1.0 The above First Appeal No. 831 of 2009, at the instance of original claimant for enhancement of compensation is directed against the judgement and award dated 04.08.2008 passed by learned Motor Accident Claims Tribunal (Auxi.), F.T.C. No. 2, Kachchh at Bhuj in Motor Accident Claim Petition No. 420 of 2004 whereby the Tribunal has awarded a sum of Rs. 316500/ along with interest at the rate of 9% per annum from the date of application till realization. First Appeal No. 2369 of 2009 is filed by the G.S.R.T.C challenging the aforesaid award.
2.0 On 30.05.2004 Amjad Umar was proceeding from Mankuva to Sukhpur on Hero Honda motor cycle No. GJ12AB6357 sitting as pillion rider. At about 23.30 hours when they reached near the turn of Krishna Hotel between Mankuva and Sukhpur on NakhtranaBhuj Highway road, the S.T. bus No. GJ1Z1942 came from opposite direction and dashed with motor cycle. As result of this, Amjad sustained serious injuries and succumbed to the same. The claimants therefore, filed the aforesaid claim petition under Section 163A of the Motor Vehicles Act wherein the learned Tribunal passed the aforesaid award. The S.T. Corporation filed the First Appeal No. 2396 of 2009 challenging the aforesaid award.
3.0 Learned advocate appearing for the original claimants contended that the learned Tribunal erred in awarding compensation of only Rs. 316500/; that the learned Tribunal ought to have awarded compensation of Rs. 498500/ at least as compensation.
4.0 Learned advocate for the S.T. Corporation submitted that the learned Tribunal committed error in attributing negligence to the extent of 70% on the part of S.T. Bus driver and 30% on the part of the driver of motor cycle. She further submitted that the learned Tribunal committed error in taking the monthly income of Rs. 3250/ and annual as Rs. 39000/ without considering the fact that there is no substantial evidence on record regarding income of the deceased.
5.0 Heard learned advocates for the respective parties and perused the documents on record.
6.0 As far as negligence is concerned, it is found that the learned Tribunal has considered the aspect of negligence in greater detail in para 22 of the judgement. Para 22 reads as under:
“22. On perusal of FIR at Exh. 27 it is found that same has been filed against the driver of S.T. Bus. It also reveals from the copy of P.M. Report Exh. 30 that deceased has sustained injury which has resulted in his death. It is pertinent to note that the opponent Nos. 3 and 4original opponents No. 2 and 3 have categorically stated that at the relevant time the motor cycle was duly insured with the insurance company. It also appears from the copy of panchnama of scene of occurrence at Exh. 28 that bus and scooter have been found on the place of occurrence. It also reveals from the said panchnama that there are marks of applying of brake by the bus driver. On perusal of the panchnama it is found that there is mark of dashing of motor cycle on the driver side of bus. The facts narrated in the panchnama reveals that there was some sort of negligence on the part of the driver of motor cycle. Therefore, all the necessary ingredients for compensation under Section 163A are duly proved by the claimants by the aforesaid evidence. But considering the facts of panchnama of scene of occurrence, the liability of drivers of both vehicles is to be apportioned in the manner that 70% of the bus driver and 30% of driver of motor cycle I.e opponent No.2. Now admittedly the opponent No.3 is owner of motor cycle and opponent No.4 is its insurance company. Therefore, liability of payment of compensation the claimants are to be fixed in the manner of aforesaid apportionment. Hence ,the claimants are entitled to get necessary compensation from the all the opponents in the aforesaid manner.”
7.0 In view of the above, the learned Tribunal after considered in detail has rightly held that there is negligence of 70% on the part of the S.T. Bus driver and 30% of driver of motor cycle.
8.0 As far as income is concerned, the employer is examined. He has produced the income certificate of deceased stating that he was paying monthly Rs. 3250/ to the deceased. During his cross examination he has admitted that there is no mention of books of accounts. He has not produced any receipt or voucher as to payment of salary to the deceased.
8.1 In the case of National Insurance Co. Ltd. vs. Shyamsing reported in AIR 2011 SC 3231, the Apex Court has held that while considering the income of the minordeceased, the age of the parents is required to be considered. Hence, I am of the opinion that in absence of any cogent evidence with respect to the income of the deceased and considering the age of the mother as 45 years, the annual income can be taken at Rs. 27000/. Accordingly, considering the annual income of Rs. 27000/ and the age of the mother, the datum figure as per the Second Schedule comes to Rs. 336000/. Deducting 1/3rd from the total income for personal expenses, the amount of dependency loss per annum shall come to Rs. 224000/ (Rs. 336000/ Rs. 112000/). The claimants shall also be entitled to Rs. 2000/ for funeral expenses and Rs. 2500/ for loss of estate. Thus, the claimants shall be entitled to in all Rs. 228500/ by way of compensation whereas the Tribunal has awarded Rs. 316500/. Since, there is 30% negligence on the part of driver of motor cycle, 30% is required to be deducted. By deducting 30% from the total compensation, the total compensation would come to Rs. 159950/. Therefore, there is an excess amount of Rs. 156550/.
9.0 Accordingly, First Appeal No. 2396 of 2009 preferred by the S.T. Corporation is partly allowed The claimants shall be entitled to only Rs.159950/ by way of total compensation. The balance amount of Rs.156650/ ( Rs. 316500/ Rs. 159950/) along with proportionate interest shall be refunded to the appellantCorporation. The award of the Tribunal is modified accordingly. No order as to costs. First Appeal No. 831 of 2009 preferred by the original claimants is dismissed.
(K.S.JHAVERI, J.) niru*