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Judgment
R.M.Chhaya, J
Learned advocate for the appellant does not press the note for speaking to minutes with a liberty to file appropriate proceedings. Present note for speaking to minutes is disposed of as not pressed with above liberty.
Ilesh J. Vora, J
This appeal under Section 173 read with Section 166 of the Motor Vehicle Act, 1988 (hereafter referred to as 'the act' for short) is filed by original claimants, assailing the judgment and award dated 23.10.2018 in Motor Accident Claim Petition No. 939 of 2006 passed by Motor Accident Claim Tribunal (Main) Vadodara (for short 'the Tribunal') seeking enhancement of compensation.
Heard Mr. R.G. Dwivedi, learned advocate for the appellants and Mr. G.C. Mazmudar, learned advocate for respondent no. 3 - The New India Assurance Co. Ltd.. Though served, no one appears for respondent no. 2. Perused the case records and proceedings supplied by counsel of respective parties.
Following facts emerged from the record of the Appeal:
3.1 That on 13.4.2006 at about 10.00 a.m., alleged accident was arose. Deceased Hiral Bansibhai Patel had gone for his interview with Littleberg Offset Company riding upon his motor-bike bearing registration No. GJ-6-AK-5955 and while passing on road, while reaching near village : Khatamba at the outskirt of Vadodara, a truck bearing registration No. GJ-6Y- 7328 proceeding towards Waghodia village had come and dashed the motorbike, while overtaking the vehicle, as a result of this impact, deceased Hiral sustained fetal injuries and died on the spot. The FIR being I.CR. No. 44 of 2006 came to be lodged at Varnama Police Station. It is alleged that said accident occurred due to rash and negligent driving of the driver of the truck.
3.2 It is further case of appellants that deceased Hiral aged about 23 years and was working with private firm having qualification of Mechanical Engineer, obtained decree from South Gujarat University and had also cleared entrance test of M.B.A. and was also doing the work in computer designing. It is further case of appellants that in the year 2005-2006, deceased was working with Bhavani Engineers with monthly salary of Rs.6500/- and was selected and appointed for the post of Quality Controller- cum-Production Engineer at monthly salary of Rs.10,500/- with additional conveyance allowance of Rs.2100/-. Deceased was also doing tuition work and other livelihood works and was earning Rs.12,000 to 15,000.
3.3 The appellants filed claim petition before the Tribunal under Section 166 of the Act claiming compensation of Rs.25,00,000/- (Rs. Twenty Five Lakh only), wherein, the Tribunal partly allowed the claim petition and awarded compensation of Rs.13,41,700/- along with cost and interest at the rate of 9% p.a from the date of filing of claim petition till its realisation.
Being aggrieved by and dissatisfied with said compensation, the appellants have filed present appeal for enhancement of compensation.
Learned counsel Mr. R.G. Dwivedi for the appellants has contended the following main grounds.
5.1 That the Tribunal has not appreciated evidence on record properly and has committed an error in determining the income of deceased at Rs.7850/- p.m.
5.2 That the Tribunal has also erred in not awarding any amount towards love and affection to appellants' parent.
On the above mentioned grounds, learned counsel for the appellants has submitted that impugned judgment and award be modified / altered by allowing this appeal.
Per contra, Mr. G.C. Mazmudar, learned advocate appearing for respondent no. 3 - The New India Assurance Co. Ltd., has supported the impugned judgment and award and further contended that learned Tribunal has properly calculated the income of deceased and has rightly awarded compensation, which is just and proper and does not require any modification.
On above mentioned contentions, learned counsel for respondent no. 3 has submitted that, present appeal being meritless, deserves to be dismissed.
No other or further submissions have been made by learned counsels for the parties.
Having considered the submissions made and on perusal of records and proceedings, as far as income of deceased is concerned, learned Tribunal has not followed the observation made by Apex Court in case of National Insurance Co. Ltd. Vs. Pranay Sethi & ors.. The record indicates that deceased was regularly paying the income tax return and income tax returns for the year 2005-06 and 2006-07 were produced by the appellants and they are at Exh. 50 and 51. The income of deceased for the year 2005-06 was Rs.91,107/- and for the year 2006-07, Rs.1,18,227/-. The Tribunal has considered the income shown in the return but amount is calculated on the basis of average annual income i.e. total amount for two years i.e. 2,09,334/- divided by 2 = Rs.1,04,667/- having been considered. We are of the view that the annual average income considered by the Tribunal is against the observation of Apex Court in case of Pranay Sethi (supra). The Apex Court has observed that in case of fetal accident, last proved income shall have to be considered for determination of just amount of compensation.
In view of above, the Tribunal while awarding the amount under the head of dependency loss, has committed an error while taking into account the average income of deceased. Therefore the last income for the year 2006-07, as reflected in the income return Exh. 51 at Rs.1,18,227/- would be taken into account for the purpose of redetermination of amount under the head of dependency loss. Thus, Rs.1,25,000/- yearly income of the deceased is being accepted as the deceased was also doing other works, as stated by witness Kiritbhai Jashubhai Exh. 30.
The total compensation payable to the claimants is computed as under:
Rs.1,12,500=00 Income (Rs.1,25,000-12,500 (10%)Income Tax
Rs. 56,250=00 Percentage increased towards future prospect
===========
Rs.1,68,750=00 Total Income Rs. 84,375=00 50% deduction
===========
Rs. 84,375=00 Income after deduction X 18 Multiplier
=========== Rs.15,18,750=00
+ Rs. 30,000=00 under conventional head
+ Rs. 40,000=00 under Filial consortium
============
Rs.15,88,750=00 Total amount of compensation
As the Tribunal has awarded total compensation of Rs,.13,41,700/-, the appellant would be entitled to get additional amount of Rs.2,47,050/- (Rs.15,88,750-Rs.13,41,700/-) with proportionate costs and interest at the rate of 9% p.a. from the date of filing of claim petition till its realisation.
Hence, present appeal is partly allowed. The judgment and award dated 23.10.2018 passed by learned Motor Accident Claim Tribunal (Main), Vadodara, in Motor Accident Claim Petition No. 936 of 2006 stands modified to the aforesaid extent. Rest of the judgment and award remains unaltered. It is directed that respondent no. 3 - The New India Assurance Co. Ltd shall deposit additional amount of Rs.2,47,050/- before the Tribunal within a period of 3 months from the date of receipt of this order. Direction of the Tribunal as to the manner of disbursement of compensation to claimants shall also apply to the disbursement of enhanced compensation. Records and proceedings, if any, be remitted back to the concerned Tribunal forthwith.