[1] By way of present appeal, the appellants have challenged the judgment and award dated 01.09.2000 passed by the Motor Accident Claims Tribunal (Aux.), Gondal in Motor Accident Claim Petition No.396/1995 whereby the learned Tribunal awarded in all compensation of Rs.4,74,840/- along with interest at the rate of 12% per annum from the date of filing the petition till payment of realization from the opponents jointly and severally.
[2] As per the case of the claimants before the learned Tribunal, on 26.06.1995, the deceased Jivanbhai Bavabhai Sonara was travelling on his two wheeler TVS-Suzuki Motor Cycle from Rajkot to Ganod via Dhoraji, one Ashwinbhai was sitting on the said motor cycle as pillion rider. At that time, opponent No.2 was coming with S.T. Bus at an excessive speed, rashly and negligently and dashed with motor cycle of the deceased from behind and as a result, said Jivanbhai and Ashwinbhai both sustained serious bodily injuries and during treatment, said Jivanbhai was expired. The appellants therefore claimed an amount of Rs.8,40,000/- from the opponents jointly and severally.
[3] Learned advocate for the appellants submitted that the accident tool place in the year 1995. He submitted that the learned Tribunal ought not to have held that the deceased was also contributory negligent to the extent of 10%. He submitted that opponent No.1 has not examined to opponent No.2 driver to controvert the evidence produced by the learned Tribunal had absolutely no reason for coming to the conclusion that the deceased was also negligent to the extent of 10%. Therefore, the learned Tribunal ought to have awarded full amount to the appellants. He submitted that the Tribunal has erred in apportioning negligence in ratio of 90% and 10% between opponent No.2 and the deceased. He submitted that the learned tribunal ought to have held that opponent No.2 only is responsible for the accident taken place on 26.06.1995. He submitted that the learned Tribunal ought to have applied multiplier of 12 instead of 10. He submitted that the appeal is required to be allowed and the award of the Tribunal is required to be modified.
[4] I have perused the record of the case along with the impugned award passed by the Tribunal. As regards income and future income, the learned advocate for the appellant is not in a position to point out anything from the record. Considering the facts and circumstances of the case, I am in complete agreement with the reasons given by the learned Tribunal more particularly in paragraph No.5 of the impugned order. The Tribunal, while considering the evidence on record has rightly held that negligency is apportioned in ratio of 90% and 10% i.e., the opponent No.2 was 90% negligent and the deceased was 10% negligent in driving their vehicles, which resulted into accident. However, I am of the view that looking to the facts and circumstances, the multiplier should have been 13 in view of the decision in the case of Sarla Verma (Smt.) and others Vs. Delhi Transport Corporation and another, reported in (2009) 6 SCC 121.
[5] The Tribunal has considered the income of the deceased at Rs.4,230/- p.m and for considering the future economic prospectus, the Tribunal has adopted the formula of double income and average and thereby arrived at income of the deceased at Rs.6,345/- p.m, out of the same, the Tribunal has deducted 1/3 amount towards personal expenditure and assessed the income of the deceased at Rs.4,230/-
p.m. The loss of dependency was considered at Rs.4,230/- p.m and Rs.50,760/- p.a. Considering the age of the deceased as 48 years on the date of accident, the Tribunal adopted multiplier of 10 and thereby awarded compensation under the head of loss of dependency at Rs.5,07,600/-. The Tribunal has awarded Rs.20,000/- under the head of conventional amount. Thus, the Tribunal has awarded Rs.5,27,600/- as compensation. However, as the deceased was held to be negligent to the extent of 10% in the accident, the Tribunal deducted Rs.52,760/- towards his contributory negligent and thereby Rs.4,74,840/- to the claimants along with interest at the rate of 12% p.a.
[16] The Tribunal has rightly arrived at monthly income of the deceased at Rs.6,345/- which is around to Rs.6400/- p.m. The Tribunal has , however, committed an error in deducting 1/3 amount therefrom towards personal expenditure. Looking to the number of dependants of the deceased, the deduction should be 1/4. Therefore, the monthly loss of dependency would come to Rs.4,800/- p.m and Rs.57,600/-
p.a. The Tribunal has also committed an error in considering the multiplier of 10 in view of the decision of Sarla Verma (Smt.) and others Vs. Delhi Transport Corporation and another, reported in (2009) 6 SCC 121. The Tribunal ought to have applied multiplier of 13. Therefore, the claimants are entitled to get Rs.7,48,800/- under the head of loss of dependency. Over-and-above the same, the claimants are also entitled to get Rs.25,000/- as conventional amount. Thus, the claimants are entitled to get Rs.7,73,800/-. However, as the deceased is also held to be negligent to the extent of 10% in the accident Rs.77,380/- is required to be deducted from the said amount. Thus, the claimants are entitled to get Rs.6,96,420/-. As against that the Tribunal has awarded Rs.4,74,840/-. Thus, the claimants are entitled to get additional amount of compensation of Rs.2,21,580/- along with interest at the rate of 7.5% from the date of application till realization.
[17] The appeal is allowed in part.
[ K. S. JHAVERI, J. ] vijay