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2015 DIGILAW 1232 (GUJ)

Harsihbhai Nathabhai Solanki v. Jashwant Dhanjibhai Makwana

2015-12-02

M.R.SHAH

body2015
JUDGMENT : M.R. Shah, J. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 23.03.2007 passed by the learned Motor Accident Claims Tribunal (Auxi.), at Mirzapur, Ahmedabad (Rural) [hereinafter referred to as "Tribunal"] in Motor Accident Claim Petition No.935/2000 by which the learned Tribunal has awarded a total sum of Rs.1,50,000/- only towards compensation for the death of the deceased, who died in a vehicular accident, the original claimants have preferred the present First Appeal. 2. Ms. Dimple Thaker, learned advocate appearing for Shri Ruturaj Meena, learned advocate appearing on behalf of the appellants has vehemently submitted that the learned Tribunal has materially erred in assessing the income of the deceased notionally at Rs.2000/- per month. It is submitted that considering the fact that at the time of accident the deceased was aged about 21 years of age and was cleaner serving in the truck, the learned Tribunal ought to have assessed the income of the deceased notionally at least at Rs.3000/- per month. In support of her submissions, she has heavily relied upon the decisions of the Hon'ble Supreme Court in the case of Lata Wadhwa and Ors. v. State of Bihar and Ors. reported in (2001)8 SCC 197 ; Kishan Gopal and Anr. v. Lala and Ors. reported in (2014)1 SCC 244 and the decision of the Division Bench of this Court in the case of National Insurance Co. Ltd. v. Nishaben Pankajbhai M/o. Decd. Pankaj Shah & Ors. rendered in First Appeal No.397/2004. 2.1. It is further submitted by Ms. Thaker, learned advocate appearing on behalf of the original claimants that the learned Tribunal has erred in deducting ?rd towards personal expenses of the deceased. It is submitted that as per the decision of the Hon'ble Supreme Court in the case of Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. reported in (2009)6 SCC 121 , only 1/2 was required to be deducted towards personal expenses of the deceased. It is further submitted by Ms. Thaker, learned advocate appearing on behalf of the original claimants that the learned Tribunal has even erred in awarding Rs.20,000/- only under the conventional heads. Making above submissions and relying upon above decisions, it is requested to allow the present First Appeal accordingly and modify the impugned judgment and award passed by the learned Tribunal. 3. Thaker, learned advocate appearing on behalf of the original claimants that the learned Tribunal has even erred in awarding Rs.20,000/- only under the conventional heads. Making above submissions and relying upon above decisions, it is requested to allow the present First Appeal accordingly and modify the impugned judgment and award passed by the learned Tribunal. 3. Shri Hemant Shah, learned advocate appearing on behalf of the insurer has submitted that in the facts and circumstances of the case the amount awarded by the learned Tribunal can be said to be just compensation. It is submitted that as such in absence of any other cogent evidence to prove the income of the deceased and in fact there is no evidence that the deceased was serving as a cleaner, the learned Tribunal has rightly assessed the income of the deceased notionally at Rs.2000/- per month. However, is not in position to justify deduction of ?rd towards personal expenses of the deceased. He is also not in a position to justify awarding Rs.20,000/- under the conventional head. However, making above submissions, he has requested to dismiss the present First Appeal. 4. Heard learned advocates appearing for respective parties at length. 4.1. At the outset it is required to be noted that the present First Appeal has been preferred by the original claimants to enhance the amount of compensation awarded by the learned Tribunal. That by impugned judgment and award the learned Tribunal has awarded Rs.1,26,000/- under the head of future loss of income/loss of dependency. That while awarding loss of dependency, the learned Tribunal has assessed the income of the deceased notionally at Rs.2000/- per month, however considering the decisions of the Hon'ble Supreme Court in the case of Lata Wadhwa (Supra); Kishan Gopal (Supra) and the decision of the Division Bench of this Court in the case of Nishaben Pankajbhai M/o. Decd. Pankaj Shah (Supra), the income of the deceased ought to have been assessed notionally at Rs.3000/- per month. That while awarding future loss of income/loss of dependency, the learned Tribunal has even deducted ?rd towards personal expenses of the deceased. Considering the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Supra) as the deceased was bachelor, only 50% was required to be deducted towards personal expenses of the deceased. That while awarding future loss of income/loss of dependency, the learned Tribunal has even deducted ?rd towards personal expenses of the deceased. Considering the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Supra) as the deceased was bachelor, only 50% was required to be deducted towards personal expenses of the deceased. As the deceased was aged 21 years of age, proper multiplier as per the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Supra) would have been 18. 4.2. Even the claimants shall be entitled to a sum of Rs.50,000/- under the conventional heads. Thus, to the aforesaid extent the impugned judgment and award passed by the learned Tribunal is required to be modified. 5. In view of the above and for the reasons stated above, present First Appeal succeeds in part. Impugned judgment and award dated 23.03.2007 passed by the learned Motor Accident Claims Tribunal (Auxi.), at Mirzapur, Ahmedabad (Rural) in Motor Accident Claim Petition No.935/2000 is hereby modified to the extent and it is held that the original claimants shall be entitled to a total sum of Rs.3,79,000/- with 9% interest thereon from the date of claim petition till realization. Present First Appeal is partly allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. The balance enhanced amount of compensation with interest shall be deposited by the respondent - insurance company with the learned Tribunal within a period of 8 weeks from today and on such deposit the learned Tribunal to pay the same to the appellant herein - original claimants by Account Payee Cheque on proper identification and verification by the learned Tribunal itself. Appeal partly allowed.