Mohammad Rafiq, J. - (1.) This appeal has been preferred by claimant-appellants for enhancement of amount of compensation awarded by learned Motor Accident Claims Tribunal, Jaipur, in MAC Case No.892/1988, vide its award 17.06.1992. Learned counsel for the appellant has argued that income of the deceased Gaffar Khan was based on his salary certificate (Exhibit-28) accepted by the Tribunal. The learned Tribunal has considered the monthly dependency of Rs.800/- and, on that basis, computed and awarded the compensation. Shri Ram Singh Rathore, learned counsel for appellants, submitted that deceased Guffar had nine dependents and, according to the judgment of the Supreme Court in Sarla Verma (Smt.) and Others v. Delhi Transport Corporation and Another, (2009) 6 SCC 121, the deduction towards personal and living expenses of the deceased, where the number of dependent family members exceed six, should be one-fifth (1/5th), whereas in the present case, the learned Tribunal has actually deducted 1/3rd, which is the difference between 800 and 175. Learned counsel argued that in the case of Sarla Verma (Smt.) and Others v. Delhi Transport Corporation and Another, Supra, the Supreme Court also held that about 50% can be added to the actual salary by taking note of future prospects. The age of deceased Guffar at the time of his death, was 39 years and therefore he would have certainly progressed in the career in his life time. The learned counsel for the appellants argued that multiplier of 18 has rightly applied. It was also argued that according to Section 95 of the Motor Vehicles Act, 1939, which is to be applied, the liability of the Insurance Company could not be limited to Rs.1,50,000/- only because that principle is applied in the case of employee and not for a third party.
(2.) Learned counsel alternatively argued that even if the liability of the insurance company is restricted upto Rs.1,50,000/- then also, according to Section 96(4) of the Act of 1939, which is in para-meteria with Section 149(5) of the new Act, the insurance company has to pay the entire amount to the claimants and recover the deferential amount from the owner of the vehicle. Learned counsel, in support of his argument, relied on a judgment of the Supreme Court in Oriental Insurance Company Limited v. Cheruvakkara Nafeessu and Others - 2001 ACJ 1.
(3.) Per contra, Shri Ashok Mehta, learned senior counsel for the insurance company, opposed the appeal and argued that the principle laid down by the Supreme Court in Sarla Verma (Smt.) and Others v. Delhi Transport Corporation and Another, Supra, which was the judgment delivered after subsequent point of time, cannot be applied to the cases arising out of the Motor Vehicles Act, 1939. It was argued that dependency was correctly taken at Rs.800/- per month, and that multiplier of 16 should have been applied than 18 as per the second schedule of Motor Vehicles Act. Learned counsel argued that according to Section 95(2)(a) of the Act of 1939, the limited liability would be applicable even in the case of death or bodily injury or damage to any property of third party and therefore not more than that amount could be ordered to be paid.;