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2018 DIGILAW 75 (GUJ)

GIRISHBHAI CHHOTALAL SHAH v. UDAYPRATAP DANBAHADUR SING

2018-01-11

A.Y.KOGJE, AKIL KURESHI

body2018
JUDGMENT : MR.JUSTICE A.Y. KOGJE, J. 1. The First Appeal under section 173 of the Motor Vehicles Act is preferred by the claimants heirs of deceased Chintan Girishbhai Shah, against the judgment and award dated 3.2.2014 passed by learned 2nd Additional District Judge, Motor Accident Claims Tribunal (Aux), Kheda at Nadiad in MACP No.800/2007 for enhancement of the compensation awarded by the Claims Tribunal. 2. Brief facts are as under. On 15.6.2007, Chintan Girishbhai Shah (since deceased) was travelling on a motorcycle which collided with the offending tanker being driven in a rash and negligent manner. On account of the accident, Chintanbhai suffered severe injuries and ultimately succumbed to such injuries. The heirs of the deceased Chintanbhai filed the claim petition. The claimants during the trial led evidence with regards to the accident, the age and the income of the deceased Chintanbhai and claimed compensation to the tune of Rs.25 lacs. The Motor Accident Claims Tribunal after considering the evidence on record awarded compensation of Rs.14,21,000/. 3. The claimants are in appeal contending that the Tribunal has not taken into consideration the prospective income which otherwise, the claimants were entitled as deceased Chintan was aged 25 years and was well qualified and at the time of the accident was already gainfully employed drawing salary to the tune of Rs.12,000/-per month. Learned advocate for the claimants relied upon the judgment of the Apex Court in case of National Insurance Company Limited. v/s. Pranay Sethi and ors reported in 2017(3) GLH 536. 4. Having heard learned advocate for the appellant and having gone through the record available, it appears that the accident took place on 15.6.2007 when the deceased Chintan was riding motorcycle which collided with the offending tanker being driven at excessive speed in rash and negligent manner. The Tribunal has taken into consideration panchnama at exh.32 in this regard. 5. For assessing the income of the deceased, the Tribunal has taken into consideration the deposition at exh.53 of the Branch Manager of the employer company wherein deceased was working. The Tribunal took into consideration the salary certificate at exh.53 and correctly arrived income of deceased at Rs.12,000/per month. The School Leaving Certificate at exh.38 shows the age of the deceased at the time of the accident as 25 years. 6. It appears that the Tribunal has not granted any amount towards future rise of income. The Tribunal took into consideration the salary certificate at exh.53 and correctly arrived income of deceased at Rs.12,000/per month. The School Leaving Certificate at exh.38 shows the age of the deceased at the time of the accident as 25 years. 6. It appears that the Tribunal has not granted any amount towards future rise of income. Considering the above two aspects i.e. the evidence regarding the income of the deceased and the age of the deceased at the time of the accident, this Court is of the view that the claimants were entitled to compensation under the head of prospective income. This appears to have been erroneously not considered by the Tribunal. The Apex Court in case of Pranay Sethi and ors(supra) in the concluding paragraph has 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.” 7. Thus the Apex court in abovenoted paragraph has conclusively held that prospective income for the deceased who is in a permanent job and below the age of 40 years is to be considered at 50% of the actual salary. The Tribunal not having granted such rise in future income, we are inclined to grant the same by recalculating the compensation under the head of future loss of dependency benefits. 8. In the instant case, salary of deceased was established at Rs.12,000/per month and deceased was aged about 25 years on the date of the accident. 50% rise towards prospective income of deceased would come to Rs.18,000/( Rs.12000+Rs.6000). The deceased was unmarried and therefore, 1/2 is required to be deducted as personal expenditure of the deceased. Rs.9000/per month would be set apart for his personal expenditure, leaving Rs.9000/for dependency benefits or Rs.1,08,000/per annum (Rs.9000x12). Looking to his age, multiplier of 18 would be adopted bringing the loss of dependency benefits at Rs.19,44,000/. The Claims Tribunal had granted Rs.12,96,000/under this head. The claimants would therefore, be entitled to additional compensation of Rs.6,48,000/( Rs.19,44,000/- Rs. Rs.9000/per month would be set apart for his personal expenditure, leaving Rs.9000/for dependency benefits or Rs.1,08,000/per annum (Rs.9000x12). Looking to his age, multiplier of 18 would be adopted bringing the loss of dependency benefits at Rs.19,44,000/. The Claims Tribunal had granted Rs.12,96,000/under this head. The claimants would therefore, be entitled to additional compensation of Rs.6,48,000/( Rs.19,44,000/- Rs. 12,96,000/) under the head of future loss of dependency. 9. The remaining parameters adopted by the Tribunal are in consonance with the judgment of the Apex Court, and therefore, no interference is required under other heads of compensation. 10. The claimant shall be entitled to recover additional compensation of Rs.6,48,000/from the Insurance company with 7.5% interest from the date of application till actual payment on the additional compensation awarded, over and above Rs.14,21,000/already awarded by the Claims Tribunal. Such additional compensation shall be deposited before the Claims Tribunal within a period of three months. 11. First Appeal is allowed to the aforesaid extent and disposed of. R&P may be transmitted back to the concerned trial Court.