IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1814 of 2005 For Approval and Signature:
HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= NEW INDIA ASSURANCE CO LTD. - Appellant(s) Versus KANJI BACH AYAR F/O LATE AMIT KANJI AYAR & 3 -
Defendant(s) ========================================================= Appearance :
MR SHALIN N MEHTA for Appellant(s) : 1, MR CH VORA for Defendant(s) : 1 - 2.
RULE SERVED for Defendant(s) : 3 - 4.
========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 09/01/2012 ORAL JUDGMNT
1.0 This appeal is directed against the judgment and award dated 06.01.2004, passed by the Motor Accident Claims Tribunal(Main), Kachchh at Bhuj, in M.A.C.P. No. 103 of 2003, whereby the Tribunal has awarded compensation in the sum of Rs.02,04,500/ to the claimants with interest at the rate of 9% from the date of filing of the petition till realization.
2.0 On 24.08.2002 when one Amit Kanji Ayar was coming from Village Kotada to Anand Restaurant situated on Kotada Dudhai road along with his cousins at about 5.30 hours, Truck bearing registration No. GRX 5439 came from opposite direction in a rash and negligent manner and lost the control of the vehicle and collided with Amit as a result of which, he sustained grievous injuries and subsequently succumbed to the said injuries on the spot. The respondents No.1 and 2 parents of the deceased have preferred the aforesaid claim petition before the learned Tribunal for compensation in the sum of Rs. 2, 04, 500/.
2.1. The Tribunal after hearing learned advocates for the respective parties and after considering the evidence on record decided the claim petition and passed the award as stated hereinabove against which the present appeal is preferred by the appellantsoriginal opponent No.3.
3.0 Learned Advocate for the appellant submitted that the learned Tribunal has not properly appreciated the evidence on record. He further contended that the learned Tribunal has erred in taking the annual income of the deceased between Rs. 12, 000/ p.a. and Rs.18,000/ p. a. and then taking the mean of Rs.2, 40, 000/ and Rs. 3,60, 000/ i.e. Rs. 3, 00, 000/ for calculating dependency.
4.0 I have heard learned Advocate appearing for the appellant and perused the materials produced on record. From the record it is clear that the deceased was aged about 11 years at the time of accident. Therefore, I am of the opinion that Tribunal has committed an error in assessing the annual income of the deceased at Rs.18,000/. The Tribunal ought to have assessed the annual income of the deceased at Rs.15,000/ as the deceased was minor at the time of accident. Therefore, annual income of the deceased is considered at Rs.15,000/. If 15,000/ is taken as annual income, 1/3rd amount is required to be deducted towards her personal expenses, as per the ratio laid down in the in the case of Sarla Varma and Others Vs. Delhi Transport Corporation Ltd. and Anr. reported in 2009(6) SCC, 121. Thus, the annual income comes to Rs.10,000/. If multiplier of 15 is adopted, as per the decision of Sarla Varma and Others (supra), the net income comes to Rs.1,50,000/. Therefore, the original claimants are entitled to Rs. 1,50,000/ towards future loss of income.
5.0 The Tribunal has awarded Rs.4500/ under the heads of loss of estate and funeral expenses, which is in my opinion is just and proper. Therefore it is held that the claimants will be entitled to a sum of Rs. 1,54,500/. The excess amount will be refunded to the appellant Insurance company, if the same is deposited by the appellantInsurance company with the Tribunal. The award of the Tribunal is modified accordingly. Appeal is partly allowed to the aforesaid extent with no order as to costs.
(K.S.JHAVERI, J.) niru*