HEIRS OF DECD DNESHKUMAR BALWANTBHAI CHAUHAN v. MALABHAI BHIMABHAI BARAIYA
2019-03-11
B.N.KARIA
body2019
DigiLaw.ai
JUDGMENT B. N. KARIA, J. 1. The appellants, who were the original petitioners in Motor Accident Claims Petition No.549 of 1999 have preferred this appeal challenging the impugned judgment and order dated 16th April, 2004 passed by the Motor Accident Claims Tribunal (Aux.), Veraval. 2. Short facts of the present case may be referred as under: 2.1 That, on 11th August, 1992, deceased Dineshkumar Balwantbhai Chauhan was travelling in auto rickshaw and was proceeding to Una. That, two kilometers away from Una, at about 13:30 noon, opponent No.1 drove his Truck, bearing Registration No.GTS-7981, on Una to Kodinar road, rashly and negligently and endangering the human life as well as in the wrong side and dashed with the motor vehicle travelled by the deceased. That, the accident was occurred on account of rash and negligent driving of the opponent No.1. That, the deceased, after the accident, was initially admitted in the Government Hospital at Una and as per the advise of the Doctor, he was shifted to Veraval Government Hospital. That, during the treatment period, he was expired. That, deceased was aged 22 years at the time of accident. He was the only breadwinner in the family. That, the petitioners had to incur huge amount in transportation, funeral ceremony as well as medical treatment. That, he was a skilled labourer and was working in the Maruti Transformer and earning Rs.1,800/- per month. Hence, it was requested by the petitioners to pass an award for the sum of Rs.4,00,000/- along with the interest @ 18% p.a. holding the liability of the opponents jointly and/or severally. 2.2 On receiving the Notice issued by the Tribunal, the opponent No.3 filed its written statement vide Exhibit 16 before the Tribunal denying all the contents raised by the petitioners in their claim petition except specifically admitted. The opponent denied the age of the deceased as 22 years at the time of the accident, income of Rs.1,800/- per month being a skilled labourer or involvement of the vehicle and accident as averred by the petitioners. It was not admitted that alleged vehicle was insured with the opponent as there was no cause of action to file a claim petition against the opponent. Ultimately, it was requested by the respondent to dismiss the claim petition.
It was not admitted that alleged vehicle was insured with the opponent as there was no cause of action to file a claim petition against the opponent. Ultimately, it was requested by the respondent to dismiss the claim petition. 2.3 Learned Tribunal, after recording the evidence of the either side and hearing the parties, was pleased to partly allow the claim petition directing the respondents to pay the sum of Rs.93,000/- (Rupees Ninety Three Thousand only) with proportionate costs and simple interest @ 9% p.a. from the date of application till payment and/or realization of the amount from the opponent Nos.1, 2 and 3. 2.4 Present petitioners, being dissatisfied with the impugned judgment and order passed by the Tribunal dated 16th April, 2004, have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988. 3. Heard Mr.Tushar L. Sheth, learned Counsel for the appellants and Mr.Sunil B. Parikh, learned Counsel for the respondent No.3. 4. No arguments were advanced by the respondent Nos.1 and 2. 5. It was submitted by learned Counsel for the appellants that the award passed by the Tribunal is contrary to law and evidence produced on record. That, however, income was averred at Rs.1,800/- per month, as deceased was a skilled labourer and working in Maruti Transformer, though considered income of Rs.900/- per month was completely erroneous. It was further submitted that the petitioners have tried to call upon the owner of the Maruti Transformer as a witness and prove the income of the deceased, but summons issued by the Court was returned back, thus there was no fault of the petitioners of proving the income as alleged by the respondents. That, just and reasonable compensation was required to be passed by the Tribunal. That, age of the deceased was 22 years, and therefore, instead of applying 18 years multiplier, the Tribunal has considered 15 years multiplier, which is erroneous and wrong and against the settled principles of law. Conventional amount, granted to the petitioners was also on a very lower side. Hence, it was requested by learned Counsel for the appellants to modify the impugned judgment and order passed by the Tribunal and enhance the amount as prayed for. In support of his arguments, learned Counsel for the appellants has relied upon the judgment delivered by this Court in First Appeal No.4168 of 2009. 6.
Hence, it was requested by learned Counsel for the appellants to modify the impugned judgment and order passed by the Tribunal and enhance the amount as prayed for. In support of his arguments, learned Counsel for the appellants has relied upon the judgment delivered by this Court in First Appeal No.4168 of 2009. 6. Per contra, learned Counsel for the respondent No.3 supported the impugned judgment, order and conclusion arrived at by the learned Tribunal and argued that whatever amount as averred at Rs.1,800/- per month as income of the deceased was never proved by the petitioners by leading cogent evidence. That, it was their duty to prove the income of the deceased. That, accident was occurred in the year 1992, the rates of minimum wages in the relevant year was rightly considered by the Tribunal holding the income of the deceased at Rs.900/- per month. That, there was no error committed by the Tribunal in considering the income of the deceased. That, there is no substance in the arguments advanced by the appellants to consider his income against the averments or contents made by the petitioners in their claim petition. There is no scope of interfering with the impugned judgment and order or enhancement of the amount as claimed by the petitioners. That, this Court may consider the multiplier, considering the age of the deceased and deduction of 50% as the deceased was a bachelor. Hence, it was requested by learned Counsel for the respondent No.3 to dismiss the appeal. 7. Having considered the facts of the case, submissions made by learned Counsels for the respective parties and record of the Tribunal, it appears that in the claim petition, petitioners have averred the income of the deceased at Rs.1,800/- per month as he was serving in the Maruti Transformer as a skilled labourer at the time of accident. The petitioners have also tried to call upon the witness from the Maruti Transformer to prove the income of the deceased. It transpires from the judgment passed by the Tribunal that summons was issued to the witness Maruti Transformer Maintenance to prove the income of the deceased as he was working as skilled labourer. The summons could not serve to the concerned Maruti Transformer Maintenance as the person was not available there. The income of the deceased, as alleged by the petitioners, was not proved.
The summons could not serve to the concerned Maruti Transformer Maintenance as the person was not available there. The income of the deceased, as alleged by the petitioners, was not proved. It appears that the Tribunal, considering the year of accident 1992, assessed the income of the deceased at Rs.900/- per month and applied multiplier of 15 years. 8. This Court in a judgment delivered in First Appeal No.4168 of 2009, wherein the age of the deceased was 19 years, relying upon the judgment of Lata Wadhwa and others V/s. State of Bihar and others reported in, (2001) 8 SCC 197 and case of Kishan Gopal and another V/s. Lala and others reported in, (2014) 1 SCC 244 , considered the income of the deceased notionally at Rs.2,500/- per month. In the said case also the deceased was a bachelor, and therefore, 1/2 of Rs.2,500/- was deducted towards personal expenses of the deceased and loss of dependency was considered at Rs.1,250/- per month. Here also, age of the deceased was 22 years and there was no dispute regarding the age of the deceased. The income considered at Rs.900/- per month by the Tribunal appears to be on a very lower side. Relying upon the judgments reported in 2001) 8 SCC 197 as well as (2014) 1 SCC 244 , this Court is of the view that prospective income of the deceased would require to be considered at Rs.2,500/- per month. The deceased was a bachelor, and therefore, 1/2 of Rs.2,500/- would be deducted towards the personal expenses of the deceased. 9. Therefore, if we consider multiplier, as per the case of Sarla Verma reported in, (2009) 6 SCC 121 , 18 years would be applied. If we calculate the amount of compensation payable to the petitioners, i.e. Rs.1,250 x 12 x 18, it come to Rs.2,70,000/-. Thus, the petitioners shall be entitled to claim the said amount as compensation. The Tribunal has awarded conventional amount of Rs.12,000 to the petitioners. Instead of this amount awarded to the petitioners, as per the case of Pranay Sheti reported in, (2017) 16 SCC 680 , the petitioners shall be entitled to claim of Rs.30,000/- on account of conventional amount (i.e. Rs.15,000/- under the head of loss of estate and Rs.15,000/- under the head of funeral expenses) and the total award would come to Rs.3,00,000/-.
The Tribunal has awarded compensation of Rs.93,000/- to the petitioners @ 9% simple interest. Hence, the remaining amount of Rs.2,07,000/- shall be paid to the original petitioners by the respondent No.3 along with the interest @9% p.a. from the date of application as ordered by the Tribunal within a period of eight weeks. 10. The impugned judgment and order dated 16th April, 2004 passed by the Motor Accident Claims Tribunal (Aux.), Veraval in Motor Accident Claims Petition No.549 of 1999 shall be modified to the aforesaid extent. The appeal is partly allowed. 11. Records and Proceedings be sent back to the Tribunal forthwith by the Registry.