TATIA, J. - (1.) THIS is an appeal against the award dated 19. 2. 1986 passed by the Motor Accidents Claims Tribunal, Udaipur in Claim Petition No. 198/1981 by which the claim petition of the legal representatives of Deepak Jayantilal Raja, Shri Jayanti Lal and Smt. Vanita, who are father and mother of the deceased-Deepak, was decided by the Tribunal awarding Rs. 56,000/- in favour of the claimant-appellants and against non-applicant Nos. 1, 2 & 3 and rejected the claim against non-applicant Nos. 4, 5 & 6, along with interest @ 10% per annum from the date of filing of the claim petition on the condition that in case the amount will be deposited within three months before the Tribunal to be paid to the claimants, otherwise the claimants will be entitled for interest @ 12% per annum. The costs of the litigation was awarded Rs. 300/ -.
(2.) BRIEF facts of the case are that the deceased-Deepak Jayantilal along with deceased-Bhanwar Lal were travelling in taxi-car No. RST 6171 from Ahmedabad to Udaipur on 2. 6. 1981. At about 5,00 to 6. 00 a. m. , while the car was going on Udaipur National Highway No. 8, a oil-tanker No. 7135 came from opposite side and hit the taxi-car and the passengers travelling in the taxi-car were injured including Deepak and Bhanwar Lal who died. Before death, Deepak was seriously injured and he was taken to the Udaipur Hospital and died on 19. 6. 1981. Replies were filed by the non- applicants and there was counter allegation of rash and negligent driving against each other by the driver of the tanker and driver of the taxi-car. The Tribunal framed issue No. 1 with respect to the whether on 2. 6. 1981 Deepak Jayantilal died due to the rash and negligent driving of vehicle No. 7135 by Ranvir Singh and whether the claimants are entitled for Rs. 2,00,000/ -. In another claim petition No. 1/1982 which was filed by Sujanmal and others due to the death of Bhanwar Lal, the Tribunal framed five issues. The learned Tribunal in both the claim petitions by common order dated 19. 2. 1986 awarded different amounts but this appeal is against only claim petition No. 1981198t. The Tribunal in claim petition No. 198181 decided issue No. 1 in favour of the claimants and also decided issue Nos. 1, 2, 3 & 4 of the claim petition No. 1182 in favour of the claimants and against non-applicant Nos. 1, 2, 3 & 4 holding that there was a rash and negligent driving of the driver of the tanker causing the accident. The Tribunal, while considering the quantum to be awarded to the claimants, held that the deceased might have earned Rs. 500/- per month and he would have incurred Rs. 250/- for himself and, therefore, the claimants deprived of Rs. 250/- per month and, after considering the age of the claimants, applied multiplier of 12 and awarded Rs. 36,000/- on this count. The Tribunal also awarded Rs. 5,000/- for pains and physical sufferings of the deceased, Rs. 3,000/- for medicines and extra diets, Rs. 10,000/- for mental shock and sufferings to the parents and Rs. 2,000/- was awarded as funeral expenses and, therefore, in total Rs. 56,000/ -. It is relevant to mention here that in the claim petition, the claimants stated that the deceased-Deepak was getting Rs. 375/- per month as he was in service of one Eye Surgeon Dr. Duru who was having his private hospital, for the applicant- appellant and he may have copies of the statements but Shri J. S. Bhatt was not having record with him. The Tribunal, thereafter, tried to reconstitute the record and notices were sent but no efforts were made by the parties who were fully aware of the order of this Court dated 2. 7. 1996. The Tribunal sent back the record along with letter dated 25. 11. 1999. In these circumstances, the matter was placed before this Court on 15. 3. 2001 and on that day the case was adjourned. Again it was listed on 17. 5. 2001 and, thereafter, the matter was listed before this Court on 6. 7. 2001. The above facts were taken note of by this Court and this Court made efforts to reconstitute the record by the help of the counsel for the parties and ultimately copies of the statements were obtained from the counsel for the parties on 6. 8. 2001 and thereafter the matter was heard. During pendency of this appeal, the claimants submitted an application requesting to permit the claimants to amend and enhance the original claim amount of Rs. 2,00,000/- to Rs. 4,00,000/- because of subsequent change in law during pendency of the appeal. This application was filed on 14. 5. 200 1. No reply has been filed by any of the respondents to the above amendment application. In this application, it is stated that by amendment Sec. 163-A was added in the Motor Vehicles Act, 1988 on 14. 11. 1994 whereby Rs. 15,000/- per annum has been fixed as notional income or deceased- Deepak was also studying earlier but he left the studies. According to the claimants, the deceased would have earned Rs. 500/- per month. He was of the age of 19 years only at the time of death. In claim petition, the total claim assessed by the claimant was Rs. 4,00,000/-, but the reasons best known to them, they confined their claim to Rs. 2,00,000/- only.
(3.) THE present appeal was filed against the impugned award dated 19. 2. 1986. THE appeal was filed on 21. 5. 1986 and since then the appeal is pending for such a long period and the argument were heard by the learned Single Judge of this Court on 16. 5. 1996. On 2. 7. 1996, the learned Single Judge of this Court directed to reconstitute the record of the Tribunal as it was found that part of the record of the Tribunal was weeded out. THE available record was sent to the Motor Accidents Claims Tribunal on 17. 7. 1996. It is found from the record of the Tribunal that the record was received by the Tribunal on 25. 7. 1996. THE Tribunal by order dated 31. 7. 1996 passed the order to issue notices to the counsel for the parties with a direction that whatever record available with them may be produced before the Tribunal on 8. 8. 1996 so that the record may be reconstituted. Even after service, none of the counsel appeared on 8. 8. 1996, therefore, again notices were issued by order dated 8. 8. 1996. On 23. 8. 1996 Shri J. S. Bhatt, Advocate appeared and stated that the Advocate was coming from Rajkot deemed income for those who are in the category of non-earning persons. It is also stated that if the amount would have been paid to the claimants within the stipulated period it would have increased eight times within a span of 20 years and further submitted that Sec. 163-A, Second Schedule, has been made applicable retrospectively and it is also stated that earning potentialities of the deceased also were worth consideration and, therefore, the amount of the award must exceed even Rs. 4,00,000/ -. THErefore, the claimants claimed that they may be permitted to amend the relief. THE learned counsel for the appellants also relied upon various judgments in support of his contention. Since the prayer of the claimants is on the ground of change in law and the decision given by the Hon'ble Apex Court and this Court, therefore, on the grounds of which enhancement of claim is sought involve no investigation of new fact and hence, instead of permitting amendment of the claim petition, I deem it proper that this subsequent event can be taken note of by this Court while deciding the appeal. Therefore, it is held that the above contention of the learned counsel for the appellants will be considered at the time of arguments while deciding the appeal itself and the subsequent even will be taken note of with respect to the entitlement of the enhanced claim of the claimants. The learned counsel for the appellants vehemently submitted that the amount awarded by the Tribunal is too low and also submitted that the Tribunal has committed serious illegality in not considering the future prospects of earning of the deceased. According to the grounds taken in the appeal, the claimants claimed that if the future prospects of loss of income is considered then Rs. 3,000/- per month should have been taken, as the value of the money has decreased. ;