1. Heard learned advocates for the parties and perused the papers on record.
2. The appellant herein has challenged the award dated 10.05.2004 passed by the Motor Accident Claims Tribunal at Valsad in Motor Accident Claims Petition No. 272 of 1999 (Motor Accident Claims Petition No. 1397 of 2002) so far as the Tribunal awarded Rs. 4,85,500/- by way of compensation to the original claimants along with 9% interest.
3. It is the case of the appellants that the claim petition 1397 of 2002 was filed before the Tribunal claiming compensation on structured formula basis for the death of Shri Dilipbhai Patel in a vehicular accident. The Tribunal after hearing the parties passed the aforesaid award.
4 Learned advocate appearing for the appellant submitted that the Tribunal erred in quantifying the award at Rs. 4,85,500/- . He submitted that the the Tribunal has wrongly considered the income of Rs. 42000/- per annum under section 163A of the Motor Vehicle Act when it could not have been more than Rs. 40000/- per annum. Considering the average income accordingly and age of the deceased assessed by the Tribunal the awarded amount is on higher side.
5. Learned advocate appearing for the claimants supported the award passed by the Tribunal and submitted that the same does not call for any interference.
6. This court has heard learned advocates for both the sides and perused the papers on record. It is required to be noted that the Tribunal has considered the income of the deceased at Rs. 42000/- per annum. The issue is now well settled by a recent decision of the Apex Court in the case of National Insurance Co. Ltd. vs. Gurumallamma and another reported in 2009(9) SCALE 764 wherein it is 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 non-fatal 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 non-earning person, the notional income has been fixed at Rs. 15,000/- per annum.”
7. The income assessed by the Tribunal seems to be on higher side. Considering the income of Rs. 40000/- per annum ought to have been just and proper. In view of the above, it is very 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, for income of Rs. 40000/- per annum and age of 27 years, the relevant figure of compensation is Rs. 6,80,000/- . After deducting 1/3 as dependency benefits, the compensation amount finally is Rs. 4,53,333/- which is rounded off to Rs. 4,53,000/- to which Rs. 4500/- (Rs. 2000/- for funeral expenses and Rs. 2500/- for loss of estate) is required to be added. The claimants shall not be entitled to any amount under the head of loss of consortium as awarded by the Tribunal. Therefore the total entitlement shall be Rs. 4,57,500 as against which the Tribunal has awarded Rs. 4,85,500/-. Therefore, Rs. 28000/- is paid in excess and the same is required to be refunded to the insurance company.
8. In the premises aforesaid, appeal is partly allowed. The appellant insurance company shall be entitled to a refund of Rs. 28000/- along with proportionate interest. The balance amount along with proportionate interest shall be paid to the claimants. The award of the Tribunal is modified accordingly.
(K.S. JHAVERI, J.) Divya//