1 The appellants, original claimants, have filed this appeal under Section 173 of the Motor Vehicles Act, 1988, for enhancement, against the judgment and award dated 7th September 2001 passed by the Motor Accident Claims Tribunal (Aux.II), Ahmedabad (Rural), Ahmedabad, in M.A.C. Petition No.375 of 1991, whereby, the Tribunal awarded Rs.97,600/ with interest at the rate of 9% per annum from the date of the claim petition till realization against the opponents jointly and severally.
2 The appellants filed the claim petition to get a sum of Rs.1,30,000/ by way of compensation from the respondents for the death of Ambalal Manorbhai Patel due to vehicular accident. The appellant No.1 is widow, appellant Nos. 2 and 6 are the daughters and appellant Nos. 3 to 5 are the sons of the deceased Ambalal Manorbhai Patel.
3 The accident occurred on 20.2.1991 at about 3.00 p.m. opposite the factory of Pulen Submersible Pump on Dholka Kheda Highway. The vehicle involved in the accident was the truck No. TAN 7272. That, on 20.2.1991 at about 3.00 p.m. the deceased Ambalal Manorbhai Patel was going towards his farm on Dholka Kheda Highway on his bicycle; That, the deceased was driving his bicycle on the left side of the road: That, when the deceased was passing near the place of incident, one truck no. TAN 7272 being driven by its driver in full speed and in a rash and negligent manner so as to endanger human life came from opposite side, went on wrong side and dashed with the deceased; That, because of the impact of the accident the deceased was knocked down and succubed to severe brain injuries. That, after causing the accident the driver of the said truck ran away along with his truck; That the accident was occurred due to sole negligence on the part of opponent No.1; That, the deceased had been taken for shifting to Vadilal Hospital but on the way near the village Salaj, the deceased had died; That the deceased was aged about 55 years at the time of the accident and possessing 22 vighas of agricultural land at village Dholka and earning Rs.24,000/ to Rs.25,000/ per year as net income after deducting agricultural expenses. Thus, the appellants claimed Rs.1,30,000/ in all as compensation from the opponents.
4 The opponent No.3United India Insurance Company Limited filed written statement at Exh.16 denied all the contentions raised by the claimants in the claim petition and requested to dismiss the petition with costs. Opponent Nos. 1 and 2 have filed pursis at Exh.17 adopting the written statement filed by opponent No.3United India Insurance Company Limited
5 After hearing both the sides and on examination of evidence on record, the Tribunal held that the deceased died due to the accident caused by rash and negligent driving of the truck No.TAN 7272 by opponent No.1 and awarded compensation of Rs.97,600/ with interest to the claimants.
6 Mr. K.V. Shelat, learned counsel appearing for the appellants, would submit that, when the deceased was in possession of about 22 bighas of land, the Tribunal ought to have considered it in proper perspective and the determination of income at Rs.24,000/ per year is on the lower side. It is further submitted that, when the family of the deceased consisted of six members dependent upon the deceased, deduction of onethird towards personal and living expenses of the deceased from the income determined is unjust. It is further submitted that the deceased was 55 years old at the time of accident and the Tribunal has erred in applying the multiplier of 7 instead of multiplier of 11. It is further submitted that, having held the truck driver to be sole negligent, the Tribunal ought not to have fastened 20% of contributory negligence on the part of the deceasedcyclist who was on the safer side of the road having the width of 22 feet. At the most, if at all, the contributory negligence on the part of the deceasedcyclist ought to have been determined at 10%. The award of conventional amount of Rs.10,000/ is also on the lower side and the Tribunal ought to have been awarded Rs.25,000/.
7 In spite of service of notice and opportunities given to respondent Nos. 2 and 3, on one appears on their behalf and this appeal has remained pending since the year 2002 and was listed from time but no one represented for respondent Nos. 2 and 3.
8 Having heard the learned counsel for the appellants and considering the overall aspects and keeping in mind the law laid down by the Apex Court in the case of Sarla Verma vs. DTC, reported in (2009) 6 SCC 121, this appeal filed by the claimants for enhancement deserves consideration. It is not in dispute that the family of the deceased consisted of six members and the percentage of deduction on account of personal and living expenses at onethird from the total income of Rs.24,000/ per year determined by the Tribunal is not in consonance with the law laid down by the Apex Court in Sarla Verma (supra), but deduction of onefourth ought to have been made. Similarly, applicability of 7 multiplier is also contrary to the law laid down by the Apex Court in Sarla Verma (supra) and, keeping in mind the age of the deceased at the time of death being 55 years, the multiplier will be 11. Further, having held the truck driver to be sole negligent, 20% contributory negligence on the part of the cyclistdeceased is on the higher side and it ought to have been to the extent of 10%, having regard to 22feet width of the road. Further, the award of conventional amount at Rs.10,000/ is also on the lower side and it needs to be enhanced to Rs.20,000/.
9 In view of the above, the award of compensation deserves to be modified and enhanced as under:
[i] Applying onefourth deduction from the annul income of Rs.24,000/ as determined by the Tribunal with 11 multiplier, the loss of dependency is determined to Rs.1,98,000/.On account of deduction @ 10% for contributory negligence, it is reduced to Rs.1,78,000/.
[ii] The award of conventional amount is enhanced to Rs.20,000/ instead of Rs.10,000/.
[iii] Thus, Rs.1,98,000/ should be the just and proper compensation payable to the appellants. The Tribunal has awarded Rs.97,600/ as compensation with interest and proportionate cost to the claimants which are now enhanced to Rs.1,98,000/ plus interest and cost, as awarded by the Tribunal.
10. The appeal is allowed. The judgment and award dated 7th September 2001 passed by the Motor Accident Claims Tribunal (Aux.II), Ahmedabad (Rural), Ahmedabad, in M.A.C. Petition No.375 of 1991 is modified to the aforesaid extent.
11. It is pertinent to note that the claimants filed claim petition for Rs.1,30,000/ and this appeal is valued at Rs.1,30,000/ for jurisdiction and Rs.30,000/ for the purpose of court fee. Therefore, the Registry/Tribunal is directed to recover the deficit court fee, if any, from the appellantsoriginal claimants.
(ANANT S. DAVE, J.) (swamy)