ADMIT. 1. Mr.Hiren M. Modi, learned advocate for the appellants-original claimants, Mr.Ashok N. Parmar, learned advocate for the respondent no.1 and Mr.Sunil B. Parikh, learned advocate for the respondent no.2-Insurance Company jointly request that considering the limited dispute raised in this appeal, the appeal may be heard today and may accordingly be disposed of.
2. In above view of the matter, the instant appeal is heard today and is being disposed of by this judgment.
3. The instant appeal is filed challenging the impugned judgment and award dated 27/07/2011 rendered by the learned Motor Accident Claim Tribunal (Auxi), Anand, in Motor Accident Claim Petition (Misc.) No.20 of 2007 under Section 163A of the Motor Vehicles Act, whereby the concerned Tribunal awarded in all Rs.1,29,600/- (One Lac Twenty Nine Thousand Six Hundred Rupees) by way of compensation with running interest at the rate of 7.5% per annum from the date of filing of aforementioned claim petition till the realization with proportionate costs thereon.
4. The appellants-original claimants felt that the amount awarded by way of compensation to them was on lesser side, and therefore, the instant appeal for enhancement of amount of compensation is filed.
5. Mr.Hiren Modi, learned advocate for the appellants-original claimants, at the outset, submitted that, in the instant matter, the deceased was housewife, and at the time of accident, she was traveling on scooter as pillion rider and her husband was driving the scooter, and at that time, the car bearing registration No.GJ-5-CD-9806 dashed with the scooter and consequently the deceased sustained serious injuries and she succumbed to the injuries.
5.1 Mr.Hiren Modi, learned advocate for the appellants-original claimants, submitted that the Tribunal assessed the negligence of the rider of the scooter at 20% and the driver of the motorcar viz. respondents-opponent no.1 at 80%, but out of the total amount of compensation, the Tribunal deducted 20% amount and the remaining amount was awarded by way of compensation. He, therefore, submitted that this being a case of composite negligence and the deceased was not joint tortfeasor, 20% amount should not have been deducted on account of negligence of the rider of the two wheeler.
5.2 Mr.Hiren Modi, learned advocate for the appellants–original claimants further submitted that, in the instant matter, though the deceased was housewife and was rendering household services yet her income was considered to be Rs.15,000/- per-annum. He, therefore, submitted that the accident occurred in the year 2006, and considering the facts and circumstances of the case, the Tribunal should have assessed notional income of the deceased as housewife rendering household services at Rs.3000/- per month. It is therefore, submitted that the instant appeal may accordingly be allowed.
6. Mr.Ashok Parmar, learned advocate for the respondent no.1-Owner-cum-Driver of the motorcar and Mr.Sunil Parikh, learned advocate for the respondent no.2-Insurance Company opposed this appeal and submitted that no error has been committed by the Tribunal, while deducting 20% amount in the instant matter, because at the first instance, the claimants did not join the driver, owner and the Insurance Company of the scooter itself as co-opponents. It is further submitted that even as per the case of the claimants, at the time of accident, the appellant-claimant no.1 viz. Manubhai (the husband of the deceased) himself was riding the scooter. Over and above this, the appellants- claimants themselves had filed a pursis at Exh:21 before the claim Tribunal declaring that, if the Tribunal assesses the negligence of the driver of the scooter (appellant-claimant no.1) then they shall waive that particular amount, on the part of the assessment of the compensation, from the total awarded amount of compensation. It is further submitted that, in the instant matter, considering peculiar facts and circumstances of the case, the Tribunal was perfectly justified in deducting 20% amount out of total amount of compensation. On behalf of the respondents, it is further submitted that in absence of any cogent and convincing evidence regarding income of the husband himself, the Tribunal did not commit any error in awarding Rs.15,000/- per-annum as notional income of the deceased-wife towards her household services rendered for her family. My attention was drawn to the evidence of the appellant-claimant no.1 viz. Manubhai Valand- husband of the deceased, and it is submitted that considering his evidence, nothing turns out about his income as well as his nature of occupation. He claimed himself to be agriculturist, but he admitted in his cross-examination that he did not own any agricultural land. It is submitted that in above view of the matter, the Tribunal did not commit error in holding notional annual income of the deceased at Rs.15,000/- It is therefore, submitted that the appeal may be dismissed.
7. I have taken into consideration the impugned judgment and award rendered by the Tribunal in light of the submissions advanced on behalf of both the sides. Considering the impugned judgment and award of the Tribunal, it transpires that, according to the claimants, at the time of accident, the deceased-lady was a pillion rider on two wheeler (scooter) bearing registration No.GJ-7-AB-138 and the husband of the deceased- wife viz. Manubhai Valand (appellant-claimant no.1) was riding the said two wheeler (scooter). As per the case of the claimants, there was collision between two vehicles namely scooter bearing registration No.GJ-7-AB-138 and motorcar bearing registration No.GJ-5-CD-9806, which was driven and owned by the respondent-opponent no.1 and which was insured with the respondent- opponent no.2-Insurance Company. It further transpires that, in the claim petition, the claimants did not join as co-opponents the driver, owner and Insurance Company of the two wheeler bearing registration No.GJ-7-AB-138. It is pertinent to note that the appellant-claimant no.1 himself was the driver of the scooter. Considering impugned judgment and award rendered by the Tribunal and more particularly, considering Para-12, it transpires that on behalf of the appellants-claimants, pursis at Exh:21 came to be filed before the claim Tribunal stating that, if at all the Tribunal assesses the negligence of the driver of the scooter bearing registration no.GJ-7-AB-138, in that case, the claimants shall waive that particular amount on the count of the assessment of the negligence of the driver of scooter, from total awarded amount of compensation. In other words, it can be said that, as per the pursis at Exh:21, if the Tribunal comes to the conclusion that the driver of the scooter, who is none other than the appellant-claimant no.1 was negligent to certain extent for causing the accident, the claimants shall let go the amount of compensation qua the negligence of the appellant-claimant no.1. The Tribunal considered the oral and documentary evidence regarding the negligence aspect, and ultimately came to the conclusion that the rider of the scooter viz. appellant-claimant no.1- Manubhai was negligent to the extent of 20% and the driver-cum-owner of the motorcar was negligent to the extent of 80%.
8. There does not appear any error having been committed by the Tribunal while apportioning the extent of negligence in the instant matter, and in above view of the matter, it transpires that considering peculiar facts and circumstances of this case, the Tribunal has not committed error in deducting 20% amount from the total amount of compensation.
9. It transpires that the Tribunal has taken into consideration the fact that the deceased-Jayaben was a housewife and was rendering her services as housewife for her family. The deceased was aged about 45 years. The Tribunal has considered the services rendered by the deceased as housewife and her household services was assessed at Rs.15,000/- per annum. Considering the facts and circumstances of the case and considering the nature of profession of husband (appellant- claimant no.1) which emerges from his evidence, this Court is of the opinion that the Tribunal should have considered at least Rs.21,000/- as annual income of the deceased towards her household services rendered by her for her family. It transpires that the Tribunal has considered the multiplier method. It is pertinent to note that the claimants filed the claim petition under Section 163(A) of the Motor Vehicles Act and considering the second schedule attached to the Motor Vehicles Act, the Tribunal should not have adopted multiplier method in this case, because this being fatal accident case. Considering Item no.5 in the schedule relating disability in non fatal accidents, the multiplier method is adopted. The Tribunal should have adopted in the instant case which is fatal accident case, the structured formula as per the second schedule. Under such circumstances, considering the age of the deceased as 45 years, it can safely be said that she was above 40 years, but not exceeding 45 years and Rs.21,000/- per annum as income, as per the structured formula, the amount comes to Rs.3,02,000/-. As per the structured formula basis, 1/3rd amount is required to be deducted towards the self expenses of the deceased. The net amount comes to Rs.2,01,000/-. Thus, it can be said that the appellants- original claimants are entitled to recover sum of Rs.2,01,000/- under the head of loss to the future dependency benefits. As per the structured formula basis, they are further entitled to recover a sum of Rs.2000/- for funeral expenses, Rs.5000/- towards loss of consortium and Rs.2500/- towards loss of estate. Thus, adding Rs.9500/- to Rs.2,01,000/-, a total amount comes to Rs.2,10,500/-. As stated above, 20% amount qua the negligence of appellant- original claimant no.1 is required to be deducted out of said amount. The net total amount comes to Rs.1,68,400/- which the claimants are otherwise entitled to recover.
10. The Tribunal awarded Rs.1,29,600/- by way of compensation. Thus, the appellants-original claimants are entitled to recover sum of Rs.38,800/- by way of additional amount of compensation and to that extent, the instant appeal deserves to be partly allowed.
11. For the foregoing reasons, the appeal is partly allowed and impugned judgment and award dated 27.07.2011, rendered by the learned Motor Accident Claim Tribunal (Auxi), Anand, in Motor Accident Claim Petition (Misc.) No.20 of 2007 is hereby modified and it is hereby ordered that the appellants-original claimants are entitled to recover Rs.38,800/- by way of additional amount of compensation with interest at the rate of 7.5% per annum from the date of filing of aforementioned claim petition till the realization with proportionate costs thereon. The respondents are jointly and severally directed to satisfy the award.
12. Mr.Parikh, learned advocate for the respondent no.2-Insurance Company, upon instruction, states that the aforementioned additional amount of compensation with interest and proportionate costs shall be deposited with the concerned Tribunal preferably within a period of two months. No costs.
*Suchit (J.C.UPADHYAYA, J.)