1. ADMITTED.
2. Mr. Nitin Amin learned advocate appears for the respondent nos.3/1 and 3/2 [the original claimants]. Both, Mr. Nanavati learned advocate for the appellant so also Mr. Amin learned advocate for the respondent nos.3/1 & 3/2 state that since the appeal involves limited question regarding the quantum of compensation, the appeal may be finally heard today. It is further submitted that since the respondent no.1 is driver and respondent no.2 is owner, considering the fact that the appellant- Insurance Company has challenged in this appeal, only the quantum of compensation, the interest of respondent nos.1 & 2 cannot be said to be in conflict with the interest of the appellant and therefore, the presence of the respondent nos.1 & 2 may not be required for the disposal of the instant appeal.
3. As requested by learned advocates representing both the parties, the appeal is heard and is being disposed of.
4. The instant appeal is filed challenging the impugned judgment and award dated 09.02.2012 passed by learned M.A.C.T.(Main) Kheda at Nadiad in MACP No.899/1996, whereby, the Tribunal awarded in all Rs.4,43,000/- by way of compensation with interest at the rate of 7.5% per annum from the date of filing of the original claim petition till the realization, from the appellant herein, who was original opponent no.2 so also respondent no.1, who was opponent no.1 before the Tribunal.
5. Mr. Nanavati learned advocate for the appellant- Insurance Company, at the outset, submits that the instant appeal is filed only challenging the quantum of the compensation, as according to the appellant, the amount awarded by the Tribunal by way of compensation to the original claimants, is on higher side. It is submitted that though there is no dispute that the original claimant Baguben Bharwad sustained injuries in the vehicular accident and initially, she had filed above-mentioned Claim Petition for compensation on account of her accidental injuries, but during the pendency of said claim petition, on account of vehicular injuries she sustained in the accident, she expired and therefore, the respondent nos.3/1 and 3/2, who were original claimants, being the legal heirs of the deceased- original claimant Baguben, came to be brought on record. It is submitted that the Tribunal erred in granting Rs.2,43,000/- under the head of loss to the dependency and Rs.50,000/- towards the medical expenses. Mr. Nanavati learned advocate for the appellant further submitted that as a matter of fact, there cannot be any special head like general damages, but the Tribunal awarded Rs.50,000/- under the said head. Mr. Nanavati learned advocate for the appellant drew my attention to ground (G) in the memo of appeal and submitted that the Tribunal should have awarded only Rs.2,20,000/- by way of compensation instead of Rs.4,43,000/-.
6. Mr. Amin learned advocate for the respondent nos.3/1 & 3/2, supported the judgment and award rendered by the Tribunal and submitted that no interference is warranted in the impugned judgment and award rendered by the Tribunal and the appeal may be dismissed.
7. I have taken into consideration the submissions advanced on behalf of both the sides so also the impugned judgment and award rendered by the Tribunal. As stated above, there is no dispute that initially, the claim petition was filed by injured Baguben Bharwad, however, during the pendency of said claim petition, she died and therefore, her heirs viz. respondent nos.3/1 and 3/2 herein, came to be brought on record in the aforementioned claim petition. Considering the impugned judgment and award rendered by the Tribunal, it further transpires that while replying the Issue No.1 regarding the negligence, the Tribunal came to the conclusion that the accident occurred because of sole rash and negligent driving by the respondent- opponent no.1 herein. The Tribunal further came to the conclusion that the injured claimant died during the pendency of aforementioned claim petition, as a result of accidental injuries, sustained by her in the accident. It appears that the Tribunal while coming to said conclusion, took into consideration the evidence on record so also certain decisions of the Hon'ble Apex Court as well as of this Court. This Court does not find any error having been committed by the Tribunal, to come to the conclusion that the claimants established the nexus between the accidental injuries sustained by the injured deceased claimant and her subsequent death on account of those injuries.
8. Since the instant appeal is basically pressed on the question of quantum of compensation, while considering the Para-15 in the judgment and award rendered by the Tribunal, it transpires that the Tribunal awarded Rs.50,000/- under the head of medical expenses, to which, considering the memo of appeal, it transpires that there is no serious dispute, so also the Tribunal awarded Rs.1,00,000/- under the head of pain, shock and suffering and considering the memo of appeal and more particularly, ground (G), again, there does not appear any serious dispute. However, the Tribunal awarded Rs.50,000/- under the head of general damages viz. according to the Tribunal, the claimants were entitled to recover total amount of Rs.50,000/- under all other charges. It transpires that according to the Tribunal, those charges included transportation charges, rich diet, attendant charges etc. Considering the fact that the vehicular accident occurred on 01.10.1995 and in the accident, the deceased- claimant sustained serious bodily injuries and thereafter, on account of injuries, she had to undergo long-drawn treatment and ultimately, succumbed to the injures after about 2 & 1/2 years from the date of such accident, this Court is of the opinion that no error appears to have committed by the Tribunal, while awarding Rs.50,000/- under the aforementioned head.
9. There is no much dispute that at the time of accident, the injured deceased claimant was aged about 21 years. As observed by the Tribunal, the deceased injured claimant was a spinster. The claimants alleged at the time of accident, she was doing animal husbandry work and getting Rs.200/- per day, but considering the impugned judgment and award rendered by the Tribunal and the appreciation of evidence on record, the Tribunal came to the conclusion that no cogent evidence was adduced by the claimants, not only about the monthly income of the deceased injured claimant, but even qua her occupation. Despite this, the Tribunal considered her annual income as Rs.36,000/-. This Court is of the opinion that the Tribunal erred in arriving at the conclusion that the deceased injured claimant was earning Rs.36,000/- per annum. Considering the facts and circumstances of the case, this Court is of the opinion that the Tribunal should have considered Rs.16,500/- as her annual income. The Tribunal deducted 1/2 amount towards the self-expenses of the deceased injured claimant and no error appears to have committed by the Tribunal. Thus, deducting Rs.8,250/- towards the personal expenses, the annual loss comes to Rs.8,250/-. Since the deceased injured claimant was aged about 21 years, no error appears to have committed by the Tribunal while applying multiplier of 18 years. Under such circumstances, this Court is of the opinion that the claimants are entitled to recover Rs.1,48,500/- [Rs.8,250/- X 18 years] under the head of loss to the dependency benefits.
10. In above view of the matter, over and above, the aforementioned amount as stated above, the claimants are entitled to recover Rs.1,00,000/- under the head of pain, shock and suffering, Rs.50,000/- under the head of medical expenses and Rs.50,000/- under the head of general damages and thus, as a matter of fact, the respondent nos.3/1 and 3/2- original claimants are entitled to recover Rs.3,48,500/-.
11. In above view of the matter, the impugned judgment and award rendered by the Tribunal, is required to be partly interfered with by allowing this appeal accordingly.
12. For the foregoing reasons, the appeal is partly allowed and the impugned judgment and award dated 09.02.2012 passed by the learned MACT (Main) Kheda at Nadiad in MACP No.899/1996, awarding Rs.4,43,000/- by way of compensation to the respondent nos.3/1 and 3/2 herein [original claimants], is modified and it is hereby ordered that the respondent nos.3/1 and 3/2 [original claimants] are entitled to recover Rs.3,48,500/- [Rupees Three Lacs Forty Eight Thousand Five Hundred Only] by way of compensation from the appellant herein [original opponent no.2] and
realization with proportionate costs thereon. Any amount, deposited by the appellant- Insurance Company and any amount, already paid under the 'No Fault Liability' shall be given set off.
13. It is hereby made clear that the instant judgment is passed on the basis of more or less some consensus arrived at between the learned advocates representing the parties. Thus, the judgment shall not be treated as precedent.
14. As submitted, the appellant shall deposit the aforementioned amount of compensation with the concerned Tribunal, preferably within three months.
15. The Tribunal is further directed to disburse the amount of compensation to the original claimants in accordance with law. No costs.
16. Mr. Amin learned advocate for the respondent nos.3/1 and 3/2 relied upon the case of 'P.N.Ladhani Vs. Oriental Insurance Co. Ltd.' reported in 2007 (2) GLR 1484 and submitted that considering the directions issued by this Court in this decision regarding interpretation of the Provisions of Section-194A(3) (ix) of the Income Tax Act, 1961 the Tribunal and the Insurance Company may be directed to comply with said directions. Mr. Nanavati learned advocate for the appellant submitted that the directions issued by this Court in the said decision shall be complied with.
17. Since the appeal stands disposed of, the Civil Application for Stay loses it survival value and also stand disposed of.
(J.C.UPADHYAYA, J) abv/g