(1.) Feeling aggrieved and dissatisfied by the judgment and award dated 16.4.2004 passed by the Motor Accident Claims Tribunal (Aux.), Kutch at Bhuj in Motor Accident Claim Petition no.696 of 1999, First Appeal no.2132 of 2004 is preferred by the insurance Company and First Appeal no.954 of 2005 is filed by the original claimants for enhancement under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act" for the sake of brevity). Both the appeals relate to same accident and both the appeals arise out of the same judgment and award and hence, both the appeals are heard together and are dealt with and disposed of by this common judgment and order.
(2.) Following facts emerge from the record of the appeals:- That, the accident took place on 25.5.1999 at about 3:00 hrs. near Dabda S.T. bus stop abutting on Anjar Bye-pass on Bhuj-Anjar Road. As per the original claimants, the deceased was travelling from Bhuj to Unjha in tempo bearing registration no. GJ-12 V-6437, which was driven by one injured. According to the original claimants, the tempo was being driven by the driver on the left side with moderate and controllable speed in accordance with the traffic rules. When the tempo reached near Dabda S.T. bus stop, another tempo bearing registration no. GJ-12 - V-6212 being driven in a rash and negligent manner with excessive speed came from the other side and as the driver of the said tempo lost his control dashed and collided with the tempo bearing registration no. GJ-12 - V-6437, because of which, the said tempo turned turtle and the deceased sustained serious injuries and died on the spot. An FIR was lodged at the jurisdictional Police Station being Exh.61 and the original claimants preferred a claim petition under Section 166 of the Act and claimed compensation of Rs.51 lacs. Record indicates that in the claim petition, the original claimants have filed an application below Exh.6 under Section 163A of the Act and the Tribunal, by an order dated 23.5.2000, allowed Exh.6 application and awarded compensation of Rs.21,42,500/-. The insurance Company preferred an appeal before this Court being First Appeal No. 2379 of 2000 which was allowed by this Court vide order dated 23.1.2002 directing the original claimants to prefer an application under Section 140 of the Act. However, as the insurance Company had to deposit the amount as granted by an order dated 23.5.2000 passed below Exh.6 and an amount of Rs.8,22,194/- was already disbursed, this Court while allowing the First Appeal of the insurance Company clarified that the amount which is already disbursed in favour of the claimants shall not be disbursed and shall be adjusted against the amount that may be awarded by the Tribunal under Section 140 of the Act and if necessary, be adjusted against the final award and the original claimants were also directed to file an undertaking to that effect. The record indicates that it was the case of the original claimants that the deceased was a grain merchant and commission agent and was also rendering social services in a trust and was aged 29 years and 2 months on the date of the accident. The original claimants adduced oral evidence in form of deposition of the wife of the deceased at Exh.55 and brother of the deceased at Exh.14. The original claimants also examined one eye- witness - Mamad Siddik Juneja at Exh.102 and further relied upon the documentary evidence, such as, FIR Exh.61, inquest Panchnama Exh.63, postmortem note of the deceased Exh.62, copies of the income-tax returns Exhs.65, 66, 69, 70, 73 and 74 and also further relied upon intimation from the Income-Tax Department Exhs.64 and 67. The Tribunal came to the conclusion that the driver of the tempo bearing registration no. GJ-12 V-6212 was solely negligent. Record further indicates that after appreciating the evidence as regards income, the Tribunal assessed the income of the deceased at Rs.25,000/- per month and after deducting one-third towards personal expenses, determined the monthly income of the deceased at Rs.16,667/- and applied 17 multiplier and awarded Rs.34,00,068/- as compensation under the head of loss of future dependency, Rs.50,000/- towards loss of estate and loss of consortium and other conventional heads including funeral expenses and thus, awarded Rs.34,50,068/- with 9% interest from the date of filing of the claim petition till its realization and being aggrieved by the said judgment and award, both the insurance Company as well as the original claimants have preferred these appeals, as aforesaid.
(3.) Heard Mr. Vibhuti Nanavati, learned advocate for the appellant in First Appeal No. 2132 of 2004 and for respondent no.3 - insurance Company in First Appeal No. 954 of 2005 and Mr. Jenil Shah, learned advocate for the original claimants i.e. appellants of First Appeal no. 954 of 2005 and respondents no.1 to 5 in First Appeal no.2132 of 2004. We have also perused the original record and proceedings.