By way of filing this appeal under Section 173 of the Motor Vehicles Act, 1988 the appellant - insurance company has challenged the judgment and order dated 26th April 2002 passed by the learned Motor Accident Claims Tribunal at Kachchh at Gandhidham in MAC Petition No.71 of 2001 whereby the Tribunal has awarded Rs.2,92,500/- along with conditional interest of 9% per cent from the date of application till realisation. 2 The short facts of the present appeal as per the claimants are that the son of the claimants, Rameshbhai Mavjibhai Koli, had hired one goods rickshaw of opponent No.3 herein and had gone to purchase roof tiles along with his brother-in-law. While travelling in the said goods rickshaw, deceased Rameshbhai was sitting on the right hand side of the driver while his brother-in-law was sitting on the left hand side of the rickshaw driver. When said rickshaw reached near Haripar Patiya, because of rash and negligent driving and because of uneven surface of the road, because of jerks, Rameshbhai was thrown out of the rickshaw. However, as the clothes worn by the deceased got entangled with the hook of the rickshaw, he was dragged along the rickshaw for a distance up to 15 ft and thereby sustained grievous injuries due to which he breathed his last.
3. The parents of the deceased filed claim petition claiming compensation of Rs.7,00,000 from the original opponents jointly and severally under various heads. The Tribunal after considering the evidence adduced on record has awarded Rs.2,92,500 to the claimants along with interest at the rate of 9% per annum against which the present appeal is filed by the insurance company.
4. Heard learned counsel for the parties and perused the record.
5. Mr Daxesh Mehta, learned counsel for the appellant – insurance company has , inter-alia, submitted that the Tribunal has committed an error in awarding assessing the future loss of income at Rs.2,88,000/- He submitted that the Tribunal ought to have considered the income of the appellant at Rs.15,000 per annum and after deducting 1/3rd thereof towards his personal expenses and applying the multiplier of 17 ought to have awarded Rs.1,70,00 under this head.
6. Mr Hiren Modi, learned counsel for the original claimants has supported the judgment and award of the Tribunal and submitted that no interference is called for. He, however, pointed out that as per the decision of the Supreme Court in the case of National Insurance Company Ltd. Versus Gurumallamma & Another, reported in 2009 (9) SCALE 764 no multiplier is required to be applied and the Tribunal has to award the compensation as provided in Second Schedule. Paragraph 8 of the said decision reads as under:-
“8. Multiplier stricto sensu is not applicable in the case of fatal accident. The multiplier would be applicable only in case of disability in non-fatal accidents as would appear from the Note 5 appended to the Second Schedule. Thus, even if the application of multiplier is ignored in the present case and the income of the deceased is taken to be Rs.3,300/- per month, the amount of compensation payable would be somewhat between 6,84,000/- to Rs.7,60,000/-. As the Second Schedule provides for a structured formula, the question of determination of payment of compensation by application of judicial mind which is otherwise necessary for a proceeding arising out of a claim petition filed under Section 166 would not arise. The Tribunals in a proceeding under Section 163A of the Act is required to determine the amount of compensation as specified in the Second Schedule. It is not required to apply the multiplier except in a case of injuries and disabilities.”
As per Second Schedule to Motors Vehicles Act, the claimants are entitled to Rs.3,66,000 out of which 1/3rd amount is required to be deducted towards personal expenses of the deceased. In that case the claimants are entitled to get Rs.2,24,000 under the head of dependency benefit. They are also entitled to Rs.4500 under the head of after death ceremony and loss of estate. Thus, in all, the claimants are entitled to Rs.2,28,500.
7. In view of the aforesaid discussion, the judgment and order 26th April 2002 passed by the learned Motor Accident Claims Tribunal at Kachchh at Gandhidham in MAC Petition No.71 of 2001 whereby the Tribunal has awarded Rs.2,92,500/- is modified to the extent that the claimants are entitled to Rs.2,28,500/- 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