim petition under section 163-A of the Act to recover in-all Rs.4,17,500/- by way of compensation.
3. Before the Tribunal, the claimants adduced oral and documentary evidence. The Tribunal, after examining oral and documentary evidence on record, came to the conclusion that on account of rash and negligent driving of the rickshaw by opponent no. 1, the accident occurred and in the accident, deceased sustained serious bodily injuries and died. The Tribunal thereafter, took into consideration the age and income of the deceased and came to the conclusion that at the time of accident and death, the deceased was aged about 34 years. The Tribunal on the basis of the over-all evidence on record, came to the conclusion that the deceased was earning at-least Rs.3,000/- p.m. Since the deceased was keeping cattle, the Tribunal came to the conclusion that the deceased must be spending some amount for the maintenance of the cattle and the deceased must be incurring reasonable expenses. The Tribunal, as seen above, came to the conclusion that the monthly total income of the deceased of the deceased was Rs.3,000/- and the annual gross income was Rs.36,000/-. The Tribunal came to the conclusion that at-least half amount of his gross income, the deceased must be spending for cattle and, therefore, deducted Rs.18,000/- from the gross annual income of the deceased towards the expenditure which the deceased used to incur for the maintenance of his cattle. The Tribunal thus considered net annual income of the deceased at Rs.18,000/-. The Tribunal then, on the basis of the structured formula, deducted 1/3rd amount out of Rs.18,000/- towards self expenses of the deceased and thus the Tribunal came to the conclusion that on account of accidental death of the deceased, the claimants, which were dependents upon his income, suffered annual loss of Rs.12,000/-. Thus, the annual loss to the dependency benefit was calculated at Rs.12,000/-. Thereafter, the Tribunal took into consideration the age of the deceased and came to the conclusion that this was the fit case to apply multiplier of 13 years. The Tribunal, therefore, came to the conclusion that the claimants were entitled to recover Rs.1,56,000/- [Rs.12,000/- x 13] under the head of loss to the dependency benefit. The Tribunal also awarded Rs.2,000/- for funeral expenses, Rs.2,500/- for loss of estate and Rs.5,000/- towards consortium as the deceased was married and one of the claimants happened to be his widow. The Tribunal, thus, came to the conclusion that the claimants were entitled to recover Rs.1,65,500/- by way of compensation under section 163-A of the Act.
4. Mr. Darji, Ld. Advocate for the appellants – original claimants, at the outset, submitted that the Tribunal erred in deducting one half amount of the total income of the deceased towards the expenses which the deceased used to incur for maintenance of his cattle. It is submitted that at the most, for maintenance of cattle in the year 2006 and considering the number of cattle, the expenditure would not have exceeded to Rs.300/- to Rs.400/- p.m. Mr. Darji, Ld. Advocate for the appellants, then submitted that the Tribunal committed serious error in not properly considering the structured formula basis. It was submitted that though the Tribunal came to the conclusion that the deceased was aged about 34 years at the time of his death, the Tribunal committed serious error in applying multiplier method as Mr. Darji submitted that the multiplier method applies only in injury cases as per serial no. 5 in the Schedule for disability non-fatal accidents. Mr. Darji, therefore, drew my attention to the 2nd Schedule for compensation for third party fatal accident/injury cases and submitted that the Tribunal should have considered the structured formula basis for arriving at final determination of amount of compensation instead of applying the multiplier method. Mr. Darji, Ld. Advocate for the appellants accordingly submitted that applying the structured formula method, the claimants were entitled to recover the amount as claimed by them in the claim petition being Rs.4,17,500/- by way of compensation. But as against this, the Tribunal awarded only Rs.1,65,500/- by way of compensation and, therefore, it is submitted that the appeal may be accordingly allowed and the just and appropriate amount of compensation as per structured formula basis may be awarded to the appellants – claimants.
5. Ms. Lilu Bhaya, Ld. Advocate for the respondent no. 2 – New India Insurance Co. Ltd., at the outset, submitted that the Tribunal committed serious error while considering the issue of negligence, but since no cross appeal or any cross objections are filed, the appellate Court cannot interfere with the findings arrived at by the Tribunal so far as the accident is concerned. However, it is submitted that the Tribunal did not err in observing that considering the nature of business of the deceased and since he was keeping cattle, the deceased must be incurring reasonable expenses for maintenance of cattle and, therefore, the Tribunal rightly deducted Rs.18,000/- p.a., from his annual income of Rs.36,000/- p.a. However, Ms. Bhaya submitted that the Tribunal should not have adopted the multiplier method for compensation for third party fatal accident as per 2nd Schedule. She further submitted that the date of birth of the deceased even as per school leaving certificate was 30/4/1972 and the accident occurred on 6/5/2006 and the deceased died on the same day and, therefore, the age was approximately 34 years and 6 months.
6. I have examined the R & P in context with the submissions advanced on behalf of both the sides.
7. There is no dispute that the appellants – claimants filed the aforementioned claim petition under section 163-A of the Act. Considering the over-all evidence on record and impugned judgment and award rendered by the Tribunal, the Tribunal took into consideration the monthly income of the deceased at Rs.3,000/- [the annual income being Rs.36,000/-]. The Tribunal examined over-all evidence on record and came to the conclusion that the occupation of the deceased was selling milk and he was keeping cattle and, therefore, out of the total amount of his earning, he must be spending at least half amount towards maintenance of his cattle and, therefore, deducted Rs.18,000/- p.a., from his total income of Rs.36,000/- p.a. Considering the facts and circumstances of the case, this Court is of the opinion that the Tribunal appears to have committed error while considering the expenditure, which the deceased used to incur, at Rs.18,000/- p.a. Considering the facts and circumstances of the case, it can safely be said that the deceased must be incurring expenditure for maintenance of his cattle in the year 2006 and prior thereto, at-least Rs.500/- p.m., which comes to Rs.6,000/- p.a. Deducting Rs.6,000/-
p.a., out of the total gross annual income of Rs.36,000/-, the net annual income would come to Rs.30,000/-. As per the structured formula basis, 1/3rd amount is required to be deducted towards self expenses of the deceased out of Rs.30,000/-. Thus, it comes to Rs.10,000/- towards self expenses of the deceased and it can safely be said that the annual loss to the dependency benefits which the appellants – claimants suffered comes to Rs.20,000/-.
8. The Tribunal applied the multiplier method on the basis of the age of the deceased and came to the conclusion that this was fit case to apply multiplier of 13 years. It seems that the Tribunal erred in applying the multiplier method for awarding compensation for third party fatal accident. As per serial no. 1 in the Second Schedule, the Tribunal should have adopted structured formula while computing the compensation in case of death. Considering the case of National Insurance Co. Ltd. v/s. Gurumallamma reported in [2009] 16 S.C.C. 43 almost identical was the case before Hon'ble the Apex Court, wherein in a claim petition filed under section 163-A of the Act, applied multiplier of 17 years. Hon'ble the Apex Court took into consideration section 163-A of the Act as well as Second Schedule attached to the Act.
In para. 8 of the said decision, Hon'ble the Apex Court observed as under :
“8. Multiplier stricto sensu is not applicable in the case of fatal accident. The multiplier would be applicable only in case of disability in non-fatal accidents as would appear from Note 5 appended to the Second Schedule. Thus, even if the application of multiplier is ignored in the present case and the income of the deceased is taken to be Rs.3300 per month, the amount of compensation payable would be somewhat between Rs.6,84,000 to Rs.7,60,000.”
9. In above view of the matter, this Court is of the opinion that the Tribunal erred in applying the multiplier method. As stated above, the annual loss to the dependency benefits, which the claimants sustained, comes to Rs.20,000/-. Considering the age of the deceased at the time of his death, it can safely be said that his age was above 30 years but not exceeding 35 years. Considering serial no. 1 in the Second Schedule regarding fatal accident, it appears that if a person falling within the aforementioned age group dies in a vehicular accident and if the loss to the dependency benefits is considered to be Rs.40,000/- p.a., then his dependents would be entitled to recover Rs.6,40,000/- by way of compensation under the head of future dependency benefits. In the instant case, the claimants sustained loss to the dependency benefits at Rs.20,000/- p.a., and accordingly the net total would come to Rs.3,20,000/- which amount the appellants – claimants are entitled to recover under the head of loss to the dependency benefits.
10. The Tribunal awarded Rs.2,000/- under the head of funeral expenses and Rs.2,500/- under the head of loss of estate and Rs.5,000/- under the head of loss of consortium as the deceased was married and left his widow. Considering serial no. 3 regarding general damages in case of death, it cannot be said that the Tribunal committed any error while awarding the amount of compensation under the aforementioned different heads.
11. Thus, the total amount of compensation which the appellants – claimants are entitled to recover would come to Rs.3,29,500/-. The Tribunal awarded Rs.1,65,500/-. Thus, deducting Rs.1,65,500/- out of Rs.3,29,500/-, the net amount would come to Rs.1,64,000/-, which the appellants – claimants are entitled to recover by way of enhanced amount of compensation. The Tribunal awarded the amount of compensation with running interest at the rate of 7.5% p.a., from the date of the filing of the claim petition till realization. It appears that the appellants – claimants are also entitled to recover enhanced amount of compensation with running interest at the rate of 7.5% p.a., from the date of the filing of the claim petition till realization. The Tribunal, in the impugned judgment and award, passed necessary directions regarding disbursement of the amount and this Court is of the opinion that the same would apply regarding the disbursement of enhanced amount of compensation.
12. Seen in the above context, the appeal deserves to be partly allowed.
13. For the foregoing reasons, the appeal is partly allowed and the judgment and award rendered on 13/4/2007 by the Ld. M.A.C. Tribunal [Main] Kheda at Nadiad in Misc. M.A.C. Petition No. 136/2006, is hereby modified and it is directed that the appellants – claimants shall be entitled to recover Rs.1,64,000/- [Rupees one lac sixty four thousand only] by way of additional compensation, with running interest at the rate of 7.5% p.a., from the date of the filing of the original claim petition till the realization with proportionate costs thereon from the respondents herein, who were original opponents. The rest of the impugned judgment and award rendered by the Tribunal regarding the disbursement of amount of compensation shall apply to the disbursement of enhanced amount of compensation to the appellants – claimants. No order as to costs.
(J.C.UPADHYAYA, J.) * Pansala.