1. This appeal has been preferred against the judgment and award dated 31.01.2005 passed by the Motor Accident Claims Tribunal [Main], Kheda at Nadiad in M.A.C.P. No. 256 of 2003, whereby the claim petition was partly allowed and the original claimants were awarded total compensation of Rs.3,88,500/ along with proportionate costs and interest @ 9% per annum from the date of the application till its realization.
2. The facts in brief are that on 02.10.2003, while Tejasbhai who was a pillion rider on the motor cycle bearing no. GJ7AJ3655, opponent no. 1 who was the owner and driver of the said vehicle, in a rash and negligent manner lost the control over the vehicle in question, as a result of which, Tejasbhai sustained severe bodily injuries and thereafter he died. The legal heirs of the deceased filed claim petition, which came to be partly allowed, by way of the impugned award.
3. Mr. Parikh, learned counsel for the appellant submitted that the Tribunal erred in quantifying the award at Rs.3,88,500/. He submitted that the claimants had failed to prove the income of the deceased and therefore, considering the average income and multiplier taken by the Tribunal, the awarded amount is on higher side.
4. Heard learned counsel for the respective parties and perused the documents on record. The issue is now well settled by a recent decisions of the Apex Court in the case of National Insurance Co. Ltd. v. Shyam Singh & Ors. AIR 2011 SC 3231 and in the case of National Insurance Co. Ltd. v. Gurumallamma & Anr. 2009 (9) SCALE 764, wherein it has been held 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 nonfatal 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 163 A 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.
9. The Parliament in laying down the amount of compensation in the Second Schedule, as indicated hereinbefore, in its wisdom provided for payment of some amount which should be treated to be the minimum. It took into consideration the fact that a person's potentiality to earn is highest when he is aged between 25 and 30 years and that is why in case of permanent disability multiplier of 18 has been specified. The very fact that even if the deceased had an income of Rs. 3000/ per month, he being aged about 15 years, would receive a sum of Rs. 60,000/ but if his income was Rs. 40,000/ per annum, his legal heirs and representatives would receive a sum of Rs. 8,00,000/. In the case if any nonearning person, the notional income has been fixed at Rs. 15,000/ per annum.”
5. In view of the above, it is clear that the Tribunal is not required to strictly apply the multiplier except in a case of injuries and disabilities and has to follow the second schedule in fatal cases. As per Second Schedule, the relevant figure of compensation is Rs.4,32,000/. After deducting 1/3rd amount as dependency benefits, the compensation amount would come to Rs.2,88,000, to which Rs.4,500/ [Rs.2,000/ for funeral expenses and Rs.2,500/ for loss of estate] is required to be added. Therefore, the claimants shall be entitled for total compensation of Rs.2,92,500/ as against which the Tribunal has awarded only Rs.3,88,500/. Therefore, an amount of Rs.96,000/ is paid in excess and the same is required to be refunded to the Insurance Company along with proportionate costs and interest.
6. In view of the above, the appeal is partly allowed. The appellant Insurance Company shall be entitled to a refund of Rs.96,000/ along with proportionate costs and interest. The balance amount along with proportionate costs and interest shall be paid to be claimants. The rest of the award remains unaltered and the stands confirmed.
[K.S. JHAVERI, J.]
ORDER IN CIVIL APPLICATION
In view of the order passed in main matter, the application will not survive and the same stands disposed of. Rule is discharged.
/phalguni/ [K.S. JHAVERI, J.]