1 S.B. CIVIL MISC. APPEAL NO.1176/2006 (The New India Assurance Company Ltd. Vs. Smt.Pushpa Bai & others.) Date of Order :: 11th January 2007 HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.Sanjeev Johari for the appellant Mr.N.S.Rajpurohit for the respondents Nos.1 to 3. In this appeal by the insurer against the common award dated 03.05.2006 made by the Motor Accidents Claims Tribunal, Pali insofar it relates to Claim Case No.157/2003 essentially questioning the quantum of compensation awarded, affected parties i.e. the claimants have put appearance in caveat and in view of consensus stated by the learned counsel for parties, the matter is disposed of finally while dispensing with service on other proforma respondent. For awarding compensation on account of accidental death of Jawaharlal, husband of claimant No.1 and father of claimants Nos.2 and 3, said to be about 65 years in age and engaged in mortgage business, the Tribunal has referred to income tax returns of the deceased Ex.44 to Ex.46 for the years 2001-2002 to 2003-2004; has found the returns Ex.45 and Ex.46 having been filed after the demise of the victim Jawaharlal and has noticed the annual income of the deceased shown at Rs.1,14,268/-, Rs.1,01,727/- and 2 Rs.1,07,249 respectively. The Tribunal has also referred to the returns of the HUF of the deceased Ex.47 to 49 for the aforesaid period and has found annual income of HUF having been shown at Rs.98,171/-, Rs.1,09,410/- and Rs.93,034/-. The Tribunal has taken average annual income of the deceased at Rs.1,24,000/- and has further considered loss of income for HUF at Rs.60,000/- per annum. In this manner, the Tribunal has taken the annual income of the deceased at Rs.1,84,000/- and deducting one-third therefrom and with application of multiplier of 5, has assessed pecuniary loss at Rs.6,15,000/-. The Tribunal has further allowed Rs.10,000/- towards funeral expenses, Rs.10,000/- to the claimant No.1 towards loss of consortium and Rs.10,000/- for claimants Nos.2 and 3 for loss of love and affection of their father; and, therefore, has assessed total loss at Rs.6,45,000/- and has held the claimants entitled for the award for remaining amount after adjusting the amount received under 'No Fault Liability' with interest at the rate of 6% per annum from the date of filing of claim application. The insurer has assailed the award aforesaid being highly exorbitant and excessive and being against settled legal principles. On the matter being taken up for motion hearing, Mr. N.S.Rajpurohit learned counsel appearing in caveat for the claimant-respondents Nos.1 to 3 in all fairness 3 conceded that the award on its quantification of compensation stands on a higher side and submitted that the same may be re-stated while allowing compensation to the claimants in the sum of Rs.5,00,000/- with interest at the rate of 6% per annum from the date of filing of claim application. Learned counsel Mr.Sanjeev Johari appearing for the appellant-insurer, on instructions, and in equal fairness has agreed to the proposition put forward by Mr. Rajpurohit and submitted that the award may be suitably modified. Learned counsel for the parties have placed on record the terms of settlement arrived at between the parties for suitable modification of the award. Having examined the impugned award, this Court is satisfied that the figure arrived at by the parties in consensus remains that of just compensation admissible in this case and the award deserves to be modified accordingly. The deceased was about 65 years in age and major part of the earning has been shown from business income with the deceased being engaged in mortgage business. Average annual income of the deceased as taken by the Tribunal at Rs.1,24,000/- is not compatible with the income shown in the return Ex.44 and not even with the returns Ex.45 & Ex.46 that were ruled out of consideration by the Tribunal. Then, the estimate of loss to HUF income at Rs.60,000/- per annum is also much on the higher side. In view of the business the HUF 4 of the deceased was said to be engaged in, a large of the income obviously retains itself to the claimants and cannot be considered towards loss. Having regard to the facts and circumstances of the case, this Court is of opinion that the assessment by the Tribunal of the annual income of the deceased at Rs.1,84,000/- is excessive than a reasonable estimate. If the average income of the deceased is taken at about Rs.1,15,000/- per annum on the basis of return Ex.44 and a component of HUF income is provided at Rs.30,000/- per annum and one-third is deducting therefrom on the personal expenditure of the deceased, the average annual loss for the claimants stands at about Rs.96,700/- that could be capitalized by a multiplier of 5 leading to the figure of pecuniary loss at about Rs.4,83,500/-. Adding reasonable component of non-pecuniary loss as well as funeral expenses, this Court is of opinion that amount of Rs.5,00,000/- settled by the parties in consensus represents the amount of just compensation. The award made by the Tribunal in the sum of Rs.6,45,000/- obviously stands in excess of reasonable compensation allowable in this case. Therefore, the amount of Rs.5,00,000/- agreed to by the parties deserves to be allowed as just compensation and after deducting Rs.50,000/- already paid towards No Fault Liability, the claimants shall be entitled for an amount of 5 Rs.4,50,000/- with interest at the rate of 6% per annum from the date of filing of claim application. Accordingly, this appeal succeeds to the extent indicated above and with the consent of parties, the award is modified and re-stated allowing compensation in the sum of Rs.5,00,000/- to the claimants who shall be entitled to the remaining amount of Rs.4,50,000/- with interest at the rate of 6% per annum from the date of filing of claim application. The insurer-appellant shall deposit the remaining amount payable under the modified award within 30 days from today with the Tribunal and the Tribunal shall proceed with apportionment and disbursement in the manner and proportion as contemplated by the impugned award. There shall be no order as to costs of this appeal. (DINESH MAHESHWARI), J. MK