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Judgment
Admit. As the appeal is only on the issue of quantum, Mr. Hakim, learned counsel appearing for the appellants seeks permission to delete respondents no.1 and 2 driver and owner
respectively. Mr. Maulik Shelat, learned advocate waives on behalf of respondent no.3 insurance company.
Being aggrieved by the judgment and award rendered by Motor Accident Claims Tribunal (Main), Narmada at Rajpipla in MACP No. 22/13, the claimants have preferred this appeal under section 173 of the Motor Vehicles Act.
With the consent of the learned counsel appearing for the parties, the appeal is taken up for its final disposal forthwith.
The followings facts emerge from the record of the appeal-
4.1 The present Motor Accident Claims Petition under section 166 of the Act was preferred on the factual premises that Hareshbhai Shanubhai Vasava was driving the motorcycle bearing registration no.GJ-16V-9115 on 06.11.2013 and while going towards Santosh crossroads of village Rajpipla, respondent no.1 who was driving Bolero Jeep bearing registration No.GJ- 16V-9119, came in rash and negligent manner and while overtaking another motorcycle, dashed with the motorcycle of the deceased Hareshbhai, which caused the accident. Hareshbhai sustained grievous injuries and succumbed to death. The claimants relied upon the FIR, panchnama and other documentary evidence being
Exhibits 33 and 34 respectively. The claimants also adduced written arguments at Exhibit 31. The insurance company also filed its written statement at Exhibit 32. As against the claim raised by claimants of Rs.20,00,000/-, the learned Tribunal passed the impugned award and awarded compensation of Rs.5,57,000/-. Being aggrieved by the same, the present appeal is filed.
Mr. Hakim, at the outset, submits that there was delay of 981 days in filing the present appeal, which came to be condoned by this Court vide order dated 05.07.2017 passed in Civil Application No. 6129/17 and because of such delay, the appellants-claimants do not claim any interest for the period from 11.07.2014 to 17.03.2017 (both days inclusive). Mr. Hakim further submits that the said statement is made on the basis of instructions given by the appellants-claimants.
Mr. Hakim learned counsel appearing for the appellants has also provided the certified copies of the oral as well as documentary evidence adduced before the Tribunal. The learned counsel for the appellants has raised the following contentions -
6.1 That the Tribunal has wrongly applied the multiplier of 12 as the deceased was 28 years'' old on the date of the accident.
6.2 Relying upon the judgment of the Apex Court in the case of Munna Lal Jain & Anr. Vs. Vipin Kumar Sharma reported in 2015(6) SCC 343, it was contended that age of deceased is to be considered while considering the aspect of multiplier and therefore, in the instant case, the multiplier has to be 17 instead of 12.
6.3 Mr. Hakim also submitted that there is no dispute as regards income as well as prospective income and the deduction for personal expenses made by the Tribunal. However, as the Tribunal has wrongly applied the multiplier, the amount of Rs.4,32,000/- awarded under the head of loss of dependency is less.
6.4 Mr. Hakim has further submitted that the Tribunal has also erred in awarding only Rs.1 lakh under the head of loss of estate, love and affection. Mr. Hakim submitted that the parents have lost their son and therefore, the loss of estate also deserves to be enhanced and an amount of Rs.50,000/- should be given under the head of loss of estate. Mr. Hakim further submitted that there is no dispute as regards the insurance policy and the liability of insurance company and therefore, this Court may allow the appeal to the aforesaid extent.
Per contra, Mr. Shelat, learned counsel appearing
for the insurance company has supported the impugned award and has submitted that considering the factum that the date of accident was 06.11.2013, the Tribunal has committed no error in applying multiplier of 12.
Mr. Shelat further submitted that there is no dispute as regards the liability of the insurance company as the insurance policy is not in dispute. However, the Tribunal has not committed any error in clubbing together the heads of loss of estate and love and affection and rightly assessed Rs.1 lakh and therefore, no increase as prayed for deserves to be made by this Court in the instant case in exercise of its appellate jurisdiction.
No other or further contentions or submissions have been made by the learned counsel appearing for the parties.
Perused the judgment and award and also perused the certified copies of oral as well as documentary evidence produced by the learned counsel appearing for the appellants.
Upon considering the affidavit of the appellant no.1-claimant Shanubhai Kotiabhai Vasava at Exhibit 19, it clearly appears that the claimants tried to contend that income of the deceased was Rs.9,000/- and was working as driver in Tata Motors. However, as the same is not disputed by the learned counsel for the appellants, no further discussion or consideration is necessary by this Court in this appeal. The document at Exhibit 27 clearly bornes out the fact that except the certificate, there is no other evidence on the aspect of income and therefore, the Tribunal has rightly assessed the income of the deceased at Rs.4,000/- per month.
At this juncture, it would be appropriate to refer to the judgment of the Apex Court in the case of Munna Lal Jain(supra), wherein the Hon''ble Apex Court has observed as under -
"11.The remaining question is only on multiplier. The High Court following Santosh Devi (supra), has taken 13 as the multiplier. Whether the multiplier should depend on the age of the dependants or that of the deceased, has been hanging fire for sometime; but that has been given a quietus by another three- Judge Bench decision in Reshma Kumari (supra). It was held that the multiplier is to be used with reference to the age of the deceased. One reason appears to be that there is certainty with regard to the age of the deceased but as far as that of dependants is concerned, there will always be room for Page 5 of 7 HC-NIC Page 5 of 7 Created On Sat Aug 15 01:57:52 IST 2015 C/FA/4565/2007 JUDGMENT dispute as to whether the age of the eldest or youngest or even the average, etc., is to be taken. To quote:
"36. In Sarla Verma, this Court has endeavoured to simplify the otherwise complex exercise of assessment of loss of dependency and determination of compensation in a claim made under Section 166. It has been rightly stated in Sarla Verma that the claimants in case of death claim for the purposes of compensation must establish (a) age of the deceased; (b) income of the deceased; and (c) the number of dependants. To arrive at the loss of dependency, the Tribunal must consider (i) additions/deductions to be made for arriving at the income; (ii) the deductions to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. We do not think it is necessary for us to revisit the law on the point as we are in full agreement with the view in Sarla Verma."
Following the ratio laid down by the Apex Court in Munna Lal Jain(supra) and considering the fact that age of the deceased was 28 years, which is not disputed, the Tribunal has committed error in applying the multiplier of 12 as it is rightly contended by the learned counsel for the appellants that the age of the deceased is to be considered while determining the aspect of multiplier. Following the ratio laid down by the Apex Court in the case of Sarla Verma vs. Delhi Transport Corporation reported in (2009) 6 SCC 121 and as the age of the deceased was 28 years, the multiplier of 17 deserves to be applied as the age of father and mother, the claimants, is not to be considered. As the deceased was bachelor, 1/2 of the amount deserves to be deducted as personal expenses, following the
ratio laid down by the Apex Court in the case of Sarla Verma (supra).
In light of the aforesaid therefore, upon re- appreciation of the evidence on record and applying the ratio laid by the Apex Court in Munna Lal Jain(supra), the appellants-claimants would be entitled to compensation under the head of loss of dependency as under -
Rs.4000/- (monthly income) + Rs.2000/- (prospective income)= Rs.6000/- - Rs.3000/- (1/2 deduction towards personal expenses)= Rs.3000/- X 12 = Rs.36,000/- p.a. X 17 (multiplier) = Rs.6,12,000/-
Similarly, considering the fact that the deceased was 28 years'' old and was earning member of the family, the parents have lost love and affection and there is also loss of estate as well. The Tribunal has cumulatively considered both these head and has awarded Rs.1 lakh which in opinion of this Court, is not only less but the Tribunal ought to have considered both the head separately and therefore, the same requires to be modified to the extent that the appellants would be entitled to an amount of Rs.1 lakh under the head of loss of love and affection and Rs.50,000/- for loss of estate.
In light of the aforesaid therefore, considering Rs.25,000/- as compensation under the head of funeral expenses, the appellants would be entitled to a total compensation of Rs.7,87,000/-.
As the Tribunal has already awarded an amount of Rs.5,57,000/-, the appellants would be entitled to an additional amount of Rs.2,30,000/- with interest (excluding the period from 11.07.2014 to 17.03.2017) and proportionate cost.
The appeal is thus partly allowed. However in the facts of the case, there shall be no order as to costs.