1.0 This appeal is directed against the judgement and award dated 15.04.2004 passed by the Motor Accident Claims Tribunal (Auxi.), Dhrangadhra in Motor Accident Claim Petition No. 397 of 1998 wherein the learned Tribunal has partly allowed the aforesaid claim petition by awarding compensation in the sum of Rs. 416250/ along with proportionate costs and interest at the rate of 9% per annum from the date of claim petition till deposit.
2.0 On 10.04.1993 at about 12.00 O’ clock in the noon Manjibhai Bhagvanbhai Dalwadi was driving his motor cycle towards Charavada. When he reached at the place of incident, a chhakada rickshaw bearing No GJ 1T 5377 came from opposite direction with excessive speed and in a rash and negligent the manner dashed with bullet motor cycle of Manjibhai. As a result of this he sustained serious injuries. He took prolonged treatment. He therefore, filed the aforesaid claim petition wherein the learned Tribunal passed the aforesaid award which is challenged in the present appeal.
2.1 During the pendency of the present appeal, the original claimant died and therefore, his legal heirs of brought on record.
3.0 Learned advocate for the appellant contended that learned Tribunal erred in doubling the income of Rs. 80000/ for the purpose of calculating the prospective income. He submitted that the original claimant (deceased) was 47 years at the time of accident and therefore, there should be addition of 30% as per the principles laid down by the Hon'ble Apex Court in case of arla Verma (Smt) and others versus Delhi Transport Corporation and another reported in (2009) 6 Supreme Court Cases 121. He further submitted that the multiplier of 15 applied by the learned Tribunal is on higher side. It should be 13 years as per the decision in case of Sarla Verma(supra).
4.0 Learned advocate for the respondent supported the judgement and award of the learned Tribunal and submitted that the appeal may be dismissed.
5.0 Heard learned advocates for the respective parties and perused the documents on record.
6.0 As far as income in concerned, the same is not disputed. In absence of any documentary evidence with regard to the income, the learned Tribunal has assessed the income at Rs. 40000/ per annum. However, the learned Tribunal has committed error in doubling the income of the deceased to Rs. 80000/. There would be addition of 30% in the income in view of decision of Sarla Verma (supra). By taking the income of Rs. 40000/ and 30% addition, the prospective income would come to Rs. 52000/. On the basis of consent of parties, the 40% is to be considered as a permanent partial disability on the body as a whole. By taking prospective income of Rs. 52000/ and 40% disability, the annual loss would come to Rs. 20800/. As far as multiplier is concerned, the age of the deceased was 47 years. Therefore, multiplier of 15 applied by the learned Tribunal is on higher side. Looking to the age of the original claimant( deceased), multiplier of 13 years will be applied for future loss of income as per the ratio laid down in case of Sarla Verma (supra). By applying multiplier of 13, the future loss of income would come to Rs.270400/ (Rs. 20800/ x 13). The Tribunal has awarded Rs.3,60,000/ for future loss of income which in my opinion is on higher side. Therefore, there is an excess amount of Rs. 89600/ ( Rs 360000/ Rs 270400/).
7.0 The amount awarded towards other heads are just and proper and no interference is warranted.
8.0 In view of the above, the total compensation would come to Rs.465400/ (Rs. 270400/ towards future loss of income + Rs. 20000/ towards actual loss of income for six months + Rs. 30000/ towards pain, shock and suffering + Rs. 100000/ towards drugs, medicines, treatment charges etc + Rs. 15000/ towards attendant transportation charge and nutritious food + Rs. 25000/ towards charges of wheel chair crutches + Rs.5000/ towards property damages). It is required to be noted that there is contributory negligence on the part of the original claimant (deceased) is fixed as 25%. Therefore, 25% of total amount be deducted and deducting 25%, the total compensation would come to Rs. 349050/. However, the Tribunal has awarded Rs. 416250/ as total compensation. Therefore, the excess amount of Rs. 67200/ ( Rs. 416250 Rs. 349050/) shall be refunded to the appellantinsurance company with the proportionate interest and costs. The award is modified accordingly. Appeal is allowed to the aforesaid extent with no order as to costs. The amount, if any, lying with the Registry of this Court shall be transmitted to the concerned Tribunal.
(K.S.JHAVERI, J.) niru*