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2015 DIGILAW 194 (GUJ)

Kamuben Dinubhai Patel v. Mohamad Ismail Abdul Gafurla

2015-02-16

G.B.SHAH, M.R.SHAH

body2015
JUDGMENT : M.R. Shah, J. Feeling aggrieved and dissatisfied with the judgment and award passed by the Motor Accident Claims Tribunal (Main), Vadodara, dated 19-1-1994 in Motor Accident Claim Petition No.356 of 1987, by which the learned Tribunal has awarded a total sum of Rs.5,22,000/- to the original claimants towards compensation for the death of the deceased-Prabodhbhai Dinubhai Patel, the appellants herein-original claimants have preferred the present appeal to enhance the amount of compensation awarded by the learned Tribunal. 2. At the outset, it is required to be noted that as such, on appreciation of evidence, the learned Tribunal has held drivers of both the vehicles involved in the accident contributory negligent to the extent of 50:50. However, so far as the original claimants are concerned, they are not concerned with the same because there shall be composite negligence of drivers of both the vehicles involved in the accident. It is also required to be noted that as such the present appeal preferred by the appellants-original claimants is on quantum of the amount of compensation awarded by the learned Tribunal more particularly the amount awarded under the head of loss of dependency. Therefore, as such, the issue involved in the present appeal is in a very narrow compass. 3. That on appreciation of evidence, the learned Tribunal has determined/assessed income of the deceased at Rs.1,50,000/- per annum. That after deducting Rs.50,000/- towards income tax considering the rate of income tax prevailing at the relevant time, the learned Tribunal has considered the net income of the deceased at Rs.1,00,000/- per annum. Thereafter, deducting two-third towards the personal expenses of the deceased and applying a multiplier of 15, the learned Tribunal has awarded a sum of Rs.5,00,000/- towards loss of dependency. 4. Mr.Hakim, learned advocate, appearing on behalf of the appellants-original claimants, has vehemently submitted that the learned Tribunal has materially erred in deducting two-third towards the personal expenses of the deceased. Relying upon the decision of the Hon'ble Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation reported in (2009)6 Supreme Court Cases page 121 and considering the fact that at the time of accident, the deceased was unmarried and the original claimants were parents (mainly), the learned Tribunal ought to have deducted only one-half towards the personal expenses of the deceased, instead of two-third as deducted by the learned Tribunal. Making above submissions, it is requested to allow the present appeal and modify the impugned judgment and award passed by the learned Tribunal to the aforesaid extent. No other submissions have been made. 5. Mr.R.G.Dwivedi, learned advocate has appeared on behalf of the respondent No.5-United India Insurance Company Ltd. and Mr.Maulik Shelat, learned advocate has appeared on behalf of the respondent No.3-National Insurance Company Ltd. (insurer of both the vehicles involved in the accident). Initially the learned advocates appearing for the respective insurance companies have tried to oppose the present appeal by submitting that considering the law prevailing at the relevant time, no error has been committed by the learned Tribunal in deducting two-third towards the personal expenses of the deceased. However, considering the decision of the Hon'ble Supreme Court in the case of Sarla Verma (supra), the learned advocates appearing for the respective insurance companies have requested to pass appropriate order. 6. Having heard the learned advocates appearing for the respective parties and considering the impugned judgment and award passed by the learned Tribunal, it appears that by the impugned judgment and award, the learned Tribunal has awarded Rs.5,00,000/- towards loss of dependency. While awarding Rs.5,00,000/- towards loss of dependency, the learned Tribunal has determined/assessed the income of the deceased at the time of accident at Rs.1,50,000/- and after deducting Rs.50,000/- towards income tax considering the rate of income tax prevailing at the relevant time, the learned Tribunal has considered the net income of the deceased at Rs.1,00,000/- per annum. However, thereafter, the learned Tribunal has deducted two-third towards the personal expenses of the deceased and applying multiplier of 15 has awarded Rs.5,00,000/- towards loss of dependency. However, considering the decision of the Hon'ble Supreme Court in the case of Sarla Verma(supra) and as the deceased was a bachelor and the claimants were the parents (mainly), only one-half was required to be deducted towards the personal expenses of the deceased instead of two-third as deducted by the learned Tribunal. Under the circumstances, the loss of dependency ought to have been considered by the learned Tribunal at Rs.50,000/- per annum. Applying a multiplier of 15 as applied by the learned Tribunal, the claimants shall be entitled to a total sum of Rs.7,50,000/- towards loss of dependency. To that extent, the impugned judgment and award passed by the learned Tribunal is required to be modified. Applying a multiplier of 15 as applied by the learned Tribunal, the claimants shall be entitled to a total sum of Rs.7,50,000/- towards loss of dependency. To that extent, the impugned judgment and award passed by the learned Tribunal is required to be modified. Rest of the impugned judgment and award passed by the learned Tribunal is not required to be interfered with as, even otherwise, no submissions have been made by the learned advocate appearing for the respective parties on the same. 7. In view of the above and for the reasons stated above, present appeal is hereby partly allowed and the impugned judgment and award passed by the Motor Accident Claims Tribunal (Main), Vadodara, dated 19-1-1994 in Motor Accident Claim Petition No.356 of 1987 is modified to the aforesaid extent and it is held that the original claimants shall be entitled to a total sum of Rs.7,72,000/- from all the opponents with interest as awarded by the learned Tribunal from the date of application till realization. However, it is clarified that liability of the original opponent No.3-National Insurance Company Ltd. shall be limited to the extent of Rs.1,50,000/- only with proportionate costs and interest as observed and held by the learned Tribunal. In the facts and circumstances of the case, there shall be no order as to costs. 8. Record and proceedings shall be sent back to the trial court forthwith. Appeal partly allowed.