1. Both these appeals arise out of the common judgment and award and hence, they are disposed of by this common judgment.
2. First Appeal No.2234/2008 has been preferred against the judgment and award dated 07.12.2007 passed by the Motor Accident Claims Tribunal (Main), Junagadh in M.A.C.P. No.727/2005, whereas, First Appeal No.2235/2008 has been preferred against the same award passed in M.A.C.P. No.728/2005.
3. The above two claim petitions were preferred in connection with the vehicular accident that took place on 29.07.2005 in which two persons died. The heirs and legal representatives of the deceased had, therefore, preferred the above claim petitions wherein, the Tribunal awarded total compensation of Rs.4,36,500/- and Rs.4,60,500/- respectively along with interest at the rate of 9% per annum from the date of application till its realization with proportionate costs, by way of the impugned common award.
4. Heard learned counsel for the appellant. It has been contended on behalf of appellant-Insurance Company that the claim petition was filed u/s.163-A of the M.V. Act and therefore, the Second Schedule appended to the said proviso ought to have followed by the Tribunal while computing compensation rather than applying an independent multiplier. In support of the said submission, reliance has been placed on the decision of the Apex Court in the case of National Insurance Company Ltd. v. Gurumallamma and another, (2009) 16 S.C.C. 43.
5. Considering the facts of the case and the principle laid down in Gurumallamma's case (supra), the formula stipulated in Second Schedule appended to Section 163-A of the Act is required to be followed for computing compensation. In other words, in a proceeding u/s. 163-A of the Act, the amount of compensation is to be determined as per the formula specified in the Second Schedule.
6. Further, in the case of National Insurance Co. Ltd.
v. Shyam Singh and others, AIR 2011 S.C. 3231, the Apex Court has held that age of parents is to be taken into consideration while deciding a claim petition filed u/s.163- A of the said Act.
FIRST APPEAL No.2234/2008 :
7. If we adopt the formula specified in the Second Schedule while keeping in mind the age of the mother of deceased at the time of accident, the total compensation would come to Rs.5,40,000/-. An amount equivalent to 1/3rd is required to be deducted from the said amount in consideration of the expenses, which the victim would have incurred towards maintaining himself had he been alive. Accordingly, the total amount under the head of loss of dependency would come to Rs.3,60,000/-. The claimants are also entitled for additional amounts of Rs.2,000/- and Rs.2,500/- under the heads of funeral expenses and loss of estate respectively. Thus, the claimants are entitled for total compensation of Rs.3,64,500/-. The Tribunal has awarded total compensation of Rs.4,36,500/-. Hence, the excess amount of Rs.72,000/- is required to be refunded to the appellant- Insurance Company.
FIRST APPEAL No.2235/2008 :
8. In this appeal, if we adopt the formula specified in the Second Schedule while keeping in mind the age of the mother of deceased at the time of accident, the total compensation would come to Rs.5,40,000/-. An amount equivalent to 1/3rd is required to be deducted from the said amount in consideration of the expenses, which the victim would have incurred towards maintaining himself had he been alive. Accordingly, the total amount under the head of loss of dependency would come to Rs.3,60,000/-. The claimants are also entitled for additional amounts of Rs.2,000/- and Rs.2,500/- under the heads of funeral expenses and loss of estate respectively. Thus, the claimants are entitled for total compensation of Rs.3,64,500/-. The Tribunal has awarded total compensation of Rs.4,60,500/-. Hence, the excess amount of Rs.96,000/- is required to be refunded to the appellant- Insurance Company.
9. For the foregoing reasons, both the appeals are partly allowed;
[A] FIRST APPEAL No.2234/2008 : The impugned award passed by the Tribunal in M.A.C.P. No.727/2005 is modified to the extent that original claimants shall be entitled for total compensation of Rs.3,64,500/- only [Rupees Three lacs sixty four thousand five hundred only] along with interest and costs, as awarded by the Tribunal. The excess amount of Rs.72,000/- shall be refunded to the appellant- Insurance Company along with interest at the rate of 3% per annum. The impugned award stands modified to the above extent.
[B] FIRST APPEAL No.2235/2008 : The impugned award passed by the Tribunal in M.A.C.P. No.728/2005 is modified to the extent that original claimants shall be entitled for total compensation of Rs.3,64,500/- only [Rupees Three lacs sixty four thousand five hundred only] along with interest and costs, as awarded by the Tribunal. The excess amount of Rs.96,000/- shall be refunded to the appellant- Insurance Company along with interest at the rate of 3% per annum. The impugned award stands modified to the above extent.
[C] Both the appeals stand disposed of accordingly. No order as to costs.
[K. S. JHAVERI, J.] Pravin/*