FA/1149/1999 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1149 of 1999 With FIRST APPEAL No. 1150 of 1999 HONOURABLE MR.JUSTICE KS JHAVERI ========================================= GSRTC - Appellant(s) Versus LINKAN F CHRISTIAN & 3 - Defendant(s) ========================================= Appearance : MR HARDIK C RAWAL for Appellant(s) : 1, MR AS ASTHAVADI for Defendant(s) : 1 - 2. RULE SERVED for Defendant(s) : 3 - 4. ========================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 22/01/2008 ORAL JUDGMENT 1. The above appeals are directed against the common judgement and award dated 30th October 1998 passed by learned Motor Accident Claims Tribunal (Aux.) Court No.13, City Civil & Sessions Court, Ahmedabad in 268 and 269 of 1994 whereby the Tribunal has awarded a sum of Rs.5,72,100/- along with interest at the rate of 12% per annum from the date of application till realisation. 2. The accident in question giving rise to the claim petition took place on 5.5.1994 at about 6.30 pm near Geeta Mandir Road, on the way to Jamlpur Traffic Circle. The deceased Sudhirbhai, who was the husband of respondent no.3 herein, father of respondent no.4 and son of respondent nos.1 and 2 was riding his scooter. At that time the offending S.T. Bus bearing No.GJ-17-2635 driven by its driver came at an excessive speed and dashed with the scooter as a result of which the deceased FA/1149/1999 2/4 JUDGMENT sustained injuries and succumbed to the same. Therefore the original claimants filed Claim Petition being MACP No.268 of 1994 claiming compensation in the sum of Rs.4,00,000/-. The respondent nos.3 and 4, have also filed MACP No.269 of 1994 claiming compensation in the sum of Rs.8,00,000/- in respect of the very same accident. The deceased was husband of respondent no.3 and father of respondent no.4. 3. Both the aforesaid applications came to be consolidated and by common judgement and award dated 30th October 1998 the learned Tribunal partly allowed the claim applications by awarding a sum of Rs.5,75,100/- along with interest at the rate of 12%. The Tribunal has directed that if the amount is not paid within six weeks, the rate of interest would be 15% and further directed that the awarded amount shall be apportioned between the respondents no.3 and 4 on one hand and respondent nos.1 and 2 on the other hand at 70:30. It is against the aforesaid judgement and order of the Tribunal the present appeals have been filed. 4. Learned Advocate for the appellant submitted that there was negligence on the part of the deceased; that instead of deduction of one- third from the income, the Tribunal has deducted only Rs.1000/- and the award of interest at the rate of 15% is illegal. 5. Learned Advocate appearing for the respondent nos 1 and 2 submitted that the Tribunal has considered all the aspects of the matter and has not committed any error and therefore the appeal may be dismissed. Though served none appears for respondent nos.3 and 4. 6. As regards the contention that there is negligence on the part of the deceased, the Tribunal has discussed in detail the evidence with FA/1149/1999 3/4 JUDGMENT regard to negligence and held that the heavier vehicle has to take extra care and caution of the lighter vehicles while driving the heavy vehicle like the offending bus. I am, therefore, in complete agreement with the reasoning given by the Tribunal in respect of negligence aspect. 7. As regards the aspect of loss of income is concerned, the Tribunal has found that the salary of the deceased was at Rs.4045/- and has deducted a sum of Rs.1000/- from the said figure to take the net income of the deceased. However, in view of the settled law, one-third income is required to be deducted from the income of the deceased. If such a deduction of one-third is made the net income would come to Rs.1350. Therefore the take home salary will be Rs.2695/- i.e. Approximately Rs.2700/- and the annual loss would come to Rs.32400/-per annum. Applying multiplier of 15, for which there was no opposition, the total loss would come to Rs.4,86,000/-, whereas the Tribunal has awarded Rs.5,48,000/-. 8. Further, as per the settled law, the Tribunal ought not to have awarded interest at the rate of 15% by way of a condition that if the amount is not deposited within six months the interest should be at 15%. Therefore that part of the award is required to be set aside. 9. In the premises aforesaid, the appeal is partly allowed. It is held that in view of the above discussion, the original claimants shall be entitled to get compensation in the sum of Rs.4,86,000/- instead of Rs.5,75,100/- along with interest at the rate of 12% per annum from the date of the petition till realisation with proportionate costs. The said amount shall be apportioned and disbursed between the claimants/legal heirs at 70:30 basis as directed by the Tribunal. The award of the Tribunal is modified to the aforesaid extent. In case the amount is FA/1149/1999 4/4 JUDGMENT invested and lying in fixed deposit, the excess principal amount i.e. Rs.89,100/- plus interest at the rate of 3% on the amount of Rs.5,75,100/- shall be refunded to the appellant and if the amount is already withdrawn, it will be open to the appellant to recover the same from the claimants. Appeals are allowed to the aforesaid extent. Decree shall be drawn accordingly. No order as to costs. [K.S. JHAVERI, J.] ar