Oriental Insurance Co. Ltd. v. Marcusbhai Francisbhai Fedalis
2012-02-10
K.S.JHAVERI
body2012
DigiLaw.ai
Judgment K.S. Jhaveri, J.—This appeal is directed against the judgement and award dated 12.01.2001 passed by Motor Accident Claims Tribunal (Aux), Nadiad in M.A.C.P. Application No. 905 of 1991 wherein the Tribunal has awarded a sum of Rs. 5,65,000/- along with interest at the rate of 12% per annum from the date of application 2.0 According to the claimants, on 06.07.1991 one Kristopher Marksbhai Fidelis who was son the claimants Nos. 1 and 2 was going on his Motor Cycle No. G.B.H. 9347 and was returning from Petlad to Ahmedabad and when he reached near Nadiad Khambhat Road near Devriyani Para, the Ambassador Car No. G.B. N. 1551 owned by original opponent No. 1 came in a rash and negligent manner and dashed with front portion of Motor Cycle as result of which Kristopher fell down and received serious injuries and his motor cycle was also damaged and during the treatment, he died. The claimants therefore, preferred claim petition before the Tribunal wherein the aforesaid award came to be passed which is challenged in the present appeal. 3.0 Learned Advocate for the appellant contended that the learned Tribunal has committed error in assessing dependency loss in view of the fact that admittedly income of the deceased was less than Rs. 3000/- at the time of the accident; that the learned Tribunal erred in assessing annual dependency loss at Rs. 36,000/-; that the learned Tribunal erred in applying multiplier of 15 and awarding Rs. 5,46,000/- under the dependency loss. He placed reliance on the decision of the Hon’ble Supreme Court in case of Sarla Verma (Smt) and others vs. Delhi State Road Transport Corporation and another reported in (2009) 6 Supreme Court Cases 121, wherein it is stated that when the deceased was a bachelor and the claimants are the parents, normally 50% is deducted as personal and living expenses because it is assumed that a bachelor would tend to spend more on himself. 4.0 Cross objection is filed by the respondents. Learned advocate for the respondents contended that the learned Tribunal erred in taking Rs. 4000/- as salary of deceased for the purpose of calculating future loss of income instead of Rs. 6000/- per month. 5.0 Heard learned advocate for the respective parties and perused the documents on record.
4.0 Cross objection is filed by the respondents. Learned advocate for the respondents contended that the learned Tribunal erred in taking Rs. 4000/- as salary of deceased for the purpose of calculating future loss of income instead of Rs. 6000/- per month. 5.0 Heard learned advocate for the respective parties and perused the documents on record. The deceased Kristopher was the young man of 28 years and was area sales executive in Usha International Ltd. As per the certificate at Exh. 50 it is found tat the deceased was earning Rs. 37152/- yearly. The round figure will come to Rs. 38000/- per year. Thereafter applying the principle laid down in the case of Sarla Dixit (Smt.) and Another reported in (1996) 3 Supreme Court Cases 179, the income would come to Rs. 57000/- (Rs. 38000/- + Rs. 19000/-). The deceased was bachelor and the claimants No. 1 and 2 are the parents. Therefore in view of the decision of Sarla Verma (Supra), normally 50% is deducted as personal and living expenses which would come to Rs. 28,500/- per year. Therefore, the loss of dependency benefit would be Rs. 28,500/- per year. Since the parents are the claimants, their age should be considered by applying multiplier in view of the decision of Smt. Sarla Verma (Supra). Hence considering the age of 50 years, 11 multiplier should have applied. On applying multiplier of 11 years it would come to Rs. 3,13,500/- for future loss of income. By awarding Rs. 10,000/- to loss of estate and Rs. 5000/- towards the funeral expenses, the total compensation would come to Rs. 3,28,500/-. However, the learned Tribunal has awarded Rs. 5,65,500/- as compensation. 6.0 In the premises aforesaid, it is held that the claimants are entitled to total compensation of Rs. 3,28,500/- @ 12 % per annum. The judgement and award of the learned Tribunal is modified accordingly. The excess amount of Rs. 237000 (Rs. 565500/- - Rs. 328500/-) along with interest and cost which has been deposited by the Insurance Company will be paid back to the Insurance Company. If the claimants had already withdrawn the amount, it will be open for the Insurance Company to recover the excess amount from the claimants. The appeal is allowed to the aforesaid extent. The First Appeal as well as Cross objections are disposed of.