1. The challenge in this appeal is to the impugned judgment and award rendered by the learned Motor Claim Tribunal (Aux), Court No.13, City Civil Court, Ahmedabad, on 30.12.2004, in Motor Accident Claim Petition No.330 of 2001 whereby the Tribunal awarded in all Rs.4,40,000/- by way of compensation to the original-claimants with
Tribunal directed that the said amount to be recovered jointly and/or severally from the three opponents therein i.e. the appellant and the respondent nos. 3 and 4 herein. The original opponent no.3—National Insurance Company Ltd. has filed this appeal. Therefore, the appellant was Original opponent no.3 and respondent nos. 1 and 2 herein were original-claimants and respondent nos.3 and 4 herein were original opponent nos. 2 and 3.
2. It further transpires that during the pendency of this appeal, the original respondent nos. 1- Ratibharti expired. Mr.Mehta, learned advocate for the appellant, states that since the respondent no.1-Ratibharti left his widow viz. the respondent no.2 herein and except her, there was no other heirs to be brought on record and pursuant to the order passed in Civil Application No.7219 of 2005, the name of respondent no.1 was ordered to be deleted.
3. As per the case of the claimants, deceased Nilesh happened to be their son. The profession of Nilesh was driving and on 17.03.2011, deceased Nilesh was driving a Maruti-Van and was proceeding towards Dakor. When he reached near Village:Jesvapura, at that time, one truck bearing Registration No.GJ-7T-8869 driven by original opponent no.1 and owned by original opponent no.2 and insured with the original opponent no.3-Insurance Company, came from opposite direction. It was the case of the claimants that because of rash and negligent driving of the truck by its driver, there was head on collision of both the vehicles and in the accident, Nilesh sustained serious injuries and he succumbed to the serious injuries. The claimants filed above referred Claim-Petition to recover Rs.6 Lacs by way of compensation. The appellant-Original Opponent No.3 had filed written-statement and resisted the claim of the claimants. Before the Tribunal, oral and documentary evidence was adduced. The Tribunal in the impugned judgment and award, while dealing with the issue regarding the negligence, came to the conclusion that while causing the accident, the deceased was contributory negligent to the extent of 20%. The Tribunal, thereafter, took into consideration the aspect regarding fixing the quantum of compensation and came to the conclusion that the deceased was aged about 23 years and was doing the work as driver and was earning Rs.4200/- by way of salary. The Tribunal further observed that since the deceased was unmarried and the claimants were his parents, in future, had he survived, he would have married and would have incurred additional liability to maintain his own family, and therefore, deducted 1/3 amount out of his salary towards the personal expenses of the deceased and accordingly, the Tribunal came to the conclusion that the claimants viz. his parents sustained monthly loss to the dependency benefits at Rs.2800/- and the annual loss to the dependency benefits comes to Rs.33,600/-. The Tribunal took into consideration the age of the deceased and came to the conclusion that, in the instant matter, the multiplier of 16 years would be appropriate multiplier. Accordingly, the Tribunal came to the conclusion that the claimants were entitled to recover Rs.5,37,600/- under the head of loss to the dependency benefits. The Tribunal also awarded Rs.12,400/- under the head of funeral charges and other miscellaneous expenses. Thus, total amount of compensation was ascertained by the Tribunal at Rs.5,50,000/-. However, as the deceased contributed to the accident and his contributory negligence was assessed at 20%, the Tribunal deducted Rs.1,10,000/- out of total amount of compensation and ultimately, came to the conclusion that the claimants were entitled to recover Rs.4,40,000/- by way of compensation.
4. Mr.Mehta, learned advocate for the appellant, at the outset, submitted that the instant appeal is confined only regarding two contentions viz, what could be appropriate multiplier? and secondly, what could be the appropriate deduction towards personal expenses of the deceased? Mr.Mehta, learned advocate for the appellant, submitted that, in the instant matter, at the time of the claim petition, as per the cause title, the claimant no.1-father of the deceased was aged about 55 years and claimant no.2-mother of the deceased was aged about 45 years. The Tribunal while fixing the multiplier only took into consideration the age of the deceased. It is submitted that while fixing the appropriate multiplier, the Tribunal should have considered the age factor of the dependents viz. parents of the deceased especially when the deceased was unmarried. In this respect, Mr.Mehta, learned advocate for the appellant, relied upon the case of Sarla Verma & Ors. Vs. Delhi Transport Corporation Ltd. and others, reported in 2009(6) SCC 121 and more particularly, discussion made by the Hon'ble Apex Court in Paragraph-21. Mr.Mehta, learned advocate for the appellant, submitted that, in the instant matter, since at the relevant time, the original claimant no.2 viz. mother of the deceased was aged about 45 years, appropriate multiplier which the Tribunal should have adopted would be 14 and not the 16.
4.1 Mr.Mehta, learned advocate for the appellant, relied upon the case of National Insurance Company Ltd. Versus. Shyam Singh and Others, reported in (2011)7SCC 65 and submitted that in the aforesaid case, the Hon'ble Apex Court while fixing the appropriate multiplier in said case, wherein the deceased was unmarried boy, aged about 19 years, took into consideration the age of the parents.
4.2 Mr.Mehta, learned advocate for the appellant, further submitted that, in the instant matter, towards the personal and self expenses of the deceased, who was unmarried, the Tribunal deducted 1/3 amount under the said head, but he submitted that as per the discussion made by Hon'ble Apex Court in Paragraph-12 and 15 in Salra Verms's Case (Supra), appropriate deduction which the Tribunal should have made would be 50% and not the 1/3 amount.
4.3 Mr.Mehta, learned advocate for the appellant, submitted that since out of two claimants, now only the respondent no.2 herein survives and despite the fact that she was served with the notice of this appeal, yet none appeared for the respondent no.2-original claimant. It is submitted that in the interest of justice, on 13.06.2012, second notice was ordered to be issued to the respondent no.2-original claimant and she remained personally present on 12.07.2012 and requested for time to engage advocate and her request was accepted by this Court and the matter was listed on 24.07.2012, but on that day, neither she appeared in person nor any learned counsel appeared for her. In the interest of justice, again matter was listed on 04.08.2012 (today) and today, also neither respondent no.2- original claimant appeared personally nor any learned Counsel appeared for her.
4.4 Mr.Mehta, learned advocate for the appellant, further submitted that the endorsement made by the Registry in the cause list shows that respondent no.4 herein, who is owner of the truck is unserved, but there is no conflict of interest so far the appellant and the respondent no.4- owner of the truck is concerned as any result in this appeal is not going to be prejudicial to the respondent no.4-owner of the truck. It is therefore, submitted that since the instant appeal is now challenged on the question of law and since in light of above fact, presence of respondent no.4 is not required for effective disposal of this appeal and since his interest is not in conflict, it is submitted that the instant appeal may be heard and accordingly be disposed of.
4.5 As submitted by Mr.Mehta, learned advocate for the appellant and considering the orders passed in this matter, it is clear that so far as respondent no.1-original claimant-the father of the deceased is concerned, he expired and pursuant to the steps taken by the appellant and since respondent no.1 left in his family only his widow viz. respondent no.2-original claimant, the name of respondent no.1 was ordered to be deleted. It further transpires that the respondent no.2-original claimant though duly served, none appeared for her in this appeal. Again on 13.06.2012, in the interest of justice second time, notice came to be issued and pursuant to the said notice on 12.07.2012, original claimant no.2 personally remained present in this Court on 12.07.2012 and pursuant to her request for time to engage advocate, this appeal was ordered to be listed on 24.07.2012 and on that day, none appeared for the respondent no.2-original claimant in this appeal. As stated above, now the appeal is confined only with two aspects viz. multiplier and the deduction made by the Tribunal towards the personal expenses of the deceased who happened to be unmarried.
5. Considering the impugned judgment and award rendered by the Tribunal, it transpires that there is no dispute that at the time of accident and death, the deceased was unmarried as well as aged about 23 years. The Tribunal considered 16 years to be appropriate multiplier keeping in focus the age of the deceased. Considering the cause title of the application, for compensation filed by the claimants before the Tribunal, it transpires that at the relevant time, respondent no.1-original claimant no.1, the father of the deceased was aged about 55 years and the respondent no.2-original claimant no.2 mother of the deceased was aged about 45 years. As observed by the Hon'ble Apex Court in Shyamsing's Case (Supra) in no uncertain terms came to the conclusion that in case of death of unmarried person living behind only his parents dependents, the age of the dependents shall have to be taken into consideration. In above view of the matter, in the instant matter, considering the age of the mother, who was at the relevant time, aged about 45 years, applying the ratio laid-down in Sarla Verms's Case (Supra) and considering the facts and circumstances of the case, appropriate multiplier for which the Tribunal should have adopted is 14 years and not 16 years. Considering the impugned judgment and award rendered by the Tribunal, it transpires that the Tribunal came to the conclusion that since the deceased was unmarried, 1/3rd amount from his income was required to be deducted towards the self- expenses. In Sarla Verma's Case (Supra) and more particularly, considering the discussion made by the Hon'ble Apex Court in Para-12 to 15, the Hon'ble Apex Court observed that in case of bechlor dying in accident, 50% of his income is required to be deducted towards personal expenses. In the instant matter, as observed above, considering the Paragraph-10, in the impugned judgment and award, the Tribunal taking into consideration the monthly prospective income of the deceased at Rs.4200/-, deducted 1/3rd amount out of it and came to the conclusion that the loss to the monthly dependency benefits should be Rs.2800/-. As discussed above, the Tribunal should have deducted 50% under this head and should have deducted Rs.2100/- out of Rs.4200/- which comes to Rs.2100/- per month and Rs.25,200/- per annum. Applying the multiplier of 14, total amount comes to Rs.3,52,800/-. Adding Rs.12,400/- awarded by the Tribunal under the head of funeral expenses and other miscellaneous expenses, the total amount would come to Rs.3,65,200/-. Since, the Tribunal assessed contributory negligence of the deceased at 20% Rs.73040/- are required to be deducted and net amount of compensation that the claimant is entitled to recover is Rs.2,82,300/-.
6. Mr.Mehta, learned advocate for the appellant, drew my attention to the order dated 11.05.2005 passed in this matter and submitted that pursuant to the said order, while granting stay qua the execution and implementation of the impugned judgment and award rendered by the Tribunal, this Court directed the appellant-Insurance Company to deposit the entire amount of compensation with the concerned Tribunal and the concerned Tribunal was directed to invest the said amount in a nationalized bank in F.D.R. for the period of three years in the first instance which period was extendable in case this appeal was not heard within said period. Accordingly, Mr.Mehta, learned advocated for the appellant, submitted that since the entire amount is lying in the F.D.R. with cumulative interest, the concerned Tribunal may be directed to return back Rs.1,58,000/- along with interest and remaining amount along with interest may be permitted to be disbursed to the respondent no.2-Shardaben Ratilal Gohil.
7. For the foregoing reasons, the instant appeal is partly allowed and the impugned judgment and award rendered by the learned Motor Claim Tribunal (Aux), Court No.13. City Civil Court, Ahmedabad, on 30.12.2004, in Motor Accident Claim Petition No.330 of 2001 is modified and it is hereby directed that the respondent no.2 (origial claimant no.2) Shardaben Ratilal Gohil is entitled to recover Rs.2,82,300/- (Rs.Two Lac Eighty two Thousand Three Hundred) by way of compensation with interest thereon. The Tribunal awarded running interest at the rate of 9% per- annum from the date of filing of the claim petition till the actual realization with proportionate costs and the said part of the order is not interfered with. Since, the entire amount of compensation, awarded by the Tribunal together with interest and proportionate cost has been deposited by the appellant with the Tribunal, which has been invested by the Tribunal in F.D.R. in a nationalized bank pursuant to the order of this Court dated 11.05.2005, the Tribunal shall return back Rs.1,58,000/- together with interest to the appellant-National Insurance Co.Ltd. herein and the remaining amount shall be paid by the Tribunal to respondent no.2-original claimant no.2-Shardaben Ratilal Goswami in accordance with Rules. No Costs.
Girish (J.C.UPADHYAYA,J.)