ORIENTAL INSURANCE CO LTD Vs. BHANUBHAI ISHWARBHAI MISTRY

JUDGEMENT

(1.) This appeal and the cross objections are directed against the judgment and award dated 13.6.2001 passed by the Motor Accident Claims Tribunal (Aux.), Nadiad in MAC Petition No. 69 of 1999 awarding compensation of Rs.4,84,500/- to respondent Nos. 1 and 2 herein (original claimants) for the death of their son in a motor vehicle accident involving the motor cycle insured by the appellant ? Insurance Company. The award was made in a petition under Section 163A of the Motor Vehicles Act, 1988.

(2.) On 8.6.1999, at about 2.30 AM, on National Highway No. 8 in Kheda District, the deceased was travelling as a pillion rider when an unknown vehicle collided with the motor cycle. The deceased sustained serious injuries and succumbed to the same. The parents of the deceased filed the claim petition for compensation of Rs.7,04,772/-. Both the owner and the Insurance Company (appellant herein) were served with the notice. The Insurance Company filed its written statement resisting the claim and contended that the deceased himself was driving the motor cycle and, therefore, the claim petition was not maintainable. The Insurance Company, however, did not seek permission of the Tribunal under Section 170 of the Act for raising defences other than the statutory defences permissible under the proviso to Section 149(2) of the Act. After recording the case of the claimants that the deceased was a pillion rider and the case of the Insurance Company that the deceased himself was driving the motor cycle, the Tribunal did not give any specific finding, but relying on the decision of a Division Bench of this Court in New India Assurance Co. Ltd. vs. Muna May Basant, 2001 (1) GLR 915, the Tribunal held that the heirs of the deceased driver are also entitled to get compensation under Section 163A of the Act.

(3.) On the question of quantum of compensation, the Tribunal considered the evidence led by the claimants being the salary certificate indicating that the monthly income of the deceased was Rs.4,862/-. Having regard to the decision of the Apex Court in Oriental Insurance Co. Ltd. vs. Hansrajbhai V Kodala, (2001) 5 SCC 175 = 2001 ACJ 827, the Tribunal assessed the income of the deceased at Rs.40,000/- per annum for the purpose of calculation of the compensation. On that basis, after deducting one-third income for the expenses of the deceased, and adopting the multiplier of 18 (as the deceased was 29 years old on the date of the accident), the Tribunal computed the compensation for loss of dependency at Rs.4,80,000/-. Adding thereto, Rs.2,000/- for funeral expenses and Rs.2,500/- for loss to the estate, the Tribunal made the award of total compensation of Rs.4,84,500/- with interest at the rate of 9% per annum from the date of the claim petition till realization.