1. The appellant-Insurance Company has preferred this appeal against the judgement and award dated 11.11.2003, passed by the Motor Accident Claims Tribunal(Main), Vadodar, in M.A.C.P. No.404 of 1995, whereby the tribunal has awarded compensation in the sum of Rs.6,93,000/- to the claimants with interest at the rate of 12% from the date of filing of the petition till realization.
2. The brief facts leading to filing of this appeal are that in a vehicular accident one Popatbhai expired. Therefore, the legal heirs of the deceased filed claim petition being M.A.C.P. No. 404 of 1995, before the Tribunal for compensation. The Tribunal after hearing learned advocates for the respective 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 appellant-Insurance Company.
3. Learned Counsel for the appellant- Insurance Company only assailed on the point of granting gratuity to the claimants. In support of his contention he relied upon the decision of the Division Bench of this Court, in the case of New India Assurance Co. Ltd. Vs. Amit Kumar Kanayalal and Others, reported in 1997 ACJ 646.
4. Learned counsel for the respondents has supported the judgement and award of the Tribunal and submitted that the Tribunal after considering the evidence on record has passed the award.
5. I have heard learned counsel appearing for the appellants and perused the record as well as the judgement and award of the tribunal. I have also gone through the judgment of the Division Bench of this Court and find that the Tribunal has committed error in awarding the amount under the head of gratuity. It is relevant to reproduce para 13 of the aforesaid judgement, which reads as under:-
13. This cannot be the position with regard to gratuity. It will have to be worked out on the basis of the negotiated new pay scale because by the time, the deceased would have retired he would have got the same. Even if we exclude the new pay structure because that has not come on record, and if we take the old pay scale where the petitioner would have got upto atleast Rs.1800/- as monthly wages for gratuity purposes, if that is multiplied by 15 that is the maximum ceiling for getting gratuity in that case the figure would work out to Rs.27,000/- towards gratuity. So far as provident fund is concerned, looking to the pattern made out from the evidence at exh.63 with regard to the withdrawal, we take it that half the amount of provident fund could have been withdrawn and utilized by the deceased during his life time. The balance in his provident fund account at the time of the incident was Rs.7,188.44. But for the withdrawal that figure would have been Rs.13,715.04. During the remaining period of service, but for the incident, in our opinion, under the provident fund account,there would have been accumulation of additional sum of Rs.20,000/- which after allowing for the aforesaid pattern of withdrawal would have reduced to almost half. In other words, under the provident fund account, in our opinion, the loss to the estate can be worked out at Rs.17,188/-,which is rounded off to Rs.18,000/-.
14. The total additional amount payable to the original claimant would be Rs.54,528/- and added to that is Rs.27,000/- towards gratuity and Rs.18,000/- towards provident fund accumulation making the total to Rs.99,528/-. The cross objections are allowed to that extent. The said amount is of course with proportionate cost and interest at the rate of 12% per annum from the date of the application till realisation.
6. In view of the above, the claimants are only entitled for 15 months salary for gratuity. Since, at the time of accident, the monthly income of the deceased was at Rs.2458/- the claimants are entitled to Rs.36,870/-, whereas the Tribunal has awarded Rs.1,23,435/- under the head of gratuity. Out of which the claimants have already received Rs.7220/-,therefore, Rs.7220/- is required to be deducted from Rs.36870/-.
7. In that view of the matter the claimants are only entitled to Rs. 29,643/- under the head of gratuity. Therefore, the excess amount of Rs.86,565/- be refunded to the Insurance Company with interest and cost, if any, if the same is deposited by the appellant with the tribunal.
8. 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.]