Chaman Harji Rathod vs New India Assurance Co. Ltd.

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Bhaskar Bhattacharya, C.J.—This appeal under section 173 of the Motor Vehicles Act, 1988 [the MV Act, hereafter] is at the instance of the claimants and is directed against an award dated 24th June 2005 passed by the Motor Accident Claims Tribunal [Aux.], Jamnagar in MACP No. 747 of 1998 thereby awarding a sum of Rs. 1,03,000/- with interest at the rate of 9% per annum from the date of filing of the claim petition till December 2000 and thereafter at the rate of 6% per annum till date of realization.

Being dissatisfied, the claimants have come up with the present appeal for enhancement.

It may not be out of place to mention here that against the aforesaid award neither the owner, nor the driver nor the insurer of the offending vehicle has filed any appeal or cross objections disputing the correctness of the award. Therefore, the factum of the accident, negligence of the driver of the offending vehicle and coverage of insurance are not in dispute.

The only question, therefore, that falls for determination in this appeal is as regards the quantum.

It appears from the records that on 15th April 1998 at about 1.00 Noon, due to rash and negligent driving on the part of the driver of Tractor No. GJ.1.8087 and Trolley No. GJ.V.2686, the opponent No. 1, the deceased had fallen down from the trolley, as a result, he was seriously injured and ultimately died.

The claim-application was filed by parents and two brothers of the deceased as he was a bachelor. The Tribunal below came to the conclusion that the monthly income of the deceased was Rs. 1250/-, i.e. yearly Rs. 15,000/-. The prospective income of the deceased was considered by the Tribunal to be Rs. 22,500/- per annum, and as he was 18 years of age and unmarried, the Tribunal decided to deduct 2/3 towards the personal expenses of the deceased. Thus, deducting 2/3, the Tribunal came to the conclusion that the yearly loss of dependency would be Rs. 7500/- [Rs. 22,500-Rs. 15,000 = Rs. 7,500]. Thereafter, the Tribunal, after taking into consideration the fact that the father of the deceased was 47 years old, which the Tribunal treated to be 45 years, and by looking at the age of the dependents, decided to apply multiplier of 12 and, thus, awarded a sum of Rs. 90,000/- towards loss of dependency. The Tribunal also awarded the further amounts under the conventional heads and thus, awarded the following amounts:

Mr. Rachh, the learned advocate appearing on behalf of the claimant-appellant has taken three points in support of this appeal. First, according to Mr. Rachh, the victim being a bachelor, instead of 2/3 deducted by the Tribunal, only half should have been deducted towards personal expenses of the deceased, and the Tribunal committed substantial error of law in deducting 2/3 towards personal expenses. Secondly, according to Mr. Rachh, the multiplier of 12 applied by the Tribunal is also erroneous inasmuch as the victim was 18 years old, and according to the decision of the Supreme Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , the deceased being aged 18 years, multiplier of 18 should have been applied. Lastly, Mr. Rachh contended that interest should have been awarded at the rate of 12% per annum from the date of filing of the claim-petition till December 31, 1999 and from 1st January 2000, the rate of interest should be 9% till realisation.

On the other hand, Mr. Mazmudar, the learned advocate appearing on behalf of the Insurance Company, opposed the aforesaid contentions and has contended that the multiplier should be fixed on the basis of the age of the mother of the victim, and not on the basis of the age of the deceased.

After hearing the learned counsel for the parties and after going through the materials on record, I find that the deceased was admittedly a Hindu, and according to Hindu law of inheritance, his mother is the sole heir, and, therefore, the claim-application at the instance of his mother is only maintainable and the Father and brothers are not the legal heirs. I further find substance in the contention of Mr. Rachh that the deceased being a bachelor, the Tribunal should have deducted 1/2 instead of 2/3 towards personal expenses.

Regarding application of multiplier, in view of my detailed judgment pronounced today in First Appeal No. 3848 of 2006 [New India Assurance Co. Ltd. v. Kantilal Vadilal Kamdar & Ors], I propose to follow the decision of the Supreme Court in the case Amrit Bhanu Shali and Others Vs. National Insurance Co. Ltd. and Others, , wherein in paragraph 17, the Supreme Court made the following observations regarding relevancy of age of the claimant in assessing compensation:-

"17. The selection of multiplier is based on the age of the deceased and not on the basis of the age of dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of dependents has no nexus with the computation of compensation.

[Emphasis supplied by me]

10.1. I, therefore, propose to deduct 1/2 from the prospective income of the deceased and applying thereto a multiplier of 18, award Rs. 2,02,500/- under the head of loss of dependency [Rs. 22,500-11,250 = 11,250 X 18 = Rs. 2,02,500/-]. Following the decision of the Supreme Court in the case of Sarla Verma [supra], I also intend to award Rs. 20,000/- under the conventional heads. Thus, I modify the award passed by the Tribunal and award the following amounts:

10.2. The Tribunal having awarded a sum of Rs. 1,03,000/-, the award is, thus, enhanced by a sum of Rs. 1,19,500-00 with interest at the rate of 12% per annum from the date of filing of the claim-application till 31st December 1999 and thereafter, at the rate of 9% per annum from 1.1.2000 till realization. In respect of the amount awarded by the Tribunal also, it is held that the claimants are entitled to interest at the rate of 12% per annum from the date of filing of the claim-application till 31st December 1999 and at the rate of 9% per annum from 1.1.2000 till realization.

10.3. It appears from the records that before the Claims Tribunal, the claimants have claimed a total sum of Rs. 3,23,000-00 and, as stated above, the Tribunal awarded a sum of Rs. 1,03,000/-. In this appeal, the claimants have restricted their claim in appeal to Rs. 50,000/-. As held by the Supreme Court in the case of Nagappa Vs. Gurudayal Singh and Others, , there is no bar for the Claims Tribunal/Courts to award the compensation in excess of what is claimed, particularly when the evidence which is brought on record is sufficient to pass such award. In such circumstances, I propose to maintain the award of Rs. 2,22,500-00 whereby the award is enhanced by Rs. 1,19,500-00 eventhough the claim in appeal was restricted to Rs. 50,000/- and court fees were paid accordingly. The appellants are, therefore, directed to pay additional court fees on Rs. 69,500/- before this Court within three weeks from today.

10.4. The appellant-Insurance Company is directed to deposit the enhanced amount of compensation and interest within two months from today before the Tribunal, and soon thereafter, the Tribunal shall disburse the amount to the claimant No. 2, upon proper verification, by accounts payee cheque.

10.5. The appeal is allowed accordingly. No order as to costs.