The main legal point established in the judgment is the binding nature of the decision of the Constitution Bench in Pranay Sethi's case regarding the calculation of compensation and the grant of 'parental consortium' and 'filial consortium'.

JUDGMENT

Bivas Pattanayak, J. - The present appeal is preferred against the judgment and award dated 17 April 2015 (amended by order dated 7 July 2015) passed by learned Additional District Judge cum Judge, Motor Accident Claims Tribunal, 4th court, Alipore, 24-Parganas (South) in M.A.C Case no. 27 of 2010 granting compensation in favour of the appellants-claimants to the tune of Rs.35,01,276/-along with interest @ 9% per annum from the date of filing of the claim application till realisation of the entire amount under Section 166 of the Motor Vehicles Act, 1988.

2. The brief fact of the case is that on 17 February 2010 at about 2.30 hours while the victim was sitting on the driver's seat on stationed motorcycle bearing no. WB-20S-6189 beside the road, at that time the driver of the offending vehicle bearing no. WB-19-2404 (bus) in a rash and negligent manner dashed the said motorcycle as a result of which the victim sustained severe injuries and was removed to the hospital where the attending doctors declared him dead. On account of sudden demise of the victim, the claimants being his legal heirs and representatives filed application under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs. 40,00,000/-along with interest.

3. The respondent no.1-insurance company contested the claim application before the learned tribunal. However respondent no.2-owner of the offending vehicle did not contest the claim application before the learned tribunal and the claim application was disposed of exparte against her. Accordingly, the service of notice of appeal upon respondent no.2-owner of the offending vehicle is dispensed with for the aforesaid reasons.

4. The claimants in order to prove their case examined three witnesses including claimant no.1, wife of the deceased and also produced documentary evidence which is marked as Exhibit 1 to 18 respectively. The contesting opposite party no.2-insurance company (respondent no.1 herein) also produced documentary evidence namely pay slip of the deceased for the month of January, 2010 marked as Exhibit A.

5. Upon considering the materials on record as well as the oral and documentary evidence, the learned tribunal granted compensation in favour of the claimants to the tune of Rs. 35,01,276/-along with interest.

6. Being aggrieved by and dissatisfied with the impugned judgment and award the claimants have preferred the present appeal.

7. Mr Ashique Mondal, learned advocate for the appellants-claimants submitted as follows.

As the deceased-victim at the time of accident was aged 37 years, hence the multiplier to be adopted for calculation of compensation should be 15 as per the observation of Hon'ble Supreme Court passed in Sarla Verma and Others versus Delhi Transport Corporation and Another reported in 2009 ACJ 1298 however the learned tribunal erred in adopting multiplier 16 instead of 15.

Further since the victim was aged 37 years at the time of accident and was on a fixed salary, hence additional amount of 40% of the annual income of the deceased should be taken into account towards future prospect in view of observation of the Hon'ble Supreme Court passed in National Insurance Company Limited versus Pranay Sethi and Others reported in 2017 ACJ 2700.

Moreover as the deceased was married at the time of death, as such in view of Sarla Verma's case (supra) an amount equalling to 1/3rd is to be deducted towards personal and living expenses. However the learned tribunal erred in deducting 1/2 towards personal and living expenses of the deceased.

The learned tribunal has considered the annual income of the deceased as per the income tax certificate (Exhibit 15) of Rs.2,73,023/-. However he failed to consider that such income of the deceased was for the period 1st April 2009 to 17 February 2010 i.e of 11 months and thus the income of the deceased is required to be reassessed adding another one month income to the aforesaid income of the deceased appearing in the income tax certificate. App