Jayant Patel, J.:— The present appeal is directed against the judgment and award passed by the Tribunal in MACP No. 708/02, whereby the Tribunal has awarded compensation of Rs. 18,59,200 with interest at the rate of 9% p.a
2. The short facts of the case are that deceased Raj, son of the claimant, was proceeding to Isanpur from Uttamnagar on 12.07.2002 at about 3.00 pm on Kinetic scooter and at that time, when he reached near Bhduvatnagar bus stand near Yamunaji ni Haveli road, one truck bearing registration no. GQA-7215 came from behind and dashed with the scooter and the deceased had fallen down and he sustained injury and ultimately, he succumbed to the injury. Such gave rise to the claim petition being MACP No. 708/02 for the compensation of Rs. 28,73,000. The Tribunal at the conclusion of the claim petition, passed the above referred judgment and award. Under the circumstances, the present appeals before this Court.
3. We have heard Mr. Shelat, learned counsel for the insurance company and Ms. Acharya for the original claimants. It may be recorded that the claimants have preferred First Appeal No. 1064/05 for enhancement of the compensation whereas the insurance company has preferred First Appeal No. 1555/05. Therefore, we find it proper to refer the name of the parties as Insurance Company and/or claimants, as the case may be, instead of appellants or respondents in the present judgment hereinafter.
4. The first contention raised by the learned counsel for the insurance company was that the Tribunal has committed error in attributing contributory negligence to the driver of the scooter to the extent of 20% only. It was submitted that the deceased who was driving the scooter had contributed to a large extent more particularly when the Tribunal found that the story of hitting from the backside was unbelievable. It was also submitted that the panchnama, if considered, would go to show that the deceased who was driving the Kinetic scooter was equally responsible for the accident and contributory negligence would be of 50% or in any case more than 20% and the Tribunal has not considered the said aspect properly and therefore, this Court may consider in the present appeal.
5. It is true that the story of hitting the scooter from the backside is found to be not believable by the Tribunal. However, in order to consider the said aspect further, we have considered the panchnama which is a part of the record and the panchnama shows that the damage to the Kinetic scooter is more in comparison to the damage to the truck. So far as the truck is concerned, only a small round spot is found on the front side. Whereas the whole body of the Kinetic is smashed. The another pertinent aspect is that there are 20 ft. tyre marks found of the truck over the road. Such shows that the truck must have been driven in excessive speed and as a result thereof, after the accident, the truck has moved for 20 ft. further even after application of the brake by the driver. In any case, the truck being a vehicle of large size in comparison to the Kinetic scooter, the driver of the truck was required to be more careful. In our view taking into consideration the said aspect, if the Tribunal has taken the view that the contributory negligence to the driver of the truck could be attributed to 80% and the driver of the scooter to the extent of 20%, such view cannot be said to be unreasonable which may call for interference in exercise of the appellate power. Hence, the said contention fails.
6. The learned counsel for the insurance company next contended on the aspect of quantum and in our view, the said contention deserves consideration.
7. It was submitted that after assessing the income of the deceased at Rs. 18000 who was unmarried, the Tribunal has deducted only 1/3rd of the amount towards personal expenses and 2/3rd of the amount has been considered for dependency benefit. Not only that, but the multiplier of 16 has been applied though as such, the Tribunal while applying the multiplier, was required to consider the age of the parents and not the age of the deceased. It was submitted that the principles laid down by the Apex Court in Sarla Verma v. Delhi Transport Corp. reported at (2009) 6 SCC 121, has not been taken into consideration.
8. Whereas, the learned counsel for the claimants while supporting the quantum awarded by the Tribunal submitted that 1/3rd of the amount in normal circumstances is to be excluded for personal expenses and therefore, the remaining amount is to be considered towards dependency benefit. She also submitted that the multiplier is rightly applied. However, the learned counsel for the claimants is unable to show any different view of the Apex Court than the view taken in Sarla Verma (supra).
9. It may be recorded that in the decision of the Apex Court in the case of Sarla Verma (supra), for the unmarried person or bachelor, the observations have been made by the Apex Court at paragraphs 31 and 32 which reads as under:
“31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father.
32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.”
10. The aforesaid shows that 50% deduction is required to be made towards personal and living expenses of a bachelor and the contributory and dependency benefit is to be considered to the extent of 50% only. Further, when the dependents are father and mother or parents, their age is to be considered for the purpose of considering the multiplier to be applied for awarding compensation. If the above referred principles are taken into consideration on the premise that Rs. 18000 per month was the income assessed of the deceased, after deduction of the 50% of the amount towards personal expenses of Rs. 9000, the remaining Rs. 9000 would be required to be considered for the purpose of dependency benefit. Accordingly, such an amount would come to Rs. 1,08,000/- p.a Further from amongst the claimants, mother was aged 47 years and as per the decision of the Apex Court in the case of Sarla Verma (supra), the appropriate multiplier would be 13 and not 16 as awarded by the Tribunal. If the multiplier of 13 is applied, the amount of dependency benefit would come to Rs. 14,04,000 and not 23,04,000 as considered by the Tribunal.
11. The Tribunal has additionally awarded Rs. 15000 towards love and affection plus Rs. 5000 towards funeral charges, total Rs. 20000, to which we are not inclined to interfere. Consequently, the total amount would come to Rs. 14,24,000. Out of the said amount, as 20% is considered as the contributory negligence, such amount would come to Rs. 2,84,800, if deducted from the aforesaid total of Rs. 14,24,000, the net amount would come to Rs. 11,39,200 as against the amount of Rs. 18,59,200 awarded by the Tribunal.
12. In view of the aforesaid observations and discussions, the amount of compensation as awarded by the Tribunal deserves to be reduced and the judgment and award passed by the Tribunal deserves to be modified to that extent.
13. Hence, it is observed and held that the original claimants shall be entitled to the compensation of Rs. 11,39,200 plus interest at the rate of 9% p.a from the date of claim petition until the amount is realised or deposited in the Court.
14. Appeal of the original claimants being First Appeal No. 1064/05 is dismissed. Appeal of the Insurance Company being First Appeal No. 1555/05 is allowed to the aforesaid extent. Considering the facts and circumstances, no order as to costs.
15. The Tribunal shall give the effect to the order after considering the amount already deposited pending the appeal including the investment made. The refund of the appropriate amount shall be made to the Insurance Company preferably within a period of four weeks from the receipt of the judgment of this court.
16. If the amount of Rs. 25000 is lying with this Court, the same shall be credited of and be transmitted to the Tribunal. R & P to be returned back to the Tribunal.