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Judgment
Heard Mr. Hiren Modi, learned advocate for the appellants and Ms. Niyati Juthani, learned advocate for respondent no.3.
Being aggrieved by and feeling dissatisfied with the judgment and award dated 27.12.2013 rendered by MACT (Aux.), Vyara in MACP no.24 of 2010, the present appeal is filed by the insurance Company under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act").
Record of the appeal indicates that on 17.10.2009 at about 18.30 hrs., the deceased - Shirishbhai Kunvar was driving his motorcycle bearing registration no. GJ-5 BC-9838 in a slow and cautious manner from Songadh to Khekada and while the deceased was passing through Mirkot village, truck driven by respondent no.1 bearing registration no. RJ-6 GA-3901 being driven in a rash and negligent manner dashed with the motorcycle because of which the deceased received serious injuries and ultimately, succumbed. Record indicates that FIR bearing CR no. I-37/2009 was registered with Uchchhal Police Station for the alleged offence punishable under Sections 279, 337 and 304A of the IPC and Sections 177, 184 and 134 of the Motor Vehicles Act, 1988. As per the
appellants - claimants, age of the deceased was 38 years on the date of the accident and was working as Senior Technician and was earning Rs.7,000/- per month. The appellants - claimants preferred a petition under Section 166 of the Act and claimed compensation of Rs.15 lacs. Record indicates that the appellant no.1 - Iluben was examined at Exh.11 and documentary evidence such as FIR, Panchnama of the scene of incident, P.M. Note and identity card were produced being Exhs.15 to 21 respectively. The Tribunal, after considering the evidence on record, awarded total compensation of Rs.3,91,600/- with 8% interest. Being aggrieved by the same, the present appeal is filed by the claimants.
Mr. Hiren Modi, learned advocate for the appellants has raised the following contentions:-
4.1 That, the Tribunal has not considered the evidence on record as far as the income is concerned and has wrongly calculated Rs.3,300/- as income per month even though in the oral deposition, it has been proved by the appellant that the deceased was working as Senior Technician with a Contractor and was earning at least Rs.7,000/- per month.
4.2 It was contended that the Tribunal has erred in not considering the aspect of prospective income and has ignored that the deceased was 38 years old on the date of the accident and therefore, 50% prospective rise should have been given while considering the compensation under the head of loss of dependency. It was therefore contended that the appeal be allowed.
Ms. Niyati Juthani, learned advocate for the respondent no.3 has supported the impugned award and has submitted that considering the fact that the appellant was aged about 38 years old and in absence of any evidence on record to show that the deceased was earning Rs.7,000/- per month, the Tribunal has committed no error in assessing monthly income of the deceased at Rs.3,300/-. It was therefore contended that the appeal is meritless and the same deserves to be dismissed.
No other or further contentions and/or submissions are made by the learned advocates appearing for the respective parties.
Perused the record and proceedings. Upon considering the submissions made by the learned advocates appearing for the respective parties and on perusal of the impugned award, it clearly appears that there is no evidence on
record to establish the real income of the deceased. However, at the same time, the Tribunal has erred in not considering any prospective income.
Upon reappreciation of the evidence on record and considering the fact that the deceased was 38 years old and was working as Senior Technician, income per month can be assessed at Rs.3,300/- following the ratio laid down by the Apex Court in the case of Rajesh v. Rajbir Singh, (2013) 9 SCC 54, the appellants - claimants are entitled to rise of prospective income at least to the tune of 30%. Therefore, the compensation under the head of loss of economic dependency or loss would be Rs.4,550/- (Rs.3,500/- + 30% rise = Rs.1,050/-) - Rs.1,137/- (one-fourth deduction towards personal expenses) = Rs.3,413/- per month X 12 X 14 = Rs.5,73,384/-. Similarly, upon reappreciation of the evidence on record and in facts of this case, the appellants would be entitled to Rs.75,000/- under the head of loss of consortium and therefore, the total compensation would be Rs.6,48,384/-. Hence, the appellants would be entitled to an additional amount of Rs.2,56,784/-(Rs.6,48,384/- - Rs.3,91,600/- as awarded by the Tribunal).
Accordingly, the appeal is partly allowed. The
insurance Company shall deposit additional amount of Rs.2,56,784/- with proportionate cost and interest within a period of 8 weeks. Record and proceedings be transmitted to the Tribunal forthwith.