FA/4312/2007 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4312 of 2007 With CIVIL APPLICATION No. 11105 of 2007 In FIRST APPEAL No. 4312 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE D.H.WAGHELA ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== UNITED INDIA INSURANCE CO. LTD. Versus NANDKISHOR VISHNUDAS SADHU AND OTHERS ====================================== Appearance : MR MAULIK J SHELAT for Appellant. MR HARSHIT S TOLIA for Respondent Nos.1 - 2. RULE SERVED for Respondent Nos.3 - 4. ====================================== CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 19/02/2008 ORAL JUDGMENT 1. This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, "the Act") was restricted to challenging the appellant's FA/4312/2007 2/3 JUDGMENT liability to the extent of Rs.3,80,000/- and the appeal was pressed only for reducing the amount of compensation awarded by impugned order dated 27-12-2006 of MACT, Patan in MACP No.5439 of 2002. There was no dispute about the facts that the deceased son of the original claimant - parents was killed in motor accident which happened on 29- 12-1995 while the deceased was travelling as a cleaner in the ill-fated truck. According to the evidence led before the tribunal, by way of an affidavit of his father, the deceased was paid Rs.2,000/- by way of salary and Rs.50/- per day by way of allowance. It was admitted in his cross- examination that the only evidence in support of income was an undated certificate issued by the employer, and that he was employed only since one month. Accepting that evidence in toto, the tribunal calculated monthly income of the deceased to be Rs.3,000/- and considering prospect of future rise in income, the monthly dependency benefit was considered to be Rs.4,500/-. Deducting therefrom 1/3rd towards his own expenditure and applying multiplier of 17 to 36,000/-, total Rs.6,12,000/- was awarded towards dependency benefit. 2. Learned counsel, Mr.Shelat appearing for the appellant vehemently argued that monthly income of the cleaner in the year 1995 could not have been assessed at Rs.3,000/-, particularly in absence of proper evidence and multiplier of 17 could not have been applied in view of age of the claimants. Learned counsel, Mr.Tolia appearing for the original claimants submitted that the parents were still alive and the calculation of dependency benefit was based upon the evidence led before the tribunal. Learned counsel, Mr.Tolia relied upon judgment of the Apex Court in Fakeerappa and Another v. Karnataka Cement Pipe Factory and Others [2004 (1) Supreme 1059]. 3. It was clear from the record that the mother of the deceased was aged 45 years at the time of accident and evidence of monthly income of FA/4312/2007 3/3 JUDGMENT the deceased was not sufficient to base the calculation of dependency benefit or to guess future rise in income. In any case, the deceased was admittedly unmarried and large portion of his income would have been spend on his own expenditure, if he were alive and would have married in due course. 4. In the above facts, annual income of the deceased is required to be accepted to be Rs.24,000/- as suggested by learned counsel Mr.Shelat. Applying multiplier of 15 and deducting 1/3rd of the income in consonance with the Second Schedule to the Act, the figure of Rs.2,40,000/- could be arrived at. If that amount were invested in fixed deposit, it would fetch nearly the same amount of interest as would be the income of the deceased. Adding thereto uncontroverted amount of Rs.25,000/- towards shock and suffering and funeral expenditure and adding thereto Rs.35,000/- towards loss to the estate, total sum of Rs.3 Lacs could have been awarded at the most in the peculiar facts of the case. 5. In the facts and for the reasons discussed hereinabove, the impugned award is modified to the extent that the respondent – claimants shall be entitled to total compensation of Rs.3 Lacs with interest at the rate of 9% from the date of application till the date of payment and cost. Remaining part of the impugned order remains intact. Appeal stands partly allowed accordingly with no order as to costs. Civil Application for stay does not survive and stands disposed and Rule issued therein stands discharged with the clarification that the amounts deposited by the appellant in excess of the amount due under this order shall be refunded to it. (D.H.Waghela, J.) /malek