1. By way of this appeal, the appellant has challenged the judgment and award of the M.A.C.T. (Auxi.), Ahmedabad(Rural)at Mirzapur, dated 28.02.1992, whereby the tribunal awarded Rs.1,71,000/- along with 14 per cent interest from the date of application, till its realization.
2. Brief facts of the case are that on account of a vehicular accident which took place on 24.09.1987, while one Dhanabhai Kamabhai, who was proceeding on his bicycle along with one Manjibhai Dayaram, sitting as pillion rider, was dashed by a matador being driven by respondent No.5. On account of the same, the deceased received severe bodily injuries and expired. Hence, the original claimants being the heirs and legal representatives of the deceased preferred the aforesaid claim petition, wherein the tribunal passed the impugned award. Hence, the present appeal.
3. Learned Counsel for the appellant submitted that the tribunal erred in passing the impugned judgment and award. The tribunal failed to appreciate the material on record. The amounts awarded by the tribunal under different heads are exaggerated, and hence, he has prayed to allow the appeal.
4. On the other hand, learned Counsel for respondent Nos. 2 and 4 have opposed the appeal and have prayed to dismiss the same.
5. Heard learned Counsel for the parties and perused the material on record.
Insofar as the aspects of factum of accident and negligence are concerned, to prove the factum of accident, the original claimants examined Raiben Gafurbhai(Exhibit-26). She stated that the deceased was aged about 19 years, at the time of his death. She, further, stated that they have 16 bighas of agricultural land and their annual income from the same was Rs.60,000/-. The claimants also examined one Manjibhai Dayaram(Exhibit-40), who was travelling on the bicycle driven by the deceased as pillion rider, and he supported the case put forward by the claimants. However, a perusal of the Panchnama(Exhibit-40) reveals that the deceased was not exactly on the correct side of the road, but, was somewhere near to the middle of the road. The tribunal, hence, rightly come to the conclusion that the deceased was negligent to the extent 50 per cent for driving his bicycle nearly in middle of the road and the driver of the matador was also negligent to the extent of 50 per cent for driving his vehicle in excessive speed. Hence, the said contentions raised by the learned Counsel for the appellant requires to be rejected.
6. As regards the aspect of compensation is concerned, according to mother of the deceased- Raiben(Exhibit-26), the deceased used to earn Rs.60,000/- per annum by doing agricultural work. One Sodhabhai Jivabhai(Exhibit-45), Sarpanch of village Vichhiya also supported her case and submitted that the father of the deceased was sick, and therefore, the deceased alone, being the elder son, had to do agricultural work and, now, in his absence they have to spend Rs.7,000/- to Rs.8,000/- per annum for such work. Taking into consideration the same, the tribunal assessed the annual income of the deceased at Rs.60,000/- and after deducting 1/4 arrived at the figure of Rs.15000/- towards annual loss. But, while doing so the tribunal seems to have overlooked the settled legal position that in case of income from agricultural land, only loss towards supervision is to be taken into consideration. Even otherwise, there is no material on record to show that the deceased was the sole bread-winner of his family. The tribunal also failed to take into consideration the fact that, except, for the oral evidence of Raiben(Exhibit-26) and the Sarpanch- Sodhabhai(Exhibit-45), there is no other material on record which would support the say of the claimants that the deceased used to earn Rs.40,000/- to Rs.50,000/- per annum. Hence, the contention of the learned Counsel for the appellant with regard to income assessed by the tribunal requires to be accepted. In view of the fact that the deceased and his family hold agricultural land of about 16 bighas of agricultural land, it can reasonably be assessed that they must be earning Rs.15,000/- per annum. Out of this income 1/3 income is required to be deducted towards personal expenses, and hence, the annual loss of dependency would come to Rs.10,000/-.
7. The deceased, at the time of accident, was aged about 19 years, and hence, the multiplier of 22 applied by the tribunal appears to be on higher side. Here, it would be relevant to refer to a decision of the Apex Court in “SARLA VERMA AND OTHERS VS. DELHI TRANSPORT CORPORATION AND ANR.”, (2009) 6 SCC 121, wherein the apex Court has laid down as to what would be the just compensation. Thus, applying the ratio laid down therein, the multiplier of 18 is required to be applied.
8. In view of the above-discussion, the loss of dependency would come to Rs.(10,000 X 18)=1,80,000/-. Since, both the deceased as well as the driver of the offending vehicle were negligent to the extent of 50:50, the claimants would have been entitled to Rs.90,000/-. But, in view of the fact that the present appeal itself is restricted to Rs.57,000/- and as there are no cross-objections, the claimants shall be entitled to Rs.(171000 – 57000)=1,14,000/- under this head.
9. Here, it may be noted that, though, the cross-objections bearing X-objections No.10286 of 1992 were filed by the original claimants, it were dismissed for default as back as on 03.07.2001 and the same appears to have never been restored.
10. In the result, the appeal is PARTLY ALLOWED. The original claimants, in all, shall be entitled to an amount of Rs.1,14,000/- along with interest as awarded by the tribunal. The balance amount be REFUNDED to the appellant-insurance company along with interests, costs, if any. The impugned judgment and award stands MODIFIED to the aforesaid extent. No order as to costs.
(K.S. JHAVERI,J.) Umesh/