ORIENTAL INSURANCE CO.LTD v. KAMLESHBHAI MANSUKHBHAI & 1

HONOURABLE MR.JUSTICE KS JHAVERI ================================================= 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 ? ================================================= ORIENTAL INSURANCE CO.LTD. - Appellant(s) Versus KAMLESHBHAI MANSUKHBHAI & 1 - Defendant(s) ================================================= Appearance : MS MEGHA JANI for Appellant(s) : 1, MR RAXIT J DHOLAKIA for Defendant(s) : 1,1.2.1 RULE SERVED for Defendant(s) : 1.2.2, 1.2.3, 1.2.4, 1.2.6, 1.3.1,1.3.2 None for Defendant(s) : 1.2.5 MR GC MAZMUDAR for Defendant(s) : 2, MR HG MAZMUDAR for Defendant(s) : 2, ================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 30/03/2012 ORAL JUDGMENT 1 By way of filing this appeal under Section 173 of the Motor Vehicles Act, 1988 the appellant - insurance company has challenged the judgment and order dated 28th January 2005 passed by the learned Motor Accident Claims Tribunal (Aux.), Surendranagar in MAC Petition No.66 of 1997 whereby the Tribunal has partly allowed the claim petition filed by the claimants. FA/2722/2005 JUDGMENT 2 The short facts of the present appeals are that deceased Janakbhai was going from Sarkhej to Gandhinagar on his scooter on the date of the incident and when reached Thaltej char rasta, his scooter was given a dash by the offending jeep bearing No.GJ.

HH 16 due to which deceased received serious injuries and succumbed to the same. The claimants therefore filed claim petition claiming the compensation of Rs.10 lakhs from the opponents.

The Tribunal has considered the notional income of the deceased at Rs.4,000 and by adding the prospective income, he assessed the same at Rs.6,000 per month. Out of the same, 1/5th amount is deducted towards his personal expenses and thus arrived at Rs.4,800/- and at Rs.57,600 per annum. As the deceased was 40 years, the Tribunal adopted the multiplier of 15 and arrived at Rs.8,64,000/-. Over and above, the Tribunal awarded Rs.50,000 under the head of conventional amount, Rs.10,000 under the head of loss of expectation of life and Rs.10,000 under the head of cremation charges. Thus, in all, a sum of Rs.8,64,000/- was awarded to the claimants against which the present appeal is filed by the appellant-insurance company.

Heard learned counsel for the parties and perused the record. Learned counsel for the appellant contended that the Tribunal has committed an error in assessing the income at Rs.6,000. She has further submitted that the Tribunal committed an error in deducting 1/5th amount towards personal expenses and there should have been deduction of 1/4th.

Learned counsel for the respondents – original claimants have supported the judgment of the Tribunal and submitted that no interference is called for. FA/2722/2005 JUDGMENT

The Tribunal has committed an error in considering 50% increase as prospective income and Looking to the age of the deceased at the most 30% future rise should be considered. Therefore, the income should have been considered at Rs.5200 per month. Further, the Tribunal has committed an error in deducted 1/5th amount as his personal expenditure and it should be 1/4th amount. Therefore, the datum figure would be Rs.3900 per month and Rs.46,800 per annum. Over and above, the claimants are also entitled to Rs.25,000/- under the head of conventional amount and Rs.10,000 towards transportation charges. Thus, in all the claimants are entitled to Rs.7,37,000 as against which the Tribunal has awarded Rs.9,34,000/- to the claimants. Therefore, there is an excess amount of Rs.197,000, which is required to be refunded to the insurance company along with interest and costs.

In view of the aforesaid discussion, the judgment and order of the Tribunal is modified to the aforesaid extent. Appeal is allowed to the aforesaid extent with no order as to costs. *mohd (K.S.Jhaveri, J.)