1. By way of this appeal, the appellants-original opponent No.3 has challenged the judgement and award dated 25.06.1997, passed by the Motor Accident Claims Tribunal(Auxiliary) at Vadodara, in M.A.C.P.
No.878 of 1992, whereby the tribunal has awarded compensation in the sum of Rs.3,46,200/- to the claimants with interest at the rate of 15% from the date of filing of the petition till realization.
2. The brief facts leading to filing of this appeal are that one Vipinbhai was doing the work of loading and unloading stone metal. On 04.06.1992 Vipinbhai was travelling in a truck bearing registration No. GTX 8981. The driver of the said truck was driving his vehicle rashly and negligently, therefore, he lost control over his vehicle and the said Truck turned turtle. As a result of the said accident Vipinbhai sustained grievous injuries and due to which he expired. Therefore, the legal heirs of deceased filed claim petition being M.A.C.P. No.878 of 1992 before the Tribunal for compensation. The Tribunal after hearing learned advocate for both the parties and after considering the evidence on record decided the claim petition and passed the award as stated hereinabove against which the present appeal is preferred by the appellants- original claimants.
3. Learned counsel for the appellants submitted that the tribunal has committed an error in deducting 1/5 amount from the income of the deceased. He further contended that the the Tribunal ought to have deducted 1/3 amount as the respondent Nos. 4,5 and 6 are the bothers of the deceased. He further contended that 15% interest awarded by the Tribunal is also on higher side .
4. In support of his contention he relied upon the decision of the Apex Court in the case of Sarla Varma and Ors. Vs. Delhi Transport Corporation, reported in 2009(6) SCC, 121 and prayed to allow this appeal.
5. Learned counsel for the respondents supported the impugned judgement and award of the Tribunal and submitted that the Tribunal after considering the evidence on record has passed the award. He further contended that this appeal is not maintainable. He further submitted that the Tribunal has committed an error in not taking into consideration the agricultural income of the deceased and prayed to dismiss the present appeal.
6. I have heard learned counsel appearing for the parties and perused the materials produced on record. As regards the question of maintainability of the appeal on the ground that application under section 170 of the Act has been rejected is now answered by the Apex Court in the case of United India Insurance Co. Ltd. Vs. Shila Datta and others, reported in 2011 ACJ 2729. In the said case the Apex Court held as under:
“When an insurer is impleaded as a party respondent to the claim petition, as contrasted from merely being a noticee under section 149(2) of the Motor Vehicles Act, its rights are significantly different. If the insurer is only a noticee, it can only raise such of those grounds as are permissible in law under section 149(2). But if it is a party respondent, it can raise not only those grounds which are available under section 149(2), but also all other grounds that are available to a person against whom a claim is made. It, therefore, follows that if a claimant impleads the insurer as a party respondent, for whatever reason, then as such respondent, the insurer will be entitled to urge all contentions and grounds which may be available to it.”
7. In view of the above, the appeal is maintainable. Since, there is no cross-objection is filed, the contention of learned advocate for the respondents regarding the addition of agricultural income is de horse and without any merit.
8. I find that the Tribunal has committed an error in deducting 1/5 amount from the income of the deceased. It is not in dispute that the respondent Nos. 4,5 and 6 are the minor brothers of the deceased and in view of the well settled law, the brothers are not the dependent on the income of the brother. The respondent No.1, is the widow and respondent Nos. 7 and 8 are the parents of the deceased. Therefore, they are the dependents of the deceased. If we go through to unit basis, 1/3 amount is required to be deducted. If Rs.2000/- is taken as income of the deceased, after deducting 1/3 amount, the net amount comes to Rs.1334/- per month and accordingly annual income comes to Rs. 16008/- . I also find that the Tribunal has wrongly applied the multiplier of 17. In view of the decision of the Apex Court in the case of Sarla Varma and Ors. Vs. Delhi Transport Corporation, reported in 2009(6) SCC, 121, the multiplier of 18 would be just and appropriate. If multiplier of 18 is adopted, the dependency comes to Rs.2,88,144/-, whereas the Tribunal has awarded Rs.3,16,200/- under the head of dependency. Therefore, the excess amount of Rs.28,056/- which is round off to Rs.28,100/- is required to be refunded to the appellant. The 15% rate of interest awarded by the Tribunal is on higher side, therefore, it is reduced to 12% .
9. In that view of the matter the excess amount of Rs.28,100/- be refunded to the appellant-Insurance Company with interest and cost, if any, if it is deposited with the Tribunal by the appellant-Insurance Company.
10. The judgement and award of the tribunal is modified to the aforesaid extent. Decree be drawn accordingly. The present appeal is partly allowed.
pawan [K.S.JHAVERI,J.]