JUDGMENT

Navin Chawla, J. (Oral)

1. This appeal has been filed challenging the Award dated 23.07.2018 (hereinafter referred to as `Impugned Award') passed by the learned Motor Accident Claims Tribunal, South-West District, Dwarka Courts, New Delhi (hereinafter referred to as `Tribunal') in MACP No. 735/2016, titled Smt.Sunita & Anr. v. Sh.Rakesh Ranga & Anr. (hereinafter referred to as the `Claim Petition').

2. It is the case of the appellants herein/claimants before the learned Tribunal, that on 19.09.2013, the son of the appellants, namely Mr.Mandeep Saini, was going from Rohtak to Gurgaon in a Maruti Ritz car of his friend bearing no. HR 30L 0027 (hereinafter referred to as the `Offending Vehicle'). The same was being driven by the respondent no. 1 in a rash and negligent manner. As they reached near Reliance Petrol Pump, Jhatikara Mor, the Offending Vehicle struck against a tree and due to the impact, the deceased suffered fatal injuries.

3. The learned Tribunal in the Impugned Award has held that the appellants have proved that the accident had taken place due to the offending vehicle being driven by the respondent no.1 in a rash and negligent manner. The accident resulted in the deceased suffering fatal injuries.

4. As far as the compensation is concerned, the learned Tribunal has awarded the following compensation in favour of the appellants:

S. No.HEADAMOUNT1Loss of dependencyRs. 14,98,788/-2For funeral expensesRs. 15,000/-3Loss of estateRs. 15,000/-TOTALRs.15,28,788/- rounded of Rs.15,29,000/-

Deductions Towards Personal and Living Expenses:

5. The learned counsel for the appellants submits that the learned Tribunal in paragraph 13 of the Award, applying the judgment of the Supreme Court in Sarla Verma (SMT) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, has held that only 1/3rd of the income of the deceased is liable to be deducted from his total income towards the personal and living expenses, however, while calculating the loss of dependency, has erred in deducting 50% of the income of the deceased towards his personal and living expenses. He submits that this inadvertent error is liable to be rectified in appeal.

6. In reply, the learned counsel for the respondent no.2 submitted that the father of the deceased cannot be treated as a dependant. He submits that the father of the deceased was aged around 52 years at the time of the accident. He submits that, in terms of the judgment of the Supreme Court in Sarla Verma (Supra), in the case of a bachelor, unless there is cogent evidence to the contrary showing that the father of the deceased was also dependant on him, it is only the mother who is generally treated as a dependant.

7. In rejoinder, the learned counsel for the appellants submits that the father of the deceased was not employed on the date of the accident. In support, he places reliance on the testimony of the appellant no.1, the mother of the deceased, who appeared before the learned Tribunal as PW-1. He submits that, in her evidence by way of affidavit, the appellant no.1 had stated that the deceased was contributing his entire income for the support of the family. She had also deposed that she and her family members were dependant on the earnings of the deceased son.

8. The learned counsel for the appellant further submits that in her cross- examination recorded on 30.07.2014, PW-1 further stated that the appellants have two more children who are younger to the deceased. He submits that the respondent no.2 did not challenge the testimony of the appellant no.1(PW-1) when she made the above assertions in her cross-examination.

9. He submits that, therefore, the father of the deceased was rightly treated as a dependant and, in fact, there is an error in the Impugned Award inasmuch as the other two children of the appellants should also have been treated as dependant on the deceased and the deduction towards personal and living expenses should have been confined only to 1/4th.

10. I have considered th

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