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2010 DIGILAW 1232 (RAJ)

Binaben Ashwinkumar Vyas L. R. of Ashwinkumar N. Vyas v. Yogeshbhai Arvindbhai Joshi

2010-07-15

RAVI R.TRIPATHI

body2010
Hon'ble TRIPATHI, J.—Heard learned advocate Mr. Amar D. Mithani for the appellants. The learned advocate invited attention of the Court to decision of the Hon'ble the Apex Court in the matter of Smt.Sarla Verma & others vs. Delhi Transport Corporation & another, reported in A.I.R. 2009 SC 3104. The matter requires consideration. 2. ADMIT. Learned advocate Mr.R.R. Trivedi waives service of admission on behalf of respondent No.1, Mr.Sunil B. Parikh waives for respondent No.2 and Ms.Karuna V. Rahevar waives for respondent No.5. Respondents No.3 and 4 are driver and owner respectively. Respondents No.6 and 7 are parents of the deceased, who are impleaded as respondents as their Vakalatnama could not be obtained by the learned advocate. At the request of the learned advocate for the appellants and with the consent of the learned advocates for the respondents the matter is taken up for final disposal. 3. The present First Appeal is filed against the judgment and award passed by the learned Presiding Officer, Motor Accident Claims Tribunal (Auxi.) & 5th Fast Track Court, Gondal, Camp at Dhoraji dated 15th September 2008. The claim was filed for a sum of Rs.10,00,000/- against the opponents, owners, insurance companies of the vehicles, namely, Maruti Van No.GJ 5-A-4952 as well as truck bearing No.GQG-6803. The accident took place on 29th May 1999 at about 1.30 AM in the midnight near Ranavav- Kutiyana Highway, wherein the husband of the present appellant and father of respondents No.2 and 3, and son of respondents No.6 and 7 died on the spot. Other persons have also sustained injuries. The Tribunal has considered the claim of the appellants and as set out in para 16 awarded a sum of Rs.8,40,000/- towards loss of prospective income; Rs.2,000/- towards loss of consortium; Rs.5,000/- towards loss of estate; and Rs.2,000/- towards funeral expenses (though it is not specifically mentioned the total is upto Rs.8,49,500/-. The Tribunal was pleased to order that this amount is payable with interest at the rate of 7.5% per annum from the date, 7.5.199 within one month from the order of the Tribunal. The learned advocate for the appellants submitted that the Tribunal has failed in not applying decision of the Hon'ble the Apex Court in the matter of Smt. Sarla Verma & others vs. Delhi Transport Corporation & another (supra). The learned advocate for the appellants submitted that the Tribunal has failed in not applying decision of the Hon'ble the Apex Court in the matter of Smt. Sarla Verma & others vs. Delhi Transport Corporation & another (supra). He submitted that the Tribunal has committed an error in not arriving at a figure of prospective income by adding 50% instead the Tribunal added only 25%. He also submitted that the Tribunal erred in taking multiplier of 14 instead of 15. He further submitted that the Tribunal erred in deducting 1/3rd towards personal and living expenses of the deceased whereas the Hon'ble the Apex Court has ordered that deduction should have been only 1/4th. The learned advocate also submitted that so far as notional amount is concerned what is awarded is only Rs.9,000/-. In fact, the same should have been Rs.20,000/-. 4. At the outset it is required to be noted that the judgment and award is found to be not very accurately written but then the total amount awarded is something which answers the term of 'just compensation' with some more additions required to be made as per the submissions made by the learned advocate for the appellant. To start with the conventional amount which is awarded to be Rs.9,000/- is increased to Rs.20,000/-. So far as the calculation of the amount awarded under the head of 'loss of future income' is concerned, the prospective income is taken to be Rs.7,500/-, from that 1/3rd amount is reduced. The figure arrived at is Rs.5,000/-, which is multiplied by 12, it comes to Rs.60,000/-. That is multiplied by 14, the amount comes to Rs.8,40,000/-. So far as loss of prospective income is concerned taking the same figure, if multiplier is revised from 14 to 15, the amount will be from Rs.8,40,000/- to Rs.9,00,000/-; total comes to Rs.9,20,000/-. With this modification the appeal is partly allowed. The opponents will be required to pay the remaining amount with proportionate cost and interest. It is stated that an amount of Rs.8,49,500/-, is already deposited with proportionate cost and interest. Therefore, Rs.9,20,000/- minus Rs.8,49,500/- = Rs.70,500/- will have to be deposited with proportionate cost and interest (from the date of award till realization). It is clarified that this Court has not gone into the question of negligence and the findings recorded by the Tribunal are maintained.