Bhikhabhai B. Padhiyar and Others vs Prakash J. Shah and Others

K.S. Jhaveri, J.—This appeal has been filed against the judgment and award passed by the Motor Accident Claims Tribunal (Aux.), Baroda in M.A.C.P. No. 380/1987 dated 31.01.1992, whereby, the said claim petition was partly allowed and the Appellants have been jointly held liable to pay an amount of Rs. 3,03,000/- as compensation to the original claimants with interest @ 12% p.a. from the date of application till its realization.

The facts in brief are that on 09.02.1987 at about 0945 hrs. Respondent No. 1 herein, original applicant No. 1 and his wife - Hemaben were going from Savli to Kunjrao on a two-wheeler (scooter) bearing registration No. GBP 7978, which was driven by Respondent No. 1. When they reached Fajalpur, an accident took place with a Tempo bearing registration No. GTJ 6932, driven by Appellant No. 1 herein. As a result thereof, both Respondent No. 1 and Hemaben sustained severe injuries and they were taken to Hospital for necessary treatment. However, during the course of treatment, Hemaben succumbed to the injuries.

Therefore, the legal heirs of the deceased filed the claim petition before the Tribunal claiming compensation of Rs. 4,00,000/- with running interest and costs. The said claim petition came to be partly allowed by way of the impugned award. Being aggrieved by the same, the original opponents have jointly filed the present appeal.

Learned Counsel for the Appellants submitted that the deceased was not having any source of income and that the Tribunal has seriously erred in assessing her income at Rs. 20,000/- annually. It has been submitted that the Tribunal has also erred in not deducting 1/3rd income, if the income of Rs. 20,000/- is accepted as it, while calculating the dependency benefit. Further, the multiplier of 20 years adopted by the Tribunal is also on the higher side. On the aforesaid grounds, it has been prayed that the impugned award passed by the Tribunal deserves to be modified by awarding a lesser amount as compensation.

Learned Counsel for the Respondents raised a preliminary objection that the present appeal jointly filed at the instance of the original opponents & the insurance company is not maintainable under the law. However, when the Court drew attention of learned Counsel for the Respondents to the decision of the Apex Court in the case of V. Subbulakshmi and Others Vs. S. Lakshmi and Another, , wherein it has been held that an appeal at the instance of the driver and insurance company is maintainable, the said preliminary contention was not pressed.

On the question of quantum of compensation awarded by the Tribunal, it may be noted that the deceased was a Partner in a registered partnership firm. The Partnership Deed of the firm was also produced on record before the Tribunal. Therefore, the deceased was entitled/liable for the profits/loss of the Partnership firm.

On the basis of the oral evidence of witness - Prakashbhai & other documentary evidence, the Tribunal assessed the annual income of the deceased at Rs. 15,000/ even though it was claimed that she was a sleeping Partner of the partnership firm. Whether a Partner is an active or a sleeping partner, it makes no difference under the provisions of the Indian Partnership Act, 1932. When the Partnership Deed has been admitted and when the evidence on record shows that the deceased was earning Rs.15,000/- annually as income from the firm, the Tribunal was justified in assessing her annual income at Rs. 15,000/-.

8 However, the multiplier of 20 years adopted by the Tribunal appears to be on the higher side. Considering the provisions of the Motor Vehicles Act, 1988 and the decision of the Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, wherein, the Court has laid down the criteria for ascertaining the multiplier to be adopted while calculating the loss of dependancy benefit, in my view, if the multiplier of 16 years is adopted, the same would be just and appropriate. Hence, the original claimants shall be entitled for total compensation of Rs. 2,40,000/- (15,000 X 16) and the impugned award is required to be modified accordingly.

Consequently, the appeal is partly allowed. The impugned award passed by the Tribunal is modified to the extent that the original claimants shall be entitled for total compensation of Rs. 2,40,000/- as against what has been awarded by the Tribunal. The rest of the impugned award stands confirmed on the same terms. The proportionate amount of costs and interest shall be refunded to Appellant-Insurance Company. The appeal stands disposed of accordingly. No costs.