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2018 DIGILAW 151 (GUJ)

ORIENTAL INSRUANCE COMPANY LTD v. KOKILABEN BHARATBHAI NAKAR

2018-01-17

A.Y.KOGJE, AKIL KURESHI

body2018
JUDGMENT : MR.JUSTICE A.Y. KOGJE, J. 1. This appeal is filed under section 173 of the Motor Vehicles Act by the Insurance company challenging the judgment and award dated 24.4.2017 passed by the Motor Accident Claims Tribunal(Aux) Jamnagar, in MACP No.370/2005. 2. Facts in brief are as under. On 25.5.2005 deceased Bharatbhai Manishankar Nakar was riding the motorcycle. While he was at JamKhambhaliya Jamnagar road, a truck being driven by opponent no.5 rashly and negligently collided with the motorcycle leading to death of said Bharatbhai. The legal heirs and dependents of Bharatbhai filed the abovenoted claim petition. The Tribunal after considering the evidence on record awarded compensation under various heads totalling to Rs.15,09,624/-. 3. Though served no one appeared for the claimants. 4. Learned advocate for the appellant Insurance company submitted that the challenge to the award is limited to the extent of computation of prospective income by the Claims Tribunal. He submitted that the Tribunal committed an error in granting 30% rise in future income when the deceased was aged about 51 years on the date of the accident and such computation by the Claims Tribunal is not in consonance with the judgment of the Apex Court. 5. The Court has taken into consideration the pleadings and the evidence on record and also perused the judgment of the Claims Tribunal. We find that the Tribunal has committed an error in granting 30% rise in future income when the deceased was aged 51 years at the time of the accident. Looking to the age of the deceased, prospective income applicable to the said case would be 15% as per the ratio laid down in decision of Apex Court in case of National Insurance Company Limited. v/s. Pranay Sethi and ors reported in 2017(3) GLH 536, wherein in the concluding paragraph it has been held as under : “61(i),(ii)..... (iii) while determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.” 6. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.” 6. We notice that the compensation granted under the conventional heads is on the lower side which needs to be enhanced. Instead of modifying the computation, we may adopt entirely independent computation. 7. The Tribunal has recorded that the deceased was working as a principal in a Government school and was earning Rs.12,671/- per month. Taking the monthly income of the deceased at Rs.12,671/- and granting 15% increase, looking to his age and service, his prospective income would work out to Rs.14,571/- per month (Rs.12671+Rs1900). 1/3rd thereof or Rs.4857/- would be set apart for personal expenditure of the deceased leaving Rs.9,714/- (Rs14571-Rs4857) for the family. Adopting multiplier of 11, loss of dependency benefit comes to 12,82,248/- (Rs9714x11x12). We grant Rs.40,000/- towards loss of consortium, Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral charges in consonance with the judgment of Apex Court in case of Pranay Sethi and ors.(supra). Total compensation therefore, would work out as under : Loss of dependency benefits Rs.12,82,248/- Loss of consortium Rs.40,000/- Loss of estate Rs.15,000/- Funeral expenses Rs.15,000/- Total compensation Rs.13,52,248/- 8. The claimants would therefore be entitled to get a total compensation of Rs. 13,52,248/-. The Claims Tribunal having awarded Rs.15,09,624/-, the Insurance company would be entitled to refund of excess of Rs.1,57,376/- awarded by the Claims Tribunal. 9. Award of the Claims Tribunal is modified accordingly. The Claims Tribunal shall return the said excess amount of Rs.1,57,376/- to the Insurance with proportionate cost and interest. The remaining amount be paid over to the claimants. 10. First Appeal along with Civil Application stands disposed of. R&P may be transmitted back to the concerned Court.