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Bhaskar Bhattacharya, J.—These two First Appeals under section 173 of the Motor Vehicles Act are taken up together as in these two appeals, the selfsame award passed by the Motor Accident Claims Tribunal has been challenged both by the claimants and the Oriental Insurance Co. Ltd., the insurer of the offending vehicle, namely, a tempo. The Tribunal below awarded a sum of Rs. 5 lakh with interest at the rate of 9% per annum from the date of filing of the application i.e. 1st December 1999 till realisation.
After hearing Mr. Hakim, the learned advocate appearing on behalf of the claimant-appellants and Ms Bhaya, the learned advocate appearing on behalf of the Insurance Company, I find that on 3rd November 1999, the deceased was waiting on his own motorcycle on the left side of the road and at that point of time at about 7-00 p.m., the offending vehicle driven by the opponent No. 1 was coming from the side of Derol station and while overtaking the said stationary motorcycle, the tempo had dashed the motorcycle, resulting in the death of the victim.
According to the claimants, the victim was aged 55 years old and was Deputy Manager at Gujarat Floro Chemicals Ltd. and used to earn Rs. 10,000/- a month. It appears that the deceased died leaving widow and two children. They claimed an amount of Rs. 15 lakh as compensation.
It appears that the driver of the vehicle appeared in the proceeding as a witness on behalf of the Insurance Company. In the affidavit, he made the following statement:-
"On 3/11/99, in the evening, while returning from Derol Station, while driving in darkness, I saw that there was a motor-cyclist seated on his motorcycle parked on a side, at that time, I was dazzled by the head-light of a big vehicle coming from the opposite side and while trying to take my tempo on the left side of the road, it slightly dashed with the motor-cyclist and he fell down."
From the aforesaid statement made by the driver of the vehicle, there is no scope of drawing any adverse presumption of contributory negligence on the part of the victim. The victim was not even driving his motorcycle but was being seated on the stationary motorcycle and that too, at the side of the road. It appears that the offending vehicle while passing dashed the vehicle and, as admitted by the driver, it was his fault as being dazzled by the headlight of a vehicle coming from the opposite direction, he had hit the motorcyclist.
I, thus, find no substance in the contention of Ms Bhaya, the learned advocate appearing on behalf of the Insurance Company that I should hold that the motorcyclist had also any contributory negligence in the said accident. The motorcycle was hit from behind and knowing fully well that a motorcycle is standing, the driver of the tempo dashed it without stopping his vehicle.
Therefore, the only question that arises for consideration in these two appeals is, what should be the actual amount of compensation.
I find that the victim was aged 55 years and 7 months and, therefore, within the age-group of 55 and 60. In the case before us, I propose to follow the principles laid down by the Supreme Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . It appears that the Tribunal below in spite of the fact that the deceased left widow and two children deducted half for his personal expenditure which was absolutely wrong in accordance with the above decision of the Supreme Court and in this case it should be one-third. I also do not find any substance in the contention of Ms Bhaya that the children being well-established it is a fit case for deduction of half. It is now settled by the Supreme Court that in order to maintain an application for compensation, the heirs and legal representatives need not be financially dependent upon the deceased and thus, as laid down in the case of Sarla Verma (supra), I propose to deduct one-third amount for the personal expenditure of the deceased.
Therefore, treating the monthly income of the deceased to be Rs. 10,000/- and deducting one-third, the amount will come to Rs. 6666/- which I take a round figure of Rs. 6660/- and applying the multiplier of 9, the total amount comes to Rs. 7,19,280/-.
The Tribunal has awarded a sum of Rs. 72,000/- towards medical expenditure and Rs. 38,000/- towards pain, shock and suffering, which I do not disturb, in view of the above actual expenditure and the fact that the deceased was alive for the next 3 days after the accident. In addition to the above amount, a further sum of Rs. 25,000/- should be awarded towards conventional amount and thus, the total amount comes to Rs. 8,54,280/-. The rate of interest awarded by the Tribunal was quite justified.
I, thus, dispose of these two appeals by allowing the appeal of the claimants and dismissing the appeal filed by the Insurance Company and enhance the amount to a sum of Rs. 8,54,280/- with interest at the rate of 9% per annum from the date of filing of the application till realisation.
The Insurance Company is directed to deposit the balance amount with interest within two months from today before the Tribunal below. On deposit of the amount, the Tribunal below is directed to release the enhanced amount in favour of the claimants by account payee cheque on proper verification.
Registry is directed to return the Record and Proceedings to the Tribunal immediately.