1. By way of this appeal, the appellant- original opponent No.2 has challenged the judgement and award dated 09.11.2006, passed by the Motor Accident Claims Tribunal(Main), Rajkot, in M.A.C.P. No.537 of 2006, whereby the tribunal has awarded compensation in the sum of Rs.2,04,500/- to the claimants with interest at the rate of 10% from the date of filing of the petition till realization.
2. The brief facts leading to filing of this appeal are that on 08.03.2006, at about 10.30 a.m. one minor Tushar was playing hear his house. At that time one Dumper Truck bearing registration No. GJ3Y 8365 came and dashed him. As a result of the said accident, Tushar sustained grievous injuries and due to which he died. Therefore, the parents of the deceased filed claim petition being M.A.C.P. No.537 of 2006 u/s 163-A of the M.V. Act, before the Tribunal for compensation. The Tribunal after hearing learned advocates for the respective parties and after considering the evidence on record decided the claim petition and passed the award as stated hereinabove against which the present appeal is preferred by the appellants-original opponent No.3.
3. Learned Counsel for the appellant contended that the Tribunal has committed an error in awarding compensation to the claimants. He further contended that the Tribunal has wrongly applied the multiplier, since the multiplier is to be applied only in case of non-fatal injury and instead of multiplier it ought to have applied the method of structured formula, as provided under the Second Schedule of the Act. In support of this submission, he has placed reliance on a decision of the Apex Court in the matter of National Insurance Company Vs. Shyam Singh and Ors. reported in AIR 2011 SC 3231.
4. Learned counsel for the respondent has supported the judgement and award of the Tribunal and submitted that the Tribunal after considering the evidence on record has passed the award.
5. I have heard learned counsel appearing for the appellants and perused the record as well as the judgement and award of the tribunal. I find that the Tribunal has committed an error in adopting multiplier. Since the multiplier is to be applied only in case of non-fatal injury, in view of the decision of the Apex Court in the case of National Insurance Company Vs. Shyam Singh and Ors (supra), the Tribunal ought to have applied the method of structured formula, as provided under the Second Schedule of the Act. Even if we considered the minimum age of the mother of the deceased at about 15-20 years, at the time of accident. The dependency comes to Rs.2,85,000/- as per the Second scheduled. After deducting 1/3 amount towards personal expenses, the dependency comes to Rs.1,90,00/-+ Rs.2000/- towards funeral expenses + Rs.,2500/- towards loss of estate, as per schedule. Therefore, in all the claimants are entitled to only Rs. 1,94,500/- whereas the Tribunal has awarded Rs.2,04,500/-. In that view of the matter, the claimants are only entitled to Rs.1,94,500/- for compensation instead of 2,04,500/-. The excess amount of Rs.10,000/- be refunded to the appellant- Insurance Company with interest and cost, if any, if it is deposited with the Tribunal by the appellant- Insurance Company.
6. The judgement and award of the tribunal is modified to the aforesaid extent. Decree be drawn accordingly. The present appeal is partly allowed.
pawan [K.S.JHAVERI,J.]