1.0 This appeal is directed against the judgment and award dated 27.11.2006 passed by the Motor Accident Claims Tribunal (Aux), 7th Fast Track Court, Nadiad in Motor Accident Claim Petition No. 285 of 2004 whereby the Tribunal has awarded a sum of Rs.1, 04, 500/along with interest at the rate of 7.5 % from the date of application till realization.
2.0 On 05.08.2004 when Kirtisinh Pravinsinh was going on motor cycle No. G.J. 7A 8676 from Nadiad to Kanjari, the respondent No.1 driver of the truck No. GJ7X1851 drove the vehicle in negligent manner and in excessive speed and took the vehicle on wrong side and dashed with the front portion of the motor cycle. As a result thereof, Kiritsinh sustained serious injuries and succumbed to the same. The original claimants filed the claim petition under section 163A of the Motor Vehicles Act before the Tribunal wherein the aforesaid award came to be passed. This appeal is at the instance of the claimants for enhancement of compensation.
3.0 Learned advocate appearing for the appellant submitted that the learned Tribunal has committed error in not believing the evidence at Exh. 28 which has been filed by Patel Naishadbhai Ramubhai who is a partner and who was examined before the Tribunal. He further submitted that there was no crossexamination, but this evidence was discarded. He further submitted that the learned Tribunal ought to have considered the income at Rs. 3000/ and ought to have awarded the compensation on the basis of the same. He has placed reliance on the decision of the Apex Court in the case of National Insurance Co. Ltd Vs. Gurumallamma and another reported in 2009(9) SCALE 764 .
4.0 Learned advocate for the appellant submitted that as per schedule and looking to the age of the mother of the deceased, the income would come to Rs. 6,12,000/. Deducting 1/3rd towards personal and living expenses, the amount would be Rs.2,04,000/ and dependency loss would come to Rs. 4,08,000/ ( Rs. 6,12,000/ Rs. 2,04,000/). By addition of 2000/ for funeral expenses and Rs. 2500/ towards loss to the estate, the total compensation would come to Rs. 4,12,500/.
5.0 However, learned advocate for the respondent submitted that there is no documentary evidence regarding the income of Rs. 3000/ per month. Prima facie, the age of the appellants is not admitted. The Court has considered it from title clause of the the claim petition wherein father's age is stated as 57 years and mother's age is 48 years. No other documentary evidence is produced on record. However, considering the age of the mother in view of the principles laid down in the case of National Insurance Co. Ltd. vs. Shyamsing reported in AIR 2011 SC 3231, the age of the mother is to be considered.
6.0 The learned advocate for the appellant also submitted that the matter may be remanded to the Tribunal which is opposed by the learned advocate for the respondent.
7.0 Heard learned advocates for the parties and perused the documents on record. From the record, it is found that in absence of any documentary evidence with regard to the income of the deceased, the learned Tribunal has assessed the notional income at Rs. 15000/ per annum. Thus, as per Second Schedule and looking to the age of the mother, who is aged 48 years at the time of accident, the dactum figure would come to Rs. 1,94,000/ out of which 1/3rd is required to be deducted towards personal expenses. 1/3rd of Rs. 194000/ would come to Rs. 64666/. By deducting Rs. 64666/,the loss of dependency benefit would come to Rs. 1, 29, 334/ per annum. The Tribunal has awarded Rs.4500/ under the heads of loss of estate and funeral expenses, which in my opinion is also just and proper. Thus, the claimants are entitled to Rs. 1,33,834/ as against which the Tribunal awarded Rs. 1, 04, 500/.
8.0 Accordingly, appeal is partly allowed. The learned Tribunal has awarded a sum of Rs. 1,04,500/ for compensation. In view of the above fact, the claimants are entitled to additional amount of Rs. 29334/ ( Rs. 133834/ Rs. 104500/) at the rate of 7.5% from the date of application. The judgement and award of the Tribunal is modified accordingly. No order as to costs.
(K.S.JHAVERI, J.) niru*