1. Feeling aggrieved and dissatisfied by the common judgment and award dated 31.07.2009, passed in the Motor Accident claims Tribunal (Aux) in MACP No. 1198 of 2006, MACP No. 1100 of 2006 and MACP No. 1101 of 2006, the insurance company as well as the original claimants have preferred these appeals under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").

2. All appeals relate to the same accident and all the three claim petitions were clubbed together and were disposed of by a common judgment and award passed by the Tribunal. Before this Court also, all these appeals were heard together and are disposed of by this common judgment and order. The insurance company has filed First Appeal No. 89 of 2010 against the judgment and award rendered in MACP No.1198 of 2006 whereas the original claimants have filed First Appeal No. 560 of 2010 against the judgment and award in MACP No. 1198 of 2006. Similarly, First Appeal No. 90 of 2010 is filed by the insurance company against the judgment and award rendered in MACP No.1100 of 2006 whereas the original claimants have filed First Appeal No.561 of 2010 challenging the same. First Appeal No. 91 of 2010 is filed by the insurance company against the judgment and award rendered in MACP No. 1101 of 2006 whereas the original claimants have filed First Appeal No. 970 of 2010 challenging the same.

3. Following facts emerge from the record of the appeal -

3.1 That the accident took place on 18.06.2006 at about 11.15 AM near Sarkhej-Shantipura Circle near Ring Road. It is the case of the original claimants that the deceased as well as the injured along with other family members were travelling in Qualis vehicle bearing registration No. GJ-6-BA-1035 from Vadodara to Ahmedabad for darshan at Gandhinagar Akshardham Temple and when the Qualis vehicle reached Sarkej Shantipura Circle near Ring Road, a Tata Eicher (mini truck) bearing registration no. GJ-3W7202 came from the other side being driven in rash and negligent manner and in full speed and dashed with Qualis Vehicle because of which, the passengers of the Qualis vehicle Savitriben and her husband Prodhyut Kumar Mandal sustained serious injuries on the head and other parts of the bodies and they succumbed to the injuries. Soma @ Dona Pradhyut Mandal also sustained serious injuries. FIR came to be lodged with Sarkhej Police Station being C.R. No. I-150 of 2006. The heirs of the deceased Pradhyut Kumar Mandal filed MACP No. 1198 of 2006 and claimed compensation of Rs. 1,30,00,000/- under Section 166 of the. It was the case of the claimants that deceased was working as an Engineer in GAIL and had monthly salary of Rs.52,743/- including leave allowance. The heirs of deceased Savitriben filed MACP No. 1101 of 2006 and claimed compensation of Rs. 2,50,000/-. It was the case of the claimants that the deceased was earning Rs. 1,500/- by way of running tuition classes and Rs.1,500/- from household work. The injured claimant filed MACP No. 1100 of 2006 and claimed compensation of Rs. 4,00,000/-. It was the case of the original claimant that she was earning Rs.3,000/- per month by running music class and Rs.1,500/- per month by way of housholed work and thus, it was the case of the original claimant that she was earning Rs.4,500/- per month. Relying upon the evidence as regards injuries sustained in the accident, it was the case of the claimants that she was first referred to Sarkhej Hospital as indoor patient for 28 days and she has acquired permanent disability of the body as a whole to the extent of 40%. In all the three claim petitions, the oral as well as documentary evidence was adduced as under -

Oral evidence

1. Soma @ Dona Prodyut Mandal was examined at exhibits 59 and 60

2. Elveena Isaac at exhibit 76

3. Sachindranath Sarkar at Exh. 63

4. Ashwin Jani at Exh.87

5. Devraj at Exh.83.

Documentary evidence

1. FIR at exhibit 31

2. Panchnama of the scene of offence at exhibit 32,

3. Charge-sheet at exhibit 33,

4. Documents related to treatment undergone by Soma @ Dona Pradyut Mondal at exhibit 34 to 45

5. Permanent disability certificate issued by Dr. Rajiv Deveshwar to the claimant at exhibit 78

6. Inquest panchnama of deceased Prodyutkumar Mandal at Exh.46

7. PM Note of deceased Prodyutkumar Mandal at Exh.47

8. School Leaving Certificate of the claimant at exhibit 48

9. Certified copy of Birth certificate of Punja at exhibit 49

10. Birth Certificate of Diya at exhibit 50

11. Marksheet of deceased at exhibit 51

12. Degree certificate of deceased at exhibit 52

13. Copy of passport and pancard of deceased Podyutkumar at exhibits 53 and 54.

14. Lease allowance letter of claimant issued by GAIL at exhibit 55.

15. PM Note of deceased Savitriben at exhibit 56

16. Copy of School Leaving Certificate of Samarendra Sarkar at exhibit 57

17. Insurance policy of TATA Eicher vehicle at exhibit 90

18. Insurance policy of Quallis Car at exhibit 94.

3.2 The Tribunal after appreciating the evidence on record, and more particularly FIR at exhibit 31, panchnama of the scene of occurrence at exhibit 32, charge-sheet at exhibit 33 as well as oral deposition of Soma @ Dona Prodyut Mandal was examined at exhibits 59 came to the conclusion that the driver of the Eicher Mini truck was negligent for the accident to the extent of 75% whereas the driver of the Quallis car was negligent to the extent of 25%.

After appreciating the evidence on record, in MACP No. 1198/06, the Tribunal considered the income of the deceased Prodyut Mondal at Rs.21,059/- and after considering prospective income, deducted 1/3rd towards personal expense and awarded total sum of Rs. 26,28,288/- as compensation under the head of loss of dependency and awarded Rs. 15,000/- towards loss of consortium, Rs.5,000/- as loss of estate, Rs. 5,000/- as funeral expenses and Rs.5,000/- towards transportation and attendance and thus, awarded total compensation of Rs.26,58,288/-.

After appreciating the evidence on record, in MACP No. 1101/06, considering the notional income of the deceased at Rs.15,000/- per year and deducting 1/3rd towards personal expenses and applying multiplier of 8, awarded a sum of Rs.80,000/- towards loss of dependency, Rs.10,000/- towards loss of consortium, Rs.5,000/- towards loss of estate, Rs.5,000/- funeral expenses and Rs.5,000/- towards transportation charges and thus awarded total compensation of Rs.1,05,000/-.

In MACP No.1100/06, relating to injured claimant Sona @ Dona Mondal, the Tribunal determined the income of the injured claimant at Rs.24,000/- p.a. and considered 40% permanent disability of the body as a whole and applying multiplier of 15, awarded a sum of Rs. 1,44,0000/- towards future loss of income, Rs.10,000/- towards loss of income, Rs.20,000/- towards pain, shock and suffering, Rs.15,000/- towards medical expenses, Rs.5,000/- towards special diet, Rs.5,000/- towards attendant charges and Rs.5,000/- towards transportation charges and thus awarded total compensation of Rs.2,04,000/-with interest at the rate of 7.5% p.a. from the date of filing of the claim petition till its realisation in all the claim petitions. Taking into consideration the conclusion arrived at as regards negligence, the Tribunal while partly allowing the claim petitions, directing that all the opponents are jointly and severally liable to pay the compensation to the claimants with interest and costs. Being aggrieved by the same, the Insurance Company as well as the original claimants have preferred these appeals.

4. Heard Dr. Rushang Mehta, learned advocate for the insurance company in all the claim petitions and Mr. Hiren Modi, learned advocate for the original claimants in all the appeals. We have also perused the original record and proceedings.

5. Mr. Mehta, learned counsel appearing for the insurance company of the Eicher Truch contended that the Qualis Car was being driven in rash and negligent manner and at full speed and therefore, the driver of Qualis Car was more negligent than the driver of Eicher truck. Referring to the deposition of witness Soma @ Dona Prodyut Mandal at exhibit 59, it was contended by Dr. Mehta that the said witness had admitted the fact that the Qualis vehicle was being driven in such a manner that the driver of the Qualis car lost control because of which the accident has occurred. According to Dr. Mehta, the apportionment of negligence is erroneous and the Tribunal has committed an error in appreciating the manner in which the accident has occurred. Dr. Mehta contended that considering the deposition of the eye-witness, the negligence of both the drivers should be assessed at 50:50. Dr. Mehta contended that the Tribunal has committed no error in appreciating the evidence as regards income and has rightly applied the principles governing the grant of compensation under different heads and submitted that the appeals filed by the claimants are misconceived and deserves to be dismissed. On the aforesaid ground, Dr. Mehta contended that the appeals of the insurance company deserves to be allowed.

6. Per contra, Mr.Hiren Modi, learned counsel appearing for the claimants has opposed these appeals. Mr.Modi, learned counsel appearing for the original claimants contended that the accident has occurred solely because of the negligence on the part of the truck driver. Mr. Modi contended that the contention raised by the insurance company that the driver of the Qualis car was also negligent, is nothing but mireading of evidence on record. In First Appeal No.560 of 2010 arising out of MACP No. 1198 of 2006, Mr. Modi contended that the pay-slip of the deceased who was working in GAIL is on record. Upon appreciation of the same, the gross-income of the deceased came to Rs. 41,343/- after considering the deduction as well. It was submitted by Mr. Modi that following the ratio laid down by the Apex Court in the case of Sarla Verma vs. Delhi Road Transport Corporation reported in (2009) 6 SCC 121 [LQ/SC/2009/869] and National Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017 (16) SCC 680, [LQ/SC/2017/1578] as the deceased had four dependents, the deduction towards personal expenses would be 1/4th. It was contended that as the deceased was 42 years old on the date of accident, the claimants would be entitled to 30% prospective income and the appropriate multiplier would be that of 14. Mr. Modi relying upon the judgment of the Apex Court in the case of Satinder Kaur alias Satwinder Kaur and Ors. reported in AIR 2020 SC 3076 [LQ/SC/2020/550 ;] ">AIR 2020 SC 3076 [LQ/SC/2020/550 ;] [LQ/SC/2020/550 ;] , contended that the wife of the deceased would be entitled to spousal consortium of Rs.40,000/- and to minor children would be entitled to parental consortium of Rs.40,000/- each and mother would also be entitled to filial consortium of Rs.40,000/-. Mr. Modi further contended that that in addition to that, the claimants would be entitled to additional compensation of Rs. 15,000/- as funeral charges and Rs.15,000/- towards loss of estate. On the aforesaid grounds, it was contended by Mr. Modi that the appeal filed by the claimants being First Appeal No. 560 of 2010 deserves to be allowed and the appeal filed by the insurance company being First Appeal No. 89 of 2010 deserves to be dismissed.

7. Mr. Modi referring to First Appeal No. 970/10 contended that deceased Savitriben was 55 years old on the date of the accident. Relying upon the oral deposition of one of the claimants, it was contended by Mr. Modi, learned ocunsel for the claimants that the deceased was running a music class and also household work and therefore, appropriate income would be at least Rs.3,000/- per month. It was furthe contended by learned counsel appearing for the claimant that as the age of the deceased was 55 years on the date of the accident, the claimants would be entitled to 10% prospective income and further deduction of 1/3rd towards personal expenses. It was contended that appropriate multiplier would be that of 11. Mr. Modi contended that that over and above the same, the claimants would be entitled to additional compensation of Rs.70,000/- under different conventional heads including funeral charges. On the aforesaid ground, it was contended by Mr. Modi that the appeal being First Appeal No. 970/10 filed by the claimants deserves to be allowed whereas the appeal filed by the insurance company being First Appeal No. 91/10 deserves to be dismissed.

8. Mr. Modi further contended that in First Appeal No. 561 of 2010, the Tribunal has committed an error in determining the income of the injured at Rs.2,000/-. Mr. Modi referring to the evidence on record, contended that the evidence clearly shows that for about 5 months, the injured claimant could not work and thus, there was a loss of income for about 5 months. According to Mr. Modi, the evidence shows, which is not controverted, that the injured claimant was housewife and was running music class over and above the household work. According to Mr. Modi, appropriate income even if notionally determined, should be Rs.3,000/- per month and considering 40% disability, the appellant-claimant would be entitled to enhanced compensation, which would be just and adequate. on the aforesaid ground, it was contended by Mr. Modi that the appeal being First Appeal No. 561 of 2010 filed by claimant deserves to be allowed whereas First Appeal No. 90 of 2010 filed by the insurance company deserves to be dismissed.

9. Mr. H.G. Mazmudar, learned advocate appearing for the other insurance company of Qualis Car submitted that the Tribunal has committed no error in considering the issue of negligence. It was also further submitted by Mr. Mazmudar that the income, which is considered by the Tribunal is proper. Mr. Mazmudar contended that the Tribunal has rightly appreciated the evidence as a whole and has granted just and adequate compensation to the claimants and no modification is required. According to Mr. Mazmudar, the appeals filed by the insurance company of the truck as well as the claimants deserve to be dismissed.

10. No other or further conventions have been raised by the learned counsel appearing for the parties.

11. At the outset, it deserves to be noted that two vehicles are involved in the accident. One is Eicher Truck bearing registration no. GJ-3W-7202 and Qualis bearing registration no.GJ-6-BA-1035. The insurance company of Qualis car has not preferred any appeal and has accepted the award whereas the insurance company of Eicher truck has filed appeals only on the ground of apportionment of negligence. The claimants have preferred these appeals on quantum.

12. The question which arises in these appeals are as under

1) Whether the Tribunal has committed any error in coming to the conclusion that the driver of Tata Eicher was negligent to the extent of 75% and the driver of Qualis car was negligent to the extent of 25% or not

2) Whether the quantum of compensation granted in each claim petition is just and adequate compensation or not

13. Upon examining the point no.1, it would be appropriate to re-appreciate the evidence, exhibit 24. The FIR is lodged by Smt.Soma @ Dona Pradhyut Mandal, who is claimant of Claim Petition No. 1100 of 2006, i.e., wife of deceased. Pradhyut Mandal. Upon re-appreciation of the said evidence, it clearly bornes out that the accident occurred because of the negligence on the part of the driver of the TATA Eicher. Similarly, upon re-appreciation of the evidence at exhibit 25, panchnama of the scene of occurrence, the extent of damage caused to Qualis car is much greater than the TATA Eicher truck. Upon reappreciating the manner in which the accident has occured as per the panchnama, the driver of TATA Eicher truck was more negligent. Even considering the charge-sheet at exhibit 33, it clearly reveals that the charge-sheet is filed against the driver of the TATA Eicher. Even considering the deposition of Ms. Soma @ Dona Pradhyut Mandal at exhibit 59 and cross-examination thereof, there is nothing on record to show that the driver of Qualis car lost control because of which the accident occured. Even on reappreciating the panchnama at ehxhibit 25 and FIR which is lodged by the eye-witness, the contention raised by Dr. Mehta, learned advocate for the insurance company that the accident occurred because the driver of the Qualis car lost control due to high speed does not appear to be correct. Resultantly, we hold that the conclusion arrived at by the Tribunal that the driver of the Eicher truck was negligent to the extent of 75% and driver of Qualis car was negligent to the extent of 25% is correct. Point No.1 is answered accordingly.

14. Now point no.2 in relation to First Appeal No. 560 of 2010-

Upon re-appreciation of the evidence on record and following the ratio laid down by the Apex Court in the case of Pranay Sethi (supra), the net income would mean gross income minus tax. The record indicates that the deceased was working as an Engineer in GAIL. Upon re-appreciation of the evidence in form of pay-slip, the gross monthly income of the deceased on the date of accident was Rs.41,343/- and the tax paid was Rs.8,561/-. Hence, the net income of the deceased was Rs.32,782/-. As the age of the deceased was 42 years old on the date of the accident, the claimants would be entitled to increase in income by way of prospective income to the extent of 30% and as the number of dependents were 4, deduction towards personal expenses of the deceased would be 1/4th and the appropriate multiplier would be that of 14. Following the ratio laid down by the Apex Court in the case of Satinder Kaur alias Satwinder Kaur and Ors. reported in AIR 2020 SC 3076 [LQ/SC/2020/550 ;] ">AIR 2020 SC 3076 [LQ/SC/2020/550 ;] [LQ/SC/2020/550 ;] , Magma General Insurance Company Limited vs. Nanuram alias Chuhru Ram and Ors. reported in (2018) 18 SCC 130 [LQ/SC/2018/1175] and The New India Assurance Co. Ltd. Vs. Somwati and Ors. reported in 2020(9) SCC 644, the wife of the deceased would be entitled to spousal consortium of Rs.40,000/-, whereas two minor children would be entitled to parental consortium of Rs.40,000/- each and mother would be entitled to filial consortium of Rs.40,000/-. In addition to the same, the original claimants would be entitled to Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral charges. Thus, the original claimants would be entitled to compensation under the head of loss of dependency as under

Rs.41,353/- (income p.m.) - Rs.8,561/- (towards tax) = Rs.32,782/- + Rs.9,835/- (30% towards prospective income) = Rs.42,617/- = Rs.10,654/- (1/4th deduction towards personal expenses) = Rs.31,963/- X 12 X 14(multiplier) = Rs.53,69,784/- (Loss of dependency)

Having come to the aforesaid conclusion, the original claimants would be entitled to total compensation as under

underLoss of dependency - Rs.53,69,784/-

Spousal consortium to widow - Rs. 40,000/-

Parental consortium to 2 minor children - Rs. 80,000/-

Filial consortium to mother - Rs. 40,000/-

Loss of estate - Rs. 15,000/-

Funeral expenses - Rs. 15,000/-

Total compensation Rs.55,59,784/-

As the Tribunal has awarded compensation of Rs.26,58,288/- in MACP No. 1198/06, the original claimants would be entitled to additional compensation of Rs. 29,01,496/- with proportionate cost and interest as provided hereunder.

15. In First Appeal No. 970 of 2010, the deceased Savitriben was 55 years old and was doing household work and was running tuition classes. Upon reappreciation of the evidence on record, the notional income of the deceased can very well be determined at Rs.3,000/- per month, i.e., Rs. 36,000/- p.a. As the age of the deceased was 15 years on the date of the accident, the claimants would be entitled to increase in income by way of prospective income to the extent of 10% and 1/3rd of the same shall have to be deducted as personal expenses of the deceased and as per the age of the deceased, the appropriate multiplier would be 11 following the ratio laid down by the Apex Court in the case of Sarla Verma (supra). In addition to that, the claimants would also be entitled to compensation of Rs.70,000/- as compensation under different conventional heads including funeral charge. Having come to the aforesaid conclusion, the claimants would be entitled to compensation under the head of loss of dependency as under

Rs.36,000/- (income p.a.) + Rs.3,600/- (10% prospective income) - Rs.13,200/- (1/3rd deduction towards personal expenses) = Rs.26,400/- X 11 = Rs. 2,90,400/- (loss of dependency)

The claimants would be entitled to total compensation as under -

Loss of dependency - Rs.2,90,400/-

Conventional heads including funeral charges - Rs. 70,000/-

Total compensation Rs. 3,60,400/-

Thus, the original claimants would be entitled to total compensation of Rs.3,60,400/-. AS the Tribunal has awarded Rs.1,05,000/-, the original claimants would be entitled to additional compensation of Rs.2,55,400/- as additional compensation with proportionate cost and interest as provided hereunder.

16. In First Appeal No. 561 of 2010 arising out of MACP No.1100 of 2006, the appellant is an injured claimant. As far as the permanent disability of the body as a whole is concerned, the same is assessed at 40% as agreed between the parties and therefore, the same does not require any modification. However, the Tribunal has committed an error in determining the income of the appellant-claimant at Rs.2,000/-. Considering her evidence at exhibit 59, and even considering the date of the accident as a housewife, the income of the appellant-original claimant can safely be determined at Rs.3,000/- and considering the age of the appellant-claimant to be 31 years, the appropriate multiplier would be that of 16. Upon reappreciation of the evidence on record, this Court is of the opinion that the compensation awarded under the head of pain, shock and suffering, medical expenses, special diet, transportation and attendance does not require any modification. However, as the notional income per month of the injured claimant is determined at Rs.3,000/-, the appellant would be entitled to enhanced amount under the head of actual loss of income. Having come to the aforesaid conclusion, the appellant-claimant would be entitled to total compensation as under -

Rs.3000/- (income) X 40% disability = Rs.1,200/- X 12 X 16 (multiplier) = Rs.2,30,400/- (Future Loss of Income)

Future Loss of income - Rs.2,30,400/-

Actual loss of income - Rs. 15,000/-

Pain, shock and suffering - Rs. 20,000/-

Medical expenses - Rs. 15,000/-

Special diet, transportation and attendant charges - Rs. 15,000/-

Total compensation Rs.2,95,400/-

Thus, the appellant-original claimant would be entitled to total compensation of Rs.2,95,400/-. As the Tribunal has awarded Rs.2,04,000/-, the appellant-original claimant would be entitled to additional compensation of Rs.91,400/- with proportionate cost and interest as provided hereunder.

17. Point No.2 raised in these appeals is answered accordingly.

18. Resultantly, First Appeals No. 89, 90 and 91 of 2010 filed by the insurance company of the Eicher Truck fail and are hereby dismissed.

19. First Appeal No. 560 of 2010 stands partly allowed. The appellants-claimants would be entitled to additional compensation of Rs. 29,01,496/- with 6% interest on the enhanced amount from the date of filing of the claim petition till its realisation with proportionate costs.

20. First Appeal No. 970 of 2010 is partly allowed. The appellants therein would be entitled to additional compensation of Rs.2,55,400/- with 6% interest on the enhanced amount from the date of filing of the claim petition till its realisation.

21. First Appeal No. 561 of 2010 also stands partly allowed. The appellant-claimant therein would be entitled to additional compensation of additional compensation of Rs.91,400/- with 6% interest on the enhanced amount from the date of the filing of the claim petition till its realisation.

22. The Insurance Company shall deposit additional compensation with interest and proportionate cost as per this judgment, in respective appeals, which are partly allowed, within a period of 8 weeks from the date of receipt of this judgment.

23. Rest of the Judgment and Award of the Tribunal stands unaltered. However, there shall be no order as to costs in all the appeals. Record and Proceedings be transmitted back to the Tribunal forthwith.