KANAIYALAL BHAGYACHAND Vs. SAUDANSIGH KUKUMSINGH JHAT

JUDGEMENT

(1.) HEARD learned Advocate Mr. Bhargav D. Karia for appellants original claimants and learned Advocate Mr. GC Mazmudar for respondent No. 3 Insurance Company. Respondent NO. 1 is served but no appearance is filed by respondent NO. 1. Respondent NO. 2 has expired during pendency of this appeal. Respondent NO. 2 being owner and respondent No. 3 insurance company being insurer of insured, representing insured. Claim for purpose of court fees made by claimants in this appeal is Rs. 1,43,800. 00. Initially, claim made by claimants before claims tribunal at Junagadh was Rs. 2,00,000. 00.

(2.) PRESENT appeal is filed by appellants for enhancement challenging award passed by claims tribunal at Junagadh in claim petition No. 376 of 1991 below Exh. 36 decided on 2. 8. 1999 wherein claims tribunal has awarded Rs. 56,200. 00 from all respondents jointly and severally together with running interest @ 12 per cent per annum from date of petition till realization with proportionate costs.

(3.) LEARNED Advocate Mr. Karia for appellants submitted that on 27. 3. 1991, at about 12. 30 noon, when deceased Hareshkumar was returning from school on cycle, a truck bearing Registration No. GTJ-5905 driven by opponent NO. 1 belonging to opponent NO. 2 and insured with opponent NO. 3 insurance company came from back side on ST Road and knocked down deceased Hareshkumar, who was studying in Std. 11 at the time of accident. Hareshkumar died on account of injuries sustained in said accident. Therefore, based upon aforesaid facts, claim petition was filed by claimants before claims tribunal claiming compensation of Rs. 2,00,000. 00 from opponents jointly and severally. Claims tribunal awarded compensation of Rs. 56,200. 00 with 12 per cent interest and proportionate costs and, therefore, appellants have filed this appeal for enhancement thereof. Learned Advocate Mr. Karia submitted that claims tribunal has committed gross error in applying law, in not considering facts and evidence on record and in granting compensation of Rs. 56,200. 00 only to appellant for death of their beloved intelligent son who was studying in 11th Standard. He also submitted that claims tribunal has committed gross error in law and considering evidence produced at Exh. 28, 29 and 30 in coming to conclusion that deceased would have earned only Rs. 900. 00 per month. Claims tribunal has committed gross error in not assessing reasonable amount of Rs. 3000. 00 per month as income of deceased Hareshkumar, more particularly when deceased Hareshkumar would have been bread winner for appellants as per evidence at Exh. 40. He also submitted that claims tribunal has committed error in estimating amount of Rs. 900. 00 per month as income of deceased Hareshkumar inasmuch as there is no justification for estimating income only at Rs. 900. 00 as future income of deceased Hareshkumar and granting Rs. 300. 00 p. m. as dependency benefits while deducting 2/3rd. As per his submission, multiplier of 12 applied by claims tribunal in case of death of minor boy aged 17 years is also too much on its lower side and claims tribunal ought to have applied multiplier of 15 as per settled law. He submitted that deceased was a minor aged only 17 years at time of accident. He submitted that at least income of Rs. 1000. 00 must have to be assessed with application of 15 multiplier. As per his submission, amount of Rs. 20,000. 00 ought to have been awarded as conventional amount instead of Rs. 10,000. 00. He submitted that claims tribunal has erred in awarding Rs. 3000. 00 only towards compensation of general expenses. Claims tribunal ought to have awarded Rs. 10000. 00 on that count. As per his submission, while calculating at rate of Rs. 1000x12x15, loss of dependency comes to Rs. 1,80,000. 00 and adding Rs. 20,000+ Rs. 10,000, total amount comes to Rs. 2,00,000. 00 but claim was restricted by claimants to Rs. 2,00,000. 00 and same ought to have been awarded by claims tribunal as reasonable and just compensation to claimants and, therefore, award would require interference by this Court to that extent. He also submitted that interest awarded at rate of 12 per cent per annum is also not just and claims tribunal ought to have awarded interest at rate of 15 per cent per annum from date of claim petition till realization. He relied upon decision of apex court in case of New India Assurance Co. Ltd. V/s. Satender and Ors. ,air 2007 SC 324. He also relied upon decision of R. K. Malik and Anr. v/s. Kiran Pal and Ors. , 2009 (8) SCALE 451. He also relied upon recent decision of Karnataka High Court in case of Sesappa Poojary and others v/s. P. K. Karunakara and another,2009 ACJ 2516.