1. By way of this appeal, the appellant has challenged the judgment and award passed by the Motor Accident Claims Tribunal, Godhra below Exh.18 in Motor Accident Claims Petition No.1306 of 1995, under Section 163-A of the Act, whereby the Tribunal has awarded Rs.84,500/- to original claimant with running interest at the rate of 12% p.a. from the date of the application till its realization.
2. The facts of the case is that on 07.08.1995, the deceased was going in ST bus No.GJ-1-Z-1669 and the said bus met with the accident. As a result, the deceased was died. Therefore, the appellants filed claim petition under Section 163-A of the Act being Motor Accident Claims Petition No.1306 of 1995 before the Motor Accident Claims Tribunal, Godhara for compensation.
3. The Tribunal, after hearing learned advocate for the parties and after considering the evidence produced on record, decided the claim petition and passed the award as stated herein above, against which present appeal is preferred.
4. Learned counsel for the appellant has contended that the Tribunal has erred in deducting 2/3 amount towards personal expenses of the deceased. He has further contended that the Tribunal ought to have followed the second schedule of the Motor Vehicles Act, 1988. In support of this submission, he has placed reliance on a decision of the Apex Court in the matter of “NATIONAL INSURANCE CO. LTD. VS. GURUMALLAMMA & ANR.”, reported in 2009(16) SCC 43 and of this Court in the case of “ORIENTAL INSURANCE CO. LTD. VS. DADU KHENGAR KOLI”, reported in 2009(0)AIJEL-HC 221786.
5. Learned counsel for the respondent has supported the judgment and award passed by the Tribunal and submitted that no interference is called for and the appeal deserves to be dismissed.
6. Heard learned counsel for the parties and perused the record.
7. So far as the issue of quantum is concerned, the Tribunal has assessed the annual income of the deceased at Rs.15,000/-. It is an admitted fact that the income of the deceased was not proved before the Tribunal. In absence of any specific evidence, the Tribunal has considered annual income of the deceased at Rs.15,000/-. But, the Tribunal ought to have followed the second schedule of the Motor Vehicles Act, 1988, when the claim petition was decided under Section 163- A of the Act, considering the decision of the Apex Court in the matter of “NATIONAL INSURANCE CO. LTD. VS. GURUMALLAMMA & ANR.”, reported in 2009(16) SCC 43. Hence, applying the second schedule of the Act, the appellants would be entitled for Rs.1,70,000/- [Rs.1,20,000/- (for Rs.12,000/-)+ Rs.50,000/-(for Rs.3,000/-) under the head of dependency, considering the fact that original applicants were parents, aged about 51 years and therefore, their age is required to be considered for the compensation. Now, deducting 1/3 amount towards the personal expenses of the deceased, the appellants are entitled to Rs.1,13,333/-, rounded of to Rs.1,13,500/- under the head of dependency.
8. The Tribunal was justified in awarding Rs.2,500/- under the head of loss of estate and Rs.2,000/- under the head of funeral expenses. Therefore, the appellants are in all entitled for Rs.1,18,000/- [Rs.1,13,500/- + Rs.2,500/- + Rs.2,000/-] from the respondent. The Tribunal has already awarded Rs.84,500/- to the appellants.
9. In that view of the matter, the appellant is entitled to an additional amount of Rs.33,500/- [Rs.1,18,000/- - Rs.84,500/-] with interest at the rate of 7.5% per annum, from the date of application till realization. Rest of the award stands unaltered.
10. The appeal is partly allowed. Decree be drawn accordingly.
..mitesh..
[K.S.JHAVERI, J.]