1. By way of this appeal, the appellant-Insurance Company has challenged the judgement and award dated 19.02.2005, passed by the Motor Accident Claims Tribunal(Auxi.III), Surendranagar, in M.A.C.P. No.615 of 1997, whereby the tribunal has awarded compensation in the sum of Rs.5,06,000/- to the claimants with interest at the rate of 9% from the date of filing of the petition till realization.
2. The brief facts leading to filing of this appeal are that one Kantibhai Arjanbhai Thakor, was working as Cleaner in a Tanker bearing registration No. GTO 2559. On 04.06.1996 the said tanker was collided with a truck bearing registration No. GJ 12 U 8735. As a result of the said accident, Kantibhai Arjanbhai Thakor sustained grievous injuries, therefore, he filed claim petition filed before the Tribunal for compensation. The Tribunal, by impugned award, partly allowed the claim petitions and attributed the negligence on the part of the driver of the tanker to the extent of 30% and the driver of the truck to the extent of 70%. Hence, the present appeal.
3. Learned counsel for the appellant contended that before the Tribunal both the parties have agreed for 50% disability for the body as a whole. However, the Tribunal has assessed 100% disability to the claimant. He further contended that the Tribunal has committed an error in awarding compensation under the head of loss of amenities and pain, shock and suffering. Therefore, he prayed to allow this appeal.
4. Learned counsel for the respondents opposed the contentions of learned advocate for the appellants and contended that the Tribunal after considering the evidence on record has passed the impugned award, therefore, he prayed to dismiss the present appeal.
5. I have heard learned advocates for both the parties and perused the material on record. From the record it is clear that the tribunal has not calculated the income of the appellant as per the ratio laid down in the case of Sarla Dixit and Another Vs. Balwant Yadav and Another reported in (1996) 3 SCC 179. Even, if Rs.1500/- is taken as monthly income of the deceased, as per the ratio laid down in the aforesaid case, the monthly loss of income would come to Rs. 2250/-. From the record it is also clear that before the Tribunal both the parties have agreed for 50% disability for the body as a whole. However, the Tribunal has wrongly assessed 100% disability. Therefore, I reduced the disability from 100% to 50%. Since, the claimant has sustained 50% disability for the body as a whole, he is entitled for 50% amount from his monthly economic loss of income. Therefore, the monthly economic loss of income comes to Rs.1125/- and accordingly annually it comes to Rs.13,500/-. If multiplier of 16 is adopted, the dependency comes to Rs.2,16,000/-. Over and above the claimant is also entitled for Rs.1,22,000/- as awarded by the Tribunal under the other heads. Therefore, the claimant shall be entitled for compensation of Rs.3,38,000/-. The Tribunal has assessed the liability on the part of the appellant-Insurance Company to the extent of 30%, i.e. Rs.1,51,800/-, therefore, the said amount is required to be refunded to the appellant-Insurance Company.
6. In that view of the matter, the claimant is entitled for compensation of Rs.3,54,200/-. Therefore, the excess amount of Rs.1,51,800/- be refunded to the appellant-Insurance Company with interest and cost, if any, if the same is deposited by the appellant-Insurance Company with the Tribunal. The amount, if any, lying with the Registry be transmitted to the Tribunal forthwith.
7. The judgement and award of the tribunal is modified to the aforesaid extent. Decree be drawn accordingly. The present appeal is partly allowed.
[K.S.JHAVERI,J.] pawan Top