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2011 DIGILAW 2560 (RAJ)

Savitaben Babubhai Patel v. Gulamhusen Ahmedbhai

2011-11-24

K.S.JHAVERI

body2011
Hon'ble JHAVERI, J.—By way of this appeal, the appellants have challenged the judgment and award dated 03.02.1987 passed by the learned Tribunal passed in Motor Accident Claim Petition No.91 of 1984, whereby the Tribunal has held 10% contributory negligence of the deceased and awarded the amount of Rs.2,48,000/- as compensation to the appellants. 2. The facts of the case briefly stated are that on 17.08.1983, the deceased was going to Ahmedbad from Kalol on his motorcycle bearing No.GJV-3720 and when he reached at the place of incident, one truck bearing No.GRT-4714 came from his behind and dashed the motorcycle and as a result thereof, he had expired. 3. Learned counsel Mr.Ankit Shah for the appellants has contended that the Tribunal has committed error in holding that the deceased was also liable for the accident, instead of considering the deposition of the eye-witness that the truck has not applied the brakes. Learned advocate for the petitioner has submitted that after assessing the monthly income of the deceased at Rs.3000/-, the Tribunal has wrongly deducted Rs.1000/- for expenses of the dispensary and petrol for the motorcycle and the Tribunal was completely erred in deducting 1/3 amount from Rs.2000/-. He has relied on the judgment of the Apex Court in case of Sarla Verma and Others vs. Delhi Transport Corporation and Another reported in 2009(6) SCC 121 = 2009(1) CCR 276 (SC) = 2009(4) RLW 2785 (SC). 4. Learned counsel for the respondent has opposed the appeal and supported the judgment and award passed by the Tribunal. He has submitted that the Tribunal was completely justified in passing the compensation order. 5. Heard learned counsel for the parties and perused the material on record. 6. So far as the issue of income is concerned, the Tribunal in his judgment has properly considered all the evidence on record and believed that deceased was working as a bone-setter. Upon considering all the aspects the Tribunal has considered the amount of Rs.3000/- as the monthly income of the deceased. 7. 6. So far as the issue of income is concerned, the Tribunal in his judgment has properly considered all the evidence on record and believed that deceased was working as a bone-setter. Upon considering all the aspects the Tribunal has considered the amount of Rs.3000/- as the monthly income of the deceased. 7. The Tribunal has deducted Rs.1000/- for rent premises, petrol expenses and other expenses out of Rs.3000/- and again deducted 1/3 of amount from Rs.2000/- and finally considered dependency benefit at Rs.1350/- p.m. The Tribunal was justified in deducting the amount of Rs.1000/- for the rent of the dispensary and other expenses and considering the monthly income at Rs.2000/-, but, was not justified in again deducting 1/3 amount from Rs.2000/- as it is held by Apex Court in case of Sarla Verma and Others vs. Delhi Transport Corporation and Another reported in 2009(6) SCC 121 = 2009(1) CCR 276 (SC) = 2009(4) RLW 2785 (SC) that the percentage of deduction is not an inflexible rule and the deduction is to be determined, considering the number of dependents in the family of the deceased. In the present case, there were three minors and a widow as applicants, therefore, considering the number of dependents, 1/4 amount of deduction would be appropriate. Thus, deducting Rs.500/-, the monthly amount of Rs.1500/- would be actual dependency available to the appellants and in turn, yearly dependency would be Rs.18,000/-. Appellant No.1 in her deposition before the Tribunal has deposed that the deceased was of 31 years at the time of accident. The age of the deceased was admittedly 31 years. Hence, the multiplier of 16, adopted by the Tribunal is just and proper, therefore, the loss of dependency benefit will be Rs.2,88,000/-. 8. The Tribunal has rightly considered the 10% contributory negligence of the deceased as discussed at Page-15 of the judgment of the Tribunal, therefore, regarding the issue of contributory negligence, no interference is called for. Hence, out of Rs.2,88,000/- ,Rs.28,800/- would be deducted, considering 10% contributory negligence of the deceased and thus, it comes to Rs.2,59,200/-. The Tribunal has awarded other amounts at Rs.20,000/-, which is just and proper. Thus, in all it comes to Rs.2,79,200/- instead of Rs.2,48,000/-, awarded by the Tribunal. Hence, the appellants shall be entitled to an additional amount of Rs.31,200/-. Hence, out of Rs.2,88,000/- ,Rs.28,800/- would be deducted, considering 10% contributory negligence of the deceased and thus, it comes to Rs.2,59,200/-. The Tribunal has awarded other amounts at Rs.20,000/-, which is just and proper. Thus, in all it comes to Rs.2,79,200/- instead of Rs.2,48,000/-, awarded by the Tribunal. Hence, the appellants shall be entitled to an additional amount of Rs.31,200/-. The interest rate of 7.5% is ordered to be awarded on the additional amount of Rs.31,200/-, from the date of the application, made by the appellants before the Tribunal. 9. Learned Tribunal has awarded interest at the rate of 9% p.a., Subject to further condition that if the amount is not deposited within 3 months from the date of judgment, the interest shall be calculated at the rate of 12% p.a. from the date of the petition. Learned advocate for the respondent has made an endeavor to show that no penal interest can be awarded. I am in agreement with the submission of learned advocate for the respondent that no penal interest can be awarded and therefore, the award qua the penal interest i.e. interest at the rate of 12% imposed by the Tribunal, in respect of default in payment is hereby set aside. 10. In the result, this appeal is partly allowed. The appellant shall be entitled to an additional amount of Rs.31,200/- alongwith interest at the rate of 7.5% p.a. from the date of filing of the claim petition, till its realization. The award passed by the Tribunal stands modified accordingly.