1. This First Appeal is at the instance of the claimants in a proceeding under Section 166 of the Motor Vehicles Act, 1988 and is directed against an award dated September 26, 1994, passed by the Motor Accident Claims Tribunal[Main], Banaskantha at Palanpur [“the Tribunal”] in M.A.C.P. No. 705 of 1990, thereby allowing the same in part and awarding the sum of Rs. 3,90,000/- with interest at the rate of 12% per annum from the date of the filing of the claim petition till realization.
2. It appears from the record that the victim was aged 25 years and was working as Manager of one Monalisa Marbles and Minerals and was earning Rs. 3,000/- a month. He was also a Commerce graduate. Claimant no.1 aged 19 years is the widow of the victim, the claimant no.2 was the father of the victim, who died during the pendency of this appeal and the claimant no.3 is the mother who was aged 59 years at the time of the accident.
3. According to the claim application, while the victim was travelling on a scooter, a jeep driven by the opponent no.1 struck the said scooter from behind, as a result, the victim had fallen down from the scooter and sustained injuries resulting in his death. There is no dispute that the offending vehicle was insured by the Insurance Company. The learned Tribunal below, on consideration of the materials on record came to a conclusion that although the driver of the offending vehicle did not step into the witness box, because of the circumstances in which the accident had occurred, on the basis of a presumption that the victim had 25% contributory negligence held the contributory negligence of the jeep driver at 75%.
4. The learned Tribunal below, inspite of its specific finding that the victim was aged 25 years, decided to apply the multiplier of 21 and arrived at a figure of Rs. 5.00 Lac. The learned Tribunal below further held that a further amount of Rs. 20,000/- should be awarded under the head of “loss of estate” and, therefore, the total amount of compensation was assessed at Rs.5,20,000/-, but deducted 25% from the said amount as a result of his finding of contributory negligence of the victim to the extent of 25%. Thus, the amount of Rs. 1,30,000/- was deducted from the aforesaid amount.
5. Being dissatisfied, the claimants have come up with the present appeal.
6. After hearing the learned counsel for the parties and after going through the materials on record, we find that although the driver of the offending vehicle did not appear as a witness, yet, in his written statement he admitted that as there was no rubber cover on the pedal of the brake, his leg slipped while he pressed the brake at the time of the accident and, therefore, for want of timely application of brake, the accident had occurred.
7. In my view, after such admission in the written statement and in view of the fact that the driver of the offending vehicle did not offer himself for cross-examination by appearing as witness, there was no justification of drawing an inference of 25% contributory negligence on the part of the victim when the fact remains that the offending vehicle came from behind. That finding is based on no evidence and the same should be branded as perverse finding of fact.
8. I, therefore, find that there was no justification of deducting 25% amount from the amount assessed one.
9. Ms. Lilu Bhaya, the learned advocate appearing on behalf of the Insurance Company tried to impress upon me that application of multiplier of 21 was excessive and the same should be reduced. I am, however, not at all convinced by such submission when the admitted fact is that the victim was aged 25 years. Moreover, it appears that while applying the multiplier of 21, the learned Tribunal below also did not take into consideration the future prospect of the victim who was otherwise qualified and due to his experience in the field, would have definitely earned more and the amount of Rs 3,000/- a month which he used to get in the year 1990 would have increased by more than 500% by this time.
10. In such circumstances, I do not propose to interfere with the total amount of Rs. 5,20,000/- assessed by the learned Tribunal as loss of dependency. I am, however, of the opinion that in addition to the said amount, further sum of Rs. 5,000/- should awarded as funeral expenses.
11. I, therefore, modify the awarded amount by enhancing the sum by further amount of Rs. 1,35,000/- with interest at the rate of 12% per annum from the date of filing of the application till December 31, 1999 and thereafter, at the rate of 8% per annum till the actual payment.
12. The Insurance Company is directed to pay the enhanced amount within three months from today. Since the father of the victim has died and at present, the widow and the mother of the victim are already on record, I find that the concluding portion of the award regarding apportionment should be slightly modified. It appears that at the time of passing the award, the learned Tribunal directed that 15% of the amount should be paid to the widow and 10% to the mother and the balance 75% should be deposited in a fixed deposit out of which 50% should remain in the name of the widow and balance 25% in the name of the mother who would not be entitled to encash the Fixed Deposit, but would be entitled only to realize the interest. I, therefore, modify that part only to the extent that after the future death of the mother of the victim, the said 25% amount should not go in favour of the natural heirs of the mother, but to the widow of the victim alone and the widow will be entitled to utilize that amount.
13. The appeal is, thus, allowed and the award impugned is modified to the extent indicated above. No costs.
(BHASKAR BHATTACHARYA, CJ.) pirzada/-