AI Structured Summary
Not yet generated for this judgment
Judgment
R.M.Chhaya, J
Feeling aggrieved and dissatisfied by the judgment and award dated 26.09.2008 passed by the Motor Accident Claims Tribunal (Aux), Fast Track
Court No.4, Nadiad in MACP No. 1122/05, the original claimants have preferred this appeal under section 173 of the Motor Vehicles Act, 1988
(hereinafter referred to as the “Actâ€).
The following facts emerge from the record of the appeal Â
2.1 That the accident took place on 12.06.2005 between Dakor and Mahudha. It is the say of the appellantsÂoriginal claimants that the deceased, son
of appellant no.1 was driving truck bearing registration no. GJÂ7UÂ9848 and when he reached Bordi village, truck bearing registration no. RRJÂ‐
03ÂGÂ1242 being driven in excessive speed in rash and negligent manner, dashed with truck driven by the deceased because of which the deceased
sustained serious injuries and succumbed to the same. An FIR was lodged with the jurisdictional police station and the appellants original claimants
preferred claim petition under section 166 of the Act and claimed compensation of Rs. 5,00,000/Â.
2.2 It was the case of the appellants that the deceased was working as driver of the truck and was taking salary of Rs. 3,000/Â per month, however,
the appellants could not produce any evidence to the said effect. The Tribunal in absence of record, determined the income of the deceased at
Rs.1,800/Â per month and after giving benefit of prospective income to the tune of 50%, deducted 1/3rd and applied multiplier of 11 and awarded a
sum of Rs. 2,37,600/Â as compensation under the head of loss of dependency. Over and above the same, the Tribunal was pleased to award
Rs.35,000/Â under different conventional heads including funeral expenses and determined the total compensation at Rs. 2,72,600/Â. The Tribunal,
after considering the evidence on record and the manner in which the accident has taken place, considered the driver of both the trucks involved in the
accident as equally negligent and thus deducted 50% of Rs.2,72,600/Â and awarded net compensation of Rs. 1,36,300/Â to the appellants with 9%
interest from the date of filing of the claim petition till its realisation and partly allowed the claim petition. The appellants original claimants being
aggrieved by the said judgment and award, has preferred this appeal as aforesaid.
Heard Mr. Rakesh Patel, learned advocate appearing for the appellants, Mr. Dilip Kanojia, learned advocate for Mr. R.S. Sanjanwala, learned
advocate for respondent no.1, Mr. Palak Thakkar, learned advocate for respondent no.2, Mr. Japan Dave, learned advocate for respondent no.3 and
Mr.Sunil Parikh, learned advocate for respondent no.4 and also perused the original record and proceedings.
Mr. Patel, learned advocate appearing for the appellant has at the outset contended that the present appeal is filed for enhancement of the
compensation on the ground that the Tribunal has erred in considering the income of the deceased at Rs.1,800/Â only. Mr. Patel contended that as the
deceased was working as driver of truck, though he used to receive salary of Rs.3,000/Â, no pay slip was being given and therefore, such evidence
could not be produced by the appellantsÂoriginal claimants. Mr. Patel submitted that even if the date of accident is taken into consideration, the claim
raised by the appellants that the deceased had salary of Rs.3,000/Â per month is not only just and reasonable but a ground reality. Mr. Patel however
submitted that the Tribunal has also erred in granting only Rs.35,000/Â under different conventional heads which should be enhanced by this Court by
modifying the impugned award. Mr. Patel also further contended that the Tribunal has not appreciated the evidence on record and has wrongly come
to the conclusion that the driver of the truck, i.e., deceased, was also equally negligent. Mr. Patel contended that the Tribunal has wrongly applied the
multiplier of 11 and the correct multiplier in the present case is 13 as the deceased was 46 years old on the date of the accident. Mr. Patel also further
contended that considering the fact that the accident took place on 12.06.2005, the Tribunal has erred in granting only 9% interest, which deserves to
be enhanced to 12%. On the aforesaid grounds, Mr. Patel contended that the appeal be allowed by modifying the award as prayed for.
Per contra, Mr. Sunil Parikh, learned advocate appearing for respondent no.4 has supported the impugned award. Mr. Parikh contended that in
absence of any evidence, the Tribunal has correctly assessed the income of the deceased who was driver of the truck of private person, which does
not deserve to be enhanced. Mr. Parikh further submitted that the Tribunal has rightly appreciated the evidence on record and considering the manner
in which the accident has taken place, has rightly come to the conclusion that the driver of both the trucks were equally negligent. Mr. Parikh further
submitted that interest is matter of discretion and the Tribunal has rightly exercised the discretion by awarding 9% interest, which does not require to
be modified. Mr. Parikh submitted that the appeal being meritless, deserves to be dismissed.
Mr. Kanojia, Mr. Palak Thakkar as well as Mr. Japan Dave, learned advocate appearing for the other respondents have candidly submitted that this
Court may pass appropriate order.
No other or further submissions have been made by the learned counsel appearing for the respective parties.
Having perused the original record and proceedings and upon considering the submissions made and considering the panchnama of the scene of the
occurrence and FIR, the manner in which the accident has occurred, the Tribunal has rightly come to the conclusion that the driver of both the trucks
were equally negligent and therefore, the said contention raised by Mr.Patel, learned advocate appearing for the appellants deserves to be negatived.
The record also indicates that the deceased was 46 years old on the date of the accident and was working as a truck driver. The accident has
occurred on 12.06.2005. It also bornes out from the record that the appellants did not produce any evidence even by way of account book etc. to even
remotely suggest that the deceased was earning Rs.3,000/Â per month as salary. However,the fact remains that the deceased was a truck driver and
therefore, has to be considered to be a skilled labourer. In absence of any evidence, it would be appropriate to apply the minimum wages standard.
Considering the deceased to be a skilled labourer, the minimum wages standard as existed on the date of accident is Rs. 2,500/Â per month and
therefore, the income of the deceased can safely be assessed at Rs.2,500/Â per month. However, the Tribunal while determining the income, even by
guesswork straightway notionally fixed Rs.1,800/Â per month, which deserves to be enhanced to Rs.2,500/Â per month.
Following the ratio laid down by the Apex Court in the case of Sarla Verma vs. Delhi Road Transport Corporation reported in (2009) 6 SCC 121
and in the case of National Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017(16) SCC 68,0 the appellantsÂorig. Claimants would be
entitled to increase in income by way of prospective income to the extent of 25% as the deceased was employed on fixed salary and was aged 46
years on the date of the accident. Considering the ratio laid down by the Apex Court in the case of Sarla Verma (supra), the appellants would be
entitled to multiplier of 13 instead of 11 as granted by the Tribunal. Having come to the aforesaid conclusion therefore, the appellants would be entitled
to compensation under the head of loss of dependency as under :Â Rs. 30,000/Â (income) + Rs.7,500/Â (25% prospective income) = Rs.37,500/Â Â‐
Rs.12,500/Â(1/3rd towards personal expenses) = Rs.25,000/Â X 13 (multiplier) = Rs.3,25,000/Â
Over and above the same, the appellants would be entitled to Rs.70,000/Â as compensation under conventional head as per the judgment of the
Apex Court in the case of Pranay Sethi (supra) and thus, the appellantsÂoriginal claimants would be entitled to total compensation of Rs.3,95,000/Â.
As the negligence is kept as determined by the Tribunal, the appellants would be entitled to total compensation of Rs. 1,97,500/Â. As far as interest is
concerned, the Tribunal has rightly exercised the discretion and awarded 9% interest p.a. from the date of filing of the claim petition till its realisation
and the same does not require any alteration or modification.
The appeal is thus partly allowed. The appellants are entitled to total compensation of Rs. 1,97,500/Â with 9% interest p.a. from the date of filing
of the claim petition till its realisation. As the Tribunal has awarded Rs. 1,36,300/Â, the appellants would be entitled to additional compensation of
Rs.61,200/Â with 9% interest from the date of filing of the claim petition till its realisation with proportionate cost to be paid by respondent no.4
insurance company. The impugned judgment and award is modified to the aforesaid extent. The appeal is thus partly allowed, however, there shall be
no order as to costs in the present appeal. Record and Proceedings be transmitted to the Tribunal forthwith.