By way of filing this appeal under Section 173 of the Motor Vehicles Act, 1988 the appellant – Gujarat State Road Transport Corporation has challenged the judgment and award dated 3rd February 2003 passed by the Motor Accident Claims Tribunal (Main), Valsad in MAC Petition No.931 of 2002 whereby the claim petition has been allowed partly. 2 The brief facts giving rise to the present appeal are to the effect that on 26th March 1996 deceased Manilalbhai was going on his Rajdoot motorcycle from Dharampur to Valsad. His wife Kantaben was pillion rider. When their motorcycle reached near village Vankal on Valsad Dharampur road at about 6 PM, at that time, the offending vehicle viz. ST Bus bearing No.GJ.1 9191 came there in an excessive speed and in a rash and negligent manner and dashed with the motorcycle due to which deceased died while his wife received serious injuries.
3 The appellants being the heirs and legal representatives of the deceased filed aforesaid MAC Petition No.931 of 2002 claiming compensation of Rs.10 lakh from the respondents herein.
4 On the point of contributory negligence the Tribunal has discussed evidence in paragraph 10 of the judgment wherein he observed that the deceased first collided with a tractor and thereafter his motorcycle came in contact with the ST Bus. He, therefore, held that the motorcyclist was negligent to the extent of 20% for the occurrence of the accident while ST Bus was negligent to the extent of 30% whereas Tractor was liable to the extent of 50%. On the point of income, the Tribunal has considered income of the claimant including future economic prospects at Rs.9000 per month out of which deducted 1/3rd towards his personal expenses and arrived at Rs.6,000 per month and Rs.72,000 per annum. The Tribunal adopted the multiplier of 10 and thereby calculated the dependency benefit at Rs.7,20,000. The Tribunal has also awarded Rs.10,000 under the head of loss of estate, Rs.5,000 under the head of loss of consortium, Rs.5,000 under the head of loss of love and affection and Rs.2,000 towards funeral expenses. Thus, in all, Rs.7,42,000 was awarded. However, as the deceased was responsible to the occurrence of the accident to the extent of 20%, the claimants were awarded Rs.5,93,600/-.
5 Learned counsel for the appellant has submitted that ST bus Driver was not at all negligent in the present case. She further submitted that deceased was driving his motorcycle behind a Tractor and as the Tractor was stopped suddenly, deceased dashed with the Tractor and fell down on the road. The Driver of the ST bus was driving the Bus at moderate speed and in fact deceased was riding the motorcycle in a rash and negligent manner. She next contended that from the pnachnama it is clear that the accident has taken place due to negligence of the driver of the Tractor and as the motorcyclist had dashed the Tractor he fell down and the motorcycle touched with the ST Bus which was following the motorcycle. She submitted that at the most the appellant corporation is responsible for the damage caused to the motorcycle and nothing more than that. She therefore contended that the appellant corporation be exonerated from the liability. She further contended that the claimants have not joined any other party except the ST Corporation and its Driver and they have not joined the owner of the Tractor or its Driver who are other tortfeasors.
6 On the point of income, she submitted that the income of the deceased at the time of the accident was Rs.4886 per month. Even as per the decision of the Sarla Verma v. Delhi Transport Corporation, (2006) 4 SCC 121, considering the age of the deceased, at the most 30% rise could have been given. However, the Tribunal has wrongly adopted the income at Rs.9,000 per month.
7 Learned counsel for the original claimants has submitted that the decree is a composite decree and therefore it will be open for the claimant to recover from the ST Corporation.
8 I have heard learned counsel for the parties and perused the entire record.
9 Considering the basic principle, the claim petition ought to have been dismissed for non-joinder of necessary and proper parties and therefore the Tribunal has committed an error in entertaining the petition in absence of the necessary parties. However, taking a sympathetic view that on technical grounds the claim petition should not be dismissed depriving the claimants of their right to get compensation, I am not disturbing the finding of the Tribunal. This Court is of the opinion that the contributory negligence on the part of ST Bus to the extent of 30% is not required to be disturbed with a view to see that the claimants are not made to suffer, though, on evidence, it is required to be disturbed. This Court is also opinion that the deceased has not touched the ST Bus and by no stretch of imagination it can be said that the ST Bus Driver was responsible for the accident. However, for the fault of the counsel for the claimants before the Tribunal, the claimants should not be made to suffer.
10 On the point of income, the Tribunal ought to have considered the income of the deceased at 4886 per month and ought to have given 30% future economic rise in which case, the monthly income of the deceased can be assessed at Rs.6350 per month. Out of the same, 1/3rd amount is required to be deducted towards personal expenses of the deceased and therefore the remainder would be Rs.4234 per month (Rs.6350-2116) which is rounded off to Rs.4300 per month and Rs.51,600 per annum. Considering the age of the deceased, the claimants are entitled to the multiplier of 13. Therefore, the loss of dependency would come to Rs.6,70,800. Over and above, the claimants are entitled to Rs.25,000 as conventional amount. Thus, they are entitled to get Rs.6,95,800 out of which ST Corporation is required to pay 30% contributory negligence viz. Rs.2,08,740. For the balance amount as the Tractor is not made a necessary party, the Tribunal has committed an error in passing the composite decree. The claimants are entitled to recover the remaining amount from the tractor owner.
11 In the result, the appeal is allowed to the extent indicated hereinabove.
(K.S.Jhaveri, J.) *mohd