- (1.)THIS appeal is directed against the judgement and award dated 13.06.2008 passed by learned additional District Judge, Gandhidham-Kutch in Motor Accident Claim Petition No.469 of 2006 wherein the Tribunal has awarded a sum of Rs.1,32,500/- along with interest at the rate of 8% per annum from the date of filing of the main petition till the payment is made. This appeal is at the instance of the original claimants for enhancement.
(2.)ON 1.11.2005 one Suresh Haja was proceeding from Gangodar to Sui on his bicycle at about 17.30 hours. At that time a rickshaw came and dashed with the cycle. Suresh fell down and sustained serious injuries and ultimately succumbed to the same. His legal heirs therefore filed the aforesaid claim petition wherein the aforesaid award came to be filed wherein the aforesaid award.
Learned Advocate for the appellant submitted that the Tribunal erred in considering the income at Rs. 2000/-. He further submitted that learned Tribunal has failed to appreciate that the deceased was earning Rs. 40000/- per annum at the time of accident. He submitted that the Tribunal has awarded amount of compensation by wrongly taking the age of the deceased instead of mother. In support of his submissions, he has relied upon decisions of the Apex court in the cases of National Insurance Co. Ltd. vs. Gurumallamma and another reported in 2009(9) SCALE 764 and National Insurance Co. Ltd. vs. Shyamsing reported in AIR 2011 SC 3231.

The Tribunal has gone into the evidence in detail. As regards the income of deceased is concerned, the issue is now well settled by a recent decision of the Apex Court in the case of National Insurance Co. Ltd. vs. Gurumallamma and another (supra)wherein it is held as under:

"8. Multiplier stricto sensu is not applicable in the case of fatal accident. The multiplier would be applicable only in case of disability in non-fatal accidents as would appear from the Note 5 appended to the Second Schedule. Thus, even if the application of multiplier is ignored in the present case and the income of the deceased is taken to be Rs. 3,300/- per month, the amount of compensation payable would be somewhat between 6,84,000/- to Rs. 7,60,000/-. As the second schedule provides for a structured formula, the question of determination of payment of compensation by application of judicial mind which is otherwise necessary for a proceeding arising out of a claim petition filed under Section 166 would not arise. The Tribunals in a proceeding under Section 163 A of the Act is required to determine the amount of compensation as specified in the Second Schedule. It is not required to apply the multiplier except in a case of injuries and disabilities. 9. The Parliament in laying down the amount of compensation in the Second Schedule, as indicated herein-before, in its wisdom provided for payment of some amount which should be treated to be the minimum. It took into consideration the fact that a person's potentiality to earn is highest when he is aged between 25 and 30 years and that is why in case of permanent disability multiplier of 18 has been specified. The very fact that even if the deceased had an income of Rs. 3000/- per month, he being aged about 15 years, would receive a sum of Rs. 60,000/- but if his income was Rs. 40,000/- per annum, his legal heirs and representatives would receive a sum of Rs. 8,00,000/-. In the case if any non-earning person, the notional income has been fixed at Rs. 15,000/- per annum." 4.1 In the case of National Insurance Co. Ltd. vs. Shyamsing (supra), the Apex Court has held that while considering the income of the deceased, the age of the parents is required to be considered. Accordingly, considering the notional annual income of Rs. 24000/- per annum and the age of the mother being 55 years, the datum figure as per the Second Schedule comes to Rs. 240000/-. Deducting 1/3 from the total income for personal living and expenses, the amount of dependency loss per annum shall come to Rs. 1,60,000/- (Rs. 2,40,000- Rs. 80,000). The claimants shall also be entitled to Rs. 2000/- for funeral expenses and Rs. 2500/- for loss of estate. Thus, the claimants shall be entitled to in all Rs. 164500/- by way of compensation whereas the Tribunal has awarded Rs.1,32,500/-. Therefore the additional amount of Rs.32,000/- is required to be paid to the claimants.

(3.)ACCORDINGLY, the appeal is partly allowed. The claimants shall be entitled to additional sum of Rs.32,000/- along with interest at the rate of 7.5% from the date of claim petition till its realisation. The award of the Tribunal is modified accordingly. No order as to costs.