Sayakkanwar Savaisinh Bhati and 2 vs Revashankar Gopalbhai Maharaj and 7

S.H. Vora, J.—Partly aggrieved and dissatisfied with the judgment and award dated 28.02.2006 passed by the Motor Accident Claims Tribunal (Auxi.) Vadodara in M.A.C.P. No. 592 of 2003 by exercising its powers u/s 163A of the Motor Vehicle Act (hereinafter referred as the ''Act''), the appellants (original-claimants) have preferred this Appeal u/s 173 of the Act. In this appeal, the sole question of income assessed by the Tribunal requires to be considered. As noticed by the Tribunal, the claimants have prayed to assess the income of the deceased at Rs. 3,500/- per month. Learned Tribunal did not accept the said income on the ground that the claimants fail to prove certificate issued by the employer. On this ground, the Tribunal has considered the deceased as non-earning person and calculated total compensation of Rs. 2,92,000/- without any specific bifurcating as to how this figure was arrived at.

It is an admitted fact that appellants (original claimants) have filed claim petition u/s 163A of the Motor Vehicle Act, 1988 for claiming compensation as per the structured formula prescribed by the Schedule-II on the principle of "No Fault Liability" for the compensation in respect of the death of Savaisinh Bhati, who died in the motor vehicle accident. The deceased as the husband of the appellant No. 1 and father of the appellants Nos. 2 and 3.

I have heard submission of both the sides and perused the observation recorded by the Tribunal in impugned award. Firstly, it requires to be noted that deceased survived with his wife and two sons and at the time of the accident, he was only earning member of the family. According to the principle laid down by the Hon''ble Apex court in the case of Ranjana Prakash and Others Vs. Divisional Manager and Another, , the notional income of deceased requires to be fixed at Rs. 3,000/- per month. In the instant case, the Court could not found as to how the Tribunal assessed the compensation of Rs. 2,92,000/-. Under the circumstances and in view of the principles which follows from the Order 41 Rule 33 of CPC which enables the Appellate Court to pass any order which ought to have passed by the Trial Court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objection, this power is entrusted to the Appellate Court to enable to do complete justice between the parties. Order 41 Rule 33 of the Code, however can to be pressed into the service to make award effective and to maintain the award on other grounds or to make other parties to the litigation to share the benefits or the liabilities, but cannot be invoked to get on larger or higher relief. In this connection, it may be stated that the Appellate Court while hearing appeal u/s 173 of the Act, it exercises its power to give "just compensation" to the dependents of the family members of the deceased. In the case on hand, the Tribunal has not properly appreciated the fact that the deceased was only earning member in the family. He was maintaining the livelihood of three persons of his family and in that situation, it would be in the interest of justice to infer that the deceased would have been at least earning income of Rs. 3,000/- per month and accordingly the income of the deceased requires to be assessed at Rs. 3,000/- per month.

On perusal of the judgment and award passed by the Tribunal, it appears that the learned Tribunal has assessed income of the deceased approximately at Rs. 2,100/- and thereafter as such while assessing the income of the deceased at Rs. 2,100/- the tribunal has overlooked the important fact that at the time of accident minimum wages payable to the worker was around Rs. 3,000/- per month. Even in absence of other cogent evidence, the Tribunal ought to have determined the compensation in lieu of earning notional annual income of the deceased at Rs. 36,000/- per annum. If we deduct 1/3 amount towards personal expenses of the deceased which the victim would have incurred toward maintenance of himself, the balance amount of Rs. 24000/- per annum would come in the hands of the dependents. At the time of accident, the deceased was 41 years old and therefore, according to the schedule-II u/s 163A of the Act, the proper multiplier would be fifteen (15). Thus, the deceased would be entitled to get compensation of Rs. 3,60,000/-(24000 X 15000). Accordingly, the appellants are entitled to get the amount of Rs. 3,60,000/- under all the head as compensation u/s 163A of the Motor Vehicle Act. In view of the above findings, the award passed by the Tribunal is required to be modified and the compensation amount for which the appellants are entitled requires to be enhanced to the tune of Rs. 3,60,000/- and accordingly, the awards stands modified to the aforesaid extent. Accordingly, appeal is partly allowed with no order as to costs.