[1] By way of this appeal, the appellant has challenged the judgment and award dated 14.08.2001 passed by the Motor Accident Claims Tribunal (Aux.), Kuchchh at Bhuj in Motor Accident Claims Petition No.537 of 1991 whereby the Tribunal has allowed the claim petition and awarded compensation of Rs.10,00,000/- along with proportionate costs of the petition and interest at the rate of 9% p.a from the date of filing of the petition till realization.
[2] The facts of the present appeal are that on 05.08.1991, one Bipinkumar Chhelshanker Joshi and one Prakash Harilal Khodiyar were going from Anjar to Khedoi on Scooter No.GJ-12-5318. At that time, opponent No.1 while in employment of opponent No.2 came from opposite direction with his Ambassador Car. It is their case that opponent No.1 was driving the car rashly, recklessly and negligently and in excessive speed and thereby dashed with the Scooter due to which Bipinkumar Chhelshanker Joshi and Prakash Harilal Khodiyar both sustained seriously injuries. Shri Prakash Harilal Khodiyar died on the spot and Bipinkumar Cheelshanker Joshi, who was pillion rider, was admitted in G. K. General Hospital at Bhuj and thereafter he was sifted to Civil Hospital at Ahmedabad and there he died. Therefore, the legal heirs of the deceased Bipinkumar filed the aforesaid claim petition before the Tribunal for compensation of Rs.10,00,000/-.
[3] The Tribunal has considered prospective income of the deceased at Rs.84,696/- per annum considering the evidence on record. The Tribunal has adopted multiplier of 17 as the age of the deceased was 33 years and thereby awarded Rs.14,39,832/- under the head of future economic loss. The Tribunal has deducted 1/3rd amount from the same towards personal expenses of deceased, (Rs.14,38,832/- x 1/3) which comes to Rs.9,59,888/-. The Tribunal has also considered Rs.80,000/- as gratuity and thereby the Tribunal awarded Rs.10,39,888/- as compensation. The Tribunal has also awarded Rs.15,000/- towards loss of estate, Rs.15,000/- towards pain, shock and suffering and Rs.5,000/- towards funeral expenses. Thus, the Tribunal awarded Rs.10,74,888/-. However, as the claim petition was filed for Rs.10,00,000/- only the Tribunal awarded compensation of Rs.10,00,000/- along with interest at the rate of 9% from the date of filing the application till realization. Hence, the present appeal is preferred by the Insurance Company.
[3] Learned advocate for the appellant submitted that the accident took place in the year 1991. She submitted that learned Tribunal erred in considering the prospective income of the deceased at Rs.10,000/- per month and also erred in adopting multiplier of 17 where the deceased was aged about 33 years. She submitted that the Tribunal has erred in awarding loss of dependency benefits at Rs.84,696/- per annum and thereafter deducted 1/3rd therefrom towards the personal expenses of the deceased. The learned Tribunal should have considered the income of the deceased at Rs.5,000/- per month and deducted 1/3 thereof and adopted multiplier of 16 and should have awarded Rs.6,40,000/- to the claimants. She submitted that the learned Tribunal has erred in considering the income of the deceased at the time of retirement and taking it as his prospective income whereas at the time of accident the deceased was earning Rs.2500/- per month by working as Talati-Cum-Mantry. She has submitted that the learned Tribunal has erred in awarding loss of dependency benefits at Rs.84,696/- p.a and deducting 1/3 therefrom towards the personal expenses of the deceased. She has submitted that the learned Tribunal ought to have considered the income of the deceased at Rs.5,000/- p.m and deducted 1/3 thereof and adopted multiplier of 16 and ought to have awarded Rs.6,40,000/- to the claimants. (Rs.5,000/- x 12 = Rs.60,000/- - 1/3 Rs.20,000/- = Rs.40,000/- x 16 = Rs.6,40,000/-) whereas the Tribunal has awarded Rs.9,59,888/- towards loss of dependency benefits. Thus, the award is higher by Rs.3,19,888/-. She submitted that the learned Tribunal has failed to appreciate the fact that the deceased was covered under the pension scheme and therefore his dependents would get pension even after his death. She has submitted that the gratuity cannot be granted under the Motor Vehicles Act. She therefore urged that the appeal is required to be allowed and the impugned judgment and award is required to be dismissed.
[5] Learned advocate for the respondent submitted that the amount of compensation awarded by the learned Tribunal is just and proper. He submitted that the Tribunal has not committed an error in awarding compensation. He submitted that the Tribunal has rightly considered the income of Rs.10,000/- per month of the deceased. He submitted that the amount of compensation awarded by the learned Tribunal is not on higher side. He submitted that the present appeal is required to be dismissed.
[7] Heard learned advocates for the respective parties and perused the relevant records.
[8] The deceased was working as Talati, and was earning Rs.2,500/-
p.m at the time of accident and he was doing some other work and thereby he was earning further Rs.2,500/- p.m as per Tribunal. But considering the facts and circumstances of the case and the aspect of future economic prospects of the deceased, it is required to be taken into consideration that the deceased would earn Rs.3750/-. Out of Rs.3,750/-, 1/4 share is required to be deducted towards personal expenses. Therefore, Rs.937.50 would come towards his personal expenses and out of Rs.3,750/-, if Rs.937.5/- is deducted and therefore Rs.2,812.50 would come as dependency benefit and it may be rounded off to Rs.3,000/- p.m and Rs.36,000/- p.a. if multiplier of 16 is applied then loss of dependency would come to Rs.5,76,000/-. The claimants are also entitled to Rs.40,000/- under different heads (Rs.15,000/- towards pain, shock and suffering and Rs.25,000/- towards conventional. Thus, the claimants are entitled to get total amount of Rs.6,16,000/-. As against that the Tribunal has awarded Rs.10,00,000/-. Thus, the appellant is entitled to get refund an amount of compensation of Rs.3,80,000/- along with interest. However, the appeal is restricted to Rs.3,19,888/- only. Thus, the excess amount of Rs.3,19,888/- is directed to be refunded to the Insurance company along with the cost and interest.
[7] For the foregoing reasons, the appeal is allowed in part to the aforesaid extent.
[ K. S. JHAVERI, J. ] vijay