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Judgment
J. C. Doshi, J
Aggrieved and dissatisfied by the judgment and award dated 21.02.2006 passed in M.A.C.P. No.938 of 1999 by the M.A.C.T. (Aux.), Vadodara, the appellants – org. claimants have preferred this appeal under Section 173 of the MV Act whereby the tribunal partly allowed the claim petition holding the opponents jointly and severally liable and to pay a compensation of Rs.4,08,000/- with interest at the rate of 7.5% p.m., to be recovered from the opponents.
The short facts of the case are that deceased was the husband of appellant no.1 and father of appellants no.2 and 3 and on 12/03/1999 at about 12:00 hours in the noon while he was going on his scooter near Kapurai Chokdi at that time the truck bearing Registration No.GJ-7X-9396 came from his behind in rash and negligent manner so it dashed with the scooter of the deceased and he was succumbed to the injuries. Since the deceased was serving in the Vinus Industries at the time of incident as Die Maker and Fitter earning monthly income of Rs.4,500/-the claim petition was filed seeking compensation of Rs.9,00,000/-.
The parties have appeared through their Advocates and contested the claim petition after the evidence led by the tribunal and at the full-fledged trial, the tribunal passed the order as stated in paragraph 1 of this order.
Learned Advocate Mr.Darshan Gandhi for Mr.Majmudar, learned advocate for the appellant would submit that tribunal grossly erred in adopting income of the deceased. He would further submit that in view of deposition of owner of the company at Exh.25, it is established that income of the deceased was Rs.4,500/- which could be treated as last drawn salary as per the Sarla Verma vs. Delhi Transport Corpn., [2009 AJ 1258]. He would further submit that tribunal has taken Rs.3,000/- as monthly income of the deceased despite the evidence of income was available. He would further submit that tribunal considered multiplier of 16 as the deceased was 30 years and in view of decision of Sarla Veram (supra), multiplier of 17 would be applicable. It was further submitted that in view of the decision of the Constitutional Bench in case of National Insurance Company Ltd Vs Pranay Sethi & Ors., reported in (2017) 16 SCC 680, the claimants are entitled for compensation under non-pecuniary head.
4.1 By making above submissions, he would submit to modify the award and allow this appeal to that extent.
On the other hand, learned advocate Mr.Hemant Shah for the insurance company argued that tribunal has not committed any error in adopting the income Rs.3,000/- per month for the deceased. He would submit that award may be modified; but not taking up the income of Rs.3,000/- per month as in the evidence of the company manager it has come on record that the deceased joined the company just two months back of the accident and tribunal has categorically recorded the finding that deceased had not done any particular course which approves him to be a Die Maker. So, he would submit that since the tribunal has considered Rs.3,000/- over and above the rate of minimum wage of Rs.1,000/-, this Court may not interfere with the said findings and to dismiss the appeal.
Concept of just compensation is recognized under section 166 of M.V.Act. It is duty cast upon the learned Tribunal to assess just and fair compensation, which may wipe out tears of the person injured out of road accident. There is no bar for the learned Tribal to grant compensation more than claimed by the claimant. This principle has been recognized by the Hon'ble Apex Court in in case of Meena Devi vs. Nunu Chand Mahto @ Nemchand Mahto & Ors 2022 LiveLaw (SC) 841 where the Apex Court in paragraph 14 has observed in regards to the fact that tribunal can award compensation exceeding the claimed amount which reads thus:
“14. At this stage, it is necessary to clarify that as per the decision of a Three-Judge Bench of this Court in Nagappa us. Gurdayal Singh and others (2003) 2 SCC 274, it was observed that under the MV Act, there is no restriction that the Tribunal/Court, cannot award compensation exceeding the amount so claimed. The Tribunal/Court ought to award just' compensation which is reasonable in the facts relying upon the evidence produced on record. Therefore, less valuation, if any, made in the Claim Petition would not be impediment to award just compensation exceeding the claimed amount.”6. Having heard the learned advocates for the parties what is noticeable that though the deceased was Die Maker, it is not fully established that he is specialized being skilled labourer engaged in making die. On the contrary, considering the evidence of Company Manager (Exh.25) it indicates that just months back from the date of accident, he joined the company so it would not state that he is permanent employee and cannot claim that his last salary at the time of accident was Rs.4,500/-. If the deceased has long span of service and has such a skilled of making die then the submission of learned advocate for the appellant would be considered. But, considering the facts and evidence of in regards to the income, it cannot be said to be last drawn salary of the deceased. Thus, the said submission cannot be permitted to stand.
Insofar as the other submissions of learned advocate for the appellant is concerned, considering the ratio laid down by the Hon’ble Apex Court in the case of Pranay Shethi (supra), as general and non-pecuniary damages, under the head of loss of estate and funeral expenses, if we award Rs.18,150/- each, which would be the just and proper compensation.
In view of the above fact situation, the impugned judgment and award is required to be modified and is accordingly modified as under:
Sr. No.
Particulars
Modified amount of award
01
Monthly Income @ Rs.3,000/- + Prospective Income @ 40% thereof
4,200/-
02
1/4th Deduction towards personal and living expenses of Rs.4,200/-
3,150/-
Applying Multiplier of 17 based on age as 30 years (3150 x 12 x 17) the actual loss of Income
6,42,600/-
03
Loss of Consortium (48000 x 4)
1,92,000/-
04
Funeral Expenses
18,150/-
05
Ambulance Expense
2,000/-
06
Loss of Estate
18,150/-
07
Total Compensation
8,72,900/-
08
Less : Amount which is already awarded
4,08,000/-
09
Additional amount which is awarded
4,64,900/-
Accordingly, this appeal is allowed. The amount of compensation, as awarded by the tribunal is enhanced by Rs.4,64,900/- in addition. The enhanced amount shall carry interest @ 7.5% p.a. from the date of Claim Petition till realization. The due amount be paid by the respondent No.3 New India Assurance Company within a period of four weeks from today after deducting necessary court fees on the enhanced amount of compensation.
The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimant/s, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure.