1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Misc. Appeal No.875/2000 (Hansa Bapna and ors. Vs. Kishan and ors.) Date of Order :: 5th August, 2010 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Atul Sharm for the appellants. Mr. Suresh Sharma for respondent No.3. Mr. Praveen Jain for respondent No.6. *** Challenge in this appeal is to the judgment and award dated 18th March, 2000, passed by the Motor Accident Claims Tribunal, Ajmer, whereby the learned Tribunal decreed an amount of Rs.3,28,000/- in favour of the appellant-claimants and against the respondents-non-claimants, jointly and severally, in claim petition No.266/99 (143/1994). Dissatisfied with this amount of compensation, the claimants- appellants have beseeched to enhance the same. 2. An unfortunate accident occurred on 22nd January, 1994 at about 3.15 PM on National Highway No.8 near Mangaliyavas, one kilometer before village Kesarpura. It is alleged that Mahendra Singh, Sunil Bapna, Om Prakash Soni, Jitendra Bhandari, Prakash Chandra Bothra, Rajendra Singh, Surya Prakash Kothari and Kushal Lodha were going by Jeep No. RJ-19-C-2207 from Kishangarh to Udaipur. No sooner did they reach near Village Kesarpura, one Ashok 2 Leyland Truck Trolla bearing registration No.RH-29-B-0459 driven by its driver rashly and negligently, suddenly appeared on the wrong side and dashed against the Jeep, as a result of which the Jeep got damaged and turned turtle. The Driver of the Jeep Bhag Chand and Mahendra Singh Karnavat, Sunil Bafna, Jitendra Bhandari and Omprakash Soni died on the spot and other passengers namely Kushal Lodha, Prakash Bothara, Rajendra Mehnot and Surya Prakash Kothari sustained grievous injuries. On a Parcha Bayan of Kushal Lodha, one FIR came to be registered at Police Station Mangaliyavas. The dependents of the deceased persons and injured persons filed claim petitions separately which were adjudicated by the Tribunal vide common judgment and award dated 18th March, 2000. 3. Heard the learned counsel for the appellants as also the learned counsel for the respondents and carefully perused the relevant material on record. 4. Learned counsel for the appellants canvassed that the deceased Sunil Bafna is survived by his wife and two minor children. He was 30 years and four months old at the time of his death. He was running business and had 1/3rd share in registered firm M/s Madho Singh Ratan Singh situated at Katla Bazar, Madanganj Kishangarh. His monthly income was approximately Rs.10,000/-. Apart this, he was earning Rs.1,000/- more out of 3 agricultural produce. Learned Tribunal ignoring all these facts, considered only the income to be of Rs.2,400/- per month for reckoning the amount of compensation, whereas the Tribunal ought to have considered at least Rs.10,000/- per month to be his income. Secondly, the Tribunal applied the multiplier of 15 only whereas looking to the age of the deceased, the Tribunal ought to have applied the multiplier of 17 as suggested in the second schedule appended to the Motor Vehicles Act, 1988. If we consider the above income and the age of the deceased and reckon the amount of compensation, the same deserves to be enhanced. 5. E-converso, learned counsel for the non-claimant Insurance Co. defended the impugned award and stated the same to be just and proper. 6. Having reflected over the submissions made at the bar and carefully scanned the relevant material on record including the impugned award, it is noticed that the dependents of the deceased Sunil Bafna submitted the Income Tax Returns for the years 1990-1991, 1991-1992 and 1992- 1993 to prove the yearly income of the deceased. These Returns suggest that the deceased was earning Rs.21,165/- in the year 1990-1991, Rs.28,072/- in the year 1991-1992 and Rs.31,077/- in the year 1992- 1993. Learned Tribunal took the average income of these three years and reckoned 4 the amount of compensation towards the loss of dependency. The approach of the learned Tribunal taking the average income of three years is not based on any cogent reasoning and the same seems to be arbitrary. The Income Tax Returns suggest that the income of the deceased was increasing every year. There was no reason to take average income of three years. The Tribunal ought to have based upon the income for the year 1992- 1993 and computed the loss of dependency. Thus, I deem just and proper to consider Rs.31,077/- to be the annual income of the deceased Sunil Bafna. In fatal accident claim cases, the income of the deceased is required to be reduced by 1/3rd in consideration of the expenses which the victim would have incurred towards maintaining himself, had be been alive. 1/3rd income of Rs.31,077/- comes to Rs.10,359/-. If we reduce the 1/3rd income from the total annual income of Rs.31,077/-; it comes to Rs.20,718/-. Undisputably and undeniably, the age of the deceased Sunil Bafna at the time of accident was in between 30-35 years. In the claim petition the dependents are found to have stated the age of the deceased as 30 years and four months, whereas in the postmortem report Ex.P-37, the age has been shown to be 33 years. However, undisputably he was above the age of 30 years and below 35 years. As per the second schedule appended to the Motor Vehicles Act 1988, 5 the multiplier of 17 to be applied for a victim falling in the age bracket of 30-35 years, has been suggested. The Tribunal ought to have applied the multiplier of 17, instead of the multiplier of 15. Thus, the loss of dependency can be computed thus: Rs. 20,718 X 17 = Rs.3,52,206 Thus, the appellants-claimants are entitled to get Rs.3,52,206/- towards the loss of dependency. 7. The Tribunal, apart the amount of compensation towards the loss of dependency, has also awarded the compensation towards consortium, deprivation of love and affection, loss of expectation of life and funeral expenses, which shall remain the same. 8. No other argument has been advanced by either of the parties. 9. In the ultimate analysis the appellants claimants shall be entitled to get Rs.3,92,206/- as compensation from the respondents-non-claimants. 10. For the reasons stated above, the appeal is allowed in part and the impugned award dated 18th March, 2000 stands modified as under: “That the appellants claimants are held entitled to claim Rs. 3,92,206/- from the respondents-non- 6 claimants Nos. 1 to 3, jointly and severally. The appellants claimants shall also be entitled to get interest @ 6% per annum from the date of filing of the claim petition till the amount of compensation is actually realised. 11. Rest of the terms under the impugned award shall remain unchanged.” 12. The impugned award stands modified as indicated here-in-above. 13. There shall be no order as to costs. (MAHESH BHAGWATI)J. Pcg