The assessment of compensation under section 166 of the Motor Vehicles Act should consider the deceased's notional income and future prospects to place the dependents in the same position as they would have been if the breadwinner had not been lost in the accident.

JUDGMENT

N.J. Jamadar, J. - This appeal is directed against a judgment and award in Application No.288 of 2005 dated 27th February 2013, passed by learned Member, Motor Accident Claims Tribunal, Mumbai (Tribunal'), whereby the compensation of Rs. 3,20,000/- was awarded under section 166 of the Motor Vehicles Act, 1988 ('MV Act') in respect of the death of Digesh Mulchand Shah, the deceased son of the appellants-original applicants. (The parties hereinafter are referred to in the capacity, they were arrayed before the learned Member, Tribunal).

2. Shorn of unnecessary details, the background facts leading to this appeal can be stated as under :

Digesh, the deceased son of the applicants, then 24 years of age, was on his way to Mumbai in a car, alongwith a friend. When they reached village Waliv near Vasai, a truck bearing No. GJ-15-X-8541 ('offending vehicle'), owned by opponent No.1,driven by opponent No.2, and insured with opponent No.3, came in a high speed and gave dash to the deceased's car. The deceased and his friend sustained injuries in the accident. The deceased was pronounced dead on admission at Agarwal Hospital. The deceased was dealing in a business and used to earn Rs.2,00,000/-per annum. The applicants were totally dependent on the income of the deceased. Hence, the applicants preferred application for compensation under section 166 of the M.V. Act.

3. The opponent Nos.1 and 2 did not appear, despite service of notice. Hence, the application proceeded ex-parte against opponent Nos.1 and 2. The opponent No.3-insurer resisted the application by filing written statement (Exh.13). The material averments in the application adverse to the interest of the insurer were denied. It was contended that the driver of the offending vehicle was not at fault and the impact occurred on account of the negligence on the part of the driver of the car.

4. The learned Member of the Tribunal recorded the evidence of Mulchand Shah (AW-1), the applicant No.1. After appraisal of the oral evidence and the documents tendered for perusal, the Tribunal returned the finding that the accident occurred due to rash and negligent driving of the offending vehicle by the opponent No.2 and the deceased died on account of the injuries sustained therein. The Tribunal assessed the loss of dependency, by reckoning the notional income of the deceased at sum of Rs.3,000/- per moth. Deducting towards personal and living expenses, and applying the multiplier of 17', the loss of dependency was determined at Rs.3,06,000/-. Sums of Rs.4,000/-, towards funeral expenses, and Rs. 10,000/-, towards loss of love and affection were added, to award, total compensation of Rs.3,20,000/-.

5. Being aggrieved by and dissatisfied with the quantum of compensation, the applicants are in appeal.

6. I have heard Mr.Gaurav Parkar, the learned counsel for the appellants and Mr. Saumen Vidyarthi, the learned counsel for respondent No.3-insurer. With the assistance of the learned counsels for the parties, I have perused the material on record.

7. Mr. Parkar, the learned counsel for the appellants canvassed a three-pronged submission. Firstly, the Tribunal committed an error in assessing the income of the deceased on notional basis. In the face of the uncontroverted facts that the deceased was dealing in a business and was an income-tax assessee, the income of the deceased could not have been assessed on notional basis. Even the notional income was reckoned at a much lower threshold of Rs.3,000/- per month. Secondly, no addition was made towards future prospects. Considering the fact that the deceased was only 24 years of age, it was incumbent upon the Tribunal to add at least 50% of the established/notional income towards future prospects. Thirdly, the Tribunal wrongly applied the multiplier of' 17' instead of' 18'.

8. Mr. Parkar further urged that in the face of the material on record and th