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 5th January 2007 passed by the learned Motor Accident Claims Tribunal (Main), Kachchh at Bhuj in MAC Petition No.209 of 2001 whereby the Tribunal has partly allowed the claim petition.
2 The short facts of the present appeal as per the claimants are that on the fateful day of the accident viz. on 3rd July 2001 the deceased – Govind Morarji Joshi was proceeding on his Luna for work at Kandla Free Trade Zone and at that time the offending truck bearing No.GJ.12.V.5116 came from the opposite direction in a rash and negligent manner and dashed with the deceased due to which deceased died on the spot.
3. The parents of the deceased therefore filed claim petition. The Tribunal has considered the income of the deceased at Rs.2400 per month and Rs.28,800 per annum and deducted 1/3rd amount therefrom towards personal expenses to arrive at Rs.19,200 towards annual dependency. The Tribunal has adopted the multiplier of 16 looking to the age of the deceased and awarded Rs.3,07,200 under the head of loss of dependency. 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.3,11,700 to the claimants along with interest at the rate of 7½% 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 income at Rs.2400 per month though Tribunal has considered the same as Rs.2,000 per month. He further submitted that the Tribunal has committed an error in adopting the multiplier of 16 considering the age of the deceased, but while adopting the multiplier the age of the mother should be considered. In support of his contention he relied upon the decision of the Supreme Court in the case of National Insurance Co. Ltd. v. Shyam Singh & Ors.
reported in AIR 2011 SC 3231. 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 65 years. Therefore, as per Second Schedule to Motors Vehicles Act, the claimants are entitled to Rs.2,04,000 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.1,36,000 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.1,40,500/-. As against that, the Tribunal has awarded Rs.3,11,700/- to the claimants. Thus, there is an excess amount of Rs.1,71,200 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