1 By way of filing this appeal under Section 173 of the Motor Vehicles Act, 1988 the appellant – insurance company has challenged the judgment and order dated 29th May 2004 passed by the learned Motor Accident Claims Tribunal (Main), Kachchh at Bhuj in MAC Petition No.517 of 2003 whereby the Tribunal has partly allowed the claim petition.
2 The short facts of the present appeal as per the claimants are that the on 12th August 2003 at about 1.30 PM deceased – Vaishali Maheshgar Gusai, aged about 13 years was proceeding on Virani Road along with her family members and when they reached near Bhakti Building, at that time, a truck bearing registration No.GJ.12.U.9475 came there from behind in a rash and negligent manner and with excessive speed and dashed with the deceased.
3. The parents of the deceased therefore filed claim petition. The Tribunal has considered the notional income of the child at Rs.15,000 per annum and thereby arrived at Rs.3,00,000 as per Second Schedule to the Motor Vehicles Act and after deducting 1/3 therefrom towards personal expenses he considered Rs.2.00 lakhs to be future economic loss. The Tribunal has also awarded Rs.2,000 towards cremation charges and Rs.2500 as loss of estate. Thus, in all, the Tribunal has awarded Rs.2,04,500 to the claimants along with interest at the rate of 12% per annum against which the present appeal is filed by the insurance company.
4. Heard learned counsel for the appellant and perused the record. Though served, none appeared for the claimants.
6. Learned counsel for the insurance company has, inter-alia, submitted that the Tribunal has committed an error in assessing the notional income at Rs.15,000 per annum. He submitted that in view of the decision of the Supreme Court in the case of National Insurance Co. Ltd. v. Shyam Singh & Ors. reported in AIR 2011 SC 3231 the age of the parents should be considered while determination of the multiplier. He, however, pointed out that as per the decision of the Supreme Court in the case of National Insurance Company Ltd. Versus Gurumallamma & Another, reported in 2009 (9) SCALE 764 no multiplier is required to be applied and the Tribunal has to award the compensation as provided in Second Schedule. Paragraph 8 of the said decision reads 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 the 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.3,300/- per month, the amount of compensation payable would be somewhat between 6,84,000/- to Rs.7,60,000/-. As the Second Schedule provides for a structured formula, the question of determination of payment of compensation by application of judicial mind which is otherwise necessary for a proceeding arising out of a claim petition filed under Section 166 would not arise. The Tribunals in a proceeding under Section 163A of the Act is required to determine the amount of compensation as specified in the Second Schedule. It is not required to apply the multiplier except in a case of injuries and disabilities.”
6. In view of the decision of the Supreme Court in the case of National Insurance Co. Ltd. v. Shyam Singh & Ors. reported in AIR 2011 SC 3231 the age of the parents should be considered while determination of the multiplier. In the present case the age of the mother is 40 years. Therefore, as per Second Schedule to Motors Vehicles Act, the claimants are entitled to Rs.2,30,000 out of which 1/3rd amount is required to be deducted towards personal expenses of the deceased. In that case, the claimants are entitled to get Rs.1,53,334 (Rs.230,000 – Rs.76,666) under the head of dependency benefit. They are also entitled to Rs.4500 under the head of after death ceremony and loss of estate. Thus, in all, the claimants are entitled to Rs.1,57,834/-. As against that, the Tribunal has awarded Rs.2,04,500/- to the claimants. Thus, there is an excess amount of Rs.46,663 which is required to be refunded to the insurance company along with interest.
7. In view of the aforesaid discussion, the judgment and order of the Tribunal is modified to the aforesaid extent. The appeal is allowed to the aforesaid extent with no order as to costs.
(K.S.Jhaveri, J.) *mohd