1 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 18th August 2007 passed by the learned Motor Accident Claims Tribunal (Aux.), Sabarkantha at Himatnagar in MAC Petition No.1353 of 2005 whereby the Tribunal has awarded Rs.3,64,500/- to the claimants along with interest at the rate of 8% per cent from the date of application till realisation.
2 The short facts of the present appeal as per the claimants are that the claimants along with their sons – Samir and Irfan were coming from Mundra to Gandhidham on Hero Honda Motorcycle No.GJ.12 AJ 1678 and when their bike reached the place of accident, at that time their bike was given a dash by the Truck bearing No.GJ 12 X 2526. In the said accident, deceased Samir had died.
3. The parents of the deceased filed the aforesaid claim petition claiming compensation of Rs.4,84,500 in respect of fatal injuries caused to their son due to vehicular accident which took place on 28th August 2005. The Tribunal has considered the income of the deceased at Rs.3,000 per month and Rs.36,000 per annum and deducted 1/3rd therefrom towards his personal expenses to arrive at Rs.24,000 per annum. The Tribunal applied the multiplier of 15 and awarded Rs.3,60,000 as future economic loss. He has also awarded Rs.2,000 towards cremation charges and Rs.2500 as loss of estate. Thus, in all, the Tribunal has awarded Rs.3,64,500 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 Mehta , learned counsel for the appellant – insurance has, inter-alia, submitted that the Tribunal has committed an error in assessing the income at Rs.36,000 per annum. He submitted that in view of the decision of the Supreme Court in the case of National Insurance Co. Ltd. v. Shyam Singh & Ors. reported in AIR 2011 SC 3231 the age of the parents should be considered while determination of the multiplier. 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.”
6. In view of the decision of the Supreme Court in the case of National Insurance Co. Ltd. v. Shyam Singh & Ors. reported in AIR 2011 SC 3231 the age of the parents should be considered while determination of the multiplier. Therefore, as per Second Schedule to Motors Vehicles Act, looking to the age of the mother, the claimants are entitled to Rs.4,32,000 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.2,88,000 (Rs.432,000 – Rs.144,000) 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.2,92,500/-. As against that, the Tribunal has awarded Rs.3,64,500/- to the claimants. Thus, there is an excessive amount of Rs.72,000/-, which will have to be refunded to the insurance company.
7. In view of the aforesaid discussion, the judgment and order of the Tribunal is modified to the aforesaid extent. The appeal is allowed to the aforesaid extent with no order as to costs.
(K.S.Jhaveri, J.) *mohd