1. By way of this appeal, the appellant has challenged the judgment and award passed by the Motor Accident Claims Tribunal, Godhra in Motor Accident Claims Petition No.132 of 2003, under Section 163-A of the Act, whereby the Tribunal has awarded Rs.1,74,500/- to original claimant with running interest at the rate of 9% p.a. from the date of the application till its realization.
2. The facts of the case is that on 02.10.2002, the appellant was working as a cleaner in the truck No.GRY-3874 and the original opponent No.4 was driving the said truck. At that time, original opponent No.4 applied sudden break to the truck and the truck No.GJ-12-U-8611, driven by original opponent No.1 came from behind and dashed with truck No.GRY-3874. As a result thereof, the deceased was thrown out of the truck and died. Therefore, the appellants filed claim petition being Motor Accident Claims Petition No.132 of 2003 before the Motor Accident Claims Tribunal, Godhara for compensation.
3. The Tribunal, after hearing learned advocate for the parties and after considering the evidence produced on record, decided the claim petition and passed the award as stated herein above, against which present appeal is preferred.
4. Learned counsel for the appellant has contended that the Tribunal ought to have considered annual income of the deceased at Rs.24,000/-, instead of Rs.15,000/-. He has further contended that the Tribunal ought to have followed the second schedule of the Motor Vehicles Act, 1988.
5. Learned counsel for the respondent has supported the judgment and award passed by the Tribunal and submitted that no interference is called for and the appeal deserves to be dismissed.
6. Heard learned counsel for the parties and perused the record.
7. So far as the issue of negligence is concerned, the Tribunal, after considering the Panchanama vide Exh.37 and considering oral evidence of the applicant has rightly held that the accident was occurred due to negligence of original opponent No.1 and 4. Therefore, in my view the Tribunal was justified in considering the negligence aspect.
8. So far as the issue of quantum is concerned, the Tribunal has assessed the annual income of the deceased at Rs.15,000/-. It is an admitted fact that the income of the deceased was not proved before the Tribunal. In absence of any specific evidence, the Tribunal has considered annual income of the deceased at Rs.15,000/-. But, the Tribunal ought to have followed the second schedule of the Motor Vehicles Act, 1988, when the claim petition was decided under Section 163- A of the Act, considering the decision of the Apex Court in the matter of “NATIONAL INSURANCE CO. LTD. VS. GURUMALLAMMA & ANR.”, reported in 2009(16) SCC 43. Hence, applying the second schedule of the Act, the appellants would be entitled for Rs.2,85,000/-
[Rs.2,28,000/- (for Rs.12,000/-)+ Rs.57,000/-(for Rs.3,000/-) under the head of dependency, considering the fact that the deceased was aged about 20 years at the time of accident. Now, deducting 1/3 amount towards the persona expenses of the deceased, the appellants are entitled to Rs.1,90,000/- under the head of dependency.
9. The Tribunal was justified in awarding Rs.2,500/- under the head of loss of estate and other miscellaneous expenses and Rs.2,000/- under the head of funeral expenses. Therefore, the appellants are in all entitled for Rs.1,94,500/- [Rs.1,90,000/- + Rs.2,500/- + Rs.2,000/-] from all the opponents. The Tribunal has already awarded Rs.1,74,500/- to the appellants.
10. In that view of the matter, the appellant is entitled to an additional amount of Rs.20,000/- [Rs.1,94,500/- - Rs.1,74,500/-] with interest at the rate of 7.5% per annum, from the date of application till realization. Rest of the award stands unaltered.
11. The appeal is partly allowed. Decree be drawn accordingly.
..mitesh..
[K.S.JHAVERI, J.]