1.0 This appeal is directed against the judgement and award dated 30.08.2001 passed by the Motor Accident Claims Tribunal (AI), Nadiad in Motor Accident Claim Petition No. 1221 of 1992 wherein the learned Tribunal has partly allowed the aforesaid claim petition by awarding compensation in the sum of Rs. 175331/ along with proportionate costs and interest at the rate of 9% per annum from the date of claim petition till realization.
2.0 On 14.05.1992 at about 8.00 p.m. Himatsinh was driving his Tempo No. GJ6T4538 from Kanthariya to Asodar. The Truck No. GJ1 T6912 was lying stationary near Kanthariya busstand without any parking lights or back lights. Himatsinh could not notice the stationary truck and dashed with Tempo at the back side of the truck. Himatsinh sustained injuries and succumbed to those injuries. The legal heirs of the deceased therefore filed the aforesaid claim petition wherein the learned Tribunal passed the aforesaid award. This appeal is at the instance of claimants for enhancement of compensation.
3.0 Learned advocate for the appellant contended that the stationary truck was parked by the driver of the truck without back lights and parking lights on the road near Kanthariya bus stand as a result of which the accident took place. He placed reliance on the decision of this Court in case of Saundagarsing Chhajusing and others versus Jashodaben and another reported in 1986 ACJ 1070 wherein it is held that the truck driver is solely responsible for the accident and there is no contributory negligence of the driver of the Tempo. Hence, the learned Tribunal erred in considering 30% negligence of the deceased. According to him, the learned Tribunal ought to have considered 100% negligence of truck driver.
4.0 He further invited attention of Section 122 of the Motor Vehicles Act, 1988 which reads as under:
“122. Leaving vehicle in dangerous position – No person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers.”
5.0 Learned advocate for the appellant contended that learned Tribunal has committed error in considering the income of Rs. 1200/ per month and thereby awarding the amount of future loss of income is on lower side.
6.0 Learned advocate for the respondent supported the judgement and award of the learned Tribunal and submitted that the appeal may be dismissed.
7.0 Heard learned advocates for the respective parties and perused the documents on record.
8.0 As far as negligence is concerned, the stationary truck was parked by the driver without back lights and parking lights on, on the road near Kanthariya bus stand. It is also proved from the evidence that the tempo had dashed with the back side of the truck. That the tempo had headlights on at the time of the accident. In these circumstances, the driver of the tempo could have noticed the stationary truck but it cannot be said that there is no negligence on his part. In case of Saudagarsingh Chhajusing and others ( supra), the truck trailer which was parked on the road was a huge vehicle of width of 8 and half feet and length of 72 and half feet and there was no reflector. Therefore, the aforesaid decision will not apply in the present case.
8.1 The tempo being the lighter vehicle and the truck being the heavier vehicle and generally it is observed that the accident occurs because of the vehicles are parked on the road without any back lights or parking lights. Therefore, the tempo driver is held to be 30% negligence whereas the trick driver is held to 70% negligence for the accident. The learned Tribunal has rightly attributed the negligence of 30% on the part of the tempo and 70% on the part of the truck.
9.0 As far as income is concerned, the claimant Manjulaben at Exh.
28 stated that deceased was earning Rs. 1200/ per month while working as driver of the tempo. However, prospective income is not considered by the learned Tribunal. Considering the income of Rs.1200/, the prospective income would come to Rs. 1800/ per month. Deducting 1/3rd towards personal and living expenses, the loss of dependency benefit would come to Rs. 1200/ per month and Rs.144000/ per annum. The deceased was aged 28 years at the time of accident. The learned Tribunal has applied multiplier of 18 which is on higher side. Since the deceased was aged 28 years at the time of accident, 17 multiplier ought to have been applied as per the principles laid down in case of Sarla Verma (Smt) and others versus Delhi Transport Corporation and another reported in (2009) 6 Supreme Court Cases 121. By applying multiplier of 17 years, the future loss of income would come to Rs. 244800/ ( Rs. 14400/ x 17). Adding Rs.10000/ towards loss of estate, Rs. 10000/ towards loss of consortium and Rs. 5000/ towards funeral expenses, the total amount would come to Rs. 269800/. but the deceased, driver of tempo is held to be negligent to the extent of 30% and hence 30% amount of total compensation would be deducted. By deducting 30%, the total compensation would come to Rs. 188860/.
10.0 In the result, it is held that since there is negligence to the extent of 30% on the part of the deceased, the claimants are entitled to total compensation of Rs. 188860/. However, the learned Tribunal has awarded Rs. 175331/ as total compensation. Therefore, a further sum of Rs. 13529/ ( Rs. 188860/ Rs. 175331/) shall be paid to the claimants in addition to the amount already awarded to them by the Tribunal. However, the interest on this additional amount will be only 7.5% per annum from the date of filing of the claim petition. The award of the Tribunal is modified accordingly. Appeal is partly allowed with no order as to costs.
(K.S.JHAVERI, J.) niru*