By way of filing this appeal under Section 110-D of the Motor Vehicles Act, 1988 the appellant-insurance company has challenged the judgment and order dated 6th October 1992 passed by the learned Motor Accident Claims Tribunal (Main) Kachchh at Bhuj in MAC Petition No.103 of 1987 whereby the Tribunal has awarded Rs.2,50,000 to the claimants.
2 The short facts of the present appeal are that on 4.1.1988 at about 10 AM the deceased while returning from Dahisara to Meghpar in ST bus got down at village Meghpar and while he was crossing the road for proceeding towards village Meghpar, at that time, opponent No.1 came from Dahisara side with his scooter bearing registration No.GJX 4722. It is the case of the claimants that the said scooter was being driven rashly and negligently and on the wrong side of the road by the opponent No.1 and thereby dashed with the deceased as a result of which deceased sustained serious injuries and succumbed to the same. The claimants, being wife and children of the deceased, filed the aforesaid claim petition claiming for compensation of Rs.2,50,000/- under various heads. The tribunal considering the oral as well as documentary evidence produced on record considered Rs.2100 per month as the net income of the deceased. After deducting 1/3rd amount from the said amount towards his personal expenses, he assessed Rs.1400 per month to be dependency benefit viz. Rs.16,800 per annum. Looking to the age of the deceased of as 33 at the time of the accident, he adopted the multiplier of 19 and assessed the amount of loss of depenency at Rs.3,19,200/-. He had also granted Rs.10,000 for loss to estate and Rs.2,000 of obsequious ceremonies. Thus, the Tribunal awarded Rs.2,50,000 to the claimants as against Rs.3,31,200 since they have restricted their claim to Rs.2.5 lakhs only. The appellant-Insurance Company challenged the same by filing the present appeal under Section 110D of the Motor Vehicles Act.
3. Heard learned counsel for the parties and perused the record.
4. Mr Sunil Parikh, learned counsel for the appellant submitted that the scooter in question is not involved in the offence in question. He further contended that the accident had occurred on account of negligence on the part of the deceased as well and therefore the Tribunal has committed an error in coming to the conclusion that the accident took place because of sole negligence on the part of the rider of the scooter. Learned counsel for the appellant has taken me through the FIR, Panchnama as well as evident of the owner of the vehicle. He further contended that the income assessed at Rs.2100 is on higher side and the amount of compensation is required to be reduced.
5. The first contention regarding non-involvement of the vehicle in the accident as well as contributory negligence is concerned, the appellant has not led any evidence before the Tribunal and opponent No.1 - driver has not entered into witness box to state on oath that his scooter is not involved in the accident in question. As regards the question of contributory negligence is concerned, from the evidence of Jitendra Chandulal Thacker at Exhibit it clearly appears that the scooterist was at fault and he lost control over the vehicle because of which it went off the road and dashed with the deceased causing him fatal injuries. As regards the next contention regarding quantum of compensation, as per the decision of the Apex Court in the case of Sarla Dixit v. Balwant Yadav, reported in (1996) 3 SCC 179, if we take the monthly income of Rs.900 per month, the average gross future monthly income would be Rs.1350 per month. If we deduct 10% of the same towards his personal expenses, the net income would come to Rs.1215 per month and Rs.14,580 per year. By applying the multiplier of 16, the total amount of future economic loss would come to Rs.2,33,280/-. Further, the Tribunal has awarded only Rs.2,000 towards funeral expenses, whereas it should have been Rs.5,000/- Thus, the claimants would be entitled to Rs.2,48,200 (viz. Rs.2,33,280 + Rs.5,000 + Rs.10,000).
Thus, in all, the claimants are entitled to get Rs.2,48,200 as against Rs.2,50,000 as awarded by the Tribunal.
5. In view of the aforesaid discussion, the judgment and award dated 6th October 1992 passed by the learned Motor Accident Claims Tribunal (Main), Kachchh at Bhuj in MAC Petition No.103 of 1987 whereby the Tribunal has awarded Rs.2,50,000 to the claimants is modified to the extent that the claimants are entitled to Rs.2,48,200/-. The excess amount is ordered to be refunded to the insurance company. Appeal is allowed to the aforesaid extent with no order as to costs.
(K.S.Jhaveri, J.) *mohd Top