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Judgment
Sandeep N. Bhatt, J
The present First Appeal is filed under Section 173 of the Motor Vehicles Act, being aggrieved by and dissatisfied with the judgment and award dated 30.03.2010 passed by the Motor Accident Claims Tribunal (Main), Kheda at Nadiad, in Motor Accident Claim Petition No. 1440 of 2009, by which, the claim petition of the claimant is partly allowed by the Tribunal, directing the opponents i.e. driver and insurance company to pay the compensation of Rs.2,56,500/- with 9% interest per annum, to the claimant, jointly and severally.
Brief facts of the present case are that, on 13.08.2009 at about 05:30 pm, the deceased – Dharmishtaben Valjibhai Makwana was travelling in the rickshaw bearing registration No.GJ-23-U-6614 driven by the opponent No.1 – driver in rash and negligent manner and in a full speed, endangering the human life. When they reached near the Nisraya Chokdi on Boarsad-Bhadran Road, opponent No.1 – driver of the rickshaw lost the control over the steering due to applying of sudden brake. Therefore, the deceased had fallen down from the rickshaw and sustained serious injuries. Ultimately, she succumbed to the injuries during the treatment on 15.08.2009. Therefore, the claimant – the legal heir of the deceased – the son viz., Niranjanbhai Valjibhai Makwana has filed a claim petition before the Tribunal claiming compensation of Rs.3,84,500/-. The notices were served to the opponents i.e. the driver and the insurance company. The insurance company has filed its written statement at Exh.14 and denied the factum of the accident and other averments made by the claimant. Various documentary evidence as well as oral evidence were led before the Tribunal. After considering the submissions made by the rival parties, the Tribunal has partly allowed the claim petition as noted above. Hence, the present appeal is preferred by the appellant – Insurance Company.
Learned advocate Mr. Vrushank Mehta for learned advocate Mr. Dakshesh Mehta for the appellant –insurance company has submitted that the Tribunal has wrongly considered the age of the deceased 45 years, as there is apparent evidence on record that deceased was aged about 59 years at the time of accident and accordingly, 8 multiplier should be considered by the Tribunal. He has submitted that for the correction in the age of deceased, the Insurance Company has preferred an application below Exh.25 before the Tribunal He has relied on the evidence by way of Aadhar Card which is produced on record along with that application, where the Aadhar card is also issued on 01.01.1994, whereby the age of the deceased was shown as 45 years. Not only that in support of his contention, he has pointed out from the title of the claim petition which is filed by the claimant – her son viz., Niranjanbhai Valjibhai Makwana, whose age is also 30 years at the time of filing the claim petition in the year 2009. Therefore, he has submitted that it is impossible that at the age of 45 years of the deceased, she has having son aged about 30 years. He has pointed from the deposition at Exh17 given by the claimant himself where his age is mentioned as 31 years on 08.01.2010. He has therefore submitted that in view of these facts, the son was aged about 31 years at the time when deceased has expired and even from the Election Card of the deceased issued by the Election Commission of India on 01.01.1994, the age of the deceased was mentioned as 45 years. Therefore, he has submitted that the Tribunal ought to have considered 59 years age of the deceased at the time of accident which is occurred in the year 2009, instead of 45 years as mentioned and therefore, he prays that on that count only, the amount of compensation is required to be reduced and this appeal may be allowed.
Per contra, Mr. Hiren Modi, learned advocate for the respondent – claimant has supported the findings of the Tribunal and has submitted that in the postmortem note, the age of the deceased is mentioned as 45 years and therefore, the Tribunal has not committed any error by considering the age of the deceased as 45 years. He has submitted that such election card as produced by way of separate application which was rejected by the Tribunal and therefore, it cannot now consider at this stage in the appeal. He has also submitted that the Tribunal has considered the monthly income of deceased Rs.2,500/-, which should be Rs.3,000/- p.m., as indicated in the claim petition and as per the deposition of the claimant also and since the present application is filed under Section 163A of the Motor Vehicles Act, the amount which is awarded by the Tribunal is found just and proper and on the contrary, it should be on higher side. Therefore, he has submitted that the Tribunal has rightly awarded Rs.2,56,500/- towards compensation with 9% interest per month. He has submitted that this appeal may be dismissed.
5.1 I have heard learned advocates for the respective parties. I have perused the record and proceedings. I have gone through the impugned judgment and award passed by the Tribunal as well as pleadings of the parties, more particularly the age of the claimant and the document – election card issued by the Election Commission of India which is a public document, where the age of the deceased in the year 1994 is mentioned as 45 years and therefore, it can easily be established from the record that the age of the deceased must have 59 years at the time of accident and therefore, the Tribunal has committed error in considering the multiplier by considering the age of the deceased as 45 years, which should be considered as 59 years of age. Therefore, accordingly, the multiplier which is awarded by the Tribunal is on the basis of the age of the deceased - 45 years and therefore, multiplier of 15 should be considered in view of the decision of Hon’ble Apex Court in the case of Sarla Verma versus Delhi Transport Corporation reported in (2009) 6 SCC 121, which is required to be considered by keeping the actual age of the deceased - 59 years. Therefore, as per the said decision of Hon’ble Apex Court, 8 multiplier should have been awarded, in place of 15, which is considered by the Tribunal. Therefore, the finding of the Tribunal regarding multiplier is required to be interfered with by this Court by reducing it from 15 to 8 multiplier.
5.2 Now, the contention with regard to the aspect of income is concerned, the Court can certainly consider the aspect of just and fair compensation while calculating the amount of income. It is noteworthy to mention that the provisions of the Motor Vehicles Act, 1988 which gives paramount importance to the concept of ‘just and fair’ compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the Motor Vehicles Act deals with the concept of ‘just compensation’ which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the claimants.
5.3 In view of above, there is no reason to disbelieve the submissions made by learned advocate Mr. Modi that as there is no believable evidence by completing the version of the claimant that the deceased was doing labour work and was earning Rs.3,000/- per month and accordingly, monthly income of the deceased should be considered Rs.3,000/- in place of Rs.2,500/- and accordingly, if the amount of compensation is re-calculated in the facts of the present case, then the monthly income should be taken as Rs.3,000/- and 1/3rd amount towards personal expenses is required to be deducted and therefore, Rs.2,000/- is the monthly income which is multiplied with 12 months, it comes to Rs.24,000/- annual loss of income, which is required to be multiplied by 8 multiplier which comes to Rs. 1,92,000/- and by adding amount of Rs.2,500/- under the heads of loss of estate and plus Rs.2,500/- towards funeral expenses, then the total amount of compensation would come of Rs.1,97,000/- with 9% interest p.a. which the claimant is entitled to. The amount which is already awarded by the Tribunal is Rs.2,56,500/- with 9% interest per annum is on higher side and therefore, in view of above calculation, the amount is now payable to the claimant is Rs.1,97,000/- with 9% interest per annum. Consequently, amount of Rs.59,500/-, with accrued interest if any, is required to be refunded to the Insurance Company. Accordingly, the Insurance Company is entitled to get back the said amount. Remaining amount which is lying in the FDR, with accrued interest, is required to be paid to the respondent – claimant, which will meet the ends of justice.
In view of above, the following order is passed.
6.1 The present appeal is partly allowed to the aforesaid extent, with no order as to costs.
6.2 It is held that the claimant is entitled to get total compensation of Rs.1,97,000/- with 9% p.a. interest from the date of filing the claim petition.
6.3 Since the appellant – Insurance Company has deposited the entire awarded amount before the Claims Tribunal, it is ordered that the Tribunal shall refund Rs.59,500/- back to the Insurance Company, with accrued interest thereon if any, from the total deposit, as noted hereinabove.
6.4 The Tribunal is directed to disburse the rest of the amount lying with it and/or in the FDR, pursuant to the interim order(s) of this Court if any, along with accrued interest thereon, to the claimant, by account payee chequen, after proper verification and after following due procedure, within a period of six weeks from the date of receipt of the copy of this order.
6.5 Record and proceedings be sent back to the concerned Tribunal, forthwith.